Full opinion text
MEMORANDUM WOODLOCK, District Judge. Thomas Oses brings this petition for a writ of habeas corpus alleging that his 1977 convictions in the Norfolk County Superior Court for armed assault in a dwelling and kidnapping were obtained in violation of his constitutional rights. He challenges both the decision of the pretrial motions judge to permit him to proceed pro se and the conduct of the ensuing trial by a different judge of the Superior Court. The petition illustrates the prescience of Justice Jackson’s observation that “[t]he responsibility for fair and orderly trial must be carried by the trial judge or hope of attaining it be abandoned.” This is in large part because the trial judge “works in an atmosphere of strife, with counsel, litigants and often witnesses and spectators bitter, biased and partisan; and, if the presiding judge fails of his part, they become demonstrative and disorderly.” Thus, “[sjome of the [very] best trial judges ... [are] distinguished ... [by] wisdom and common sense and a personality that enable[s] them unostentatiously to dominate the courtroom and be master of its proceedings.” The conduct of Judge Mason, the judge presiding over the pretrial matters arising in the state criminal proceeding at issue here, was a journeyman example of the ideal Justice Jackson outlined. With firm and careful competence, Judge Mason addressed the knotty question of self-representation that the defendant-petitioner presented before trial and now challenges in the instant petition. Judge Mason’s full and candid inquiry of the defendant-petitioner fairly resolved the competing policy interests brought into play when a criminal defendant contemplates self-representation. Judge Mason’s conduct provides no basis for the relief Oses seeks. By contrast, the conduct of Judge Chmielinski, the judge presiding over the actual trial of the state criminal proceeding, was the obverse of Justice Jackson’s ideal. Judge Chmielinski did not merely “fail of his part” in that trial, he periodically competed with an obstreperous pro se defendant in an ostentatiously demonstrative undermining of the basic attributes of a fair and orderly proceeding. The record of trial conduct presented to me for review is suffused with an atmosphere of unfairness and deprecation of the defendant. This atmosphere was generated by incidents in which Judge Chmielinski acted out what was at best a grudging and sardonic adherence to the formalities of proper trial procedure without implementing the substance of fair practice. His deficient conduct of the trial was administered in the constitutionally charged context of pro se representation; and the result was a conviction unconstitutionally obtained. Accordingly, relief must be afforded the petitioner. I. On January 11, 1977, a grand jury indicted Thomas Oses, a 19-year-old with a sixth grade education, and codefendant William Sheppard for armed assault in a dwelling and kidnapping. The incidents leading to the indictments in this case occurred on and about December 26, 1976, and Oses and Sheppard were arrested at their conclusion. Oses retained Attorney Melvin Levine to represent him; it appears Attorney Levine had handled a number of motor vehicle cases for Oses in the past. Sheppard, who had been shot during the incident and was in the hospital in serious condition for several weeks thereafter, was represented by court-appointed counsel, Martin Gideonse. Between February and May of 1977, these counsel engaged in various negotiations with the prosecutor, Robert Banks, regarding discovery and other pretrial matters. The trial date was initially scheduled for April 20, 1977, but unresolved motions regarding, among other things, pretrial publicity prevented the trial from going forward at that time. The defendants were incarcerated at separate institutions during those months. A. The Decision to Proceed Pro Se On May 9,1977, the defendants appeared before Judge Mason in the Norfolk Superi- or Court, and counsel for both defendants presented motions to withdraw from the case. Oses and Sheppard indicated that they wanted to try the case themselves, and that they wanted time together in order to prepare their defense. There was also some discussion about attempts by Oses to retain another attorney, Frank Kelleher, to represent him in this case. A representative of Kelleher addressed the court at the May 9, 1977, hearing and indicated that Kelleher was representing Oses before the Massachusetts Supreme Judicial Court (“SJC”) on a bail reduction hearing on another case. Kelleher’s representative told the court Kelleher wished to enter an appearance in the case only if the case could be continued to the September session; “[otherwise, the matter should go forward as suggested.” Oses told the court he had not discussed the instant case with Kelleher and that “[t]he only thing Mr. Kelleher and me have agreed on is the fact that he is going to take me to the Supreme Court for bail reduction.” The prosecutor strongly objected to any continuance, accusing the defendants of using “every tactic imaginable to delay the trial of this case.” He indicated that the case had been given high priority by his office and requested a June 6, 1977, trial date. Defense counsel argued that only one prior date had been set, and that numerous valid pretrial motions had been outstanding at that time, some of which were still unresolved. The defendants then renewed their request to defend themselves, stating that they, too, wanted the case tried as soon as possible, so that they could prove their innocence. Judge Mason spoke extensively and pointedly to the defendants, advising them that they were represented by able counsel and cautioning them to think very carefully about dispensing with that representation. Among other things, the judge said, “You know, when you have medical problems, you want to see a doctor. When you have legal problems, you should see a lawyer.” Oses and Sheppard repeated their desire to represent themselves, telling the court they could be ready for trial on June 6th with Attorneys Levine and Gideonse acting as co-counsel. The judge indicated that he would hold the matter over for two days to review the entire file, but that June 6th seemed an appropriate trial date from the information then before him. Two days later, the issue of the June 6, 1977, trial date was again taken up by Judge Mason. After warning the defendants once again about the seriousness of proceeding pro se and the fact that the matters were ready for trial on June 6th, the judge allowed Oses and Sheppard to argue their motion. There was additional discussion about incarcerating the defendants at the same institution so that they could jointly prepare their defense; then, Judge Mason made the following findings: Both counsel have indicated their willingness to be standby counsel in this matter and I am making a finding that each of these defendants have (sic) willingly and intelligently and voluntarily waived his right to have counsel represent him in this matter and they are allowed to represent themselves in this case with both Mr. Levine and Mr. Gideonse as standby counsel. Both defendants then signed waiver of counsel forms, modified, at their request, to provide that the waiver only applied to the trial stage of their cases. A final pretrial hearing was held on May 19, 1977, at which time Judge Mason addressed several unresolved discovery matters and ordered the trial to commence on June 6, 1977. At the May 19th hearing, Oses told the court he thought the trial date of June 6th was too far in the future and asserted that he and Sheppard were ready for trial “any time now.” Expressing the same sentiments, Sheppard asked Judge Mason, “Is there any other date available before June 6?” The judge indicated that there was not. B. The Trial The trial began in the Norfolk Superior Court on June 6,1977, before Judge Chmielinski. Both defendants represented themselves at trial, with Attorneys Levine and Gideonse appointed by the court as standby counsel to assist them. On that day and the next, the judge acted on numerous pretrial motions filed by both defendants. In particular, he denied a motion that Oses be present at and be allowed to participate in bench and lobby conferences, stating that he did not intend to have any lobby or bench conferences, but that “everything [would] be done in the open courtroom wherever possible.” Tr. II, at 12. He also denied Oses’s motion to have freedom of movement during cross-examination. Tr. II, at 10. At times during the trial, Oses conducted his examinations of witnesses while wearing leg irons and, at one point, wrist manacles. Several difficulties were apparent from the outset of the trial. Attorney Levine attempted to withdraw as standby counsel twice on the first day, telling the court that Oses had “threatened” him and warned him not to be present during the trial. Tr. I, at 42-44. When Attorney Levine again informed the judge on the third day that Oses did not want him present, Judge Chmielinski simply responded, “I don’t care what he wants.” Tr. Ill, at 27. During the jury impanelment, there were numerous heated exchanges between Oses and the judge, resulting in a contempt citation for Oses and with a sentence to six months imprisonment imposed in the presence of the jury panel. While it is clear on the record that Oses was being extremely argumentative and making impanelment quite difficult, it appears that the difficulties did not result from his behavior alone. For example, at one point, Oses called the judge’s attention to what he said was some physical and verbal abuse being inflicted upon him by one of the court officers. With the jury panel present, he asked the judge to put a stop to the harassment. Judge Chmielinski responded by telling the court officer in what appears to have been an effort at humor, “Will you please stop harassing them, Mr. Tynan. That is very naughty of you.” Tr. Ill, at 23. Starting during jury impanelment, the judge also began holding conferences in the lobby with only standby counsel present. He continued this practice throughout the trial, despite both the obvious breakdown in the relationship between Oses and his standby counsel and his earlier assurance that he would not be holding such conferences. Eventually, at their request, the defendants were provided with transcripts of the bench and lobby conferences after the conferences had taken place. References to a variety of other incidents that occurred during the presentation of evidence are discussed in greater detail in Part III below. Overall, it is painfully clear from the record that the trial began as a difficult and confusing situation and deteriorated throughout its month-long duration. On the merits, the evidence against the defendants was quite substantial. However, the defendants mounted a vigorous, if ineffective, defense, in which they sought to attack the credibility of the Commonwealth’s case and to present an alibi. The ineffectiveness of defendants’ pro se representation was such that Judge Chmielinski candidly — and apparently without awareness of his own responsibility for the conduct of the proceeding — told counsel at side bar outside the presence of the defendants that “[t]his is absolutely the most ridiculous thing I have ever seen in my whole life.” Tr. XIII, at 12. The trial was punctuated with frequent confrontations between Oses and the judge, and Oses and the assistant district attorney, many of which occurred in the presence of the jury. These confrontations served to belittle and demean Oses and his pro se representation before the jury, while at the same time relentlessly forcing the unruly proceeding toward a conclusion by jury verdict. Most dramatically, on the seventeenth day of the trial, a fight broke out when a court officer, upon the judge’s instruction, attempted to place a gag in Oses’s mouth during cross-examination of Oses’s mother by the assistant district attorney. Codefendant Sheppard rose to Oses’s defense and attacked the court officers who had approached him; the record indicates that it took six court officers to subdue Sheppard. Attorney Gideonse moved for a mistrial following this incident, with Oses joining in (“That goes double for me.” Tr. XVIII, at 15.) These motions were denied. And when the trial continued the next day, Judge Chmielinski offered the jurors only a formulaic and patently ineffective instruction to “disregard” the “explosive situation” they had witnessed and not hold it against either defendant. Tr. XVIII, at 27-28. The case was submitted to the jury on July 7, 1977. The next day, the jury returned a verdict of guilty on all counts of the indictments against both defendants. C. Post Trial Proceedings Oses was originally sentenced to life imprisonment on the armed assault conviction, and 12-20 years on and after for the kidnapping. Later, the Appellate Division of the Superior Court modified that sentence to have the two terms run concurrently. Oses originally claimed an appeal from these convictions on July 19,1977, but his appeal did not reach the Massachusetts Appeals Court until 1988. The Appeals Court affirmed Oses’s convictions, 26 Mass. App. 1116, 530 N.E.2d 814 (1988), in an unpublished Memorandum and Order dated November 21, 1988, attached hereto as Appendix A. On February 1, 1989, the SJC denied Oses’s petition for further appellate review without written opinion. 404 Mass. 1101, 536 N.E.2d 612 (1989). Proceeding pro se, Oses thereupon filed with this court his original handwritten petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After the Commonwealth filed its response, Oses filed a second, typewritten habeas petition purporting only to restate his original claims and support them with pertinent legal decisions. The Commonwealth filed no further response to this petition, and has not objected to the second petition. This court appointed counsel for Oses and issued a procedural order establishing a briefing schedule. Assisted by counsel, Oses filed an extensive Memorandum in Support of the Petition of Thomas Oses for a Writ of Habeas Corpus. Oses’ claims for relief involve three basic contentions: (A) That he was deprived of constitutional representation because he did not voluntarily and intelligently waive his sixth amendment right to counsel; (B) That the conduct of his trial was unconstitutional because (1) he was denied his sixth amendment right to represent himself by: his exclusion from bench and lobby conferences, the physical restrictions on his mobility in the courtroom, the “sarcastic and prejudicial comments by the trial judge,” and the “pejorative comments and prejudicial conduct by the prosecutor,” and (2) he was denied his fifth amendment right to due process by the trial judge’s impermissible comment on his decision whether to testify on his own behalf; and (C) That the jury was instructed unconstitutionally by the trial judge’s mischaracterization of the reasonable doubt standard. In its Memorandum in Opposition to Petition for a Writ of Habeas Corpus, the Commonwealth argues that this court must dismiss Oses’s petition because several of his claims for relief were not exhausted in the state court. Specifically, the Commonwealth asserts that the trial conduct claims were not fairly presented to the state courts before Oses sought federal habeas review. Assuming, arguendo, that Oses’s claims are deemed exhausted, the Commonwealth maintains that the court should dismiss the petition because Oses has failed to demonstrate that he is entitled to relief on the merits of his claims. II. Exhaustion The exhaustion doctrine embodies the long-standing rule that, to respect sovereignty and promote comity between the state and federal courts, a state prisoner must normally exhaust all available state remedies before a federal court can grant a writ of habeas corpus. Duckworth v. Serrano, 454 U.S. 1, 3-4, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981); Mele v. Fitchburg Disk Court, 850 F.2d 817, 819 (1st Cir.1988), 884 F.2d 5 (1st Cir.1989). This principle is codified in 28 U.S.C. §§ 2254(b), (c) which provide: (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. See Mele, 850 F.2d at 819. Thus, federal courts are generally precluded from considering questions posed in a habeas petition until the highest court of the state has exercised its powers over the claims. See id. (citing United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 2, 70 L.Ed. 138 (1925)). The Commonwealth has argued that two of Oses’s claims — denial of his sixth amendment right to proper representation and violation of his fifth amendment right to remain silent — were not sufficiently presented to the state court to satisfy the exhaustion requirement. According to the Supreme Court, the exhaustion requirement is met “once [a] federal claim has been fairly presented to the state courts.” Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). For a claim to be fairly presented, the habeas petitioner must have submitted the substance of his or her federal claim to the state courts, so that the state courts were actually given the opportunity to confront and correct any constitutional infirmity. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Dougan v. Ponte, 727 F.2d 199, 200-01 (1st Cir.1984); Williams v. Holbrook, 691 F.2d 3, 6, 9 (1st Cir.1982). The First Circuit has outlined four factors to serve as guidelines for determining whether the substance of a federal claim was adequately presented to the state courts. Nadwomy v. Fair, 872 F.2d 1093, 1095, 1097-98 (1st Cir.1989) (“exhaustion determinations of this genre are by their very nature case-specific ... [t]he proper search is a search for the heart of the matter, not for ritualistic formality”). If in the state courts the habeas petitioner has (1) cited a specific federal constitutional provision, (2) relied on federal constitutional precedent, (3) claimed a specific right protected under the federal constitution, or (4) presented a federal constitutional claim in such a manner that it was likely to alert the state court to the federal nature of the claim, then federal courts may conclude that the petitioner exhausted his or her claims. Id. at 1097. The Nadwomy court further explained that, in applying the fourth criterion, courts should focus on “the likelihood that the presentation in the state court alerted that tribunal to the claim’s federal quality and approximate contours____ The inquiry ... is foremost a question of probability.” Id. at 1098. Throughout his appeals in both the state and federal courts, Oses has advanced the same essential legal theory: that he was denied due process and a fair trial by the actions of the motions judge, the trial judge and the prosecutor (and perhaps even standby counsel) in violation of his fifth, sixth and fourteenth amendment rights. In both his Appeals Court brief and his brief to the SJC, he asserted these claims in a list of eight questions presented; his habeas petition to this court essentially consolidated these questions into the four basic claims of constitutional violation. While the form of Oses’s constitutional arguments to the state courts may have changed, however, the substance has remained the same. See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). Thus, I find that the state courts were accorded a fair opportunity to confront the substance of Oses’s federal claims. A. Interference with Self-Representation In his petition, Oses claims that he was denied his sixth amendment right to represent himself by his exclusion from bench and lobby conferences, by restrictions placed on his mobility in the courtroom, and by pejorative comments and other misconduct by the trial judge and the prosecutor. In both his Appeals Court brief and his brief for further appellate review, Oses listed these factors separately, alleging that each deprived him of due process and prevented him from obtaining a fair trial. The facts of each of these claims were squarely presented to the state courts. The respondent alleges, however, that the substance of the sixth amendment claim encompassing these four individual factors was never before the state courts. Thus, the Commonwealth argues that the sixth amendment claim is unexhausted. The Commonwealth’s arguments demonstrate precisely the focus on form over substance that the First Circuit counseled against in Nadworny. 872 F.2d at 1096-97, 1101. Oses may not have bottomed his arguments to the Appeals Court exclusively on a claim of denial of self-representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); yet that is essentially what he argued to the Appeals Court on pages 26-27 of his brief to that court, writing: In Commonwealth v. Mott [2 Mass. App. 47, 308 N.E.2d 557], the Appeals Court held that there was a denial of defendant’s rights "... to be fully heard in his defense by himself, or his counsel, at his election,” as secured by article 12, Massachusetts Declaration of Rights; ... The corresponding federal right is secured by the Sixth and Fourteenth Amendments to the Constitution of the United States, Faretta v. California, 422 U.S. 806, 812 [95 S.Ct. 2525, 2529, 45 L.Ed.2d 562] (1975). In dealing with the representation issue, the judge kept one foot in the boat and one foot on land ... [H]e allowed the defendant to conduct part of the case, while excluding him from bench and lobby conferences which are, of course, where critical questions pertaining to evidentiary rulings, jury instructions, etc., are discussed. The judge required that defendant remain at counsel table, with leg irons on (and at one point with wrist manacles also), rather than allow him to walk freely in the courtroom while conducting direct and cross examination. The judge’s decision also meant that many heated arguments between the judge and defendant, acting as counsel, would occur before the jury, rather than at the bench or in the judge’s lobby. Thereafter, Oses discussed the numerous examples of prejudicial comments and actions by the judge and prosecutor which further eroded his appearance of self-representation throughout the trial. Clearly, the “likely ” effect of these arguments by Oses, including his reliance on the precise federal constitutional precedent on point, was to alert the state court to the federal nature of his claims in the manner contemplated by Nadworny. See 872 F.2d at 1101 (“claim need not be argued in detail nor separately presented; but its federal quality — demarcated by one of our suggested guidelines or so substantively federal that the prototypical (reasonable) jurist would understand that a federal claim had been presented — must be readily apparent”). The federal quality of Oses’s claim was apparent to the Appeals Court, which discussed the claim at length, making reference to federal precedent, in its opinion affirming his convictions. The Appeals Court considered each of the four elements cited by Oses in light of the Supreme Court’s determinations that a defendant has a constitutional right to proceed pro se, citing Faretta, and that a defendant is thereby entitled “to preserve actual control” over his defense, “without ... [destruction of] the jury’s perception that the defendant is representing himself,” citing McKaskle. See Commonwealth v. Oses, infra at 470-72. The First Circuit has been careful to point out that a habeas petitioner need only demonstrate that he presented the federal claims to the state court, not that those courts either addressed or decided those claims. Dyer v. Ponte, 749 F.2d 84, 86 n. 1 (1st Cir.1984); Williams, 691 F.2d at 8. Where, as here, the state court did address them, and cited specific federal cases on point, there is abundant confirmation that the state court was sufficiently alerted to the petitioner’s federal claims. See Nadwomy, 872 F.2d at 1100; Brown v. Streeter, 649 F.Supp. 1554, 1557 (D.Mass.1986), affd without op., 836 F.2d 1340 (1st Cir.1987). Thus, I conclude that Oses’s claim that he was denied his sixth amendment right to self-representation has been exhausted. B. The Impermissible Comment Claim The same considerations lead to the conclusion that Oses has exhausted his claim that a comment by the trial judge which gave the jury the impression Oses would testify violated his fifth and fourteenth amendment rights. The Commonwealth acknowledges that this claim was fairly presented to the Appeals Court, having been discussed explicitly in the Defendant’s Appeals Court Brief, with references to federal authority, at pages 41-43. But the Commonwealth argues that the SJC was not alerted to the federal constitutional nature of Oses’s claim because he challenged the improper remark by charging only that his due process rights were “further prejudiced by judicial misconduct.” This argument is entirely unconvincing. Question V of Oses’s Brief to his Application for Further Appellate Review read: “Was the defendant prejudiced by the judge telling the defendant, in front of the jury, that he can talk about a particular topic ‘when you testify, I suppose’?” While Oses did not explicitly cite the fifth amendment, it is difficult to imagine how any “prototypical” member of the SJC would fail to recognize the federal due process implications of such a comment by a trial judge in the presence of a jury. See Nadwomy, 872 F.2d at 1101; see also Williams, 691 F.2d at 6 (recitation by petitioner of “book and verse” of constitutional provisions relied upon is not necessary for exhaustion). Here again, it bears emphasizing that the task is to consider the likelihood that the state court was alerted to the federal contours of the claim; and here, again, that likelihood approaches certainty. Compare Lanigan, 853 F.2d at 42 (petitioner’s skeletal objection “Commonwealth versus Webster [59 Mass. 295 (1850) ] in my instructions” sufficiently understood by everyone as an objection to the reasonable doubt standard). Having concluded that Oses has exhausted all claims presented in his habeas petition, I turn next to the merits of those claims. III. A. The Waiver of Counsel Claim The sixth and fourteenth amendments to the Constitution guarantee an accused the right to represent himself in a state criminal proceeding as long as that right is exercised knowingly, voluntarily and intelligently. Faretta v. California, 422 U.S. 806, 819, 835, 95 S.Ct. 2525, 2533, 2541, 45 L.Ed.2d 562 (1975). Because of the substantial benefits traditionally associated with representation by counsel, the Court has required that a defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Id. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)); see also United States v. Hafen, 726 F.2d 21, 25-26 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); Maynard v. Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976). A defendant who makes such a choice at trial, is convicted, and later seeks habeas corpus relief bears the burden of demonstrating that his waiver was not competently and intelligently made. Meachum, 545 F.2d at 277-78. Oses makes such a claim in his petition for habeas corpus relief. First, he alleges that Judge Mason improperly denied his request for a three-month continuance to enable Oses to engage substitute counsel for his defense. Arguing that he was thereby presented with the constitutionally offensive choice of accepting counsel he did not trust or proceeding pro se, Oses states that the decision to choose the latter was not voluntary. At the outset, I note that the record does not indicate that Oses ever made any formal request for a continuance. Although Attorney Kelleher may have needed three months to prepare for trial, Oses explicitly informed Judge Mason that he had not retained Kelleher. Rather, the record contains the repeated requests by both defendants to proceed to trial immediately. Perhaps this desire on the part of the defendants to proceed to trial “as soon as possible” so they could “prove [their] innocence” was ill-advised or, at least, naive. But it was not the result of any improper denial of a continuance by Judge Mason. It is true that one of the reasons given by Oses for wishing to proceed pro se was his lack of confidence in Attorney Levine’s ability to represent him. He argues that he was thus placed in the “untenable position” of being represented by an attorney he no longer trusted or representing himself. The law is clear, however, that there is no absolute right to counsel of one’s own choice. United States v. Pina, 844 F.2d 1, 6 (1st Cir.1988); Meachum, 545 F.2d at 278; see also Commonwealth v. Appleby, 389 Mass. 359, 367-68, 450 N.E.2d 1070 (1983), cert. denied, 464 U.S. 941, 104 S.Ct. 357, 78 L.Ed.2d 320 (1983); Commonwealth v. Cavanaugh, 371 Mass. 46, 53-54, 353 N.E.2d 732 (1976). Unless the defendant is placed in the position of having to proceed with incompetent or unprepared counsel, his refusal to proceed with appointed counsel is a “voluntary” waiver of his sixth amendment rights. Pina, 844 F.2d at 6 (“while a defendant may not be forced to proceed to trial with an incompetent or unprepared counsel, the court has no obligation to appoint a lawyer outside the public defender’s office simply because a defendant believes all lawyers from that office are incompetent”); Meachum, 545 F.2d at 278 (court may require defendant to go forward even if he is not entirely satisfied with his attorney). Here, the record reveals neither unpreparedness nor incompetence, and Oses has not established that he was placed in any constitutionally untenable position. In fact, the record amply demonstrates that Oses’s election to proceed pro se was entirely knowing and voluntary. Massachusetts has required its trial courts to conduct an inquiry to ensure the voluntariness of a defendant’s decision to represent himself, as well as the defendant’s awareness of the risks that such representation entails. Tuitt, 822 F.2d at 176 (citing Commonwealth v. Cavanaugh, 371 Mass, at 46, 353 N.E.2d 732; Commonwealth v. Chapman, 8 Mass.App.Ct. 260, 265, 392 N.E.2d 1213 (1979); Commonwealth v. Mott, 2 Mass.App.Ct. 47, 308 N.E.2d 557 (1974)). By contrast, the courts of this circuit do not require the federal trial courts to issue any specific warnings or make any specific findings of fact on the issues of whether the decision to represent oneself “was knowing, voluntary and intelligent.” United States v. Benefield, 942 F.2d 60, 64 (1st Cir.1991). Rather, these courts consider whether the accused had a “sense of the magnitude of the undertaking and the ‘disadvantages of self-representation’ ... an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one’s story.” Meachum, 545 F.2d at 279 (citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541). In evaluating knowledge and voluntariness, courts may consider such factors as the defendant’s background, conduct, experience, previous criminal trials, prior representation by counsel, and availability of advisory counsel at trial. Hafen, 726 F.2d at 25 (citing Meachum, 545 F.2d at 279). During the course of the three pretrial hearings in this case, Judge Mason gave the defendants numerous and explicit warnings regarding the dangers of self-representation. He required Oses to present on the record his reasons for proceeding pro se, and inquired at some length into his ability to present his own defense, correcting several of the defendant’s misconceptions and addressing specific concerns such as the use of materials obtained during discovery. He also conditioned Oses’s self-representation on the retention of Attorney Levine as standby counsel. Oses signed the waiver indicating that he knowingly and voluntarily relinquished his right to counsel at trial. While the ultimate circumstances of the trial demonstrate just how inadvisable Oses’s decision was, the circumstances of the initial waiver of counsel met all constitutional requirements; there was nothing further that Judge Mason should have or could have done in light of Oses’s insistence on his right to represent himself. B. Trial Conduct Claims On July 7, 1977, the twenty-third day of Oses’s trial, Judge Chmielinski began his charge to the jury with the following observation: Good morning, ladies and gentlemen of the jury. We have come to the end of a long and somewhat disorganized trial. First, I would like to apologize to you all for the lateness of our getting started. I would like to have you keep in mind that we did have two defendants here who were really not too well versed in court procedure and irrespective of the fact that I was here and the attorneys were here and you were here and we all wanted to get started on time, there were delays, which were really not the fault of anyone and can only be attributed to inexperience rather than design. But please accept my apologies for that because I realize that the trial was prolonged to a certain extent because of these circumstances, over which, I can assure you, I had no control. Tr. XXIII, at 3. Those brief remarks provide an accurate and telling summary of Oses’s trial before Judge Chmielinski. It was truly a trial in which Judge Chmielinski exercised no fair and effective control, particularly over his own actions. Indeed, his conduct of the proceeding was in disregard of well-settled and fully-articulated principles governing the function of the trial judge. Oses may have succeeded in his attempts to invoke his sixth amendment right to defend himself, but the conduct of the judge throughout the ensuing trial made it impossible for him to exercise that right in any constitutionally meaningful manner. (1) Interference with Self-Representation In Faretta, the Supreme Court held that the sixth amendment guarantees an accused “personally the right to make his defense,” recognizing in doing so that it is “[t]he defendant, and not his lawyer or the State, [who] bear[s] the personal consequences of a conviction.” 422 U.S. at 819, 834, 95 S.Ct. at 2533, 2541. The Court in Faretta forcefully stated the right of the defendant to maintain control of his defense. The language and spirit of the Sixth Amendment contemplate that counsel ... shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. Id. at 820, 95 S.Ct. at 2533-34. In McKaskle v. Wiggins, the Supreme Court further articulated the rights to be accorded a pro se defendant to assure that the constitutional principles recognized in Faretta are vindicated. 465 U.S. 168, 178-79, 104 S.Ct. 944, 951, 79 L.Ed.2d 122 (1984). The McKaskle Court explained: First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right____ Second, participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself. The defendant’s appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused’s individual dignity and autonomy. Id. at 178, 104 S.Ct. at 951. With regard to the second dimension, the Court recognized that, for the jury, “the message conveyed by the defense may depend as much on the messenger as on the message itself,” while, for the defendant, the right “lose[s] much of its importance if only the lawyers in the courtroom” know he is exercising it. Id. at 179, 104 S.Ct. at 951. Thus, any analysis of whether a defendant’s sixth amendment right to self-representation has been violated must address both the extent of actual control he retained over his defense and the jury’s perception of his status as one defending himself. See id. at 178-79, 104 S.Ct. at 951; see also United States v. Torres, 793 F.2d at 441-42 (McKaskle court “formulated a two-part test” to determine whether defendant had a fair chance to present his case in his own way). The petitioner contends that “[t]he conduct, and in some cases, misconduct, of the judge and the prosecutor during Oses’s trial, combined with erroneous, or at least ill-conceived, rulings by the judge, effectively frustrated [his] attempt to defend himself,” denying him both aspects of his Faretta rights. He frames the issue as a sixth amendment violation and cites four specific examples of how his rights were violated. First, he claims that the judge’s unjustified ruling excluding him from bench and lobby conferences deprived him of actual control of his defense and denied him the opportunity to be perceived by the jury as representing himself. Second, he claims that the physical restrictions placed on his mobility by the judge, with no inquiry into the least restrictive means necessary to address any significant safety concerns, further limited his control over his defense and influenced the jury’s negative perception of his defense. Third, he cites numerous sarcastic and prejudicial comments addressed to him by Judge Chmielinski during the trial, most of which were made in the presence of the jury, the overall effect of which could only have been to destroy his credibility, and the credibility of his defense, before the jury. Fourth, he points to certain extraneous and prejudicial comments and conduct by the prosecutor that further unfairly eroded the defendant’s credibility in the eyes of the jury. The Commonwealth’s response to these arguments is to treat each alleged instance of misconduct individually, arguing that each instance, even if improper, was not inherently prejudicial in the context of the entire trial. This treatment misreads McKaskle. The appropriate question here is not simply whether each improper action or remark individually deprived Oses of his sixth amendment rights, but rather whether all the actions taken together deprived him of both actual control over his defense and the perception of such control in the eyes of the jury. a. Exclusion from Lobby and Bench Conferences. The amount of actual control that Oses retained — or appeared to retain — over his trial was severely restrained by his exclusion from the lobby and bench conferences. Respondent argues that no constitutional violation resulted from this physical exclusion because standby counsel was present and “no significant trial issue” was resolved against him at these conferences. Yet Oses’s constant objections to participation by standby counsel and his repeated attempts to have Attorney Levine removed from the case undermine any argument that his interests were sufficiently represented at these conferences. It is not enough to establish actual control by showing that, in the words of the respondent, “Oses filed motions, questioned witnesses and argued his cause.” The McKaskle Court specifically held that where, as here, standby counsel speaks “instead of the defendant on any matter of importance, the Faretta right is eroded.” 465 U.S. at 178, 104 S.Ct. at 951. The judge’s unilateral decision to conduct these conferences outside Oses's presence directly contradicted his earlier representation to the parties that no such conferences would be held. More fundamentally, that decision violated the petitioner’s sixth amendment right to retain actual control over his defense. Nor can Oses’s exclusion from these conferences be justified as a security measure. To be sure, Oses ultimately proved a demonstrative and disorderly participant in the trial proceedings. But his subsequent misbehavior — which appears to have been in part a response to his perception of unfairness by the trial judge in administering the proceedings — does not provide post hoc justification for holding conferences outside the petitioner’s presence. Well before the trial of this case, the SJC had warned state trial judges “how inadequate is the procedure often followed in dealing with the issue of security at trial.” Commonwealth v. Brown, 364 Mass. 471, 478, 305 N.E.2d 830 (1973). In Brown, the SJC held that in the absence of agreement among the prosecution, the defense, and the custodial authority regarding any unusual security measures that need to be taken during trial, a judge who contemplates approving such measures should state his reasons (including recommendations received from the custodial authority) in the presence of counsel and defendant, and out of the presence of veniremen or jury, and provide an opportunity for counsel to make their objections known. If fact questions arise, they should be thrashed out. The hearing may be informal, and ordinary rules of admissibility need not be observed, but a record should be made. Id. at 479, 305 N.E.2d 830. The procedures required by Brown were not followed four years later when Oses was tried. Rather, the trial judge took the unusual step sua sponte of conducting discussions regarding the defendant’s trial outside the presence of the person Faretta and McKaskle teach must retain actual control over the pro se defense. In light of Brown, no previously unarticulated security concern can now justify the exclusion of Oses from bench and lobby conferences. More importantly, in light of Faretta and McKaskle this departure from clearly delineated state practice involved a violation of the petitioner’s federal constitutional rights. The exclusion of Oses under these circumstances was a “structural defect [] in the ... trial mechanism” which affected the “entire conduct of the trial from beginning to end.” Arizona v. Fulminante, 111 S.Ct. at 1265. This defect, especially when considered in connection with other misconduct by the trial judge, constituted constitutionally impermissible error, b. Physical Restrictions on Mobility Other security measures employed from time to time by the trial judge to restrict Oses’s courtroom movement were also inconsistent with constitutional principles of pro se representation. Indeed, it is apparent that Judge Chmielinski’s conduct regarding security involved a wholesale disregard of Brown’s teachings. Oses’s trial is ironically the paradigm which earlier led the SJC to develop explicit security measure procedures. The description of the problem in Brown accurately describes the proceeding against Oses: [T]he case well illustrates how inadequate is the procedure often followed in dealing with the issue of security at trial. The trial judge perceives the security problem or is somehow advised of it. He consults privately with the sheriff and makes his decision. There is perhaps a motion by defence counsel at some stage which the judge laconically denies. When the point is later pressed, whether on appeal or by collateral attack, there are available neither the reasons of the judge nor the facts supporting the reasons. Attempts to reconstruct the facts and the reasons are unsatisfactory, for time erodes evidence and memory. Further, and quite apart from the difficulties in reviewing the trial judge’s decision, we can surmise that action, taken by a trial judge without any obligation to state his reasons to others or even to himself, will be less perspicacious than action that he has to justify in some articulate and objective way____ [H]ad he been under a duty to give reasons and respond to possible criticisms by counsel, he might have done differently and better. 364 Mass, at 478, 305 N.E.2d 830. From all that appears in the record, the decision to use shackles to restrain Oses in the courtroom had its origins in a discussion of procedures to be used in connection with a view to be taken of the crime scene by the jurors. The prosecutor informed Judge Chmielinski of a prior escape and that “the sheriff [was] suspicious that there was an escape plot in connection with this case.” Tr. II, at 5. The judge then abdicated his responsibility to the security forces: I don’t think the question of security is one for my determination, really. The officers in charge are the ones responsible for the security of these defendants and I think I would much rather leave it to them because they are responsible for them, not the Court. So whatever measures they think are necessary, I think I will have to comply with because, as I say, it is their problem, not mine. Id. In response to a request by defense counsel that the Court “explain to the jury that [any such shackling] has no bearing on their guilt or innocence,” id., Judge Chmielinski replied, “Certainly, I will probably reiterate that four or five times in my charge.” Id. at 5-6. Unfortunately, he did not provide a single iteration of the requested instruction. It is unclear from the record when physical restraints were actually imposed on Oses during the remainder of the trial. References to the use of leg irons and hand cuffs in the courtroom do not appear in the record from the time they were removed before voir dire until the period immediately following the gagging incident during the cross-examination of Oses’ mother. Whenever used, however, gagging and shackles require substantial justification. See generally Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970) (observing that while “no person should be tried while shackled and gagged except as a last resort” nevertheless “in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle [an obstreperous and disorderly] defendant ... ”). While a more complete record would assist in obtaining a more complete sense of whether the trial judge’s approach to restraining Oses physically was, standing alone, “so inherently prejudicial that respondent was thereby denied his constitutional right to a fair trial,” Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986), the concerns expressed by the Supreme Court in Illinois v. Allen are sufficient to frame the issue for present purposes: Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. 397 U.S. at 344, 90 S.Ct. at 1061. Those insistent possibilities of jury prejudice and affront to the dignity and decorum of the judicial proceeding were realized here. Judge Chmielinski’s limp cautionary instruction to the jury, the day after the courtroom disruption arising from the attempted gagging of Oses, to “disregard whatever happened yesterday”, Tr. XVIII, at 27-28, could in the context of this case hardly have ameliorated the jury’s questions about the defendant’s presumptive innocence. This is particularly so when the judge failed to iterate, let alone “reiterate,” as he suggested he would, cautionary instructions in his final charge to the jury. More specifically, Judge Chmielinski’s decision to have a gag placed on the defendant was not a measure of last resort, but an expedient chosen without even a recess to see if the explosive situation could be defused. And it was followed by Judge Chmielinski’s customary abdication to the sheriff on the question of shackling. The trial judge’s approach to physical restraints on the petitioner here did not reflect any careful concern to use — under judicial control and direction — the least restrictive means to maintain the dignity and decorum of the proceeding. When coupled with other aspects of the administration of the trial, Judge Chmielinski’s mishandling of the security issues debilitated Oses’ sixth amendment right to self-representation and infected the entire proceeding. c. The Trial Judge’s Commentary. It is beyond dispute that to preserve “dignity, order, and decorum ... trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.” Illinois v. Allen, 397 U.S. at 343, 90 S.Ct. at 1061, 25 L.Ed.2d 353. But Judge Chmielinski’s actions went beyond any reasonable bounds of maintaining control; instead of preserving the ideal of dignity, order, and decorum, his gratuitously sarcastic remarks served to destroy it. From the jury’s perspective, the trial judge’s actions could only be interpreted as a wholesale judicial rejection of the validity of Oses’s pro se defense. The transcript is replete with verbal improprieties demeaning the pro se defense; I list here only a few particularly illustrative examples delivered in the presence of the jury. —When called upon to use his peremptory challenges, Oses asserted, “Your Honor, I am being forced to pick these two challenges,” Judge Chmielinski responded, “You are not forced to do a thing. You are proceeding pro se. Act like a lawyer if you want to be a lawyer.” Tr. Ill, at 23-24. —When Oses was cross-examining a witness about what he was doing at Oses’ girlfriend’s house, the judge interjected sua sponte, “Maybe she was cheating on you.” Tr. VII, at 72. —When Oses tried to justify his repetitious cross-examination of prosecution witnesses, the following exchange took place: THE COURT: You are going around in a circle. You keep asking— MR. OSES: Because I want to find out. THE COURT: —the same questions. MR. OSES: Because they don’t answer me. THE COURT: Will you please shut up. MR. OSES: I am innocent, man. THE COURT: We all understand that. Tr. X, at 36. —When Oses attempted to have the judge instruct a police officer to look at him while testifying, and not the D.A., the judge said, “Maybe he doesn’t want to look at you.” Asked why not, the judge responded, “It’s a matter of taste, I suppose.” Tr. XIII, at 85-86. —When Oses requested an instruction be given to an uncertain identification witness, Judge Chmielinski in colloquy with the defendant affirmed the identification of the petitioner. MR. OSES: When he says he is not sure, can he be a little more specific? THE COURT: If he is not sure, he can’t be any more specific. MR. OSES: He seen me so he had to see somebody else. THE COURT: He is not sure who else he saw. MR. OSES: He didn’t see the important things. THE COURT: What are the important things? He saw you. Tr. XIV, at 48-49. —When Oses objected to cross-examination of his mother on grounds that the prosecutor “is confusing my mother. My mother is a nervous woman,” the judge retorted: “You have got me nervous, too. Sit down.” Tr. XVII, at 70. Despite the respondent’s disingenuous characterizations of these remarks as “indecorous,” “droll,” and “conversational,” their net result was to deny Oses the opportunity to be perceived as representing himself by the jury and to impugn the validity of his defense. Quite apart from the merits of the instant petition, Judge Chmielinski’s conduct of the Oses trial demonstrates the truth of Francis Bacon’s observation that “an over-speaking judge is no well-tuned cymbal.” F. Bacon, Of Judicature in The Essays of Francis Bacon 251, 254 (M.A. Scott ed. 1908). And his continual reach for what he no doubt believed to be snappy ripostes demonstrates why one of the most respected of Massachusetts state judges observed that the trial judge “must take care not to set a bad example by striving to be witty.” H.T. Lummus, The Trial Judge 23 (1937). But more was involved here than an unseemly judicial burlesque competition between an overspeaking judge and an obstreperous litigant. Judge Chmielinski’s conduct was in clear and continuous contravention of a benchmark for the function of a trial judge described as “obvious” when the American Bar Association adopted its Standards for Criminal Justice in 1971. ABA Criminal Justice Standards Relating to the Function of the Trial Judge § 6.4 (“Judge’s responsibility for self-restraint”). That standard provides: The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel or others, or upon the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues. Judge Chmielinski met none of these responsibilities in his conduct of the petitioner’s trial. And that failure is a matter of constitutional concern. The repetitive quality and substantive character of Judge Chmielinski’s commentary drove home a clear message to the jury — and indeed all exposed to the trial proceedings: the trial judge was not impartial. Judge Chmielinski’s commentary served to deliver explicitly what the arrangements for security demonstrated implicitly: that the trial judge had determined — before the evidence was closed and the jury’s verdict returned — that the petitioner was guilty, and that the manner and substance of his defense was unworthy of either respect or belief. d. The Prosecutor’s Commentary. Perhaps encouraged by the behavior of the judge — and certainly not restrained by the judge’s example — the prosecutor in this case also made certain improper remarks about Oses and his defense in the presence of the jury. Although hardly praiseworthy, the prosecutor’s commentary was not, unfortunately, very different from what sometimes passes between adversaries during a long and hotly contested trial over which the trial judge exercises no effective control. Yet even conceding that the prosecutor’s actions were not standing alone violative of the petitioner’s constitutional rights, cf. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), that conduct also did not occur in a vacuum. In the context of this case, that conduct served to reinforce the unfairness of the trial judge’s misconduct in demeaning the defendant. An instructive example of this tendency to reinforce the unfairness of the proceeding can be found in the scenario acted out in connection with the introduction of a gun into evidence. The prosecutor called upon Lieutenant Cummings in the presence of the jury to secure the weapon by placing a guard on the trigger and trigger housing “to make that gun inoperative.” Tr. V, at 61. The gun had obviously been in the prosecutor’s possession before its introduction in evidence. A request to “secure” the weapon in front of the jury subliminally encourages juror perception of a defendant as a dangerous individual. Securing the weapon before the jury under these circumstance unfairly exacerbated the prejudicial effect on the jury of the trial judge’s security measures and commentary, further reinforcing the perception that the petitioner was a dangerous figure. It is the responsibility of the trial judge to insure that such melodramatic maneuvers by trial counsel be eliminated or sanctioned. “[T]he trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; ‘the judge is not a mere moderator but is the governor of the trial for the purpose of assuring its proper conduct.’ ” United States v. Young, 470 U.S. at 10, 105 S.Ct. at 1043-44 (quoting Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933)). e. Conclusion Under McKaskle, the defendant must be accorded the appearance of one conducting his own defense in a manner that “affirm[s] the accused’s individual dignity and autonomy.” 465 U.S. at 178, 104 S.Ct. at 951. As the record reflects, Oses was not accorded this appearance, and that is a violation of his sixth amendment right to self-representation. Because the person charged with maintaining dignity and decorum was in large part responsible for this failure, the violation was particularly egregious. (2) The Comment on Whether Oses Would Testify Oses also claims unconstitutional trial conduct in violation of his fifth and fourteenth amendment rights arising from the trial judge’s improper comment suggesting Oses would testify on his own behalf. Oses did not, in fact, testify at the trial. During his cross-examination of Captain Fleming of the Brookline Police Department, Oses attempted to base some of his questions on a photograph that had been marked as an exhibit. The following exchange ensued: MR. OSES: Excuse me, Your Honor. I would also like to show the jury that big photo here indicating where Mr. Fleming says Mr. Fernandes and Mr. Shepard allegedly was laying ... and I would also like to indicate that there is no evidence showing that them two men were laying there. They were laying some place else. May I bring this so the jury can see this? THE COURT: Let me see that. There is nothing here to indicate where anybody was lying. MR. OSES: That’s right. I was going to show them the spots where they was laying in the photos. THE COURT: You can do that when you testify, I suppose. Tr. XI, at 95. No doubt sensing the prospect of appellate reversal, the prosecutor asked to approach the bench and requested the judge to instruct the jury that Oses was under no obligation to testify. Id. at 96. Judge Chmielinski then informed the jury, “Ladies and gentlemen, I said Mr. Oses could use this last photograph which we marked for identification when he testified. I should have qualified that by saying that if he chose to testify, he could then use the photograph. There is no obligation for him to testify.” Id. Oses argues that these remarks by the judge both highlighted his decision not to testify and constituted an adverse comment upon that decision. It is a core concern of the fifth amendment that neither the prosecutor nor the court comment upon an accused’s failure to testify. Griffin v. California, 380 U.S. 609, 614-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965). To determine whether such an improper comment has been made, the First Circuit looks to “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comm