United States v. Stanley Yelardy

PECK, Circuit Judge

dissenting.

I respectfully dissent because I cannot agree that appellant was accorded effective assistance of counsel. It is never easy to charge a lawyer with failing to fulfill his professional duty to render reasonably effective assistance to an accused. Nonetheless, a defendant is constitutionally entitled to such assistance, and no amount of “substantial unchallenged evidence of guilt” (emphasized by the majority) can diminish that right in any way. While the majority relies on the fact that “counsel inspected, by agreement with the prosecuting attorney, all the evidence against Yelardy,” this occurred, at best, the day before trial, far too late to line up evidence or witnesses to rebut the Government’s case. It is not unfair to say that this is the reason that the Government’s evidence went “unchallenged.”

The errors and omissions committed by trial counsel are too numerous to detail. It is worth noting, however, that the only evidence that counsel did anything at all to earn his $2500 fee during the ten months before trial is his own testimony at the evidentiary hearing. That evidence is weak enough, considering the fact that he could remember almost nothing about his preparation for the case, but when it is balanced against the contrary testimony not only of the accused (admittedly somewhat suspect) but a sworn affidavit from a potential witness, and conflicting statements by the attorney himself to the Michigan State Bar Grievance Board, it strains credulity to accept the position that Yelardy’s attorney prepared for trial at all, much less in a “reasonably adequate” manner. Perhaps the most compelling “witness” Yelardy had to support his contention that his attorney failed to prepare for trial was his attorney’s file on the case, which contained only a few notes scribbled during the trial. It contained no evidence to suggest any preparation at all, no interview notes, no legal research, no details of trial strategy, no copies of the search warrant, no copy of Yelardy’s criminal record — nothing.

Under the majority opinion, it would seem that unless a lawyer is willing to stand up and admit failure to prepare for trial, no challenge can successfully be made to inadequate representation during this crucial stage of the criminal defense. It is rare that incompetence is reflected in the transcript of the trial itself; failure to perform professional obligations during the weeks and months before trial do not appear in the record. But a defendant is constitutionally entitled to counsel both *867 “reasonably likely to render and rendering reasonably effective assistance,” and defense counsel must “investigate all apparently substantial defenses available to the defendant and must assert them in a proper and timely manner.” Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974).

Finally, I find the implications of the majority’s comment that “counsel’s obligation to conduct an independent, factual investigation is substantially diminished once counsel has reasonable cause to believe his client guilty,” disturbing. A lawyer is bound to present every defense the law permits. This obligation is the heart of the adversary process, and it is impossible to discharge that duty without thorough preparation, including factual investigation. It is not the lawyer’s role to determine a client’s guilt or innocence, and “reasonable cause to believe” a client guilty cannot ethically affect a lawyer’s representation. If the majority is merely suggesting that having a “guilty” client may make gathering the facts easier, that may be true, but the duty to conduct a thorough investigation is not thereby diminished.