holding that "so precious a right" as the right to counsel cannot "be entrusted to one who has not been admitted to the practice of the law"
How later courts described this case
- holding that "so precious a right" as the right to counsel cannot "be entrusted to one who has not been admitted to the practice of the law"
- determining that representation by an exconvict who posed as a lawyer, but never attended law school, violated the Sixth Amendment per se
- reversing one defendant's conviction because the government used the defendant's statements elicited during earlier trial when the defendant was represented by ex-convict posing as a lawyer
- conviction reversed because government used defendant’s statements from earlier trial in which defendant was represented by ex-convict posing as a lawyer
Written by the judges who cited it.
The opinion
ORDER ON PETITION FOR REHEARING EN BANC
PER CURIAM.
On consideration of appellant’s petition for rehearing en banc, it is
Ordered by the court en banc that appellant’s aforesaid petition is denied.
Statement of Chief Judge BAZELON why he believes the petition for rehearing en banc should be granted.
BAZELON, Chief Judge:
At a previous trial of defendants, 1 the Government introduced several of their incriminating statements. The defendants testified in their own behalf. They were convicted, and on appeal we reversed and remanded for a new trial on the ground that the statements had been illegally obtained. 2 At the new trial now under review the defendants did not testify, but the Government read into the record sections of their testimony at the prior trial. They were again convicted. In this appeal, the court rejected their contention that their testimony was inadmissible since its purpose was to rebut the illegally obtained statements. 3
Although the court assumes that the defendants would not have testified at the prior trial if their illegally obtained statements had not been introduced, it holds that there was no evidence of governmental duress in the form of “pressure” or “inducement” to compel the defendants to waive their Constitutional right to remain silent. And the court also holds that the prior-trial testimony *216 itself was not the “fruit of the poisonous tree,” because the defendants were “individual human personalities] whose attributes of will, perception, memory, and volition interact [ed] to determine what testimony [they would] give.” Smith and Bowden v. United States, 117 U.S. App.D.C. 1, 324 F.2d 879 (1963).
It seems plain to me, however, that the defendants’ decision to testify was compelled by the need to rebut the statements erroneously admitted in evidence. In Griffin v. State of California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the Supreme Court held that adverse comment by the court or the prosecutor upon a defendant’s failure to testify “cuts down on the [Constitutional] privilege [to remain silent] by making its assertion costly.” In the present case, the cost of exercising the privilege was even greater. The erroneously admitted statements left the defendants with a “Hobson’s Choice”: remain silent and allow the jury to consider the highly damaging statements, or testify and seek to rebut them. Neither time, nor the benefit of counsel, for considering this choice could alleviate the “damned-if-you-do-damned-if-you-don’t” alternative. 4
Because I think the decision to testify was compelled, it is unnecessary to consider the questions of attenuation reached by the court. 5 I would grant the petition for rehearing en banc. 6
J. SKELLY WRIGHT, Circuit Judge, would grant appellant’s petition for rehearing en banc and concurs with the statement of BAZELON, Chief Judge.
. Defendants’ first conviction was vacated because one of them was represented at trial by a layman representing himself as an attorney. Reference to defendants’ previous trial is to their second trial.
. 123 U.S.App.D.C. 230 , 359 F.2d 214 (1965).
. As to one of the appellants, however,, the court reversed the conviction on other grounds. Only appellant Harrison petitions for rehearing en banc.
. In Edmonds v. United States, 106 U.S. App.D.C. 373, 273 F.2d 108 (1959) (en bane), the introduction of prior-trial testimony was approved. But there the testimony in question was not given in response to evidence illegally obtained and admitted.
. In any event, Smith and Bowden and its progeny are inapplicable since they involved witnesses who were not defendants and thus there was no question of testimonial compulsion.
. Compare People v. Polk, 63 Cal.2d 443 , 47 Cal.Rptr. 1 , 406 P.2d 641 (1965), cert, denied, 384 U.S. 1010 , 86 S.Ct. 1914 , 16 L.Ed.2d 1016 (1966) (Traynor, C. J.).