finding the trial judge should have recused when defense counsel told him that the government's case can be proved beyond a reasonable doubt and that the defendant intends to commit perjury, noting that "[w]hen the court has regard for the ability and honesty of the lawyer . . . the credibility of the defendant would necessarily suffer in direct proportion to such regard"
How later courts described this case
- finding the trial judge should have recused when defense counsel told him that the government's case can be proved beyond a reasonable doubt and that the defendant intends to commit perjury, noting that "[w]hen the court has regard for the ability and honesty of the lawyer . . . the credibility of the defendant would necessarily suffer in direct proportion to such regard"
- defendant’s due process rights violated when judge, told by trial counsel that government’s case can be proved beyond *370 reasonable doubt and that defendant plans to commit perjury, refused to accept guilty plea and became trier of fact; judge should have recused himself and certified case to another judge.
- defendant's due process rights violated when judge, told by trial counsel that government's case can be proved beyond reasonable doubt and that defendant plans to commit perjury, refused to accept guilty plea and became trier of fact; judge should have recused himself and certified case to another judge.
- "destruction of the appearance of impartiality" in violation of due process required recusal where trial judge, sitting as trier of fact, learns from defense counsel the merits of defendant's case and that defendant plans to commit perjury
Written by the judges who cited it.
The opinion
PERREN, Associate Judge,
concurring in part and dissenting in part:
In this case, prior to trial, appellant asked the court to appoint another lawyer to represent him. While not objecting to removal from the case, counsel for appellant defended his representation to date. In doing so, he informed the court — which ultimately became the trier of fact — that “[t]his is an open and shut case,” and that his client intended to commit perjury.
I agree that the conviction should be reversed and the case remanded for a new trial. Por the reasons stated in Part II of the court’s opinion, it is inconceivable to me that due process could be satisfied when the defendant’s own lawyer tells the trier of fact that the defense has no case and his client plans to take the stand and lie. Accordingly, after ruling on the client's request for new counsel, see Thornton v. United States, D.C.App., 857 A.2d 429 , cert. denied, 429 U.S. 1024 , 97 S.Ct. 644 , 50 L.Ed.2d 626 (1976), the judge should have recused himself from further participation. 1
I cannot agree, however, with the premise in Part I of the court’s opinion that the lawyer’s duty to protect client confidences limits the lawyer’s right to defend against a client’s accusation of ineffectiveness under the circumstances presented here. The trial court has a duty to conduct a thorough, on-the-record inquiry into a pretrial claim of ineffective assistance of counsel. Monroe v. United States, D.C.App., 389 A.2d 811, 820-21 , cert. denied, 439 U.S. 1006 , 99 S.Ct. 621 , 58 L.Ed.2d 683 (1978); accord, Farrell v. United States, D.C.App., 391 A.2d 755, 760-61 (1978). Correspondingly, the attorney has wide latitude to defend himself or herself against a client’s accusation. See ABA Code of Pro *855 fessional Responsibility, DR 4-101(C)(4). 2 Given a threat to the attorney’s reputation and the right to respond under DR 4-101(C)(4), it is unrealistic for this court to attempt to place limitations on the scope of the trial court’s inquiry and the attorney’s response. 3 How can an attorney under fire reasonably be expected to hold back anything which, in his or her judgment, may be helpful in defending against the client’s allegations? By what criteria should the propriety of the attorney’s response be judged? And, with the defendant’s interest in mind, if the trial court cannot “inquire into the merits of the defense or the substance of the defendant’s testimony,” ante at 851; note 3 supra, how can we be sure that the trial court can conduct the necessary Monroe-Farrell inquiry into an alleged irreconcilable conflict over the conduct of the trial? Even if it were possible in some instances of a Monroe-Farrell inquiry for the trial court and counsel to probe improperly into the merits of a criminal case, this court has not sorted out that issue in a way that provides clear enough guidance.
I can think of only one reason for attempting to limit the pretrial colloquy on the alleged ineffectiveness of counsel: a concern that the price of asserting a constitutional right should not be a willingness to risk that the trier of fact, whether judge or jury, will learn damaging information about the defendant which otherwise would remain confidential. I share that concern, but cannot agree with the court’s approach to it. I fear that any effort to limit the Monroe-Farrell inquiry may, in itself, chill effective assertion of the Sixth Amendment right to counsel and prevent trial judges from properly resolving those claims. See note 3, supra. Therefore, rather than partially gag the trial court and counsel during the pretrial inquiry, I would deal with the problem by formally requiring that, once’ the trial court has resolved the ineffectiveness claim after a full hearing and transferred the case, neither the recused judge, the deposed attorney, the prosecutor, nor anyone else who was privy to the Monroe-Farrell inquiry can be subpoenaed to testify against the defendant.
It is true that, in bringing the ineffectiveness claim, the defendant must be deemed to have waived the lawyer-client privilege “so far as necessary to defend the attorney’s character.” West v. Solito, 563 S.W.2d 240 , 245 n. 3 (Tex.1978); see Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125 , 95 S.Ct. 811 , 42 L.Ed.2d 826 (1975); 8 Wigmore on Evidence § 2327 at 638 (McNaughton ed. 1961). But this does not mean that the defendant has waived the privilege for all purposes. The attorney’s right to defend his or her conduct under DR 4-101(C)(4) to the point of revealing a client confidence is an exception to the rule that the lawyer-client privilege is for the benefit of — and can only be waived by — the client. See Hunt v. Blackburn, 128 U.S. 464, 470 , 9 S.Ct. 125, 127 , 32 L.Ed. 488 (1888); Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 459 (N.D.Cal.1978). Thus, absent a manifest intention by the client to extend the waiver beyond the Monroe-Farrell hearing, no client confidence revealed at that hearing can properly be disclosed to the trier of fact. See Bucks County Bank & Trust Co. v. Storck, 297 F.Supp. 1122, 1123 (D.Hawaii 1969) (testimony by client at hearing on motion for return of property taken by allegedly illegal search and seizure *856 does not constitute general waiver of attorney-client privilege and cannot be used “in the criminal case in chief”); cf. Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 611 (8th Cir. 1978) (en banc) (only a limited waiver of the attorney-client privilege occurred in a separate and nonpublic SEC investigation). 4
In summary, I believe, under the circumstances of this case, that the best way to protect a client’s Sixth Amendment right to effective assistance of counsel, as well as the only way to preserve a lawyer’s rights under DR 4-101(C)(4), is to permit an unlimited inquiry during the Monroe-Farrell hearing, coupled with assurance that disclosures of client confidences at that hearing will be withheld from the new trier of fact.
. There is an obvious question: how does this situation differ from one in which a judge grants a pretrial motion to suppress and then tries the case without a jury, aware of powerful incriminating evidence supposedly to be ignored? In a case in which damaging evidence is suppressed by a trial judge who later sits, as the finder of fact, this court can review the record to determine whether the evidence properly admitted was sufficient to support a verdict of guilty. But in a case such as this, if the trial judge improperly considers the attorney’s suggestion of the defendant’s possible perjury in weighing the credibility of witnesses and determining guilt, we cannot effectively screen such bias on appeal. Moreover, in a suppression case, the client and lawyer presumably have an effective working relationship, such that any concern about the motions judge sitting as trier could be resolved by a jury demand. In the present case, however, given the particular disclosures by defense counsel, the relationship between client and lawyer had deteriorated to the point where the court could not properly have left counsel in the case, and thus the client effectively had no counsel sufficiently concerned about him to make a timely jury demand for purposes of insulating the trier of fact, if necessary, from assertions about an ‘‘open and shut case” and possible perjury.
Because a trial judge, in sentencing, legitimately may consider possible perjury, see United States v. Grayson, 438 U.S. 41 , 98 S.Ct. 2610 , 57 L.Ed.2d 582 (1978), it is possible that even a jury trial would not protect a testifying defendant against a trial judge who conducted the pretrial inquiry into an ineffectiveness of counsel claim, remained in the case, and, suspecting perjury (based solely on what the judge heard before trial), eventually imposed an especially harsh sentence — even though the defendant may, in fact, have told the truth. See Johnson v. United States, D.C.App., 404 A.2d 162, 164 (1979) (“We agree with appellant that the inconsistency between his two proffered defenses was insufficient to establish that the second proffer, the intended testimony, was false and that the trial court’s conclusion to the contrary was based on surmise”). Thus, there are likely to be instances when the motions judge who conducts the ineffectiveness inquiry should transfer even a jury trial to another judge.
Finally, I can imagine situations in which the motions judge should transfer the case when possibly prejudicial information has been disclosed, even though he or she properly declines to vacate counsel’s appointment.
. DR 4-101(0(4) provides:
(O A lawyer may reveal:
* * * * * *
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
ABA Code of Professional Responsibility (as amended 1977) (footnotes omitted).
. Specifically, I believe the following statement in the majority opinion, while perhaps not troublesome in most instances, may chill the inquiry and response to the point of jeopardizing the assertion of some pretrial ineffectiveness claims:
Nothing that we said in Monroe can be read as suggesting that the trial court in assessing the capability and preparedness of counsel can inquiry into the merits of the defense or the substance of the defendant’s testimony or that defense counsel may ethically address such issues. [Ante at 851.]
. Once a case has been transferred to a new judge after a Monroe-Farrell hearing, the question whether evidence from that hearing can properly come before the trial court will not only arise in connection with the government’s case-in-chief. There is a related question: should the same rule apply, barring evidence from the Monroe-Farrell inquiry, if the defendant takes the stand and government counsel wishes to subpoena the motions judge or former counsel to provide impeachment testimony? I believe, as a general rule, the answer should be yes; otherwise, the chill on a defendant’s rights to assert ineffectiveness of counsel and to testify in his or her own behalf would be too great. Nonetheless, the approach might be less absolute in the impeachment context. If, for example, at the Monroe-Farrell hearing, the defendant were unambiguously to confirm his or her counsel’s assertion that a particular story would be perjurious, but then tell that very story later, before a new trier, the purpose of the privilege would be subverted were impeachment not to be permitted. Courts have indicated that the privilege may not be invoked under circumstances where “fairness” does not permit it. See United States v. Catalanotto, 468 F.Supp. 503, 506 (D.Ariz.1978) (quoting Wigmore, supra, to effect that: waiver of attorney-client privilege involves two elements: (1) does the person holding the right to claim the privilege intend to waive it? (2) is it fair and consistent with the assertion of the claim or defense being made to allow the privilege to be invoked?); Pratt v. State, 39 Md.App. 442, 448 , 387 A.2d 779, 783 (1978), aff'd, 284 Md. 516 , 398 A.2d 421 (1979) (in determining whether attorney-client privilege has been waived, “various factors such as the client’s intent to waive, fairness, and consistency of conduct must be considered in view of the purpose of the privilege”). In any event, I would condition impeachment under all circumstances on a showing that, before the Monroe-Farrell hearing, the defendant had been alerted to the criteria by which confidences revealed at that hearing could be used for impeachment at trial.