# William Brown, Jr. v. United States > Court of Appeals for the D.C. Circuit · February 5, 1959 · 264 F.2d 363 URL: https://www.frixlaw.com/law-library/cases/9446659 ## Case - **Full name:** William BROWN, Jr., Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** February 5, 1959 - **Citations:** 264 F.2d 363; 105 U.S. App. D.C. 77; 1959 U.S. App. LEXIS 4455 - **Precedential status:** Published - **Opinion:** Concurrence by Burger - **Judges:** Prettyman, Edgerton, Miller, Bazelon, Fahy, Washington, Danaher, Bastían, Burger - **Cited by:** 126 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446659 ## How later opinions describe it (automated extraction) - explaining that if an indigent party’s objection to appointed counsel is prima facie valid the trial court has a duty to inquire further into that party’s dissatisfaction with counsel, but “[i]f no reasons are stated, the court then has a duty to inquire into the basis for the… - noting that it is counsel’s duty to give defendant an “honest appraisal” of his case so that defendant can make an “informed judgment” about whether to enter into plea negotiations, and that counsel has “no duty to be optimistic when the facts do not warrant optimism” - noting that trial court error in denying statutory right to proceed without counsel does not warrant reversal absent prejudice ## Opinion text BURGER, Circuit Judge (concurring in part). In concurring in affirming the conviction I approach the problem by treating as the central issue the question of what the District Court must do if a defendant personally states to the court that he desires to have a new attorney appointed because his court appointed counsel thought he could not win an acquittal. It seems to me that in those circum *368 stances the court has discretion to refuse to dismiss counsel for no court has held pessimism of counsel, standing alone, is a ground for dismissing counsel. 1 On this record it is fair to say that the trial court was made aware of the nature of appellant’s objections to his counsel, unless we assume that counsel breached his obligations to his client by misrepresenting in open court his client’s views; this is an assumption I would be unwilling to make. I conclude that it was not an abuse of discretion in the circumstances here presented to direct counsel to go forward with the case — a course of conduct to which appellant made no further objection. We cannot ignore the fact that appellant was acquitted of the more serious charges against him; indeed the skill and vigor of the defense afforded him is attested to by this result — a somewhat surprising one in view of the evidence against appellant. The issue here is not whether an accused has a right to try his own case in proper person; nor is the issue whether an accused must, in all circumstances, be informed explicitly by the court that he had a right to proceed as his own counsel. The heart of the matter is the scope of the discretion of the trial court when an objection to counsel is made known. That discretion must be controlled by the nature of the reasons for an asserted objection to the counsel. If the reason is not a valid one, the court may' — us it properly did in the peculiar circumstances of this case — overrule the objection. Cf. United States v. Gutterman, 2 Cir., 1945, 147 F.2d 540 , 157 A.L.R. 1221 . On the other hand if tlie reason is prima facie a valid one or if no reason is expressed at all, then the question arises as to the duty of the trial judge. The dissenting opinion seems to me to state correctly, in part, the rule which ought to govern when an apparently valid reason for objection is made known or when a naked objection is raised without explanation or reasons in support. Since a rule of this court, binding in this jurisdiction, flows from the combined opinions in this case, it will be helpful to restate the basic elements on which, as I see it, a majority of the court — if indeed not all members of the court — agree. Two cases of the Second Circuit are in point, United States v. Gutterman, supra, and United States v. Mitchell ; 2 both were decided by a vote of 2-1, with Judge Frank in dissent. Adoption of the Mitchell case majority view would compel us to affirm because there facts much more favorable to appellant than those presented here failed to win reversal. 3 Judge Frank’s dissent in that case argued only that the trial judge erred because he cut off and prevented “defendant’s request from being articulated so that it could be ruled on informedly.” 4 Even accepting Judge Frank’s view would not lead to reversal of this case since here the court did not “prevent defendant’s request from being articulated so that it could be ruled on informedly.” The court here ruled directly on an informed basis unless, as I suggested, we assume that trial counsel speaking in open court and on the record did not faithfully state his client’s position. *369 I would not agree, without some qualification, that a court cannot assign counsel without consent of the accused. It is axiomatic that more than the rights of an accused are involved in a criminal case. In some circumstances, for example where an indictment covers such complex questions of law and fact that the court thinks the accused unable to understand their import, an amicus curiae could properly be appointed without the accused’s consent. 5 The accused should, however, still be permitted to present his own case without reference to what is presented by the amicus curiae. Vindication of the processes of justice would require such a procedure in some cases. I see common agreement in Judge Miller’s opinion and in Judge Washington’s dissent on this: that when, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client’s objection to counsel and should withhold a ruling until reasons are made known. Limited only by the necessity to ascertain the basis of the objection and then to rule on the reasons rather than on a naked request for new counsel, the trial court must be allowed very wide discretion. Delay in trial at the “eleventh hour” when the court, witnesses, jury, and all the machinery have been readied, cannot be countenanced solely because the client thinks his lawyer is not sufficiently optimistic. A lawyer has a duty to give the accused an honest appraisal of his case. This is commanded in part because without it the accused cannot make an informed judgment as to whether he should enter a plea of guilty — a course of action frequently to the advantage of an accused. The constitutional right to counsel does not mean counsel who will be optimistic in his private appraisal of the evidence and his advice to the accused. Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism. Optimism in the face of the known facts here would have been foolhardy indeed and on the record before us counsel gave an objective appraisal and no one seems to contend that appraisal prevented his giving appellant a very effective defense. Any suggestion that the appellant was forced to go to trial with counsel he had “repudiated” is simply not supported by the record in this case. WASHINGTON, Circuit Judge, with whom EDGERTON, BAZELON and FAHY, Circuit Judges, join (dissenting) . When appellant’s case was called for trial, his court-appointed lawyer approached the bench 1 and engaged in the following colloquy with the judge: “Mr. Mansfield: Your Honor, because I told [the defendant] that I didn’t think he had a chance of beating the thing, he wants to have a new attorney appointed. “The Court: Were you appointed? “Mr. Mansfield: I was appointed in the first place. I think I can do a good job for him. I can do as good as anybody else could. “The Court: You mean he doesn’t want to plead to anything? “Mr. Mansfield: The only thing he wants to plead to is the simple assault. “The Court: All right, let’s proceed.” The trial proceeded to completion with the appointed lawyer conducting the de *370 fense. After judgment of conviction, this appeal followed, presented by an attorney appointed by this court. We think the trial court erred when it directed counsel to proceed, without consulting the accused or asking him the basis for his attitude towards counsel, or even whether his attitude had been correctly reported, and without advising him of his right to proceed alone if he insisted. The trial judge has much discretionary authority in situations of the present sort. But the exercise of that authority must be on an informed basis. And the accused — who presumably is competent to stand trial — must be treated as a reasonably intelligent human being, entitled to be advised of his rights and to make choices on the basis of that advice. Interrogation of the accused in this ease might have revealed a legitimate basis for dissatisfaction with counsel: in that event, appointment of new counsel might have been necessary. Or it might have revealed that the defendant was simply trying to create delay. Other possibilities can readily be imagined. Whatever the court’s interrogation may have developed, any solution thoughtfully and reasonably decided upon by the court, after the accused had been advised of his rights and given an opportunity to express himself, would carry at least a prima facie imprint of validity. Cf. Washington v. United States, 1954, 94 U.S.App.D.C. 266 , 214 F.2d 876 . Here, however, there was no such process: the defendant was compelled to go to trial with counsel whom he had repudiated, as the court knew. No explanation was given to the accused of his right to proceed in propria persona, and of the disadvantages of such a course. Clearly, there was not the “free choice by a self-determining individual” of which the Supreme Court spoke in Adams v. United States, 1942, 317 U.S. 269 , at page 281, 63 S.Ct. 236 , at page 243, 87 L.Ed. 268 . Over a hundred years ago, a great English trial judge (Mr. Justice Erie) said: “I do not think that I have any authority to assign counsel to a prisoner without his consent.” Reg. v. Yscuado, 6 Cox Crim.Cases 386, 387 (1854). American trial judges are subject to the same limitation, at least in dealing with competent adults and with cases of the ordinary sort. Consent is and must remain the basis of assigning counsel to indigents accused of crime. Consent originally given is not irrevocable— though we do not question the power of the District Court to conduct its proceedings free of obstruction and delaying tactics. But it must apply the same rules to indigents as to persons of means: it cannot force an indigent into a trial with repudiated counsel simply because he is an indigent and has had counsel appointed for him by the court. For these reasons, the judgment should be reversed, and the case remanded for a new trial. BAZELON, Circuit Judge. I join fully in Judge WASHINGTON’S opinion. I would only add that to the constitutional right to assistance of counsel there is a “correlative right to dispense with a lawyer’s help * * Adams v. United States, 1942, 317 U.S. 269, 279 , 63 S.Ct. 236, 241 , 87 L.Ed. 268 . Hence when it appeared before the trial started that appellant wished to dispense with his appointed lawyer, it was incumbent on the judge to advise appellant of his right to proceed in propria persona and of the disadvantages of such a course. This information would have been essential for an intelligent and binding election whether to retain the lawyer or conduct his own defense. . Cf. Shepherd v. Hunter, 10 Cir., 1947, 163 F.2d 872 (defendant pleaded guilty upon advice of counsel; later attack sentence as invalid because he lacked effective assistance of counsel); Beaney, The Right to Counsel in American Courts 59-BO (1955). . 137 F.2d 1006 , opinion adhered to on rehearing 2 Cir., 1943, 138 F.2d 381 , certiorari denied 1944, 321 U.S. 794 , 64 S.Ct. 785 , 88 L.Ed. 1083 . . In the Mitchell ease the record showed quite a different fact situation: “ ‘Defendant Mitchell addressed the Court and stated “I would like the dismissal of this attorney. I am within my rights.” To this the court said: “I have assigned him to represent you,” whereupon defendant said: “I refuse to .accept this man as my attorney.” Then the court replied: “Sit down. The Jury will disregard this demonstration.” ’ ” 137 F.2d at page 1010 . . 137 F.2d at page 1012 ; . Cf. Justice Douglas’ dissent in Bute v. People of State of Illinois, 1948, 333 U.S. 640, 680-681 , 68 S.Ct. 763 , 92 L.Ed. 986 ; Gray v. Ellis, 5 Cir., 1958, 257 F.2d 159 . . It appears that the jury was in the courtroom, and accordingly the colloquy was no doubt conducted in a low voice. We cannot assume that the accused heard what was said; the contrary must have been the case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446659. Public record. Not legal advice.