providing that “the law in this Circuit is clear that where an allegation of ineffective assistance of counsel is premised on specific acts or omis *726 sions of counsel, the allegation must be buttressed by a showing of injury or prejudice to the defendant.”
How later courts described this case
- providing that “the law in this Circuit is clear that where an allegation of ineffective assistance of counsel is premised on specific acts or omis *726 sions of counsel, the allegation must be buttressed by a showing of injury or prejudice to the defendant.”
- declaring that “an appellate panel simply cannot modify an en banc decision”
- “[E]ven where, as here, several specific errors are found, it is the duty of the Court to make a finding as to prejudice, although this finding may either be ‘cumulative’ or focus on one discrete blunder in itself prejudicial.”
- “where an allegation of ineffective assistance by counsel is premised on specific acts or omissions of counsel, the allegations must be buttressed by a showing of injury or prejudice to the defendant”
Written by the judges who cited it.
The opinion
ELY, Circuit Judge
(dissenting):
I respectfully dissent. While I recorded my disagreement with the majority in Cooper v. Fitzharris by joining in my Sister *398 Hufstedler’s dissent, see 586 F.2d 1325,1334 (Hufstedler, J., dissenting), I recognize that Cooper controls “where . . . the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial . . . .” Cooper v. Fitzhar-ris, supra, at 1327; see also id. at 1331. The present claim of ineffective assistance of counsel does not, however, stem from specific acts or omissions of counsel at trial. Rather, the claim derives from counsel’s total lack of investigation and preparation. In the words of the District Court, “counsel’s lack of investigation and preparation as to Count Two . . . was so complete as to pervade the entire proceedings.” Unlike Cooper, wherein the prejudicial effect of the specific acts and omissions “can be evaluated from [the] record with reasonable certainty,” 586 F.2d at 1332 , the District Court here, faced with counsel’s complete lack of preparation throughout the entire proceedings, could only “speculate” as to what might have been. 1 It seems apparent, too, that the nature of this distinction lay at the very heart of the majority opinion in Cooper v. Fitzharris, 586 F.2d at 1332 . 2
I agree with the majority that “[t]he touchstone here, as in all cases where ineffective assistance of counsel is alleged, is a fair trial.” Majority Opinion p. 396. From the record before us, I think it is absolutely clear that the District Court found that appellant was denied a fair trial because of counsel’s abysmal lack of preparation and investigation and “his subsequent grossly inadequate assertion of petitioner’s rights.” These are the kinds of determinations by district judges to which we, at the appellate level, should accord some deference and respect. My Brothers gloss over the careful work of the district judge as if that work had never been done.
I am also perplexed, and even bewildered, by the majority’s statement that “the decision to proceed in an unprepared state may itself have been the tactical decision of a trial attorney confronted with overwhelming evidence.” Majority Opinion p. 396. It is the solemn duty of an attorney, especially an attorney undertaking to defend an individual accused of crime, to prepare and investigate every aspect of a case before proceeding to trial. 3 In light of this duty, it defies my imagination to accept the majori *399 ty’s proposition that a complete lack of preparation and investigation, in any case or in any circumstances whatsoever, could be deemed to be a “tactical decision” made by the attorney.
*398 When no counsel is provided, or counsel is prevented from discharging his normal functions, the evil lies in what the attorney does not do, and is either not readily apparent on the record, or occurs at a time when no record is made. “Thus an inquiry into a claim of harmless error here would require, unlike most cases unguided speculation,” [Holloway v. Arkansas, 435 U.S. 475, 491 , 98 S.Ct. 1173, 1182 , 55 L.Ed.2d 426 (1978)] and a rule requiring that the record reflect that the defendant was “prejudiced ... in some specific fashion would not be susceptible to intelligent, even handed application.” Id. at 490 , 98 S.Ct. at 1182 . This situation is to be distinguished from the usual one in which a harmless error rule is applied: “In the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury.” Id. at 490 , 98 S.Ct. at 1182 .
*399 I would affirm.
. See Cooper v. Fitzharris, supra, at 1332:
. Because Cooper itself not only detailed, but also explicitly relied upon, the nature of this distinction, i. e., the varying ability to evaluate prejudice, I cannot understand why its reiteration and application here “would be”, as the majority writes, “to modify Cooper v. Fitzhar-ris less than four months after its en banc decision.” Indeed, it appears to me that my Brothers ignore this fundamental premise of Cooper and, in so doing, contradict the analytical underpinnings of that decision.
. The American Bar Association Project on Standards for Criminal Justice, in its “Standards Relating to the Prosecution Function and the Defense Function” (Approved Draft, 1971), enunciated this duty:
4.1 Duty to investigate.
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore ail avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.
A.B.A. Standards, supra, § 4.1.