Record and brief — Morris v. Slappy
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WON Nad
Supreme Cour
FILED
pec 42 1981
ALEXANDeR L. STEVAS.
CLERK
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
v.
JOSEPH D. SLAPPY,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN,
Chief Assistant Attorney
General-Criminal Division
WILLIAM D. STEIN
Assistant Attorney General
W. ERIC COLLINS
Deputy Attorney General
DANE R. GILLETTE
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Telephone: (415) 557-1475
Attorneys for Respondent
QUESTIONS PRESENTED
1. Does the Sixth Amendment entitle
a criminal defendant to demand continued
representation by a particular deputy
public defender who had represented him
earlier in the proceedings?
2. If it does, is a generalized
complaint on the morning of trial that
successor counsel is not prepared, suf-
ficient to inform the state trial judge
that previous counsel is being demanded?
3. If a state trial judge refuses
to honor such a demand, must there be a
reversal per se, or must prejudice be
shown?
Table of Contents
Gpinion Below .« «cee es
Jurtegietion ..e«eseee
Constitutional Provision
Involved — = 7 - — o - 7
Statement of the Case ...
Reasons for Granting the Writ
Argument . 8 &.0 © ©&- ss 2s .@
Conclusion . «© :e«eesreee
Argersinger v. Hamlin
ii
Table of Authorities
(1972) 407 U.S. 25
Avery v. Alabama
(1940) 308 U.S. 444.
Chambers v. Maroney
(1970) 399 U.S. 42
Geders
Vv.
United States
(1976) 425 U.S. 80
Gideon v. Wainwright
(1963) 372 U.S. 335.
Glasser v.
United States
(1942) 315 U.S. 60
Greenfield v. Gunn
(9th Cir. 1977) 556 F.2d 935
Herring v. New York
(1975) 422 U.S. 853 .
Holloway v. Arkansas
(1978) 435 U.S. 475.
Majeske v. United States
(9th Cir.
1959) 266 F.2d 947
Maynes v. People
178 Colo.188
(1972)
People
(1961)
People
(1951)
Vv.
22
Vv.
36
Cox
I11.2d 534
Stroble
Cal.2d@ 615
14
14
iii.
Table of Authorities
(Continued)
Page
Powell v. Alabama
(1932) 287 U.S. 45 . . . 7 . o . . 17
Releford v. United States
(9th Cir. 1961) 288 F.2d 298 ... 20
Sumner v. Mata
(1981)__—iU~S. » 4013 8,Ce. 7646. . 17
United States v. Joyce
(2nd Cir. 1976) 542 F.2d 158 20
United States v. Poulack
(lst Cir. 1977) 556 F.2d 83 20
Wainwright v., Sykes
(1977) 433 U.S. 73 17
Williams v. United States
(7th Cir. 1964) 332 F.2d 36 20
iv.
Constitutional Provisions
United States Constitution
Ame ndment Six oO . . 7. _ - . . .
Statutes
28 U.S.C.
Section 1254 (1) a. =’ Se 2 oe. es
Rules
Rules of the Supreme Court
Rule 21.1(k) (iii) . . « © © « «
Other Authorities
Wice & Suwak, "Current Realities
of Public Defender Programs:
A National Survey and Analysis"
10 Crim. Law Bull. 161 (1974).
Annotation, “Indigent Accused's
Right to Choose Particular
Counsel Appointed to Assist Him"
66 ALR. 3d 996 . . . >. >. . . . >
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
Vv.
JOSEPH D. SLAPPY,
Respondent,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The petitioner, John Paul Morris,
respectfully prays that a writ of cer-
tiorari issue to review the judgment of
the United States Court of Appeals for
the Ninth Circuit entered in this pro-
ceeding on June 29, 1981.
2.
OriNION BELOW
The opinion of the Court of Appeals
is reported at 649 F.2d 718 and is
attached to this petition as Appendix A.
The order of the Court of Appeals amend-
ing its opinion, denying the petition for
rehearing and rejecting the suggestion
for rehearing en banc is unreported, and
is attached to this petition as Appendix
B.
JURISDICTION
The judgment of the Court of Appeals
was entered on June 29, 198%. The order
of the Court of Appeals amending its opi-
nion, denying the petition for rehearing
and rejecting the suggestion for
rehearing en banc was filed on
October 19, 1981.
This petition is timely filed within
60 days of October 19, 1981. The juris-
diction of this Court is invoked under
3.
Title 28, United States Code section
1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United
States Constitution states in pertinent
part: "In all criminal prosecutions,
the accused shall enjoy the right...
to have the assistance of counsel for
his defense."
STATEMENT OF THE CASE
Respondent Joseph D. Slappy was
charged in San Francisco Superior Court
with committing rape, forcible oral
copulation, burglary, robbery and false
imprisonment. The San Francisco Public
Defender's Office was appointed to
represent him.
On the first day of trial, Thursday,
September 23, 1976, Slappy complained
that Bruce Hotchkiss, the Deputy Public
Defender assigned to the case had
4.
had insufficient time to prepare (RT
5-6).2/ Specifically he asserted that
Hotchkiss had only had the case for a day
and a half (RT 5-6). Hotchkiss told the
judge that he had been assigned the case
the previous Friday, six days t-fore
trial, had reviewed the investigation and
file and was fully prepared. The trial
judge denied Slappy's request for a con-
tinuance based on the assurances from
Hotchkiss that he was ready (RT 5-6).
The case had been transferred to
Hotchkiss because Deputy Public Defender
Harvey Goldfine, who had handled the pre-
liminary hearing and investigation, was
in the hospital following an operation
for appendicitis (RT 7). Slappy said
1. RT designates portions of the
transcript from Slappy's first trial
attached as Exhibit B to the return to
the petition for writ of habeas corpus
filed in the United States District
Court, and subsequently lodged in the
United States Court of Appeals.
5.
that he was “satisfied with the Public
Defender," but was still concerned about
whether Hotchkiss was adequately pre-
pared (RT 7). The trial then began.
On the second day of trial Slappy
asked to address the court. He repeated
his complaint that Hotchkiss had not had
time to prepare (RT 80). The judge
stated that he had known Hotchkiss as a
deputy public defender for over nine
years and accepted his assurances
that he had had adequate time to prepare
(RT 80-81). Slappy then repeated his
Claim that Hotchkiss had only had the
case for a day and a half, and therefore
could not be prepared (RT 81). In
response, Hotchkiss once more reviewed
his preparation for trial, which
which included three interviews with
Slappy, familiarization with the volu-
minous investigation" and prepara-
tion for cross-examination of the
6.
prosecution witnesses (RT 82-83).
It was then that Slappy stated for
the first time, "Mr. Harvey Goldfine was
my attorney, and he still is” (RT 83).
The judge said that because of the
weekend and other court commitments on
Monday, the case would be continued for
three days until the following Tuesday.
He urged Slappy to cooperate with
Hotchkiss (RT 83-85).
On Tuesday, September 28, 1976,
eleven days after Hotchkiss had been
assigned to represent Slappy, trial
resumed. Slappy now took the position
that he did not have an attorney because
his counsel was in the hospital (RT 152-
153). He then said that he would not
participate in the trial, and asked to be
excused from the courtroom (RT 154-156).
Rejecting advice from both the judge
and Hotchkiss, Slappy remained adamant in
his refusal to cooperate (RT 152-156),
7.
Slappy was convicted of robbery,
burglary and false imprisonment, but
the jury hung on the two sex offense
charges. At his retrial on October 7,
Slappy again refused to cooperate with
Hotchkiss, and would not take the stand
to testify despite repeated pleas from
his attorney that he do so (RT II 85-87;
RT III 24-28) .2/ Slappy was convicted
of rape and forcible oral copulation.
Slappy's convictions were affirmed
by the California Court of Appeal in an
unpublished opinion filed on January 25,
1978,3/ The California Supreme Court
denied hearing.
2. RT II and RT III designate por-
tions of the Reporter's Transcript from
Slappy's second trial, attached as
Exhibits C and D to the return filed in
the United States District Court.
3. While not included in the return
filed in District Court, a copy of this
opinion is attached as Appendix C pur-
suant to Rule 21.1(k) (ii), Rules of the
Supreme Court.
On April 12, 1978 Slappy filed a
petition for writ of habeas corpus in the
United States District Court for the
Northern District of California, alleging
a violation of his right to counsel under
the Sixth Amendment to the United States
Constitution. The petition was denied,
and judgment of dismissal was entered, on
December 7, 1978. (The memorandum and
Order of the district judge is unpub-
lished, and is attached as Appendix D.
The judgment of dismissal is attached as
Appendix E).
Slappy appealed to the United States
Court of Appeals for the Ninth Circuit.
In an opinion filed on June 29, 1981,
that court concluded that Slappy had been
deprived of his right to counsel, and
found the error to be reversible per se
(Appendix A). The opinion was amended
when rehearing was denied on October 19,
1981 (Appendix B).
REASONS FOR GRANTING THE WRIT
When the Ninth Circuit Court of
Appeals held that respondent Joseph
Slappy, an indigent criminal defendant,
had a Sixth Amendment right to demand
that deputy public defender Harvey
Goldfine continue to represent him, it
created a totally new Sixth Amendment
right -- the right of continued repre-
sentation. This giant stride is not
supported by any decision of this or any
other federal court. Indeed, it cuts
across the grain and flow of the law,
and is contrary to one of this Court's
decisions.
By creating this unprecedented
right, the Ninth Circuit injected
federal courts into the allocation by
state public defender offices of their
resources. Once the initial assignment
of a deputy has been made, control of
deputies is removed from state officials,
10.
and effectively placed in the hands of
indigent defendants and the courts. The
distribution of scarce state legal
resources has been put under federal
management.
The Ninth Circuit did not have to do
this. The record shows, and the state
trial court and the state Court of Appeal
found, that Slappy asked for a continu-
ance because, and only because, he
Claimed assigned deputy public defender
Hotchkiss was not prepared for trial.
In fact, Hotchkiss was fully prepared.
In its zeal to reach its issue and create
its new right, the Ninth Circuit read into
the first day's proceedings statements
made by Slappy on the second and third
days of trial. By so doing, the federal
court not only misread the record, it did
not give the deference to the state
courts which this Court has commanded.
ll.
The Ninth Circuit decided to enforce
its newly created right by requiring
automatic reversal. No showing of pre-
judice was required. This is a refusal
to tailor the remedy to suit the wrong
and also offends the basic thrust of
this Court's decision in Chambers v.
Maroney (1970) 399 U.S. 42 that belated
appointment of counsel would not result
in reversal per se.
The Sixth Amendment is an evolu-
tionary concept. Argersinger v. Hamlin
(1972) 407 U.S. 25, 44 (Chief Justice
Burger, concurring). Action by the
federal Court of Appeals in this case,
on these facts, is revolutionary rather
than evolutionary. For these reasons,
petitioner asks that a writ of cer-
tiorari issue to restrain the Ninth
Circuit.
12.
ARGUMENT
1. In Gideon v. Wainwright (1963)
372 U.S. 335, this Court held that all
indigent criminal defendants are entitled
to the appointment of a lawyer to repre-
sent them. Implementation of this man-
date is a process uniquely suited to the
individual states. The approach taken by
many states to ensure the availability of
counsel for indigents has been the estab-
lishment of public defender offices.
Given the increasingly heavy case loads
such offices have been compelled to
handle, many have found that a division
of responsibility, with consequent speci-
lization, is the most efficient method of
utilizing their limited resources. Thus,
some attorneys handle preliminary
hearings, others motions and still others
trials. See, e.g., Wice & Suwak,
"Current Realities of Public Defender
13.
Programs: A National Survey and
Analysis,” 10 Crim. Law Bull. 161,
172-173 (1974). Laudable though the
goal of providing continuous, sequential
representation for each defendant by a
_...3le deputy public defender may be,
such a procedure is simply not feasible
with present resources. The Ninth
Carcuit's intervention in the state's
determination of how best to allocate
limited resources transfers to the
federal courts supervision of a process
in which local regulation and control is
particularly appropriate.
While claiming to defer to the gener-
ally accepted rule that indigent criminal
defendants may not demand representation
by a specific attorney ,+/ the Ninth
4. See generally, Annotation,
"Indigent Accused's Right To Choose
Particular Counsel Appointed To Assist
Him,” 66 ALR.3d 996.
14,
Circuit nevertheless has effectively held
that once a deputy public defender has
been assigned to represent one indigent
defendant, he may be required to handle
the case at all stages, regardless of
demands made by other indigents for him
to represent them. In effect, once the
initial allocation of a deputy public
defender is made, that decision substan-
tially removes any further control over
allocation of deputies from the public
defender, and transfers it to the defen-
dants. Until now, no court which has
considered the issue has held that a
defendant may insist upon representation
by a particular deputy public defender,
See, e.g., People v. Stroble (1951) 36
Cal.2d 615, 226 P.2d 330; Maynes v.
People (1972) 178 Colo. 188, 495 P.2d
551; People v. Cox (1961) 22 111.2d
534, 177 N.E.2d 211. Indeed, the
15.
Ninth Circuit itself has recently
recognized this proposition. See
Greenfield v. Gunn (9th Cir. 1977) 556
F.2d 935. The Ninth Circuit's pre-
ference in the Slappy opinion for con-
tinuous representation by a single
deputy public defender does not support
the conclusion that such continuity
is constitutionally compelled.
2. The Ninth Circuit manufactured
the entire issue by choosing to read
Slappy's initial complaint on the morn-
ing of trial as a demand for Goldfine's
services. In fact, the record on that
date is totally bereft of any concern by
Slappy other than with the amount of
time Hotchkiss had had to prepare.
Slappy's claim that Hotchkiss had only
had the case for a day and a half was
refuted on the record by Hotchkiss, who
said he had had the case for six days,
and was in fact prepared.
16.
Slappy's first mention of Goldfine
did not occur until the second day of
trial, and it was only on the third day
of trial, eleven days after Hotchkiss
received the case, that Slappy refused to
cooperate unless Goldfine represented
him.
It is clear from these facts that
Slappy did not insist upon representation
by Goldfine rather than Hotchkiss until
all other ploys for delaying or
obstructing the trial had failed. MThis
was pointed out to the Ninth Circuit in
the petition for rehearing. Not only did
that court misstate petitioner's position
by concluding in its amended opinion that
"the state has not contended that Slappy
was acting in bad faith," its holding
failed to give proper deference to the
contrary factual findings of the state
trial and appellante judges.
17.
Sumnec v. Mata (1981) ___—U.S. __, 101
S.Ct. 764, 66 C.Ed.2d 722.
Clearly, if a trial judge is obli-
gated to determine the availablity of a
particular deputy public defender, there
must be a sufficiently specific, and
timely, objection by the defendant to
the attorney assigned to his case,
coupled with a demand that the sought-
after deputy represent him. That did
not happen in this case. Absent such
warning to the trial judge, Slappy's
Claimed right to a particular counsel
must fail. Cf. Wainwright v. Sykes
(1977) 433 U.S. 73, 91.
3. This Court has long recognized
that the right to counsel includes the
right to effective assistance of coun-
sel. Powell v. Alabama (1932) 287 U.S.
45; Avery v. Alabama (1940) 308 U.S. 444,
In Chambers v. Maroney (1970) 399 U.S.42
18.
however, a case involving the last minute
substitution of attorneys by the Legal
Aid Society appointed to represent the
defendant, the Court refused to fashion a
per se rule of reversal in every case
involving the belated appointment of coun-
sel. 399 U.S. at 54. The Court of
Appeals acknowledged the holding in
Chambers, but effectively refused to
follow it by finding that a failure to
conduct an adequate inquiry into Slappy's
demand for representation by a different
deputy public defender effectively
resulted in a denial of his right to
counsel. The inquiry was inadequate only
because the state trial judge did not
Perceive the issue created by the Ninth
Circuit's reading of the record.
This is not a case where no counsel
was provided to the defendant, nor where
the court did something to prevent the
19.
attorney from discharging his functions.
The case does not involve an allegation
that trial counsel's representation was
ineffective. Indeed, this case does not
even involve a substitution of counsel
by the trial court; the decision to
assign Hotchkiss to Slappy's case was
made by the public defender. Rather, it
involves a defendant who simply refused
to cooperate with his attorney, and
finally found in the Ninth Circuit a
court gullible enough to elevate his
recalcitrance to a constitutional prin-
ciple.
No decision by this Court, including
those relied upon by the Ninth
Circuit, >/ requires automatic reversal
5. Gideon v. Wainwright (1963) 372
U.S. 335; Geders v. United States (1976)
425 u.S. 80; Herring v. New York (1975)
422 U.S. 853; Glasser v. United States
(1942) 315 U.S. 60, Powell v. Alabama
(1932) 287 U.S. 45; Holloway v.
Arkansas (1978) 435 U.S. i736.
20.
of a conviction under such cir-
cumstances. 9/ Unless the defendant can
demonstrate that he was prejudiced, the
refusal to grant his request that a par-
ticular deputy public defender continue
to represent him should not result in a
reversal. The Ninth Circuit's per se
rule places a premium on disruption and
noncooperation by defendants. It further
erodes the ability of the criminal
justice system to fairly balance its
Obligation to ensure all defendants a
6. The Court of Appeals decision is
also inconsistent with the requirement of
other circuits that prejudice be shown
when counsel is substituted over the
defendant's objection. See, e.g.,
United States v. Poulack (Ist Cir. 1977)
F. 3; United States v. Joyce (2nd
Cir. 1976) 542 F.2d 158; Williams v.
United States (7th Cir. 1964) 332 F.2d
- Indeed, there appears to be a
conflict within the Ninth Circuit itself
on this point. Compare Releford v.
United States (9th Cir. 1961) 288 F.2d
298 with Majeske v. United States (9th
Cir. 1959) F.2d 947.
21.
fair trial, with its obligation to the
general public to try, and punish, those
persons guilty beyond a reasonable doubt
of committing crimes,
CONCLUSION
The decision of the Court of Appeals
represents an unprecedented and unwar-
ranted departure from this Court's hold-
ings on the Sixth Amendment right to
counsel. The petition for a writ of
certiorari should be granted.
DATED: December 8, 1981
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN,
Chief Assistant Attorney
General-Criminal Division
WILLIAM D. STEIN
Assistant Attorney General
W. ERIC COLLINS
puty B46 General
DANE R. GILLETTE
Deputy Attorney General
Attorneys for Respondent
-xIpuaddy
APPENDIX A
Joseph D. SLAPPY,
Petitioner-Appellant,
Ve
Paul John MORRIS, Warden,
Respondent-Appellee.
No. 79-2519.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 14, 1980.
Decided June 29, 1981.
Appeal from the United States
District Court for the Northern District
of California.
Before GOODWIN, ALARCON and NEISON,
Circuit Judges.
ALARCON, Circuit Judge:
Joseph D. Slappy, a California state
prisoner, petitioned for a writ of
habeas corpus alleging, inter alia, that
in his state trial he was deprived of
his sixth amendment right to counsel.
The district court denied the petition.
A-2
Because we find that Slappy was deprived
of his sixth amendment right to counsel,
we hold that the writ of habeas corpus
should issue.
PERTINENT FACTS
Petitioner Slappy was charged by
information in state court proceedings
with rape, robbery, burglary, oral copu-
lation, and false imprisonment. At
Slappy's arraignment, the San Francisco
public defender's office was appointed to
represent him. Deputy Harvey Goldfine of
that office represented Slappy at his
preliminary hearing, and also conducted
the investigation into Slappy's case.
Slappy's trial was scheduled to
begin on a Thursday. On the Friday pre-
ceding trial, Deputy Bruce Hotchkiss,
also of the San Francisco public defen-
ders office, met Slappy at his jail
cell, and advised him that he, Hotchkiss,
would represent Slappy in trial. This
A-3
change in representation was due to
Goldfine's appendicitis attack.
Hotchkiss again visited Slappy on the
Tuesday before trial.
On the day of trial, Slappy com-
~-..ned to the trial judge about the
short amount of time between Hotchkiss’
assignment to Slappy's case and the
trial. The trial judge interpreted this
complaint as a motion for a continuance,
and denied the motion. Slappy continued
to insist that Hotchkiss had insuffici-
ent time to prepare for trial.
Hotchkiss, however, claimed that he was
prepared. He explained the background
of his assignment to the case, stating
to the court that "Mr. Goldfine, who was
to try this case, was operated on for
appendicitis, that is how it was
transferred." The trial judge did not
inquire as to how long Goldfine would be
incapacitated.
A-4
Throughout the trial, Slappy refused
to cooperate with Hotchkiss and i.isisted
that Goldfine, not Hotchkiss, was his
lawyer. Slappy was so dissatisfied with
his representation that he continually
interrupted the proceedings, insisting
that his right to counsel was being
infringea.*
1. For example, at one point in the
trial the record shows the following
occurred:
THE DEFENDANT: Your Honor, I'm
leaving that part up to you. I
asked you may I be excused. If you
don't want to excuse me, I'll sit
right here. What difference does
it make?
THE COURT: Well, I would urge you
then ir. Slappy to reniain seated and
in the Courtroom, and should you
desire to discuss this case further
with your Counsel, why you certainly
can let me know, or through you
Counsel let me know.
THE DEFENDANT: What do I have to
say to get through to you, your
Honor, what do I have to say to make
you understand, I have told you two
or three times, and then you keep
telling me about talking to my
Counsel. I don't have no attorney,
I told you I don't have no attorney.
(Footnote continued on next page.)
A-5
Slappy was convicted of rob-
bery, burglary, and false imprisonment.
The jury was unable to agree on the rape
and oral copulation charges and a mis-
trial was declared on those charges.
A second trial on the remaining
charges began the next week, with
Hotchkiss remaining as Slappy's counsel.
Slappy continued to insist that Goldfine,
Footnote 1 continued:
My attorney's in the hospital, my
attorney's name is Mr. P.D.
Goldfine, Harvey Goldfine, that's my
attorney, he's in the hospital.
THE COURT: Well, I am going to ask
you then under the circumstances,
Mr. Slappy, to remain in the Court-
room and to listen to the proceed-
ings and listen to the progress of
this case.
THE DEFENDANT: That's up to you,
that's up to you what you do, your
Honor. If you say so I'll remain
here, but I am not participating in
the trial, I'm through with it, as
of now I am through with this trial.
I was through with it the 24th when
this P.D. told me that I didn't have
no defense from my charges. I was
through then, and that's why I
didn't see him when he come down to
see me.
A-6
not Hotchkiss, was his attorney. Com-
munication between Slappy and Hotchkiss
broke down to such a point during the
second trial that Hotchkiss asked the
court to remove him as counsel because he
felt he could not render effective assis-
tance in the face of such conflict.
After a conference in chambers, Hotchkiss
withdrew his motion. Slappy was ulti-
mately convicted of rape and oral copula-
tion in this trial.
In both trials, Hotchkiss advised
Slappy to testify. Slappy refused to
testify in the first trial, and only
decided to testify in the second trial
after the jury was instructed. This
request was denied by the trial court.
Slappy's convictions were affirmed
by the California Court of Appeal, and
the California Supreme Court refused to
grant a hearing. Slappy thereafter filed
a petition for writ of habeas corpus in
A-7
the District Court for the Northern
District of California. The issues
raised in the petition for habeas corpus
were fairly presented to the California
courts.
DISCUSSION
Slappy contends that the trial
court's refusal to grant a reasonable
continuance until his attorny, Harvey
Goldfine, was well enough to represent
Slappy at trial was a denial of his
sixth amendment right to counsel.
We recognize at the outset that
an indigent defendant does not have an
unqualified right to the appointment of
counsel of his own choosing. See Brown
v. Craven, 424 F.2d 1166 (9th Cir. 1970).
Sout cf. Harris v. Superior Court, 19
Cal.3d 786, 567 P.2d 750, 140 Cal.Rptr.
318 (1977) (under certain circumstances
it may be an abuse of discretion not to
appoint an attorney designated by an
A-8
indigent). This is not a case of a
defendant seeking to choose a particular
attorney in the first instance. Here the
trial court had appointed Harvey Goldfine
to represent Slappy. Slappy was merely
seeking a continuance of the trial date
so that his attorney would be able to
represent him at trial. The record
Clearly establishes the fact that Slappy
and Goldfine had entered into an attorney-
Client relationship at least as of the
time of the preliminary hearing.
The right to counsel includes
more than just the right to representa-
tion by competent counsel at trial. This
right would be without substance if it
did not include the right to a meaningful
attorney-client relationship.“ The
2. Recognizing the importance of
the attorney-client relationship, courts
and legislatures have instituted attorney-
client evidentiary privileges to facili-
tate communication between attorney and
(Footnote continued on next page.)
A-9
special nature of the attorney-client
relationship was explained by the Alaska
Supreme Court in McKinnon v. State:
The attorney-client relationship
involves "an intimate process of
consultation and planning which
culminates in a state of trust
and confidence between the
Client and his attorney." Often,
the outcome of a criminal trial
may hinge upon the extent to
which the defendant is able te
Footnote 2 continued:
Client. See, e.g., J. Weinstein & M.
Berger, 2 Weinstein's Evidence
; Baird v. Koerner, 279 F.2d 623,
629-30 (Sth Cir. 1960); Cal.Evid.Code §§
950-955 (West 1980). These privileges,
by protecting communications from the
client to the attorney, facilitate com-
munication. The existence of a privi-
lege, however, conflicts with the
objective of truth seeking. Despite
this negative effect on the truth seek-
ing process, the importance of open com-
munication between client and attorney
has resulted in the institution and
acceptance of these privileges.
A-10
communicate to his attorney the
most intimate and embarassing
details of his personal life.
Complete candor in attorney-
client consultations may disclose
defenses or mitigating circum-
stances that defense counsel
would not otherwise have uncov-
ered. At the very least, an
open exchange between attorney
and client will often foreclose
the possibility of surprise at
trial.
McKinnon v. State, 526 P.2d 18, 22
(Alaska 1974) (Footnotes omitted).
The attorney-client relationship is
accorded special protection because of
its impact on the truth-finding process.
In Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963), the
Supreme Court held that a defendant in a
state court proceeding could not get a
A-11
fair trial unless he had assistance of
counsel at trial. But representation at
trial is without substance if the
defendant does not have confidence in
his attorney's ability to represent the
defendant's best interests. It is un-
likely that a criminal defendant will
have a legal education. He, therefore,
will have to rely on his attorney's
advice for the most basic decision in a
criminal trial--whether to plead guilty,
whether to testify, whether to present a
defense, and which witnesses to call.
If the defendant does not trust his
attorney, he may be unwilling to follow
his attorney's advice in these most
important areas.
Several appellate courts have found
unconstitutional the trial court's
failure to take measures to allow the
defendant to continue at trial with his
retained counsel. In Releford v. United
A-12
States, 288 F.2d 298 (9th Cir. 1961),
this court held that there was a denial
of the right of counsel under the fol-
lowing facts: The defendant had retained
counsel (Kay) to represent him on crimi-
mal charges. Kay became ill shortly
before trial, and was expected to be
unable to participate in trial for about
two week. The trial court refused to
grant a continuance to allow Kay to rep-
resent the defendant at trial or to allow
the defendant to secure a chosen substi-
tute for trial. Instead, the judge
forced the defendant to go to trial with
a second, unwanted, attorney. The Ninth
Circuit reversed the defendant's convic-
tion, holding that the defendant had been
deprived of his right to counsel because
the trial judge refused to grant a con-
tinuance.
Similarly, in Gandy v. Alabama, 569
F.2d 1318 (5th Cir. 1978), the Fifth
A~13
Circuit held that a habeas petitioner
was deprived of his right to due process
when the trial judce refused to grant a
continuance or otherwise insure coun-
Sel's presence. In Gandy, petitioner's
retained counsel could not be present at
the day of the scheduled trial because
of a conflicting civil trial. The trial
judge refused to grant a continuance,
and forced another attorney on the peti-
tioner. The Fifth Circuit, while noting
that the decision to grant a continuance
is generally vested in the trial judge's
discretion, held that the refusal to
grant a continuance in such circum-
stances was so unfair as to deny the
petitioner his right to due process.
The Seventh Circuit, in United
States v. Seale, 461 F.2d 345 (7th Cir.
1972), held that forcing a defendant to
Proceed with unwanted counsel, when
retained counsel was ill, was an abuse
A-14
of discretion. The Seale court noted
that the defendant should have been given
a reasonable continuance to obtain the
services of either his retained ccunsel,
or some chosen substitute.
We recognize that the cases dis-
cussed above involved retained counsel.
We see no reason to distinguish between
appointed and retained counsel in the
context of preserving an attorney-client
relationship. We find ourselves in
agreement with the California Supreme
Court's statement in Smith v. Superior
Court, 68 Cal.2d 547, 440 P.2d 65, 68
Cal.Rptr. 1 (1968),
A superficial response is that
the defendant does not pay his
fee, and hence has no ground to
complain as long as the attorney
currently handling his case is
competent. But that attorney-
Client relationship is not that
A-15
elementary: it involves not
just the casual assistance of a
member of the bar, but an inti-
mate process of consultation and
Planning which culminates in a
state of trust and confidence
between the client and his
attorney. This is particularly
essential, of course, when the
attorney is defending the
Client's life or liberty. F.i-
thermore, the relationship is
independent of the source of
compensation, for an attorney's
responsibility is to the person
he has undertaken to represent
rather than to the individual or
agency which pays for the ser-
vice. . .. It follows that
once counsel is appointed to
represent an indigent defendant
- « « the parties enter into an
A-16
attorney-client relationship
which is no less inviolable than
if counsel had been retained. To
hold otherwise would be to sub-
ject that relationship to an
unwarranted and invidious dis-
Crimination arising merely from
the poverty of the accused.
Id. at 561-62, 440 P.2d at 74, 68 Cal.
Rptr. at 10. See also Cuyler v. Sullivan,
446 U.S. 335, 344-45 & n.9, 100 S.Ct.
1708, 1716 & N.9, 64 L.Ed.2d 333 (1980)
(no reason to distinguish between
retained and appointed counsel when
determining whether defendant received
adequate representation).
Because of the importance of
the attorney-client relationship to the
substance of the defendant's sixth amend-
ment right to counsel, we hold that the
sixth amendment (as incorporated by the
A-17
fourteenth amendment) encompasses the
right ko have the trial judge accord
weight to that relationship in deter-
mining whether to grant a continuance
founded on the temporary unavailability
of a defendant's particular attorney.
In considering the continuance, the
trial court must balance the defendant's
constitutional right to counsel against
the societal interest in the “prompt and
efficient administration of justice."
Gandy v. Alabama, 569 F.2d 1318, 1323
(5th Cir. 1978). In the instance case,
the trial judge failed to inquire as to
the probable length of Goldfine's un-
availability. In the absence of the
information such an inquiry would have
revealed, the trial judge could not
engage in the balancing required to pro-
tect defendant's rights. In refusing to
grant a continuance, therefore, the
A-18
trial judge violated Slappy's constitu-
tional right to counsel.>
Determining that Slappy was
denied his sixth amendment right to coun-
sel does not dispose of this claim; we
must also determine whether this type of
sixth amendment violation requires the
defendant to establish prejudice before a
writ of habeas corpus can issue. We con-
Clude that prejudice need not be shown
3. We do not, of course, mean to
imply that a continuance must be granted
whenever a defendant's particular attorny
is unavailable. What is required is that
the appropriate balancing take place.
See Ungar v. Sarafite, 376 U.S. 575, 589,
B41, , 11 L.Ed.2d 921 (1964). Compare
Gandy v. Alabama, 569 F.2d 1318, 1 -
th Cir. 1978) (granting habeas petition
because trial court's evaluation of fac-
tors and reconciliation of values in
refusing to grant a continuance was so
arbitrary as to violate principles of due
process) with Giacalone v. Lucas, 445
F.2d 1238 (6th Cir. 1971), cert. denied,
405 U.S. 922, 92 S.ct 960, 30 L.Ed.2d 793
(1972) (dening habeas petition based on
conclusion that trial court's denial of
continuance based on medically related
absence of attorney was in accordance
with due process).
A-19
under these facts. In Releford v.
United States, 288 F.2d 298 (9th Cir.
(1961), this court stated:
Apart from the question as to
whether [the second attorney]
had time to prepare, no actual
prejudice was shown with respect
to his participation in the
trial as counsel for Releford.
In our view, however, where
there has been complete disre-
gard of the defendant's right to
choose his own counsel, preju-
dice will be presumed. Id. at
302 (emphasis added).
In another portion of the opinion, the
court stated that the denial of the
right to counsel under those facts "is
reversible error regardless of whether
prejudice is shown.” Id. at 301.
A-20 ©
In holding that under these facts
no showing of prejudice is required for
reversal, we are acting consistently with
Supreme Court and Ninth Circuit prece-
dents. There are two lines of Supreme
Court cases which deal with right of
counsel: one holding that no showing of
prejudice is required for reversal; the
other requiring a showing of prejudice
for reversal. This case fits within the
former, not requiring a showing of prej-
udice for reversal.
These two lines of cases were dis-
cussed, compared and distinguished in
Cooper v. Fitzharris, 568 F.2d 1325,
1331-33 (9th Cir. 1978) (en banc) cert.
denied, 440 U.S. 974, 99 S.Ct. 1542, 59
L.Ed.2d 793 (1979). In Cooper, a habeas
petitioner asserted that he received in-
effective assistance of counsel based on
defense counsel's acts and omission at
trial. This court held that: “When the
A-21
Claim of ineffective assistance of coun-
sel rests upon specific acts and omis-
sions of counsel at trial, as it does in
this case, relief will be granted only
if it appears that the defendant was
prejudiced by counsel's conduct." Id.
at 1331. As support for this statement,
the Cooper court cited Chambers v.
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26
L.Ed.2d 419 (1970). In Chambers, a
habeas petitioner alleged that a belated
appearance of counsel resulted in his
being rendered ineffective assistance of
counsel. Specifically, he alleged that
defense counsel failed to make certain
suppression motions. The Supreme Court
held that an inquiry into prejudice was
warranted before reversal.‘
4. In holding that prejudice is not
required in the instant case, we are not
ignoring the following language in
Chambers: “But we are not disposed to
(Footnote continued on next page.)
A-22
In Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);
Geders v. United States, 425 U.S. 80, 96
S.Ct. 1330, 47 L.Ed.2d 592 (1976);
Herring v. New York, 422 U.S. 853, 95
S.Ct. 2550, 45 L.Ed.2d 593 (1975);
Glasser v. United States, 315 U.S. 60, 62
S.Ct. 457, 86 L.Ed. 680 (1942), and
Footnote 4 continued:
fashion a per se rule requiring reversal
of every conviction following tardy
appointment of counsel. .. ." 399 U.S.
at 54, 90 S.Ct. at 1982-1983. The
instant case presents an unusual claim
arising from a case of attorney substi-
tution and a consequential belated
appointment. The allegation here is not
that the belated appointment prevented
counsel from performing acts at trial
resulting in effective assistance; the
Claim is that the court, in not allowing
a reasonable continuance, prevented coun-
sel from fulfilling normal functions--
from forming and exploiting an attorney-
Client relationship with defendant. The
crux of Slappy's claim is that the
court's actions denied him of his right:
to counsel. Chambers is readily distin-
guishable. Its language, therefore, does
not suggest that we must require some
showing of prejudice to justify a rever-
sal in this case.
A-23
Powell v. Alabama, 287 U.S. 45, 53 S.Ct.
55, 77 L.Ed. 158 (1932) and Holloway v.
Arkansas, 435 U.S. 475, 98 S.Ct. 1173,
55 L.Ed.2d 426 (1978), the Supreme Court
held that, under the facts presented
therein, prejudice was irrelevant when
the right to counsel was denied. In
these cases, either no counsel was pro-
vided, or counsel was prevented by the
court from fulfilling normal functions.
In Gideon, no defense counsel was
appointed. In Geders, the court prohib-
ited counsel from consulting with his
Client during an overnight, midtrial
recess. In Herring, a state statute
allowed the trial judge to prohibit
defense counsel from making a summation.
In Glasser, as in Holloway, the court
required defense counsel to represent
defendants with conflicting interests.
In Powell, the court did not provide
A-24
defense counsel with adequate opportunity
to consult with defendants and prepare
for trial.
In reconciling these cases with
Chambers, the Cooper court wrote: "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." 586
F.2d at 1332. The instant case is analo-
gous to the Gideon-Geders-Glasser line of
cases. The trial court's failure to con-
sider adequately Slappy's attorney-client
relationship when ruling on the continu-
ance denied Slappy his sixth amendment
rights to counsel. The second attorney's
effectiveness at trial was irrelevant to
the impact of the denial of the right to
counsel.
A-25
Slappy also contends that he was
deprived of effective assistance of
counsel because the trial judge refused
to remove his attorney, Hotchkiss, after
a showing of irreconcilable conflict.
Because we reverse and remand on grounds
mentioned above, it is unnecessary to
reach the merits of this issue.
Slappy's contention that he was
denied due process because the trial
judge refused to allow him to testify
also has been renderd moot by our dis-
position of the matter.
The judgment is REVERSED. On
remand, the district court may tem-
porarily hold Slappy's petition in
abeyance and shall grant the petition
unless California authorities, within a
reasonable period, not exceeding sixty
days, grant Slappy a new trial.
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH D. SLAPPY,
)
)
Petitioner-Appellant, ) No. 79-2519
)
v. ) QRDER
)
cauu JOHN MORRIS, Warden, ) Filed
) October 19,
Respondent-Appeliee. ) 1981
)
Before: GOODWIN, ALARCON and NELSON,
Circuit Judges
The Opinion filed on June 12, 1981,
in the above-entitled case has been
amended as follows:
On the slip op. 3172, add the fol-
lowing (such addition to follow the last
Paragraph on said page 3172):
The record clearly demonstrates the
sincerity of Slappy's desire to be
represented by Goldfine, and the
state has not contended that Slappy
was acting in bad faith. In con-
cluding that Slappy was denied his
B-2
sixth amendment right to counsel, we
find it significant that there is
nothing in the record from which it
can be inferred that Slappy's
request for a continuance was meti-
vated by a desire to delay his trial
for an improper purpose. We need
not reach the question here of
whether the same result would obtain
if it were shown that the defend-
ant's request for a continuance was
made in bad faith.
On the slip op. 3174, add the following
Paragraphs just prior to the first full
Paragraph on the second column of page
3174:
"Our holding that Slappy need not
establish prejudice is not incon-
sistent with United States v.
Veatch, 80-1567 (9th Cir. June 12,
198)). In Veatch, on the second and
last morning of trial, one of the
B-3
defendant's three lawyers received
word that his father died during the
night. The defendant moved for a
continuance so that the attorney
could return home and make the nec-
essary arrangements. The district
court denied the motion. The attor-
ney decided to remain at trial and
participated in the closing argu-
ments. On appeal, the defendant
contended that the denial of the
continuance required reversal of the
conviction. The circuit court dis-
agreed, stating that "“[a]ctual prej-
udice to the defendant must be shown
before the denial of a continuance
will be reversed.” Id., slip op. at
2846.
In the instant case, however,
the question is not whether the
district court properly denied a
continuance. Rather, the question
B-4
here is what inquiry a trial court
judge must make before ruling on a
continuance motion. We have held
that because the attorney-client
relationship is so important to the
right to counsel, it must be
accorded weight in the trial judge's
decision as to whether to grant a
continuance. If a trial court does
not attempt to ascertain the length
of continuance necessary to insure
counsel's presence at trial, and the
attorney with whom the defendant has
an attorney-client relationship does
not appear at trial, then the defen-
dant has been deprived his or her
right to counsel. The conviction
must be reversed, irrespective of
any showing of prejudice.
Veatch is distinguishable in
that the attorney remained at trial
and therefore the av.:corney-client
B-5
relationship was not affected by the
denial of the continuance. Also, in
Veatch, it is not apparent from the
opinion whether the court ascer-
tained the length of continuance
necessitated because of the death of
the attorney's father.
The panel as constituted above has
voted to deny the petition for rehearing
and
ing
the
and
to reject the suggestion for rehear-
en banc.
The full court has been advised of
suggestion for rehearing en banc,
has been further advised of the
amended opinion, and no judge of the
court has requested a vote on the
suggestion for rehearing en banc. Fed,
R. App. P. 35(b).
The petition for rehearing is denied
and the suggestion for rehearing en banc
is rejected.
APPENDIX C
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
1/Crim 16217
vs.
(Superior Court
JOSEPH DAVID SLAPPY, No. 92747)
Defendant and Appellant, Filed Jan. 25,
_f 1978
Joseph David Slappy appeals from
judgments of imprisonment which were
rendered after jury trials resulted in
verdicts finding him guilty of rape
(Pen. Code, § 261.3), second degree
burglary (Pen. Code, § 459), second
degree robbery (Pen. Code, § 211), oral
copulation (Pen. Code, § 288a) and false
imprisonment (Pen. Code, § 236).
Appellant accosted the victim in a
liquor store and was ordered by the
manager to leave, When the victim later
left the store, she saw that appellant
was waiting outside. She got free from
C-2
him briefly but when she entered her
apartment nearby, appellant was waiting
in the lobby. Appellant forced her into
the basement of the building, where he
committed the offenses mentioned above.
Finally, the victim escaped from
appellant. She immediately gave a
description of appellant to the police.
Appellant was captured two blocks away.
Earrings and other jewelry belonging to
the victim were found on his person.
Appellant contends, citing People v.
Marsden (1970) 2 Cal.3d 118, that it was
an abuse of discretion for the court to
decline to substitute new counsel for
appellant in place of the deputy public
defender who represented him in both
trials. It is claimed that relationships
between appellant and his counsel had
broken down, to the point that communica-
tion was impossible and appellant was,
as a result, deprived of effective
C-3
assistance of counsel (citing People v.
Williams (1970) 2 Cal.3d 894). No con-
tention is made that defense counsel was
incompetent or unprepared. The record
does indicate that appellant's conduct
at trial was refractory and inappro-
priate. But his own misconduct and
failure to cooperate adequately with
counsel does not establish entitlement
to appointment of new counsel (People
v. Walker (1976) 18 Cal.3d 232.) Appel-
lant's real object at trial apparently
was that he preferred to be assisted by
another deputy public defender who had
Originally been assigned to the case but
had been relieved in order to have
surgery for appendicitis. Appeilant
told the court: "I'm happy with the
public defender, but it's just no way,
no possible way, that he has had enough
time to prepare this case." But the
c-4
deputy who had been substituted repre-
sented to the court that he was ready for
trial. He participated vigorously and
appropriately in the defense of the
action and there is no indication that he
was unprepared or incompetent. There-
fore, it was not an abuse of discretion
to decline to appoint other counsel.
Appellant contends that it was error
for the court to refuse to allow him to
testify. The request was not made until
after arguments and instructions, at a
time when the jury was about to leave the
courtroom to commence deliberating. At a
reported hearing in chambers, it was
established of record that appellant had
earlier rejected the advice of his attor-
ney that he should testify. The question
whether a party should be allowed to re-
open a case for the presentation of more
evidence after counsel have argued is
left to the sound discretion of the trial
C-5
judge. (People v. Newton (1970) 8 Cal.
App.3d.359, 383.) Where appellant had
earlier refused to testify, it was not
an abuse of discretion to decline to re-
open the case for taking his testimony.
Appellant contends that the court
should have granted a motion made by
defense counsel to have the jury view
the entrance of the victim's apartment.
The trial judge has discretionary power
to determine whether to order a view.
(People v. Wheeler (1971) 23 Cal.App.3d
290.) Here, there was substantial show-
ing that a view of the entryway would
assist the jury to understand the testi-
mony. As the trial court appropriately
observed, photographs were in evidence
that clearly showed the area in ques-
tion. It was not an abuse of discretion
to deny the motion for a view of the
scene.
Cc-6
Affirmed.
Christian, J.
We concur:
Caldecott, P. J.
Ragan, J.
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE, NORTHERN DISTRICT OF CALIFORNIA
JOSEPH D. SLAPPY,
No. C-78-0796
)
)
Petitioner, ) RFP
Vv. )
) Filed
Parry, JOHN MORRIS, ) December 7,
waLruen, Folsom State ) 1978
Prison, )
) MEMORANDUM
Respondent. ) AND ORDER
)
In 1976 petitioner, Joseph D.
Slappy, was charged with rape, burglary,
robbery, Oral copulation, and false
imprisonment. When he was arraigned on
the information, the San Francisco
Public Defender's Office was appointed
to represent him. The preliminary hear-
ing and investigation of the case were
handled by Deputy Harvey Goldfine.
Shortly before trial, however, Goldfine
was operated on for appendicitis, and
the case was reassigned to Deputy Bruce
Hotchkiss. Although Hotchkiss assured
the court that he had had adequate time
D-2
to prepare for trial, petitioner was con-
vinced that Hotchkiss had not had time to
prepare. Petitioner refused to cooperate
with Hotchkiss, insisting that his attor-
ney was Goldfine and not Hotchkiss.
Following a trial in the Superior
Court for the City and County of San
Francisco, petitioner was convicted of
second degree burglary, second degree
robbery, and false imprisonment, but the
jury was hung on the other two charges,
as to which a mistrial was declared. A
second jury convicted petitioner of rape
and oral copulation. Petitioner, who is
in the custody of the California Depart-
ment of Corrections, now petitions this
court for a writ of habeas corpus, alleg-
ing that he was denied his right to
assistance of counsel and the opportunity
to testify.
As his principal ground for relief,
petitioner alleges that a substitution of
D-3
counsel should have been ordered and
that he was denied his right to assis-
tance of counsel. It is clear from the
record that petitioner's complaint is
not that Hotchkiss was incompetent but
rather is that Hotchkiss was assigned to
the case only a few days before peti-
tioner's first trial commenced and that
petitioner wanted to be defended by
Goldfine. Both of these objections are
without merit, however.
Hotchkiss assured the court before
the first trial commenced that he had
had adequate preparation time. He also
had three days (including a weekend)
between the conclusion of the prosecu-
tion's case and the presentation of the
defense's case and a week between the
first and second trials. The record
supports the trial judge‘s conclusion
that Hotchkiss had adequate time to
D-4
prepare for the trials and that he pre-
sented an able defense despite peti-
tioner's lack of cooperation with him.
Petitioner's suggestion that he
should have been represented by Goldfine
is likewise not persuasive. While a
defendant's choice of counsel should not
be subject to unnecessary interference,
the right to pick a particular attorney
is not unlimited. United States v.
Vargas-Martinez, 569 F.2d 1102, 1104 (9th
Cir. 1978). A defendant may not insist
upon substituting another attorney if
that will delay or obstruct reasonable
court procedure. See, e.g., Gandy v.
Alabama, 569 F.2d 1318, 1323 (5th Cir.
1978); United States v. Poulack, 556 F.2d
83, 86 (lst Cir.), cert. denied, 434 U.S.
986 (1977). In this case, it was not un-
reasonable to conclude that the efficient
administration of justice required that
petitioner be represented by Hotchkiss
D-5
rather than by Goldfine after the latter
had fully recovered from his surgery.
Petitioner also alleges that he was
denied the opportunity to testify. The
record shows, however, that petitioner
refused to testify at his first trial
despite his attorney's request that he
Go so and that petitioner had the oppor-
tunity to testify at his second trial
but did not ask to do so until after the
jury instructions had been given.
While a defendant has a fundamental
right to testify at his trial in
California, People v. Robles, 2 Cal.3d
205, 215, 466 P.2d 710, 85 Cal.Rptr. 166
91970), this privilege “must be claimed
or it is waived." United States v.
Ives, 504 F.2d 935, 939 (9th Cir. 1974),
vacated mem., 421 U.S. 944 (1975), rein-
stated on this point, 547 F.2d 1100 (9th
Cir. 1976), cert. denied, 429 u.S. 1103
(1977). The privilege to testify may be
D-6
waived by the conduct of the defendant.
Id. at $41. In light of defendant's
opportunities to testify and his conduct
during the second trial, the trial judge
did not abuse his discretion by refusing
to allow petitioner to testify after the
jury instructions had been given.
For the foregoing reasons, the peti-
tion for writ of habeas corpus is denied.
IT IS SO ORDERED.
Dated: December 6, 1978
ROBERT F, PECKHAM (signed)
United States District Judge
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JOSEPH D. SLAPPY,
No. C-78-0796
— —
Petitioner, RFP
Vv.
) Filed
PAUL JOHN MORRIS, ) December 7,
Warden, Folsom State ) 1978
Prison, )
) JUDGMENT OF
Respondent. ) DISMISSAL
)
The petition for habeas corpus
having come before the court, the
Honorabale Robert F. Peckham, District
Judge, presiding, and the issues having
been presented, and a decision having
been duly rendered,
It is ordered and adjudged that:
The petition for writ of habeas
corpus is hereby denied and the action
dismissed.
IT IS SO ORDERED.
Dated: December 6, 1978
ROBERT F. PECKHAM (signed)
United States District Judge
xpuadly yop
No. 81-1095
IN THE SUPREME COURT
OF THE UNITED STATES —
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
Vv.
JOSEPH D. SLAPPY,
Respondent.
On Writ of Certiorari to
the United States Court of Appeals
for the Ninth Circuit
—— —
\|
|
—
JOINT APPENDIX
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN,
Chief Assistant Attorney
General--Criminal Division
WILLIAM D. STEIN
Assistant Attorney General
W. ERIC COLLINS
Deputy Attorney General
DANE R. GILLETTE
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Telephone: (415) 557-1475
Attorneys for Petitioner
MICHAEL B. BASSI
A Law Corporation
605 Market Street
Suite 900
San Francisco, CA
94105
(415) 546-1155
Attorney for
Respondent
—————
PETITION FOR CERTIORARI FILED DECEMBER 11, 1981
CERTIORARI GRANTED MARCH 29, 1982
1.
CHRONOLOGICAL LIST OF RELEVANT
DOCKET FILES
September 28, 1976 -- Conviction of
second degree burglary (California
Penal Code section 459), second
degree robbery (California Penal
Code section 211) and false impris-
onment (California Penal Code section
236) by jury in the Superior Court
of California, City and County of
San Francisco,
September 29, 1976 -- Jury hung on two
other charges and aé- mistrial
declared.
October 7, 1976 -- Conviction of
forcible rape (California Penal Code
section 261.3) and forcible oral
copulation (California Penal Code
section 288a) by jury.
October 20, 1976 -- Abstract of Judgment
filed reflecting sentence to
California State Prison for the term
2.
prescribed by law on first three
convictions.
October 28, 1976 -- Abstract of Judgment
filed reflecting sentence to
California State Prison for the term
prescribed by law on remaining two
convictions.
January 25, 1978 -- Affirmance of the
judgments of conviction by the
California Court of Appeal, First
Appellate District, 1/Crim. 16217.
March 23, 1978 -- Denial of petition for
hearing by the California Supreme
Court.
April 12, 1978 -- Petition for Writ of
Habeas Corpus filed in United States
District Court for the Northern
District of California.
May 31, 1978 -- Supplement to Petition
for Writ of Habeas Corpus filed.
August 22, 1978 -- Order to Show Cause
filed.
3.
September 11, 1978 -- Return to the
Order to Show Cause filed.
September 22, 1978 -- Traverse to the
Return filed.
December 7, 1978 -- Memorandum and Order
denying Petition for Writ of Habeas
Corpus filed.
December 7, 1978 -- Judgment of
Dismissal filed.
December 19, 1978 -- Application for
Certificate of Probable Cause to
Appeal filed.
December 21, 1978 -- Order granting
Certificate of Probable Cause to
Appeal filed.
January 30, 1979 -- Motion for appoint-
ment of counsel on appeal filed in
the United States Court of Appeals
for the Ninth Circuit.
April 21, 1979 -- Order granting Motion
for Appointment of Counsel on Appeal
filed.
June
June
17, 1979 -- Appellant Slappy's
Opening Brief filed.
26, 1979 -- Appellee's Brief filed.
May 14, 1980 -- Matter argued and
June
July
submitted before Judges Goodwin,
Alarcon and Nelson.
29, 1981 -- Opinion and judgment
entered reversing the District Court
judgment and remanding to the
District Court to hold the Petition
in abeyance and grant it unless
California authorities granted
appellant a new trial within 60 days.
13, 1981 -- Petition for Rehearing
and Suggestion for Rehearing En Banc
filed.
October 19, 1981 -- Order amending
opinion, denying rehearing and
rejecting a rehearing en banc filed.
October 22, 1981 -- Motion for Stay of
Mandate filed.
5.
November 5, 1981 -- Order granting Stay
of Mandate until November 21, 1981
filed.
November 16, 1981 -- Motion for addi-
tional stay of mandate filed.
November 30, 1981 -- Order granting
additional stay of mandate until
December 21, 1981 filed.
IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE CITY AND COUNTY
OF SAN FRANCISCO
THE PEOPLE OF THE STATE OF No, 92747
CALIFORNIA,
Plaintiff &
Respondent,
vs.
JOSEPH DAVID SLAPPY,
Defendant &
Appellant.
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REPORTER'S TRANSCRIPT
Before HONORABLE HARRY W. LOW, JUDGE,
San Francisco, California,
September 23, 1976
through
September 28, 1976
APPEARANCES:
For the People:
Joseph Freitas, Jr., District Attorney
By: Robert Dondero
Assistant District Attorney
For the Defendant:
Robert Nicco, Public Defender
By: Bruce Hotchkiss
Assistant Public Defender
7.
[1] THURSDAY, SEPTEMBER 23rd, 1976,
3:15 p.m.
[5] THE DEFENDANT: That is why I
say in the first place I only have this
P.D. for a day and a half, we have not
had time to prepare this case. He came
in Tuesday night, last Tuesday night was
the first time I saw him was Tuesday
night, this past Tuesday night, and
today is Thursday. We have not had
enough time to prepare this case.
THE COURT: Do you want to present
any evidence challenging the fact that
you were convicted of a robbery in 1973,
or do you want to give up the right to
challenge that at this time?
THE DEFENDANT: I don't -- I want
this case represented properly, this
case, now this present case, this is the
case I am interested in.
THE COURT: I understand your
request, but any continuance will be
denied in this matter, Mr. Slappy, I
have been informed by the District
Attorney and the Public Defender in this
case, this case has been assigned to
Mr. Hotchkiss since last Friday, he's
investigated the case, studied it --
THE DEFENDANT: Right your Honor,
excuse me, he was assigned last Friday,
but I never got a chance to -- he never
interviewed me until the next week, the
following Tuesday he came up, this past
Tuesday was the first time. He said he
was busy and he couldn't make it up
there. He only been on this case one day
{6] and a half your Honor, he can't pos-
sibly have had enough time to investigate
all these things in this case. Some of
the major issues have not been investi-
gated. It's impossible for him to have
time enough to take care of this case to
represent this case properly, the way it
should be represented. My life is at
stake, I am the one on trial, ain't
nobody to be responsible for serving
time for me, I am the one.
THE COURT: Well, I examined the
preliminary hearing transcript and I am
satisfied that the Public Defender's
Office has very adequately represented
you up to now. I am confident from the
assurances that have been given to me
partly by Mr. Hotchkiss and by the
District Attorney that an able and ade-
quate defense can be presented for you.
I am not going to grant you a con-
tinuance. Mr. Slappy, as to the prior
convictions here alleged that you were
convicted of these two prior felonies,
do you want to give up your right to
question and cross-examine any evidence
that the District Attorney might present
saying that you were convicted in 1968
and 1973?
10.
THE DEFENDANT: I don't want to give
up my rights, no I don't.
THE COURT: Before you do say that,
Mr. Slappy, I want you to understand that
if you want to question that evidence,
then the Jury will hear the fact that you
possibly were convicted of these two
prior felonies.
THE DEFENDANT: That's right,
alright, they can hear it, that's okay,
that's right.
THE COURT: Do you want to discuss
this with your client a little more and
we could take this up tomorrow morning?
[7] MR. HOTCHKISS: Yes your Honor.
THE COURT: Perhaps we ought to do
that.
MR. HOTCHKISS: There are certain
other matters I would like to present,
your Honor. Mr. Slappy stated his posi-
tion, his feelings. I would only state
this for the record. I did speak with
ll.
Mr. Slappy on Friday and based upon the
state of the case, the investigation
that has been done, I feel that I am
prepared. My own feeling is that a
further continuance would not benefit me
in presenting the case. That is based
upon, and again for Mr. Slappy's bene-
fit, that is based upon the file as I
received it from Mr. Goldfine, and the
investigation that had been done pre-
viously. Mr. Slappy has indicated to me
that he desires a Jury view, I think
this is something that should be deve-
loped later, he desires a Jury view of
the premises. I think it will become
obvious during the trial what we are
talking about, 120 Ellis Street. I
would concur in that and I do intend to
make that motion when it is appropriate.
That is the only comment I have. One
other thing by way of background. Mr.
Goldfine, who was to try this case, was
12.
operated on for appendicitis, that is how
it was transferred.
THE DEFENDANT: Your Honor, let me
say this sir, I appreciate it. I'm
satisfied with the Public Defender, but
it's just no way, no possible way, that
he has had enough time to prepare this
case. There is no way a day and a half,
there is no way. Some of the major
issues have not been investigated. That
is why if you just going to push me on
anyway like that, there is nothing I can
do but just let you push me. At least
I'd like for the Jury to go the scene
where this incident took place, go [8]
inside and look at the place.
MR. HOTCHKISS: I would concur with
Mr. Slappy's request, I think it's valid,
and I believe we'll present evidence that
will convince the Court of that.
MR. DONDERO: For the record, your
Honor, I should state I have a couple of
13.
weeks ago gone down to the scene of some
of the incidents, talked to some wit-
nesses who indicated to me they were
interviewed by an investigator from the
Public Defender's Office, some of them 3
or 4 times at least way before two weeks
ago. I submit that the Public Defender
apparently has had investigators out
there, they have talked to the owner of
Lambo's, they have talked to the grocery
store people, talked to several people
in this case 2, 3, and 4 times. I sub-
mit they have prepared issues that were
presented by Mr. Slappy to them at the
early presentation of the case.
{70} THE DEFENDANT: I object sir,
your Honor, I object. Everytime he asks
a question he answers it. Let's let the
witness answer the question. Ask her
direct, ask her a question, and then she
can give a direct answer yes or no.
14,
Don't anticipate her, let her answer the
question.
THE COURT: Mr. Slappy, you have no
standing to object and your Counsel --
THE DEFENDANT: I have got no
Gefense counsel, this man has only been
on this case a day and a half, I don't
know what he's doing.
MR. DONDERO: If the Defendant per-
sists, I am going to ask he be physically
removed as being disruptive of the Court
proceedings.
MR. HOTCHKISS: I object to that,
your Honor.
THE COURT: I want to warn you, Mr.
Slappy, if you do persist in this activ-
ity I will have to remove you. I would
appreciate it and it would be to your
benefit --
THE DEFENDANT: Yes, I am trying to.
[71] THE COURT: Please keep quiet
and you will have full opportunity to
15.
discuss this matter with your attorney.
Ladies anc gentlemen, once again please
disregard the statements that have been
made, and they are cert ‘nly not under
Oath, and the accuracy of those state-
ments are not to be considered by you in
anyway. Mr. Hotchkiss, would you kindly
proceed.
[79] FRIDAY, SEPTEMBER 24, 1976,
11:05 a.m. (The District Attorney,
Counsel for the Defendant and_ the
Defendant were present. The following
proceedings were had out of the presence
of the Jury.)
THE COURT: Let the record show we
are in open court out of the presence of
the Jury. Mr. Slappy wishes to make a
Statement to the Court. Mr. Hotchkiss
do you have any objection to his doing
s0?
16.
MR. HOTCHKISS: As long as, I assume
you are not going to talk about the facts
of the case.
THE DEFENDANT: The Judge said I
could make a statement.
MR. HOTCHKISS: I have no objection
to Mr. Slappy making a statement as long
as he does not discuss the facts. It is
my understanding that Mr. Slappy has not
told me what he wants to discuss with the
Court. Just from my brief conversation
with him, it is my understanding he wants
to discuss his feelings about Counsel.
That I have no objection to. I think he
was every right [80] to do that. I would
advise Mr. Slappy if he discusses the
facts of the case, I would advise him not
to discuss the facts of the case.
THE COURT: Alright, go ahead Mr.
Slappy.
THE DEFENDANT: Your Honor I am
merely saying as I told you, as I told
17.
you before, this P.D. only had -his case
one day and a half, and there's no way
he could pessibly have had time to pre-
pare this case, no way. It's just, it's
not fair, your Honor, it's just not
fair. I'm being tried, I have feelings
just like everyone else have, I don't
have representation here, I am not
qualified to represent myself, and I
know I'm not. I need Counsel.
THE COURT: Well, I would say to you
once again, I have known Mr. Hotchkiss
in the Public Defender's Office for prob-
ably all of his career in the Public
Defender's Office, having sat in the
Court for more than 9 years, almost 10
years.
THE DEFENDANT: That's not what I
mean.
THE COURT: I have every confidence
in Mr. Hotchkiss.
18,
THE DEFENDANT: I don't mean he's
not a good P.D., I don't have anything
against him. It's just that he didn't
have time to prepare the case, one day
and a half.
THE COURT: He tells me that this
case was assigned to him last Friday, a
week ago, and he read the transcript,
that the case was well prepared by Harvey
Goldfine who is also a very capable
Assistant Public Defender, and who I have
known for substantially all his career in
the Public Defender's Office. When Mr.
Hotchkiss makes a representation that he
has prepared the case, reviewed all the
matters, obtained the pictures, and other
items that he intends to produce into
evidence, I have no reason [81] to
dispute, doubt that.
THE DEFENDANT: Yes sir.
THE COURT: I am satisfied in the
way the case im progressing’ that
19.
Mr. Hotchkiss is doing a more than ade-
quate job, a very fine job. I think
that maybe a matter that you are con-
cerned about is that he didn't see you
until about a day or two ago, or two or
three days, but that is one phase of the
preparation of the case, so I would urge
you to cooperate with your Counsel as
much as possible, and if this case
extends beyond the weekend, as it cer-
tainly appears it will, there will be a
three day period of time, and perhaps
additional things you wish done can be
considered and examined and might even
be done if that is necessary. I would
certainly urge you to cooperate with
your Counsel.
THE DEFENDANT: I am trying to your
Honor. We've got to be together, we've
got to be together, that's the thing.
As far as Mr. Goldfine, I haven't seen
Mr. Goldfine in five weeks. I saw him
20.
twice, I haven't seen him in five weeks,
and last Friday Mr. Hotchkiss comes up
and introduces himself to me and tells me
that he would be back the following
Monday to go over my case with me,
because we were suppose to start trial
the following Thursday. I didn't see Mr.
Hotchkiss until Tuesday night. He told
me that he was busy and he couldn't
get there. Now, that only left him, your
Honor, one day and a half to prepare my
case, one day and a half, and there is no
possible way he could prepare this case
in a day and a half. There's some major
things that have not been investigated.
That is why, your Honor, I would like
very much for the Jury to go on the scene
and investigate that place, It's only
fair. I'd like to go with them.
[82] THE COURT: Do you have
anything further?
21.
MR. HOTCHKISS: Your Honor, I would
like to make a brief record and state
for the record, it is true I received
the case Friday. I recall telling Mr.
Slappy I would see him the following
Monday in Court. I don't recall, I may
very well have, I don't believe I told
him I would see him Monday except in
Court, which I did. I did see him
Tuesday morning -- no, Tuesday afternoon
when I discussed the case with him from
possibly a little after 1:00 until abcut
4:20. Then on Wednesday I talked with
him, if I recall correctly, Wednesday
morning, and late Wednesday afternoon.
That is my recollection, Mr. Slappy, I
am not absolutely positive. The point I
want to make is to protect Mr. Slappy's
record, when I announced I am ready, I
feel I am ready. Mr. Goldfine did volu-
minous investigation in the case. My
feeling is that all investigation that
22.
needed to be done and that should be done
and quite possibly that could be done has
been done. To protect Mr. Slappy the
investigation -- the memorandum of inves-
tigation is in the file and will remain
in the file. I don't intend to lose this
case, but if I do I think that ought to
be opened to the Appellate Court. When I
announce ready, my position was that all
I had to do to prepare this case for
trial was to come in and familiarize
myself with the material that was in the
file, to prepare myself with the material
that was in the file, to prepare myself
for the cross-examination of the prosecu-
tion witnesses. I anticipated having the
weekend free and I believe that anticipa-
tion is correct, to go over and discuss
with Mr. sieser both his direct and
cross-examination. To that extent, to
the extent that I would have to put Mr.
Slappy on the stand this afternoon, I
23.
would not be prepared. I do anticipate
and i [83] did anticipate and I announced
ready on the assumption I would have the
whole weekend to go through the neces-
sary things that I would have to do to
put Mr. Slappy on the stand and to pre-
pare him both for direct examination and
cross-examination. Therefore when I did
announce ready, it was when the idea I
was concentrating on familiarizing
myself with the case and this would be
both with Mr. Slappy's view of the case,
and to cross-examine the prosecution's
witnesses. I do think Mr. Slappy for
the record, to make it in a nutshell, by
announcing ready, it was based upon the
file. As I say I don't anticipate on
losing but if I should lose the file
would be available.
THE DEFENDANT: As I was saying,
your Honor, there is no possible way
24.
that my P.D. could be prepared for this
case, there is just no way, no possible
way. When he come up Tuesday afternoon,
he never went over the case with me. He
did do one thing for me, I appreciate it,
he said he would go get my clothing, he
did that, I appreciate it, but now Mr.
Harvey Goldfine was my attorney, he was
my attorney, and he still is. I haven't
seen him in five weeks because he's in
the hospital. Mr. Harvey Goldfine didn't
even have time enough to go over my case
with me, he didn't even have time. Then
five weeks ago I saw Mr. Harvey Goldfine.
Then at the last day before trial Mr.
Hotchkiss comes up and tells me he's my
attorney. He hasn't had any kind of way
at all to prepare this case, he hasn't
had any kind of way at all to prepare
this case, he hasn't been on the scene,
he hasn't investigated anything, he
25.
hasn't gone over anything with me or
nothing.
THE COURT: As I say there will be
additional time Saturday, Sunday, and
Monday morning. We'll resume this case
on Tuesday. We'll continue to proceed,
and I urge you to cooperate with your
Counsel, and I also urge you to do it in
a manner that will not possibly offend
the Jury, because I think when you do
interrupt, the Jury loses tract, and
they may take the matters in an adverse
way and that would not be beneficial to
your case.
THE DEFENDANT: I'm sorry, your
Honor.
THE COURT: I do appreciate your
emotional involvement in this case, Mr.
Slappy. It's a difficult thing for
everyone involved in the case. I'm sure
it's difficult for the Jurors, the wit-
nesses, and the members of the Court.
We all try to control ourselves. It will
be to your advantage to do so in this
matter. You will have additional time
this weekend. I again urge you to work
as closely as you can with your attorney.
THE DEFENDANT: Yes sir. The only
way he represents me, and I know we are
suppose to be together, but the only
thing, your Honor, when you ask the vic-
tim a question, let her answer instead
of him answer. I notice several times it
looked like he was doing the answering,
he anticipated her, he wouldn't let her
answer the question. Half the time I
couldn't even hear what she was saying.
THE COURT: If you can't hear you
certainly should let Counsel know.
THE DEFENDANT: He's my P.D., he's
for me or against me, he's suppose to be
for me.
THE COURT: Counsel was trying to
Marrow the answer, one of the best tech-
27.
niques of cross-examination is to narrow
the answer so the witness cannot go on
and give an expansive answer. I think
this was the purpose of your Counsel's
questions and that certainly is a good
trial technique. Perhaps he will
explain to [85] you more the reason for
his very narrow questioning of this
witness. It certainly appears to be a
good method, a proved method that would
work to your benefit, Mr. Slappy.
MR. HOTCHKISS: I would like to make
one short comment. I did go to the
scene and I did discuss the scene with
Mr. Slappy.
THE DEFENDANT: No sir, you haven't
discussed no scene with me. You told me
you had not been over there. I am not
going to stand up here and let you tell
me that you told me you hadn't been
ever to the scene, and you haven't
discussed it with me.
28.
THE COURT: Let me urge you again to
cooperate with your Counsel.
[151] TUESDAY, SEPTEMBER 28, 1976,
9:30 a.m. (The following proceedings
were had out of the presence of the
Jury.)
THE COURT: Let the record show we
are in open court out of the presence of
the Jury. Mr. Slappy has asked that he
address the Court, and Mr. Slappy you are
welcomed to do so. I mentioned this
already to both Counsel, and they have
told me that you wanted to address the
Court. There has been no objection by
either Counsel, you are privileged to do
so.
THE DEFENDANT: Your Honor, I have
here a petition, a Writ of Habeas Corpus
against this Court.
THE COURT: Do you want to file it,
is that what you want?
29.
[152] THE DEFENDANT: I want to file
it.
THE COURT: Fine. Will you take it
then.
THE CLERK: Yes.
THE COURT: Would you like to say
anything in support of it?
THE DEFENDANT: Oh yes. On the
grounds that my attorney's in the
hospital, and I don't legally have no
attorney, and this P.D. here told me,
this P.D., Mr. Hotchkiss, Bruce
Hotchkiss, told me I didn't have no
defense to my charges.
THE COURT: Well --
MR. HOTCHKISS: I didn't make that
statement, your Honor.
THE DEFENDANT: Then he told me that
if I wanted to I could represent myself,
and I told him I wasn't qualified to
represent myself.
30.
MR. HOTCHKISS: I didn't make that
statement, your Honor, Friday I believe,
I told him he had a constitutional right
to represent himself.
THE COURT: Well, Mr. Slappy, this
is a matter that we did discuss last
week, and there appears to be nothing new
that has been added to what your claims
are at this time. As I stated to you
previously this case was well prepared,
the Public Defender's Office reviewed
the entire file, sent out its investi-
gators, Mr. Hotchkiss is a senior trial
attorney in the office, and has repre-
sented that he is prepared to proceed,
had three days between the conclusion of
the People's case and the Defense case,
and there was adequate time to do further
investigation to prepare for this case.
A good deal of this case is one of credit-
ability [sic], [153] creditability [sic]
of the complaining witness, the alleged
31.
victim in this case, and your credit-
ability [sic] in this matter, which I
gather is one of your defenses. So your
request of a Writ of Habeas Corpus is
denied, and it is our intentin to con-
tinue in this case, Mr. Slappy, and once
again I would urye you to cooperate with
your Counsel and assist him in anyway
you can.
THE DEFENDANT: Your Honor, I'd like
to have a copy of this writ. If you
want to have the trial you just take it
and go ahead and do what you want to do
with it. I would ask at this time to be
excused, I would like to go back to my
cell. I would like to have a copy of
that writ.
THE COURT: Well, you certainly can
get a copy of the writ. We'll see that
one is made and returned to you showing
the file stamp. With respect to your
desire not to participate in this case
32.
any further, before you make that final
decision, I would urge you to consider it
carefully, discuss it with your Counsel.
THE DEFENDANT: I don't have any
Counsel, I just got through telling you,
I don't have no Counsel. My attorney's
in the hospital, you know, he's in the
hospital.
THE COURT: Is there any comment
that you would like to make Mr. Hotchkiss?
MR. HOTCHKISS: Your Honor, here's
the situation I'm in. As I indicated to
the Court on Friday, I had announced
ready based upon the facts, in my review
of the file I felt that I could prepare
the case, prepare myuself for cross-
examination of prosecution witnesses,
and had anticipated having the weekend to
go over with Mr. Slappy both his direct
and cross-examination. In [154] light of
what was developed through the prosecu-
tion's case, and over the weekend, and
33.
I had anticipated having the weekend
available when I announced ready for
trial on Thursday, over the weekend I
went to see Mr. Slappy on Saturday, and
he refused to see me on Saturday. I
again went to see him Monday morning, he
against refused to see me. I spoke with
him in the holding cell this morning and
asked him what he wanted to do, and he
indicated, he said he would let me know
when he got into Court. I feel that's
necessary, and the whole theory of Mr.
Slappy's case, based upon my discussion
with Mr. Slappy, the theory of his case
Gepends and hinges greatly upon him
taking the witness stand. Because I
have been unavailable or have not had
the opportunity to talk with him, I am
not ready to put him on the witness
stand. I don't know if he wants to take
the witness stand or not. That's sort
of the position I'm in.
34.
THE DEFENDANT: Your Honor, let me
say this just one more time, maybe I can
make myself clear. On or about the 24th
day of September, last week, Mr. Bruce
Hotchkiss told me that I didn't have no
defense for my charges.
MR. HOTCHKISS: That is incorrect, I
didn't make that statement.
THE DEFENDANT: That's it. I am
asking you sir may I be excused, you can
take the trial and continue to do what
you want to do with it, just excuse me.
I'm ready to go back to my cell.
MR. HOTCHKISS: May I just for the
record, I have never told Mr. Slappy he
had no defenses to the charges. I have
always proceeded along the lines of the
Gefense as outlined to me by Mr. Slappy.
[155] THE COURT: I'd like to look
at this one Code Section 1043. Would you
get that for me. Is there anything the
District Attorney wishes to comment upon?
35.
MR. DONDERO: Not at this time your
Honor. I think Mr. Hotchkiss being an
Officer of the Court has made certain
representations. I think the record is
Clear he had the time to prepare, he's
Gone an adequate cross-examination of
the witnesses, based upon the suggested
line of defense of the opening state-
ment, and I think in view of the record
that the representations Mr. Hotchkiss
made are correct and accurate. The
Defendant I don't think has admitted he
is capable of representing himself. By
his own admission he is not able to do
so. Mr. Hotchkiss is the attorney
representing the Defendant.
THE COURT: I take it Mr. Slappy if
we are to proceed in this case that you
intend to not take the witness stand?
THE DEFENDANT: Your Honor, I
already told you, I repeat, I have told
you I'm through, I am ready to go back
36.
to my cell. You take the trial and go
ahead and do what you want to do with it.
That is my final decision.
THE COURT: Now, I want to encourage
you once again --
THE DEFENDANT: I'm through.
THE COURT: It would be to your
advantage to be able to hear all the
testimony --
THE DEFENDANT: I'm through. As far
as I'm concerned, this is not a fair
trial, I am just through, that's all I've
got to say, I'm through.
THE COURT: Should you voluntarily
absent yourself, then the Court can make
a finding, should the Court make a
finding that [156] you voluntarily
absented yourself we could proceed, we'll
proceed, without your being present. In
order for you voluntarily to do so, I
want to assure myself that you understand
that the case will proceed. I want you
37.
to further understand you have a right
to remain and it's to your benefit to
remain. Should you choose to absent
yourself, it may do damage to your
defense. For that reason it will be
beneficial for you to remain.
THE DEFENDANT: Your Honor, I'm
leaving that part up to you. I asked
you may I be excused. If you don't want
to excuse me, I'll sit right here. What
difference does it make?
THE COURT: Well, I would urge you
then Mr. Slappy to remain seated and in
the Courtroom, and should you desire to
discuss this case further withyour
Counsel, why you certainly can let me
know, or through your Counsel let me
know.
THE DEFENDANT: What do I have to
say to get through to you, you Honor,
what do I have to say to make you under-
stand. I have told you two or three
38.
times, and then you keep telling me about
talking to my Counsel. I don't have no
attorney, I told you I don't have no
attorney. My attorney's in the hospital,
my attorney's name is Mr. P.D. Goldfine,
Harvey Goldfine, that's my attorney, he's
in the hospital.
THE COURT: Well, I am going to ask
you then under the circumstances, Mr.
Slappy, to remain in the Courtroom and to
listen to the proceedings and listen to
the progress of this case.
THE DEFENDANT: That's up to you,
thet's up to you what you do, your Honor.
If you say so I'll remain here, but I am
not participating in the trial, I'm
through with it, as of now I am through
with this trial. I was through with it
the 24th when [157] this P.D. told me
that I didn't have no defense from my
charges. I was through then, and that's
39.
why I didn't see him when he come down
to see me.
[158] MR. HOTCHKISS: Your Honor, I
would object to the form of proof on the
211 and ask that a certified copy of the
judgment of conviction -- for the record
I would object to that.
THE COURT: Overruled, objection
overruled, that may go in and be con-
sidered.
THE DEFENDANT: I don't talk to
you, I told you people not to talk to
me, I'm through with this trial.
THE COURT: Would you seat the Jury
then.
MR. HOTCHKISS: Por the record, I
would again encourage Mr. Slappy to
admit the priors. I have discussed them
with him. May I have a moment, I have
an investigator out here.
[164] MR. HOTCHKISS: Your Honor,
only to this extent: I would again
40.
encourage and implore Mr. Slappy to take
the witness stand, [165] because 1
believe his testimony would be essen-
tially, not essentially, but highly help-
ful to my position. From what he has
discussed with me, I think it would
bolster the reason why I want a Jury
view. I don't think it's essential. I
would again implore him to take the wit-
ness stand and to testify.
THE COURT: With respect to that, Mr.
Slappy, I take it you've heard Mr.
Hotchkiss’ request and I take it -- do
you have anything you want to add to that
at all Mr. Slappy?
THE DEFENDANT: No, you heard my
statement.
[171] (The Jury, District Attorney,
Counsel for the Defendant, and _ the
Defendant were present.)
TEE DEFENDANT: Your Honor, sir, you
mean you would make me stay here against
41.
my own will, that's against my constitu-
tional rights.
THE COURT: I'd appreciate your
remaining.
THE DEFENDANT: As I told you in the
first place, I told you this morning
when I got here, as of the 24th of
September, last Friday, the Public
Defender told me that I didn't have no
defense on my charges.
MR. HOTCHKISS: That is not true,
your Honor, I said he did have a
defense.
THE DEFENDANT: My attorney which is
Harvey Goldfine is in the hospital and
this man comes up a day and a half ago
saying he's my attorney.
THE COURT: Mr. Slappy, we went
through this once before, I'll ask you
to stay and --
THE DEFENDANT: Why should I stay,
your Honor?
42.
THE COURT: Please disregard these
statements ladies and gentlemen.
THE DEFENDANT: I can't defend
myself.
THE COURT: We went through this
once before.
THE DEFENDANT: He said "if you want
to you can go ahead, [172] if you don't
like the way I'm running it, go ahead and
defend yourself." I told him that I was
not qualified to defend myself and I am
not. So why would you just want to make
me stay? I can't defend myself, I am
helpless.
43.
IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE CITY AND COUNTY
OF SAN FRANCISCO
THE PEOPLE OF THE STATE OF No. 92747
CALIFORNIA,
Plaintiff,
JOSEPH DAVID SLAPPY,
)
)
)
)
)
vs. )
)
;
Defendant. )
)
REPORTER'S TRANSCRIPT
Before HONORABLE VICTOR M. CAMPIiONGO, JUDGE,
San Francisco, California,
October 6, 1976
October 7, 1976
through
APPEARANCES:
For the Plaintiff:
Joseph Freitas, Jr., District Attorney
By: Robert Dondero
Assistant District Attorney
For the Defendant:
Robert Nicco, Public Defender
By: Bruce Hotchkiss
Deputy Public Defender
44.
[92] MR. HOTCHKISS: May I, Your
Honor?
I am in a position that is rather
unusual and unique in my experience. My
client at this juncture is refusing to
talk to me. It has become a detriment in
defending him. When I got this case I
discussed it with Mr. Slappy and there
was -- he had been interviewed by Mr.
Goldfine from our office and an investi-
gator from our office several times. I
knew the defense. I was prepared to
engage in direct or in cross-examination
of the prosecution witnesses. I feel
that there is such a conflict between us,
I can't -- he is not talking with me. I
can't put him on the witness stand in
this sort of situation. I don't know
whether he wants to take the witness
stand in his own defense. I believe that
communications have broken down such that
I am running out of -- I don't think I
45.
am of effective assistance as Counsel
because he has not cooperated with me.
I think we have reached a_ situation
where there is a conflict.
[93] I am aware of at least one case
where there is a conflict when the com-
munications breakdown. This usually
occurs prior to trial.
THE COURT: Well, the Court is aware
that Mr. Slappy assisted you. I
observed him myself in the selection of
the jury.
MR. HOTCHKISS: Since that time
things have deteriorated to such an
extent that he is not talking with me
right now and I feel that there is such
a lack of communication, that our com-
munication has broken down to such an
extent that private counsel should be
appointed that can communicate with Mr.
Slappy.
46.
THE COURT: Well, let's go off the
record. Let's go in Chambers and discuss
it.
(Thereupon the proceedings in the
Courtroom outside of the presence of the
Jury were recessed after which the
following proceedings were had in
Chambers as follows, to wit:)
THE COURT: Let the record reflect
the presence of the Defendant, Defense
Counsel and the District Attorney. We are
out of the presence of the Jury. We are
involved at this time in a matter of law.
MR. HOTCHKISS: May I state for the
record, the People versus Stewart, 6
Cal.App.3d, at page 457 and at page 464
and the People versus Williams, 1 Cal.3d
694 at pages 704 through 705. Based upon
a further study of those cases, it's my
understanding that simply a refusal to
cooperate during trial is not a basis
47.
for a conflict and I would withdraw my
request to declare a conflict.
48.
IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE CITY AND COUNTY
OF SAN FRANCISCO
THE PEOPLE OF THE STATE OF
CALIFORNIA,
No. 92747
, (SUPPLEMENTAL)
Plaintiff,
JOSEPH DAVID SLAPPY,
)
)
)
)
)
vs. )
)
Defendant. )
)
REPORTER'S TRANSCRIPT
Before HONORABLE VICTOR M. CAMPILONGO, JUDGE,
San Francisco, California,
October 7, 1976
APPEARANCES:
For the Plaintiff:
Joseph Freitas, Jr., District Attorney
By: Robert Dondero
Assistant District Attorney
Por the Defendant:
Robert Nicco, Public Defender
By: Bruce Hotchkiss
Deputy Public Defender
49.
[26] All right, Mr. Slappy, I am
going to -- Mr. Slappy, I am going to
allow you to speak so that you can make
a record, It's obvious what you have
Gone throughout this case. You have
conducted yourself in a manner although
not obstreperous in a sense, you have
yelled out. You have taken’ occasion at
points in the trial to stand up and say
something when you knew you should not
have. You have done things in Court
such as sleep throughout these pro-
ceedings which you did just earlier this
morning. You made all kinds of noises
and it's obvious what you are trying to
do. I am willing to make this record
for the Appellate Court. Your Counsel,
who is an extremely competent Counsel,
has gone out of his way to get you to
participate in this trial and you are
just trying to make a record for appeal
50.
and the record is being made. So you go
right ahead, Mr. Slappy.
MR. SLAPPY: I have no business
being here in Court in the first place
but the thing I want to say is when the
P.D. comes in the holding cell and asks
me did I want to make -- did I want to
take the stand, I told him I did not know
yet. I had no inspirations yet and I did
not know. That is what I told him. I
did not know whether I wanted to take the
stand or not. I did tell Mr. Hotchkiss
that but then after I got out of there, I
wanted to take the stand. I told him
before, you know. What can I do. I did
want to take the stand. I told Mr.
Hotchkiss I wanted to take the stand.
THE COURT: Mr. Hotchkiss, is that a
true statement?
MR. HOTCHKISS: As I recall it, I
went in the holding cell this morning and
I asked Mr. Slappy if he wanted to take
5i.
[27] the witness stand. He said no. He
did not. I told Mr. Slappy, and I am
not quoting him verbatum [sic], I told
him, "No, I don't think so. No, I am
not going to," or words to that effect.
I said, “Okay, I will call the janitor
and we will have final argument."
MR. DONDERO: In fact, I observed
the Defendant during the Court's
instructions to the jury make some
utterances to Mr. Hotchkiss. That is
the only time I have seen him move since
we started the proceedings this morning.
THE COURT: Mr. Slappy has indicated
throughout this case he did not want to
participate, as I recall and, again,
this is for the record. I know it's
going to be reviewed on appeal. I am
convinced Mr. Slappy has been given
every opportunity to participate. He
has had the opportunity. He does not
seem to be willing. Mr. Slappy's rights
52.
have been protected. I have seen Counsel
plead with Mr. Slappy before this Court
to admit the allegations of the prior
explaining why it was important. The
Court inquired on its own. Mr. Slappy
was not interested. Now, Mr. Slappy --
MR. DONDERO: Mr. Hotchkiss asked
the Defendant to take the stand during
the question on a miranda warning.
THE COURT: That is correct.
MR. SLAPPY: I did not know.
Please, sir, please, sir, may I please,
sir, take the witness stand, just please,
and ft will feel better.
THE COURT: At this point, Mr.
Slappy, I am denying it because I am not
convinced, All you're trying to do is
make a record for appeal and you're
trying to --
[28] MR. SLAPPY: No, I just want to
try to do the best I can.
53.
THE COURT: Well, you had that
opportunity, Mr. Slappy. You know you
could have asked to see the Court out-
side of the presence of Counsel. You
stood up with a purpose in front of the
jury when I just got through instructing
and you got up in front of that jury on
purpose and stated what you wanted to
say here so they would be affected by it.
MR. SLAPPY: No, sir, I told the
Public Defender.
THE COURT: When the Public
Defender came back to you all you had to
do --
MR. SLAPPY: So he could approach
you.
THE COURT: That is right. I made
my decision. You have come in here and
made your motion. You did what you
wanted purposely. You have done it
throughout the trial. The motion is
denied.
Uonsoddg
No. 81-1095 MAR @ 1062
ALEXANDER L. STEVAS
CLERK
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
v.
JOSEPH D. SLAPPY,
Respondent.
RESPONSE TO PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL B. BASSI
A Law Corporation
605 Market Street
Suite 900
San Francisco, CA 94105
(415) 546-1155
Attorney for Respondent
QUESTIONS PRESENTED
1. Can the decision of the Ninth
Circuit Court of Appeals be construed
to allow a criminal defendant to demand
the continued representation by a parti-
cular deputy public defender as a Sixth
Amendment constitutional right?
2. Does the trial transcript indi-
cate a genuine conflict with the trial
attorney sufficient to justify an inquiry
into the need for a continuance of the
trial?
3. When the trial court forces an
unwanted deputy public defender upon a
criminal defendant without inquiry into
the reasons for and length of a requested
continuance, must prejudice be shown when
a claim is made that counsel was denied?
Table of Contents
Statement of the Case
Reasons for Denying the Writ
Argument
Conclusion
11
21
ii
Table of Authorities
Avery v. Alabama
(1940) 308 U.S. 444
Chambers v. Maroney
(1970) 399 U.S. 42
Geders v. United States
(1976) 425 U.S. 80
Gideon v. Wainwright
(1913) 372 U.S. 335
Glasser v. United States
(1942) 315 U.S. 60
Herring v. New York
(1975) 422 U.S. 853
Holloway v. Arkansas
(1978) 435 U.S. 475
McMann v. Richardson
(1969) 397 U.S. 759
People v. Pope
(1979) 23 C.3d 412, 424-425
Powell v. Alabama
(1932) 287 U.S. 45
Sumner v. Mata
(1981) _—sviui. SS.
101 S.Ct. 76
Tollet v. Henderson
(1973) 411 U.S. 258
16
12
iii.
Table of Authorities
Continu
Ungar v. Sarafite
(1963) 367 U.S. 575
United States v. DeCoster
(D.C., 1973) 487 F.2d 1197
Statutes
28 U.S.C.A. §2254(d)
16
No. 81-1095
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
Vv.
JOSEPH D. SLAPPY,
Respondent.
RESPONSE TO PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
2.
STATEMENT OF THE CASE
Respondent Joseph D. Slappy was
charged in the San Francisco Superior
Court with committing rape, forcible
oral copulation, burglary, robbery and
false imprisonment. The San Francisco
Public Defender's office was appointed
to represent him. Mr. Harvey Goldfine
handled the case through the arraign-
ment and preliminary hearing and did
“voluminous investigation" (CT 5, 6;
RT g2)2/ On Friday preceding the
Thursday trial day, Mr. Hotchkiss met
Mr. Slappy in his cell and advised him
that he was going to represent him at
trial because Mr. Goldfine was in the
1. CT designates portions of the
clerk's transcript from Slappy's first
trial, subsequently lodged in the United
States Court of Appeals. RT designates
the Reporter's transcript from the first
trial lodged in the United States Court
of Appeals.
3.
hospital with an appendicitis (RT 81,
83).
Mr. Slappy hadn't seen Mr. Goldfine
in five weeks (RT 83).
At that initial meeting between
Slappy and Hotchkiss, Mr. Hotchkiss
advised Mr. Slappy, that he, Mr. Hotch-
kiss, would be his trial attorney and
that he would return to see him the
following Monday (RT 82). Mr. Hotchkiss
didn't return until Tuesday afternoon
because he was busy (RT 5, 81).
Although Mr. Hotchkiss claimed
otherwise, Mr. Slappy expressed to the
court that Mr. Hotchkiss didn't review
the case with him and advised Mr. Slappy
that he had no defense to the charges
(RT 32, 83, 156-157, 171).
Contrary to the assertions of the
Petitioner, Respondent was satisfied
4.
not with the Public Defender, but with
Public Defender Harvey Goldfine, the
public defender whom he felt was
familiar with and was prepared to try
his case (RT 4-5).
The three days of the trial record
indicate Mr. Slappy's complete enmity
towards and dissatisfaction with Public
Defender Bruce Hotchkiss. This dissatis-
faction was expressed on the first day of
trial when he advised the court that Mr.
Hotchkiss saw him initially on Friday
but was too busy to consult with him
in preparation of the case until the
next Tuesday (RT 5). Mr. Slappy's
eyphatic assertions that Mr. Hotchkiss
was not prepared to try the case
reflect his belief that one and one-
half cays is insufficient to prepare
a case in which there had been
5.
“voluminous discovery". They reflect
the belief that Mr. Hotchkiss coulé
not ably defend him especially when he
had just previously been informed by
Mr. Hotchkiss that there were no
defenses to the charges (RT 6-7).
Respondent's rejection of and con-
flict with his counsel was again
expressed on the second day of trial,
Friday, September 24, when he indicated
to the court " .. .I don't have repre-
sentation here, I am not qualified to
represent myself, and I know I am not.
I need counsel." (RT 83). Mr. Slappy
also indicated to the court that
". . « but now Mr. Harvey Goldfine was
my attorney, and he still is." (RT 83)
The conflict was further evident when
Mr. Slappy wondered aloud: “He's my
P.D., he's for me or against me, he's
supposed to be for me." (RT 84) Mr.
Slappy and Mr. Hotchkiss then had a
heated exchange concerning whether or
not Mr. Hotchkiss visited the site of
the crimes (RT 84).
On the third day of trial,
September 28, 1976, after a continuance
from the 24th of September, Slappy
indicated that he had prepared and
wished to file a Writ of Habeas Corpus
against the trial court (RT 151). The
grounds he enumerated to the court were
that his attorney was in the hospital;
that he didn't legally have an attorney;
and that his present attorney told him
that he had no defenses to the charges
(RT 152).
The court considered the Petition
for a Writ of Habeas Corpus to be a
reiteration of the grounds presented in
the previous sessions of the trial
7.
i.e., a request for a continuance.
(RT 152).
At this point Mr. Slappy refused
to cooperate further insisting that he
had no covwnsel at the trial, that his
counsel, Mr. Harvey Goldfine, was in the
hospital (RT 153-158).
The sequence of events thereafter is
as is set forth in the Petitioner's
brief at pages 7-8.
REASONS FOR DENYING THE WRIT
The Ninth Circuit did not create a
right which would allow any criminal
defendant to demand continued represent-
ation by a particular public defender.
The Court acknowledged that an indigent
defendant did not have an unqualified
right to seek appointed counsel of
his choice. (Slip Op. 3170).
The Court simply held that the
right to counsel is an important right
guaranteed by the Sixth Amendment to
the constitution and that right encom-
passes a meaningful relationship with
counsel. (Slip Op. 3170-3172). The
Court went on to hold that when the
Court's interest in the “prompt and
efficient administration of justice"
(Slip Op. 3172) conflicts with the
defendant's right to counsel, the
court must weigh and evaluate the
9.
respective interests. A court should
weigh the defendant's interest in a
relationship with his attorney arising
out of the Sixth Amendment against the
interests of the Court in moving its
calendar.
The decision is a reaffirmation of
this Court's decisions that the unjusti-
fied denial of a continuance could reduce
the right to defend with counsel to
nothing more than a mere formality.
Ungar v. Sarafite (1963) 367 U.S. 575,
588-591; Avery v. Alabama (1940) 308
U.S. 444.
There is no need for the defendant
to demonstrate prejudice. The Ninth
Circuit limited its opinion to the
specific facts in this case (Slip Op.
3173). The Court reaffirmed the rule
of Chambers v. Maroney (1970) 399 U.S. 42
10.
demanding a demonstration of prejudice
by a defendant claiming ineffective
assistance of counsel. But the Court
found that when the trial court refused
to give consideration to Mr. Slappy's
Sixth Amendment right to an effective
counsel in which he could place his
confidence and trust, it effectively
denied him counsel and thus prejudice
need not be demonstrated (Slip Op.
3174), following the line of cases
Gideon v. Wainwright (1963) 372 U.S.
335, Geders v. United States (1976)
425 U.S. 80, Herring v. New York (1975)
422 U.S. 853, Glasser v. United States
(1942) 315 U.S. 60, Powell v. Alabama
(1932) 287 U.S. 45, Holloway v. Arkansas
(1978) 435 U.S. 475.
ll.
ARGUMENT
1. The decision of the Ninth Circuit
cannot be construed to allow one defen-
dant to demand a particular attorney at
all stages of the proceedings "“regard-
less of demands made by other indigents
for him to represent him” and does not
"substantially (remove) any further
control over tne allocation of deputies
from the public defender." (Petition
for Writ of Certiorari, p. 14).
The Ninth Circuit acknowledged
that an indigent defendant does not have
an unqualified right to demand a parti-
cular attorney. (Slip Op. 3170).
The ruling acknowledged that the
Sixth Amendment right consists of more
than just the right to an attorney pre-
sent in the courtroom. McMann v.
Richardson (1969) 397 U.S. 759, 771,
12.
Tollet v. Henderson (1973) 411 U.S.
258, 264, United States v. DeCoster
(D.C. 1973) 487 F.2d 1197, 1203-1204,
People v. Pope (1979) 23 Cal.3d 412,
424-425.
The decision of the court allows
the trial court to assess this impor-
tant right to counsel by an indigent
(Gideon v. Wainwright (1963) 372 U.S.
335) when it conflicts with the effi-
cient administration of justice and
the court's responsibilities in
administering crowded dockets.
The court has enunciated a simple
balancing test in which the trial court
must balance the respective rights of
parties. The trial court must consider
a defendant's right to the relationship
he had established with a particular
attorney, impliedly to determine whether
13.
he has obtained through the stages of
representation, trusts and confidences
of the defendant that a new attorney may
not have yet obtained. This must be
done in order to insure that the
defendant's right to competent effective
representation is not curtailed or
denied. This interest must be balanced
against the interests of the court in
seeing that justice is accomplished in
a timely and orderly fashion.
This court has recognized that the
denial of a continuance can result in
the denial of the right to counsel.
Ungar v. Sarafite (1963) 367 U.S. 575,
588-591, Avery v. Alabama (1940) 308 U.
S. 444.
The decision of the Ninth Circuit
takes into consideration the import of
Ungar and Avery and gives the trial
14.
court a standard for insuring the indi-
gent's right to competent counsel and
the trial court's responsibility in
administrating the court system.
The Petitioner's claim that the
decision of the Ninth Circuit will dis-
rupt the offices of the Public Defender
is not substantiated by an unimpassioned
reading of the decision. The balancing
test set forth by the court allows
the trial court to substitute new
counsel once the court has made an
inguiry into and is satisfied that the
defendant's right to counsel is not
infringed.
In the instant case, the trial
court's refusal to inquire into the
length of the unavailability of Mr.
Slappy's original attorney effectively
precluded the court from having
15.
sufficient information to protect the
Sixth Amendment right and as a result
denied his right to counsel (Slip Op.
3172). The court also found that the
desires of Slappy to be represented by
Goldfine were sincere with no evidence
of bad faith to delay his trial.
(Amended Slip. Op. 3172). The court's
failure to consider the request for a
continuance in light of Sixth Amendment
considerations resulted in the denial
of the right to counsel.
The decision of the Ninth Circuit
is not “revolutionary”. It is in
accord with the present status of the
law and provides the trial court with
an orderly standard to balance the
conflicting rights guaranteed by the
Sixth Amendment with the need of
society to see that justice is accomp-
lished in a timely fashion.
16.
2. The Ninth Circuit has the power
to review state court findings. Sumner
v. Mata (1981) __—*auwS. __,, 101 S.Ct. 764,
66 L.Ed.2d 722, 28 U.S.C.A. §2254(b).
The court may inguire as to the correct-
ness of the state court rulings if one of
the seven conditions set forth in
28 U.S.C.A. §2254(d) fails to exist.
Sumner v. Mata, supra, at p. 771.
The Appellate Court ruled as a
matter of fact that the right to
counsel was violated because of the
absence of the fact finding process
and the failure to weigh the right
to counsel against the trial court's
concerns. (Slip Op. 3172).
Mr. Slappy should not be penalized
for his inability to correctly arti-
culate the precise legal and constitu-
tional grounds of his demand for a
17.
continuance so that Mr. Goldfine could
represent him.
Petitioner's suggestion that on the
third day of trial Mr. Slappy raised the
issue of who his counsel was for the
first time is misleading.
The trial lasted three days .2/ a
fair reading of the transcript and the
complaints indicate a genuine desire to
be represented by counsel whom the
defendant feit competent to represent
him and a compiete distrust and
hostility towards the attorney who was
forced upon him by the trial court. The
trial court considered Mr. Slappy's
protests on the third day of trial to be
a reiteration of the complaints pre-
viously made (RT 152).
2. The complaints of Mr. Slappy in
the first trial, the one at issue in this
Petition, can be found at pages 5-8,
79-85, 150-158.
18.
The Ninth Circuit also found the
record contained a sincere desire to
be represented by the attorney with
whom he had established an attorney-
client relationship and was not
motivated by bad faith or an improper
desire to delay his trial (Amended
Slip Op. 3172).
Attempts by the Petitioner to
isolate the requests of the Respondent
to different days of the trial mis-
construes the protestations of an
inarticulate and indigent individual
who realized that in the criminal
justice system "My life is at stake, I
am the one on trial, ain't nobody to
be responsible for serving time for
me, I am the one." (RT 6).
19.
3. Petitioner's argument that
Respondent should be required to demon-
strate prejudice is incorrect.
The Ninth Circuit's ruling was
that when ruling on the continuance, the
failure to adequately consider tie
relationship between Mr. Slappy and his
original attorney Mr. Goldfine denied Mr.
Slappy his right to counsel (Slip Op.
3174). This interpretation is further
reinforced by Mr. Slappy's complete and
total rejection of Mr. Hotchkiss, his
refusal to cooperate with Mr. Hotchkiss,
his refusal to take the witness stand,
and his act of complete frustration:
filing the Writ of Habe2s Corpus on the
third day of trial (RT 5-8, 80-86, 15l-
157).
Appellant's claims are not that
specific acts of Mr. Hotchkiss denied
20.
him effective assistance of counsel in
which a demonstration of prejudice
_ would be necessary, Chambers v. Maroney
(1970) 399 U.S. 42, but that the court's
failure to consider the importance of
the right to counsel and the rights
inherent in that (attorney-client
privilege, trust and confidence in the
attorney) denied the Sixth Amendment
right, and hence no prejudice need be
demonstrated. Gideon v. Wainwright (1963)
372 U.S. 335, Geders v. United States
(1976) 425 U.S. 80, Herring v. New York
(1975) 422 U.S. 853, Glasser v. United
States (1942) 315 U.S. 60, Powell v.
Alabama (1932) 287 U.S. 45, Holloway v.
Arkansas (1978) 435 U.S. 475.
21.
CONCLUSION
The decision of the Ninth Circuit
Court of Appeals is consistent with the
past decisions of this Court and its
concern that an indigent and inarticu-
late and uneducated defendant have
counsel at trial, and it reaffirms this
right while allowing the trial court to
take into consideration the concerns of
the Court in the orderly administration
of justice. The Petition for Writ of
Certiorari should be denied.
Dated: February 25, 1982
MICHAEL B. BASSI
A Law Corporation
# Michael BRB Bact
MICHAEL B. BASSI
Attorney for Respondent
Joseph D. Slappy
JOUg $ JOUONaq
ica |p
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
Vv.
JOSEPH D. SLAPPY,
Respondent.
On Writ of Certiorari to
the United States Court of Appeals
for the Ninth Circuit
|
BRIEF FOR PETITIONER
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN,
Chief Assistant Attorney
General-Criminal Division
WILLIAM D. STEIN
Assistant Attorney General
W. ERIC COLLINS
Deputy Attorney General
DANE R. GILLETTE
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Telephone: (415) 557-1475
Attorneys for Petitioner
QUESTIONS PRESENTED
1. Does the Sixth Amendment entitle
a criminal defendant to demand continued
representation by a particular deputy
public defender who had represented him
in the pretrial proceedings?
2. If it does, is a generalized
complaint on the morning of trial that
Successor counsel is not prepared suf-
ficient to inform the state trial judge
that previous counsel is being demanded?
3. If a state trial judge refuses
to honor a demand to delay trial until
preferred counsel becomes available,
must there be a reversal per se, or must
the defendant show prejudice?
Table of Contents
Page
Opinion below * 7 7 7 . > > 7 . a . >. 1
Jur isdiction . . 7 i . 7 . . a . 7 aa 2
Constitutional provision |
i nvolved 7 . . o . 7 om . * * . o . 2
Statement of the case ....+«-e-e«e« 3
Summary of argument ..-.-e«-+-«-+-. 10
Argument
I. The Sixth Amendment Does
Not Entitle A Criminal
Defendant To Demand Continued
Representation By A Particular
Deputy Public Defender Who
Had Represented Him In
Pretrial Proceedings. ... 15
II. The Ninth Circuit's
Conclusion That Slappy's
Initial Complaints Were A
Demand For Continuous
Representation By A Single
Deputy Public Defender
Misconstrues The Record And
Fails To Accord The Required
Presumption Of Correctness
To The State Court Findings. 33
III. Where An Indigent Criminal
Defendant Claims Error
Because A Preferred Attorney
Was Not Appointed As Trial
Counsel, He Must Demonstrate
Prejudice Before Reversal
Is Warranted. ..+s+.ee«- 39
GURGENGGn « oe eo eo 6 6 ee ewe oe
ii.
Table of Authorities
Cases Page
Argersinger v. Hamlin
(2972) 467 UB. Becccvccecvecse 17
Avery v. Alabama
(1940) 308 U.S. 444 J om . . . . 7 — . 44
Chambers v. Maroney
(1970) 399 U.S. —heéseee 6 6 & 42
Chandler v. Fretag
ipeee, See Bebe BDeoeceoeeoeecee sé 41
Cooper v. Fitzharris
(9th Cir. 1978) 586 F.2d 1325 .... 42
Davis v. State
(1974) 292 Ala. 210
291 So. 2d 346 * >. e . 7 * a — >. . . 51
Faretta v. California
(1975) 422 U.S. 806 ~ 7 a . . 7 . . . 29
Gandy v. State of Alabama
(Sth Cir. 1978) 569 F.2d 318 .... 45
Geders v. United States
(agree, 689 BeBe Tec ccececesees 20
Giacalone v. Lucas
(6th Cir. 1971) 445 F.2d 1238 . ... 30
Gideon v. Wainwright
(1963) 372 U.S. 335 * . os . . . > . . 17
Glasser v. United States
blo. ie te ee a ee 40
Grady v. State of Alabama
(Sth Cir. 1978) 569 F.2d 1318 .... 50
iii.
Table of Authorities Cont'd.
Cases Page
Greenfield v. Gunn
(9th Cir. 1977) 556 F.2d 935
cert. denied 434 U.S. 928 (1977) .. 22
Harris v. Superior Court (1977)
19 Cal.3d 786
140 Cal.Rptr. 318
567 P. 2d 750 —_ >. - 7 * 7 . 7 . 7 . 49
Herring v. New York
(4873S) 422 U.8. S33 «ec cececvevse 2
Holloway v. Arkansas
(2976) €35 U.8. 475 wceocevcesvsce
Kwaitkowski v. Superior Trading Co.
(1981) 123 Cal.App.3d 324
ave GCOL.MpGE. GOP cco ecsesevovsvesne §
Long v. State
(1969) 119 Ga.App.82
266 8.8.26 365 . ws cc cececeeceee SA
Majeske v. United States
(9th Cir. 1959) 266 F.2d 947 .... 50
Maynes v. People
(1972) 178 Colo. 188
$953 P.26 SFL ec ce ececececeeeee
McMann v. Richardson
5.) we of * Se, aa ae
Miller v. State
(Tex.Crim.App. 1976) 537 S.W.2d 725 51
Moore v. Jamieson
(1973) 451 Pa. 299
306 A.2d 283 a 7 . > — > . 7 . >. * - 30
iv.
Table of Authorities Cont'd.
Cases Page
Moore v. United States
(3rd Cir. 1970) 432 F.2d 730 .... 22
Mulkovich v. State
(1976) 73 Wis.2d 469
243 N.W. 2d 198 > os a . 7 — . 7 > > 51
Nettleton v. State
Welk, Bre, aan aoee Peep e eo ee ee 22
People v. Chavez
(1980) 26 Cal.3d 334
161 Cal.Rptr. 762
605 P. 2d 401 +. . 7 . o oa . ° . . . . 24
People v. Cox
(1961) 22 111.2d 534
177 N.E. 2d 211 . - o > 7 * 7 * om . . 18
People v. Cummings
(1978) 84 Mich.App. 509
269 N.W. 2d 658 . * . . . . 7 > 7 . . 22
People v. DeLosa
(1960) 184 Cal.App.2d 681
7 Cal.Rptr. 753 ° 26. © €-& £2.06 Se 50
People v. Hidalgo
(1978) 22 Cal.3d 826
150 Cal.Rptr. 788
587 P. 2a 230 . 7. +. - 7 - + . > . . > 22
People v. Johnson
(1980) 26 Ual.3d 557
162 Cal.Rptr. 431
606 P. 2d 738 7 7 7. . . os . o . . . 7 29
Vv.
Table of Authorities Cont'd.
Cases
People v. Lewis
(1978) 20 Cal.3d 496
143 Cal.Rptr. 138
573 P. 2d 40 . 7 - ° . > > . +
People v. Maese
(1980) 105 Cal.App.3d 710
164 Cal.Rptr. 485 a a a ee
People v. Marsden
(1970) 2 Cal.3d 118
84 Cal.Rptr. 156
465 Pe 2d 44 . * 7 . . 7 > . . .
People v. Pompa-Ortiz
(1980) 27 Cal.3d 519
165 Cal.Rptr. 51
612 P. 2d 941 . . >. . . 7. > > . .
People v. Stroble
(1951) 36 Cal.2d 615
226 P. 2d 330 . . . . * . 7 . . om
Polk County v. Dodson
(1981) U.S. , 70 L.Ed. 2d
132 S.Ct. 445 . - . — 7 . - . >
Powell v. Alabama
a er i. Me 6 6« 6 « 6 8 &
Releford v. United States
(9th Cir. 1961) 288 F.2d 298 ..
Slappy v. Morris
(9th Cir. 1981) 649 F.2d 718 ..
State v. Torres
(1973) 54 Haw. 502
510 P. 2d 494 . . . . 7 . . o .
Page
22
24
22
49
18
51
vi.
Tabie of Authorities Cont'd.
—_—_—
Cases Page
Sumner v. Mata
(1981) 449 U.S. 539 ° . . . . . . .
Tollett v. Henderson
(1973) 411 U.S. 258 . 7 > _ — . — _ .
United States ex rel Carey v. Rundle
(3rd Cir. 1969) 409 F.2d 1210 ....
United States ex rel Thomas v. Zelker
(S.D.N.¥. 1971) 332 F.Supp. 595...
United States v. Calabro
(2nd Cir. 1972) 467 F.2d 973,
cert. denied 410 U.S. 926 (1973) ..
United States v. Burton
(D.C. Cir. 1978) 584 F.2d 485 ....
United States v. Fowler
(Sth Cir. 1979) 605 F.2d 181 ....
United States v. Morrison
faweae Gee Wels Bee 6 © © © © ee 6 6
United States v. Sellers
(8th Cir. 1979) 603 F.2d 53 > 0 6s
United States v. White
(8th Cir. 1976) 529 F.2d 1390 e © «
United States v. Calabro
(2nd Cir. 1972) 467 F.2d 973,
cert. denied 410 U.S. 926 (1973) ..
United States v. DeCoster
@.G. GSS. 3979) Gee BeBe 31906 « « co
36
45
30
50
23
30
38
31
50
38
23
40
vii.
Table of Authorities Cont'd.
Cases
United States v. Johnston
(6th Cir. 1963) 318 F.2d 288 ...
United States v. Joyce
(2nd Cir. 1976) 542 F.2d 158 ...
United States v. Kitchen
(5th Cir. 1979) 592 F.2d 900 ...
United States v. Mor~ison
(1981) 449 U.S. 361 -_ - . _ . . * .
United States v. Poulack
(lst Cir. 1977) 556 F.2d 83 ....
United States v. Vargas-Martinez
(9th Cir. 1978) 569 F.2d 1102...
Williams v. United States
t. BB. ' Fe BS 8s 2 Bae
Williamson v. State
(Okl. Crim. App. 1975) 532 P.2d 444
50
51
viii.
TEXTS, STATUTES AND AUTHORITIES
Page
ABT Associates, Inc.,
The San Francisco Public
Defender's Office: A
prelininary Assessment,
ugust * — . _ co > oe . > . - _ 26
"Client Services in a Defender
Organization: The Philadelphia
Experience” 117 U.Penn.L.Rev.
448, 45l, n.12-26 =a = eS 62e¢e¢ ee 8 86 6 26
Gilboy and Schmidt,
"Replacing Lawyers: A Case
Study of the Sequential
Representation of Criminal
Defendants " 70 J.Crim.Law
and Criminology l, nn » © » «6 % 26
O'Brien et al.,
"The Criminal Lawyer: The
Defendant's Perspective”
Portman, “Public Defender
Office Administration"
29 Legal Aid Briefcase
107, a 1 ) ee © # © © © @ @ 26
"Representation of Indigents
in California - A Field Study
of the Public Defender and
Assigned Counsel Systems,"
13 Stan.L.Rev. 522, 530 (1961) ... 26
Wice and Suwak,
"Current Realities of Public
Defender Programs: A Natural
Survey and Analysis"
10 Crim.Law.Bul. 161, 163 (1974) .. 17
ix.
Texts, Statutes and Authorities
Cont'd
Page
Statutes
Title 28, United States Code
GB ST 2
Section 2254(4) ..«e-ceee
Constitutional Provisions
Sixth Amendment,
United States Constitution .. 2
No. 81-1095
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1981
JOHN PAUL MORRIS, Warden,
Petitioner,
v.
JOSEPH D. SLAPPY,
Respondent.
On Writ of Certiorari to
the United States Court of Appeals
for the Ninth Circuit
BRIEF FOR PETITIONER
OPINION BELOW
The opinion of the Court of Appeal
is reported at 649 F.2d 718 and is
attached as Appendix A to the petition
for writ of certiorari. The order of
the Court of Appeal amending its opinion,
denying the petition for rehearing and
rejecting the suggestion for rehearing
en banc is attached to the petition as
Appendix B. The opinion at 649 F.2d 718
now includes the amendments.
JURISDICTION
The judgment of the Ninth Circuit
Court of Appeals was entered on June 29,
1981. The order of the Court of Appeals
amending its opinion, denying the peti-
tion for rehearing and rejecting the
suggestion for rehearing en banc was
filed on October 19, 1981. The petition
for writ of certiorari was timely filed
on December 11, 1981. Certiorari was
granted on March 29, 1982. The jurisdic-
tion of this Court is invoked under Title
28, United States Code section 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United
States Constitution states in pertinent
part: "In all criminal prosecutions,
3.
the accused shall enjoy the right...
to have the assistance of counsel for
his defense."
STATEMENT OF THE CASE
Respondent Joseph D. Slappy was
charged in San Francisco Superior Court
with committing rape, forcidle oral
copulation, burglary, robbery and false
imprisonment .=/ The San Francisco
1. In its opinion affirming his
conviction, the California Court of
Appeal summarized the facts relating to
Slappy's crimes as follows:
"Appellant accosted the
victim in a liquor store and
«as ordered by the manager to
leave. When the victim later
left the store, she saw that
appellant was waiting outside.
She got free from him briefly
but when she entered her apart-
ment nearby, appellant was
waiting in the lobby. Appel-
lant forced her into the base-
ment of the building, where he
committed the offenses men-
tioned above.
"Finally, the victim
escaped from appellant. She
(Footnote continued on next page.)
4.
Public Defender's Office was appointed to
represent him.
On the first day of trial, Thursday,
September 23, 1976, Slappy complained
that Bruce Hotchkiss, the Deputy Public
Defender assigned to the case, had not
had sufficient time to prepare (JA 7-9).
Specifically, he asserted that Hotchkiss
had only had the case for a day and a
half (JA 7-8). Hotchkiss denied this.
He said he had had the case for six days
and was fully prepared. The trial judge
Footnote 1 continued:
immediately gave a description
of appellant to the police.
Appellant was captured two
blocks away. Earrings and other
jewelry belonging to the victim
were found on his person."
Exhibit C, attached to Petition for Writ
of Certiorari, at C-l to C-2. See also
Kwaitkowski Vv. Superior Trading Co.
(i981) 1273 Cal.app.3d rt 176 Cal.Rptr.
620 (victim's suit against owner of her
apartment).
denied Slappy's request for a continu-
ance (JA 9).
The case had been transferred to
Hotchkiss because Deputy Public Defender
Harvey Goldfine, who had handled the
preliminary hearing and investigation,
was in the hospital following an opera-
tion for appendicitis (JA 10-12).
Slappy said that he was “satisfied with
the Public Defender," but was concerned
whether Hctchkiss was adequately pre-
pared (JA 12). He made no reference
of any kind to Goldfine. Specifically,
he did not intimate in any way that he
would prefer Goldfine to Hotchkiss.2/
On Friday, September 24, the second
day of trial, Slappy repeated his
2. During an outburst later that
day, Slappy again complained about the
length of time Hotchkiss had been
assigned to the case (JA 14). As
before, he made no reference to
Goldfine.
complaint that Hotchkiss had not had time
to prepare (JA 16-17). The judge stated
that he had known Hotchkiss as a deputy
public defender for over nine years and
accepted Hotchkiss’ assurances that he
was prepared (JA 17-19). Once more,
Slappy claimed that Hothckiss had only
had the case for a day and a half, and
therefore, in Slappy's opinion, could not
be prepared (JA 19-20). In response,
Hotchkiss again reviewed his preparation
for trial, which included interviews with
Slappy, familiarization with the volumi-
nous office investigation, and prepara-
tion for cross-examination of the prose-
cution witnesses. He noted that he had
met with Slappy on the previous Friday
when the case was assigned to him, again
for three hours on Tuesday afternoon, and
twice on Wednesday (JA 21-23).
Following Hotchkiss’ statement Slappy
mentioned Goldfine's name for the first
7.
time, stating merely "Mr. Harvey
Goldfine was my attorney, and he still
is." Slappy then repeated his claim
that Hotchkiss had not had time to pre-
pare (JA 24-25) .2/ The judge said that
because of the weekend and other court
commitments on Monday, the case would be
continued for three days until the
following Tuesday. He urged Slappy to
cooperate with Hotchkiss (JA 25-28).
On Tuesday, September 28, 1976,
eleven days after Hotchkiss had been
assigned to represent Slappy, trial
resumed. Slappy now took the position
that he did not havé counsel because his
attorney was in the hospital (JA 29, 32,
37-38). He said that he would not par-
ticipate in the trial, and asked to be
3. In response tc Slappy's state-
ment Hotchkiss noted that he had visited
the scene and discussed it with his
client. Slappy accused Hotchkiss of
lying (JA 27).
excused from the courtroom (JA 34-36).
Rejecting advice from both the judge and
Hotchkiss, Slappy persisted in his
refusal to cooperate (JA 33, 3639) .4/
Slappy was convicted of robbery, burglary
and false imprisonment, but no verdict
was reached on the other offenses.
The sex charges were retried on
October.7, 1976. Slappy again refused to
cooperate with Hotchkiss. He would not
take the stand to testify despite
repeated pleas from his attorney that he
do so (JA 50-52). His behavior in court
ranged from making noises and improperly
speaking out in front of the jury, to
apparently sleeping through the pro-
ceedings (JA 49). As in the first trial,
Hotchkiss described for the record the
4. Despite his numerous threats to
return to his cell and not participate in
the trial, Slappy chose rather to remain
in court, occasionally disrupting the
proceedings with outbursts and complaints
(See, @.Ge, JA 40-41).
extent of his preparation and attempts
to persuade Slappy to cooperate with
him (JA 44-45). Slappy was convicted of
rape and forcible oral copulation.
Slappy's convictions were affirmed
by the California Court of Appeal in an
unpublished opinion filed on January 25,
1978. The California Supreme Court
denied hearing.
On April 12, 1978, Slappy filed a
petition for writ of habeas corpus in
the United States District Court for the
Northern District of California,
alleging a violation of his right to
counsel under the Sixth Amendment to the
United States Constitution. The peti-
tion was denied, and a judgment of
dismissal was entered, on December 7,
1978. (The memorandum and order of the
district judge is unpublished, and is
attached as Appendix D to the petition.
10.
The judgment of dismissal is attached as
Appendix E.)
Slappy appealed to the United States
Court of Appeals for the Ninth Circuit.
In an opinion filed on June 29, 1981,
that court concluded that Slappy had been
deprived of his right to counsel and
found the error to be reversible per se
(Petition, Appendix A). The opinion was
amended on October 19, 1981 (Petition,
Appendix B) when rehearing was denied.
SUMMARY OF ARGUMENT
When Deputy Goldfine, who handled
pretrial proceedings, was hospitalized
with appendicitis, the San Francisco
Public Defender's Office assigned Deputy
Hotchkiss to defend indigent Joseph
Slappy, accused of burglary, robbery,
rape, forcible oral copulation and false
imprisonment. After his initial claims
that Hotchkiss was not prepared were dis-
proved, Slappy asserted on the third day
ll.
of trial that only Goldfine was accept-
able to him. Despite this and other
disruptions, Slappy was convicted of
robbery, burglary and false imprisonment.
At his second trial, represented by
Hotchkiss, he was convicted of the sex
offenses.
Slappy's attacks on his convictions
were unsuccessful until the Ninth
Circuit panel constructed a new aspect
of the right to counsel, namely the
right of continued representation. Dis-
regarding the state court's finding of
fact, the panel perceived Slappy's first
day comments questioning Hotchkiss’
preparedness as assertions of a consti-
tutionally recognized preference for
Goldfine. The denial of this newly con-
ceived right, the panel decided, could
only be remedied by reversal per se.
The Sixth Amendment to the United
States Constitution requires that a
12.
state provide indigent criminal defen-
dants with competent and prepared trial
counsel solely dedicated to the client's
interest. It does not entitle a criminal
defendant to the services of any particu-
lar deputy public defender. The Ninth
Circuit panel's proposed new right of
continuous representation by the deputy
first appointed normally bears upon a
criminal defendant's perception of, and
thus confidence in, the fairness of the
criminal justice system rather than upon
any actual substantive component of fair-
ness. As such, its effect is upon
acquiescence in and acceptance of the
result, rather than having an effect on
the result itself. This new concept was
formulated without any consideration of
its impact upon either the prevalent,
tiered organization of many defender
offices or the calendars of already
heavily burdened state criminal courts.
13.
It is an unnecessary and ill-considered
interference with state criminal justice
systems.
Moreover, in this case the federal
court not only disregarded the state
trial court's finding of fact, but also,
misreading the record, constructed its
own contrary findings that Slappy had
made a timely assertion of this new
right. It then faulted the state trial
judge because he had not perceived the
true nature of Slappy's complaints. The
federal court thus failed to give man-
dated deference to the state trial
court's findings.
Finally, the Ninth Circuit compounded
its errors by ordering reversal per se
whenever its newly promulgated right is
denied. This sweeping remedy is not
tailored to the supposed wrong suffered.
Where experienced and competent counsel
is provided, at the very least some
14.
prejudice, other than self-engendered
conflicts, must be shown from the loss
of continued representation before
reversal is warranted.
This case is a graphic example of
what can happen when a manipulative state
criminal defendant meets an activist
federal court. We ask this Court to
remind the Ninth Circuit that remedies
should be tailored to wrongs, mandate
that due deference be given to state
court findings, repudiate this newly per-
ceived right to continuous representation
and affirm the state court judgments of
conviction.
i i i
THE SIXTH AMENDMENT DOES NOT ENTITLE A
CRIMINAL DEFENDANT TO DEMAND CONTINUED
REPRESENTATION BY A PARTICULAR DEPUTY
PUBLIC DEFENDER WHO HAD REPRESENTED HIM
IN PRETRIAL PROCEEDINGS.
The Ninth Circuit Court of Appeals
concluded that respondent Joseph Slappy
"was deprived of his Sixth Amendment
right to counsel." Slappy v. Morris
(9th Cir. 1981) 649 F.2d 718, 719.
After finding that the right to counsel
includes "the right to ea meaningful
attorney-client relationship" [Id. at
720), the court held that the state
trial judge in Slappy's case failed to
accord due weight to that relationship
by not inquiring into how long the
deputy public defender who had repre-
sented Slappy earlier in the proceedings
/
/
/
16.
would be unavailable. 1d. at 721-722.2/
The Ninth Circuit opinion required
no showing of dissatisfaction by Slappy
with Hotchkiss, but instead transformed
Slappy's eventual identification of his
first attorney into an assertion of a
special relationship of trust and con-
fidence with that attorney. It thus
effectively guarantees that a simple
request for previous counsel will entitle
a criminal defendant to the continued
services of the deputy public defender
first assigned to represent him. We sub-
mit that the Sixth Amendment does not
mandate continuous representation of
indigent defendants by a single deputy
public defender. The Ninth Circuit's new
rule unduly interferes with the alloca-
tion of their resources by state public
5. As will be shown in Argument II,
the Ninth Circuit erred in concluding
that this was the thrust of by Slappy's
initial complaints to the judge.
17.
Gefender offices, thus reducing their
effectiveness, and impedes the prompt
and efficient administration of justice
in state courts.
The Sixth Amendment guarantees to
every criminal defendant whose conviction
might result in incarceration the right
to have counsel appointed to represent
him. Gideon v. Wainwright (1963) 372
U.S. 335; Argersinger v. Hamlin (1972)
407 U.S. 25. Especially in large metro-
politan areas, “the public defender pro-
gram appear[s]) to be the most utilized
form of legal defense employed by defen-
dants accused of serious crimes." Wice
and Suwak, “Current Realities of Public
Defender Programs: A National Survey
and Analysis" 10 Crim. Law Bul. 161, 163
(1974). Just as an indigent defendant
does not have an absolute right to have
/
18.
a particular attorney appointed, £/
those courts which have considered the
issue agree that a defendant may not
insist upon representation by a particu-
lar deputy public defender .2/ Although
it acknowledged this widely accepted
rule, the Ninth Circuit sought to justify
its contrary result by suggesting that
representation of counsel is “without
substance” if a defendant does not have
"confidence" in his attorney. 649 F.2d
at 720.
6. United States v. Vargas-Martinez
(9th Cir. 1978) 569 F.2d 1102, 1104;
United States v. Poulack (lst Cir. 1977)
556 F.2d 83, 86. See generally, Annota-
tion, “Indigent Accused's Right to Choose
Particular Counsel Appointed to Assist
Him," 66 ALR3d 996. See also United
States v. Kitchen (5th Cir. 1979
F.2d 900, 903 (retained counsel).
7. See, People v. Stroble (1951) 36
Cal.2d 615, 226 P.2d 330; Maynes v.
People (1972) 178 Colo. 188, 455 P.2d
+ People v. Cox (1961) 22 111.2d 534,
177 N.E. 211.
19,
We do not dispute the desirability
of rapport with counsel, 2/ but that fac-
tor alone does not entitle a defendant
to insist upon continuous representation
by a single deputy public defender. The
cases in which this Court has _ found
Sixth Amendment violations have
generally involved one of two situ-
ations: either the defendant was not
represented by counse12/ or some judi-
cial action prevented counsel from being
8. There is evidence that the
warmth of the attorney-client relation-
ship may not be as important to defen-
dants as the Ninth Circuit supposes. In
a study of defendants' attitudes towards
attorneys, rapport with their counsel
was only rated fourth among important
attributes, with “talks up in court"
being the most important value. O'Brien
et al., "The Criminal Lawyer: The
Defendant's Perspective" 5 Am. J. Crim.
Law 283, 295-297 (1977). Simply put,
Criminal defendants appear to want a
"mouthpiece," not a confidant.
9. See, e.g., Gideon v. Wainwright
(1963) 372 U.S. 335.
fully effective. 22/ Neither situation is
present in this case. Slappy did have
experienced counsel at trial who was
fully prepared and ready to defend him.
That attorney's competence has never been
challenged by Slappy.
Perhaps even more importantly, there
was no judicial action which prevented
Slappy's counsel from effectively
representing him. It was the public
dGefender's office, not the trial court,
which reassigned the case to Deputy
Hotchkiss, and it was Slappy himself who
ultimately refused to cooperate with
Hotchkiss in the presentation of his
defense.
Last term this Court noted that its
purpose in Sixth Amendment cases is "to
10. See, e.g., Geders v. United
States (1976) 425 U.S. 80 (prohibiting
consultation); Herring v. New York (1975)
422 U.S. 853 tprohibiting summation).
21.
assure the defendant the effective
assistance of counsel and a fair trial."
United States v. Morrison (1981) 449
U.S. 361, 365. Only where an infringe-
ment upon the right to ¢ccunsel “has had
or threatens some adverse impact upon
the effectiveness of counsel's represen-
tation or has provided some clear preju-
dice to the defense" will a remedy be
fashioned. Id. A similar analysis is
appropriate when making the initial
determination whether a defendant's
right to counsel has been violated. The
substitution prior to trial of a deputy
public defender who has represented a
Gefendant earlier in pretrial proceed-
ings in and of itself is not the type of
action which threatens the effectiveness
of trial counsel's representation, nor
is it likely to otherwise prejudice the
/
22.
defendant .22/
We do not suggest by this argument
that an indigent who is dissatisfied with
his appointed attorney, be it private
counsel or a deputy public defender, has
no remedy available to him. In
California, at a minimum, indigent crimi-
nal defendants must be permitted i»
explain on the record the reasons for
their complaints about assigned counsel.
People v. Marsden (1970) 2 Cal.3d 118, 84
Cal.Rptr. 156, 465 P.2a 44.22/ some
federal courts have developed similar
ll. See, e.g., Greenfield v. Gunn
(9th Cir. 1977) 556 F.2d 935; Moore v.
United States (3rd Cir. 1970) 432 F.2d
730; Nettleton v. State (Del. 1974) 320
A.2d 743; People v. Cummings (1978) 84
Mich.App. 509, 9 N.W.2d 658, 660.
12. California takes this rule ser-
iously. Once stated, an indigent defen-
dant's concerns must be adequately
explored. See P ple v. Hidalgo (1978)
22 Cal.3d 826, 1 Cal.Rptr. 788, 587
P.2d 230; Peopie v. Lewis (1978) 20
Cal.3d 496, ia Cal.Rptr. 138, 573 P.2d
40.
23.
rules. See, e.g., United States v.
Calabro (2nd Cir. 1972) 467 F.2d 973,
cert. denied 410 U.S. 926 (1973).22/
if a defendant making such a complaint
demonstrates good cause for substitution
of counsel, he may be entitled to another
attorney. Such a showing may include a
genuine breakdown in communications
between counsel and client. Even so, he
still does not have a right to demand a
particular attorney.
One reason for such rules is to give
trial judges an adequate basis for
assessing the defendant's complaints
13. We do not concede that a hear-
ing of this type is constitutionally
mandated. The development of procedures
by which indigent criminal defendants
can express their objections to or com-
plaints about assigned counsel are best
left to the responsible courts. Federal
appellate judges, we suggest, should
limit their experimentation with such
hearings to the federal tria}) courts.
24.
about his attorney.24/ Equally impor-
tant, however, is the opportunity such a
hearing provides for the defendant to
have a sense of participation in the pro-
ceedings, and the satisfaction of having
the judge's decision explained to him.
See People v. Chavez (1980) 26 Cal.3d
334, 347, n. 3, 161 Cal.Rptr. 762, 605
P.2d 401. There can be no doubt from
even the most cursory examination of the
record in this case that Slappy was given
every opportunity to state and explain
his complaints about Hotchkiss. That
Slappy may have been dissatisfied with
the result of the hearings or the outcome
of the trial is not the judge's fault,
but a reflection of Slappy's contemptuous
attitude toward the proceedings.
14. "Ineffective assistance of
counsel = the underlying plank which
supports the Marsden rule." People v.
Maese (1980) 105 Cal.App.3d 710, 723,
Cal.Rptr. 485. See n. 12, supra.
25.
The interpretation of the Sixth
Amendment developed by the Ninth Circuit
is not only legally faulty, it also
undermines the operation of public
defender offices and needlessly encum-
bers the administration of state trial
courts. Such unreasoned federal intru-
sion into the allocation of scarce state
resources is unnecessary and unjusti-
fiable.
Though a public defender system of
providing legal assistance for indigent
criminal defendants has existed in dif-
ferent parts of the United States since
the early twentieth century ,22/ this
Court's decisions on the right to coun-
sel have c.eatly expanded the number of
such offices, as well as the scope of
15. See Note, “Representation of
Indigents in California - A Field Study
of the Public Defender and Assigned
Counsel Systems," 13 Stan.L.Rev. 522,
530 (1961).
26.
those already in existence .26/ In order
to serve an increased number of clients,
many offices have established some form
of “horizontal” or “tiered” system for
assigning deputies to particular cases. 22/
When discussing the San Francisco Public
16. See generally, Wice and Suwak,
"Current Realities of Public Defender
Programs: A National Survey and
Analysis" 10 Crim. Law Bul. 161 (1974).
17. See, e.g., Gilboy and Schmidt,
"Replacing Lawyers: A Case Study of the
Sequential Representation of Criminal
Defendants” 70 J. Crim. Law and Crimi-
nol 1, 7 (1575); Portman, “Public
Defender Office Administration" 29
Legal Aid Briefcase 107, 111-112 (1971)
[Sheldon Portman is the Public Defender
of Santa Clara County, California); Wice
and Suwak, supra, 10 Crim. Law Bul. at
172-173; Note, "Client Services in a
Defender Organization: The Philadelphia
Experience” 117 U.Penn.L.Rev. 448, 451,
So ie The San Francisco Public
Defender's Office has developed a hybrid
system of horizontal representation in
the majority of cases, with continuous
representation by a single deputy in
some cases. See, ABT Associates, Inc.,
The San Francisco Public Defender's
Office: A Preliminary Assessment, August
’ 0. (This document was not widely
circulated. A copy will be provided
should the Court so request.)
27.
Defender's Office, the Ninth Circuit
itself noted that “horizontal represen-
tation may at times be an inevitable
result of workload and budget con-
straints imposed on a public defender's
office." Greenfield v. Gunn (9th Cir.
1977) 556 F.2d 935, 938, cert. denied
434 U.S. 928 (1977). Similarly, the
Delaware Supreme Court has recognized
that “last minute assignments among
deputies” may be required “by reasons of
exigencies" in the public defender's
office. Nettleton v. State (Del. 1974)
320 A.2d 743, 745.
There are three basic advantages to
the tiered system. First, it is the
most efficient means of representing the
maximum number of clients by a limited
number of deputies. Second, it allows
each deputy to maintain a reasonable
caseload. Third, and perhaps most impor-
tant, it allows the public defender's
28.
office to use its most experienced depu-
ties to try cases. By holding that a
defendant represented by the public
defender's office may demand, and is
entitled to, continuous representation by
a single deputy public defender, the
Ninth Circuit substantially disrupts the
Organization of many defender offices.
The rule greatly restricts, if not elimi-
nates, the option of using a tiered
structure and will inexorably result in
increased expenditure of limited state
and local funds in order to continue
effective representation for indigent
clients .28/ Such a potentially major
impact upon the resources of the state
criminal justice system should be
18. A rule requiring continuous
representation upon demand must certainly
be seen as an even greater threat to dis-
rupt public defender offices than a rule
of separate counsel on demand. See
Holloway v. Arkansas (1978) 435 U.S. 475,
494, n. 2 (Justice Powell, dissenting).
considered when developing new constitu-
tional rights.22/ See Faretta v.
California (1975) 422 U.S. 806, 845
(Chief Justice Burger, dissenting);
Argereinger v. Hamlin (1972) 407 U.S.
25, 65 (Justice Powell, concurring in
the result). The Ninth Circuit failed
/
/
19. The potential impact of the
Ninth Circuit's opinion is illustrated
by the conflict between it and the deci-
sion of the California Supreme Court in
People v. Johnson (1980) 26 Cal.3d 557,
162 Cal.Rptr. 431, 606 P.2d 738. In
Johnson, the Court held that the con-
gested calendar of a deputy public
Gefender does not justify continuances
which result in a denial of a defendant's
constitutional and (in California) sta-
tutory right to a speedy trial. Thus a
state trial judge faced with a defendant
who demands not oniy that the deputy
public defender who represented him
earlier continue to do so, but also that
his case go to trial immediately despite
the attorney's prior commitments, may
find himself between the Scylla of the
Ninth Circuit's Sla rule and the
Charybdis of Californie’ s Johnson rule.
to undertake such an assessment. 22/
The Ninth Circuit's holding also
raises serious problems with respect to
the administration of state criminal
trial courts. Calendar control “is a
sophisticated operation." United States
ex rel Carey v. Rundle (3rd Cir. 1969)
409 F.2d 1210, 1214. It is concern for a
balance between the defendant's right to
representation by counsel and society's
interest in reasonable and orderly trial
procedures which has led many courts to
narrowly limit the ability of an indigent
to substitute appointed counse1.22/ This
20. Rejection of the Ninth Circuit's
rule is consistent with the concern for
public defender programs expressed by the
Court earlier this term in Polk County v.
Dodson (1981) * re LEA. 2a
509, 102 s.ct. 445.
21. See, e.g., United States v.
Burton (D.C. Cir. 1978) 584 F.2d 485,
490; United States v. Poulack (lst Cir.
1977) ° 3, 86; Giacalone v.
Lucas (6th Cir. 1971) 445 F.2d 1238,
1240; Moore v. Jamieson (1973) 451 Pa.
299, 306 A.2a 283, 288.
31.
Court has “impliedly recognized the
necessity for preserving’ society's
interest in the administration of crimi-
nal justice” in cases involving Sixth
Amendment rights. United States v.
Morrison (1981) 449 U.S. 361, 364. By
granting criminal defendants the right
to insist upon continuous representation
by a single deputy public defender, the
Ninth Circuit has grieviously impaired
state trial courts’ ability to control
their criminal calendars. If a defen-
dant insists upon substitution of coun-
sel, not only may his case be delayed
while awaiting his first attorney's
availability, other cases handled by
that attorney may well also be delayed.
Meanwhile, the judge, court personnel
and newly assigned deputy also stand idly
by, wasting scarce judicial resources.
Since a defendant need not show
dissatisfaction, prejudice or lack of
32.
preparedness by the new deputy, but only
a desire to continue the earlier attorney-
client relationship, many trial judges
may feel obliged to indulge the defendant
in every case, except when the continu-
ance would be lengthy. If even half of
the public defender cases were delayed
for even one to two days each, the dis-
ruption and consequent cost in the state
courts could well be substantial.
The Ninth Circuit's creation of a
"right" of continuous representation is
not only inconsistent with this Court's
interpretation of the Sixth Amendment, it
is a revolutionary and unnecessary step
in the development of the right to coun-
sel. A fair balance between the rights
of defendants and society's interest in
the allocation of its limited legal
resources and the administration of
justice militates against the Ninth
Circuit's position. Respondent Joseph
33.
Slappy was given the services of a com-
petent, experienced, prepared deputy
public defender at his trial. He was
entitled to no less, but just as cer-
tainly he was entitled to no more.
II
THE NINTH CIRCUIT'S CONCLUSION THAT
SLAPPY'S INITIAL COMPLAINTS WERE A
DEMAND FOR CONTINUOUS REPRESENTATION
BY A SINGLE DEPUTY PUBLIC DEFENDER
MISCONSTRUES THE RECORD AND FAILS TO
ACCORD THE REQUIRED PRESUMPTION OF
CORRECTNESS TO THE STATE COURT
FINDINGS.
We submit that the Ninth Circuit
misread the record with respect to
Slappy's initial complaints about Deputy
Public Defender Hotchkiss. In addition,
that court failed to apply the required
presumption of correctness to the state
judge's factual findings on the nature
of Slappy's objections.
On the first day of trial Slappy
complained that Hotchkiss, the deputy
public defender assigned to represent
34.
him, had not had sufficient time to pre-
pare (JA 7-9). Slappy insisted that
Hotchkiss had only had the case for a day
and a half, but counsel contradicted
that claim. In fact, Hotchkiss had been
assigned to represent Slappy six days
earlier22/ because Deputy Public Defender
Goldfine was in the hospital recovering
from an appendectomy (JA 10-12).
Hotchkiss assured the judge that "a
further continuance would not benefit me
in presenting the case," and said that he
was ready to begin (JA 11). Slappy said
he was “satisfied with the Public
Defender," but reiterated his assertion
that Hotchkiss was not prepared (JA 12).
22. Actually, Hotchkiss had inter-
viewed Slappy when first assigned the
case on Friday, September 17, 1976. The
trial judge properly accepted his repre-
sentations. See Holloway v. Arkansas
(1978) 435 u.S. 475, 486 and n. 9. This
finding of fact casts extreme doubt on
the credibility of Slappy's subsequent
assertions.
35.
The state trial judge found that Hotchkiss
was a competent attorney, had had suffi-
cient time to prepare and was ready to
begin trial that day (JA 9). Contrary
to the Ninth Circuit's assertion in its
opinicn (649 F.2d at 720), at no time on
the first day of trial did Slappy seek a
continuance in order that Goldfine,
rather than Hotchkiss, could represent
him. The Ninth Circuit's “finding of
fact" is not only totally unsupported in
the record, it is contrary to the state
trial court's findings that this indi-
gent criminal defendant was represented
by an experienced and prepared member of
an office with which he had openly
expressed satisfaction.
Whenever the merits of a state
judge's factual findings are challenged
in federal court, those findings “shall
be presumed to be correct" unless one of
seven conditions is found to exist by
36.
the federal court. 28 U.S.C. 2254(d).
If a federal court concludes that any one
of the conditions was present, or that
the state findings were not fairly
supported by the record, it should
include the reasoning which led to that
conclusion in its opinion. Sumner v.
Mata (1981) 449 U.S. 539, 551. The Ninth
Circuit failed to comply with these obli-
gations.
The Ninth Circuit seems to have
based its factual findings on references
to events in the record which did not
occur until the second and third day of
trial. Indeed, the only support offered
by the Ninth Circuit to demonstrate
Slappy's demand for continuous represen-
tation by Goldfine did not occur until
the third day of the trial, eleven days
after Hotchkiss had been assigned to
represent Slappy. (Compare 649 F.2d at
719, n. 1 with JA 156-157.) Until that
37.
day, with the exception of a brief
reference to Goldfine as his attorney on
the second day of trial (JA 24),
Slappy's demands and complaints all
involved his asserted belief that
Hotchkiss was not, or could not have
been, prepared for the trial.
There is nothing in Slappy's state-
ments or behavior on the first day of
trial to suggest that he wanted
Goldfine, rather than Hotchkiss, to
represent him. The only reference to
Goldfine on the first day was made inci-
dently by Hotchkiss during his explana-
tion for the change in deputies and
description of his own preparation for
trial (JA 10-12). The record thus
Clearly demonstrates that Slappy was not
requesting a continuance until Goldfine
recovered from his operation, but until
Hotchkiss was prepared for trial. The
State judge took Slappy's complaints to
38.
mean this; he could not reasonably have
done otherwise. In its unseemly haste to
place its new gloss on the Sixth Amend-
ment right to counsel, the Ninth Circuit
simply ignored its duty to defer to the
state trial court's findings of fact .23/
The Ninth Circuit's findings are
both contrary to the state trial court's
findings of fact and unsupported by the
23. Contrary to the Ninth Circuit's
amendment to its opinion, we have always
contended that Slappy was acting in bad
faith when he demanded that Goldfine
rather than Hotchkiss represent him. 649
F.2d at 722. Indeed, the fact that
Slappy continued to insist that Hotchkiss
had had inadequate time to prepare
despite counsel's representations to the
contrary, and his continuous modification
of his complaints every time one was
rejected, suggests that he was “motivated
by a desire to delay his trial for an
improper purpose" [Id.}), rather than
simply asserting his sincere desire for
representation by Goldfine. A defendant
is not entitled to manipulate the impor-
tant right to counsel for the purpose of
disrupting trial proceedings. United
States v. Fowler (5th Cir. 197
F.2d 181, 183; United States v. White
(8th Cir. 1976) 529 F.2d 1390, 1393.
39.
state trial court record on which they
purport to rely. For these reasons
alone, we ask this Court to reverse
outright the Ninth Circuit's decision.
III
WHERE AN INDIGENT CRIMINAL DEFENDANT
CLAIMS ERROR BECAUSE A PREFERRED
ATTORNEY WAS NOT APPOINTED AS TRIAL
COUNSEL, HE MUST DEMONSTRATE PREJUDICE
BEFORE REVERSAL IS WARRANTED.
The Ninth Circuit concluded that the
perceived failure adequately to consider
Slappy's attorney-client relationship
with Goldfine before ruling on his con-
tinuance request constituted a denial of
Slappy's right to counsel. The court's
remedy was to reverse the convictions
without requiring a showing of preju-
dice. Slappy v. Morris, supra, 649 F.2d
at 723. To reach this result the Ninth
Circuit relied? upon a series of counsel
/
/
40.
cases decided by this Court .24/ We sub-
mit that the Ninth Circuit's proposed
rule fails to consider the variety of
interests protected by the Sixth Amend-
ment, and the differing remedies appro-
priate when those interests are violated.
In cases such as Slappy's, we will show
that a demonstration of prejudice should
be required.
The cases defining the Sixth Amend-
ment right to counsel present a con-
tinuum. United States v. DeCoster (D.C.
Cir. 1979) 624 F.2d 196, 201 (DeCoster
III). At one extreme are situations in
which the defendant was denied any repre-
sentation by counsel. Such an absolute
24. Gideon v. Wainwright (1963) 372
U.S. 335; Geders v. United States (1976)
425 U.S. 80; Herring v. New York (1975)
422 U.S. 853; asser v. United States
(1942) 315 U.S. 60; Powell v. Alabama
(1932) 287 U.S. 45; Holloway v. Arkansas
(1978) 435 U.S. 475.
41.
denial demands a reversal per se.23/
Also, since a necessary corollary of the
right to have counsel present is a rea-
sonable opportunity to employ and con-
sult with an attorney, failure to pro-
vide such an opportunity must re_ult in
an automatic reversal .2°/
When a defendant has counsel, but
some judicial action prevents the attor-
ney from being fully effective, a rever-
sal has been required.22/ It is fre-
quently impossible in such cases to
assess the degree of harm to the defen-
dant, because what the attorney does or
25. Gideon v. Wainwright (1963) 372
U.S. 335.
26. Chandler v. Fretag (1954) 348
U.S. 3, 10.
27. See, e.g., Geders v. United
States (1976) 425 U.S. 80 (prohibiting
consultation with defendant); Herring v.
New York (1975) 422 U.S. 853
(prohibiting final summation); Powell v.
Alabama (1932) 287 U.S. 45 (prohibiting
adequate opportunity to confer with
defendant and prepare).
42.
does not do is not readily apparent on
the record or occurs when no record is
made. Cooper v. Fitzharris (9th Cir.
1978) 586 F.2d 1325, 1332. Similarly,
where an attorney represents multiple
Gefendants whose interests conflict, any
of those defendants may demand separate
counsel. After a proper showing of such
a conflict of interest, denial of the
request requires automatic reversal of a
conviction. 29/
Further along the continuum is
belated appointment of counsel, an issue
considered by this Court in Chambers v.
Maroney (1970) 399 U.S. 42. There the
Gefendant was represented by a Legal Aid
Society, a member of whose staff appeared
at proceedings which resulted in a mis-
trial. A few minutes before the second
28. Holloway v. Arkansas (1978) 435
U.S. 475; Glasser v. United States (1942)
315 U.S. 60.
43.
trial another attorney from the Legal
Aid Society introduced himself to the
defendant, and represented him ih the
trial. There was no claim that the
second attorney's representation was
incompetent. 399 U.S. at 53. The Court
held that while appointments of counsel
should be made as early as possible, a
per se rule of reversal was not appro-
priate. Rather, an evidentiary hearing
should be conducted to determine whether
the defendant had been denied his right
to counsel. Id. at 54. Based on the
state court record in Chambers, a federal
court of appeals ‘concluded that the
defendant had not been prejudiced, and
Genied an evidentiary hearing. This
Court upheld that determination. Id. at
/
/
/
44.
53-54,22/
At the other extreme of the counsel
continuum are cases in which the defen-
dant is represented by an attorney
appointed in a timely fashion whose
actions are unrestricted by any state
action, but whose competence in handling
the case is challenged by the defendant.
This Court has made it clear that all that
defendants are entitled to is “the effec-
tive assistance of counsel. *32/ The Court
has indicated, for example, that a guilty
Plea based on advice of counsel will only
be reversed on proof of "serious derelic-
tions on the part of counsel. .. ."
29. This conclusion was foreshad-
owed by Avery v. iabana (1940) 308 U.S.
444, where the Court held after a review
of the trial record that denial of a con-
tinuance request by defense counsel did
not deprive the defendant of "the assis-
tance of zealous and earnest counsel.
e « ” Id. at 450.
30. McMann v. Richardson (1970) 397
U.S. 759, 771.
45.
McMann v. Richardson (1970) 397 U.S.
759, 774. Accord Tollett v. Henderson
(1973) 411 U.S. 258, 266-267. In United
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