# Opposition Brief — Partington v. Gedan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1302%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 1038 ## Text No. 89-1531 APR 26 1990 JOSEPH F. SPANIOL, In The CLERK Supreme Court of the United States October Term 1989 a — EARLE A. PARTINGTON JOSEPH M. GEDAN and HOWARD On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit —E ———_——— -—__- EE RESPONDENTS’ BRIEF IN OPPOSITION + WARREN Pri [II* Attorney General State of Hawaii *Counsel of Record CoORINNE K.A. Wart First Deputy Attorney | State of Haw aii STEVEN S. M Deputy Attorne ‘ ft State of Hawa tate Capit , , , Tr) 1111 QUESTIONS PRESENTED 1. Whether the failure by Petitioner in No. 89-1531 actually to “file” his petition for rehearing in the Court below on or before the fourteenth day after judgment in the Court of Appeals, as is required by Fed. R. App. P. 25(a) and 40, renders his petition for review here jurisdic- tionally untimely in that the petition for rehearing timely filed by Petitioners in No. 89-1506 (Respondents here) on the fourteenth day after judgment below was addressed to the collateral issue of attorneys fees? 2. Whether, assuming Petitioner has timely invoked this Court’s authority, Petitioner’s claims arising out of attorney disciplinary proceedings commenced against him pursuant to Rule 13 of the Supreme Court of Hawaii were correctly held to be subject to dismissal under the precepts of comity, federalism, and restraint reflected in Younger v. Harris, 401 U.S. 37 (1971), and its progeny, e.g. Middlesex County Ethics Comm'n v. Garden State Bar Ass‘n, 457 U.S. 423 (1982), and Pennzuil Co. v. Texaco, Inc., 481 U.S. 1 (1987), or whether certiorari should be denied, or the judgment affirmed, on the basis of the more funda- mental reason that such claims are not ripe for federal review? 3. Whether the claims presented in No. 89-1531 are barred by the independent and adequate state ground doctrine? 4. Whether, assuming, arguendo, the dispositions in the state courts of which Petitioner here complaints are ‘final,” Petitioner’s exclusive avenue of federal review is by way of petition under 28 U.S.C. § 1257, and not by a il QUESTIONS PRESENTED - Continued “horizontal appeal” to the inferior federal courts of the United States, or, if not, whether the principles of the Full, Faith, and Credit Act, 28 U.S.C. § 1738 (1982), pro- hibit departure in this case from the law of the case, if any, developed in the state courts? 5. Whether any substantial federal question is pre- sented by Petitioner’s claim that the highest court of a state is unconstitutionally biased for purposes of attorney disciplinary proceedings on the basis of rulings in favor of Petitioner’s past client in a criminal case where Peti- tioner was not a party? 6. Whether any substantial federal question is pre- sented by Petitioner’s claim that the Due Process Clause, per se, bars a State from granting an incentive for criminal defense counsel to reveal client confidences so as to de- fend themselves against allegations of impropriety, and whether, if so, Petitioner’s former client’s free and open waivers of the attorney client privilege moot federal pro- tection of the confidences at issue? 7. Whether any substantial federal question is pre- sented by Petitioner’s prayer for relief from statements in a judicial opinion that, assertedly, defame one of the lawyers in the case? 8. Whether for any other reason review should be denied? ili PARTIES IN THIS COURT Petitioner in this Court Earle A. Partington, Esq., is a Honolulu attorney. He is plaintiff and appellant in the courts below, and a Respondent in No. 89-1506 (U.S. pet. for cert. filed Mar. 22, 1990), along with the Hawaii Asso- ciation of Criminal Defense Lawyers, an amicus curiae without standing to appeal the judgment below. Pet. for Cert. at ii, No. 89-1506. Respondents on this Petition, No. 89-1531, include Joseph M. Gedan, the Rule 13 Special Master in proceed- ings docketed in the Supreme Court of Hawaii variously as In re: Earle A. Partington (Haw. Spec. Master filed 1986), or State v. Clarke, No. 10041 (Haw. Spec. Master filed 1986). Special Master Gedan is a defendant in the district court and an appellee in the appeal below, which sought solely equitable relief. Because the relief ultimately sought against Respondent Gedan was equitable in na- ture, Respondent Gedan submits he has been named as a Respondent in this Court in his official capacity, although he appears in whatever capacity he is in fact so named. Pet. for Cert. at ii, No. 89-1506 (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (quoting Brandon v. Holt, 469 U.S. 464, 469 (1985))). The Petition in No. 89-1531 also names Howard T. Chang, prosecutor in the Rule 13 pro- ceedings, and a defendant-appellee below, as a Respon- dent. Respondent Chang appears here as does Special Master Gedan. On February 23, 1990, Rule 13 Prosecutor Chang was succeeded by Mark J. Bennett, who ought to be substituted automatically under this Court’s Rule 35.3. iV TABLE OF CONTENTS Page BR Be gy 6 Se i hf a ee a iii RAs SP GPE ek si ccc ccc esaeucwsedetees iv TPG Oe TAFE LU ¢ ov oo ve cheek awe x: vi Pe Ae ee UE oa rsh os Pac wk Hike he ClO a. pe eA 2 Fp E so ais se eh Ce Oe aE ee hae eee 3 CONSTITUTIONAL AND STATUTORY PROVI- Peete eM es Cie Re pwiee ek ae rts ree SRA EPEE GE BECO Gi ins irre ee ewe eee ees A. Background of the Litigation: Supreme Court of Hawaii Rule 13 and the Protections Avail- able to Respondent Counsel.........-....... B. The Rule 13 Proceedings Here and Proceedings in the United States District Court........... C. Proceedings in the United States Court of Ap- NG cit oa oS Pew eeeR GOT E SAK se 0% D. Further Proceedings in the State Courts...... REASONS FOR DENYING THE WRIT A. The Dismissal of Petitioner’s Claims Under the Younger Doctrine Was and Remains Consistent with the Sixth Amendment.......... B. Partington’s Assertions of “Institutional Bias” are Wholly Insufficient to Overcome Dismissal TABLE OF CONTENTS —- Continued Page C. Partington’s Challenges to the Asserted Immedi- ate Impact of the Clarke Ruling Would Overrule Younger Itself and Do Not Merit Review ...... 28 ee ee 8 | errr rrr yy rrr ere ret rere 30 vi TABLE OF AUTHORITIES Page CasEs: Aetna Life & Casualty, Inc. v. Lavoie, 475 U.S. 813 Ra a ca 18, 25 Anders v. California, 386 U.S. 738 a ee 21 Ariyoshi v. Robinson, 477 U.S. 215 (1986)......--+-+-: 29 ASARCO v. Kadish, 109 S. Ct. 2037 (19GB) osc ccevees 21 Atascadero State Hospital v. Scanlon, 473 U.S. 234 ih ck vere eases FEA) thet ES AN ewes 10, 19 Brandon v. Holt, 469 U.S. 464 (1985)....----- Se Budinich v. Becton Dickinson & Co., 486 U.S. 196 TN cave ivcsesheoesentsrenterre scenes t 3 Caplin & Drysdale, Chartered v. United States, 109 S. oe SE: eae aaa Ca a 21 Chevron U.S.A. v. Natural Resources Defense Council, Meera Bar CGB)... «5. cece eer creer eecees , 29 Christianson v. Colt Industries Operating Corp., 108 S Ct. 2166 (1988). ......-.--- eee eee: 30 Debartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568 (1988)......-- ae ee 7 Department of Labor v. Triplett, No. 88-1671 (U.5 Mar. 27, 1990).....-.---- MarR rere 20 District of Columbia Court of Appeals v Feldman, 460 U.S. 462 (1983)... Douglas v. California, 372 U.S. 353 (1963) 21 Engle v. Isaac, 456 U.S 107 (1982) vil TABLE OF AUTHORITIES - Continued Page Faretta v. California, 422 U.S. 806 4+) ee ie. 21 FDIC v. Mallen, 486 U.S. 230 (1986) ...----- seer eres 29 Felmeister v. Office of Attorney Ethics, 856 F.2d 529 A Os POMED fC inesen te cten oh heres er re™ bree Te 29 Frisby v. Schultz, 108 S. Ct. 2495 (1988).......---: zz, 2 Glass v. Pfeffer, 849 F.2d 1261 (10th Cir. 1988)......-- 25 Graham v. Teledyne-Continental Motors, 805 F.2d same tOels Cin, 1908)... . cece ene haweet rs eaeeses ne 24 HOH Corp. v. Licensing Board, 736 P.2d 1271 (Haw. OO oS cc arene ee wine Oe A See Re eee 10 Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1984) (per curiam).....-.---+-e errr “ 20 Kentucky v. Graham, 473 U.S. 159 (1985) .. iii Kugler v. Helfant, 421 US. 117. C1976). 2 22, 27 Maier v. Orr, 758 F.2d 1578 (Fed. Cir. 1985) 25 Martin v. Wilks, 109 S. Ct. 2180 (1959)... | Y Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989) lo, 26 McKaskle v. Wiggins, 465 U.S. 168 (1984) 21 McLaughlin v. Union Oil of California, 869 F.2d 1039 (7th Cir. 1989).. 25 Michigan v. Harvey, 110 S. Ct 1176 (1977) Z Michigan v. Jackson, 475 U.S 625 (1986) 23 Vill TABLE OF AUTHORITIES - Continued Page Middlesex County Ethics Comm'n v. Garden State Bar Fa aS Ss SS”) i, 6, 14 Missouri v. Jenkins, No. 88-1150 (U.S. Apr. 18, 1990)... .3, 4 Murray v. The Charming Betsy, 2 Cranch 64 (1804)..... 7 Nix v. Whiteside, 475 U.S. 157 (1986)................. 10 Ohio Civil Rights Comm'n v. Dayton Christian SCnOew, 477 U.S. GIS (ISEB)... ccc cece vcccccces 6, 29 Partington v. Gedan, No. 87-0172 (D. Haw. dismiss- ed July 1, 1987), aff’d, 880 F2d 116 (9th Cir. 1989), pets. for cert. filed, Nos. 89-1506 and 89-1531 (U.S. filed Mar. 22, 1990)............. passim Paul v. Davis, 424 U.S. 693 (1976) ................ 19, 29 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) Bt Sy Ra Per ne neat teen tem sie 320, Sah i, 2, 6, 7, 15, 18, 28 Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1989). .... 29 Santos v. State, 64 Haw. 648, 646 P.2d 962 (1982) Se IES sin 9 v nia hela oe hen eee be eh een kas Mane ees 9 Smith v. Murray, 477 U.S. 527 (1986) ................ 26 State v. Clarke, No. 10041 (Haw. Dec. 27, 1984) .. passim State v. Smith, 68 Haw. 304, 712 P.2d 496 (1986)..... 10 Strickland v. Washington, 466 U.S. 668 (1984)....... 8, 20 United States v. Hohri, 482 U.S. 64 (1987)............ 26 Weatherford v. Bursey, 429 U.S. 545 (1977)............ 23 Wheat v. United States, 486 U.S. 153 (1988) ) 8, 21 Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) rrr + ix TABLE OF AUTHORITIES - Continued Page Withrow v. Larkin, 421 U.S. 43 (1976)......... 14, 21, 26 Younger v. Harris, 401 U.S. 37 (1971)...... -. ee. passim CONSTITUTIONAL PROVISIONS: Meee Se, MN BONS ea Wiebke ew aneee eos ee x U.S. Const. sixth amendment .................. 4, 18-25 U.S. Const. fourteenth amendment............ page ae Haw. Const. art. I, § 14 (1978)............ 7 nares STATUTES: 28 U.S.C. § 1254(1) (West 1989) .... 4 Be RFs Se GED oh ooo ete se cases: Fee Pe a ae USK. & 1750 (ISS2) ... 25. 60 ee ae ii, 5, 30 28 U.S.C. § 2101 (1982).............. ee 3, 4 26 Usd. § 2111 C1962) . «2... cee eees. ae 5 Haw. Rev. Stat. § 602-5(6) (1985)... s Haw. Rev. Stat. § 602-5(7) (1985) .... 8 Rutes or Court: Fed. R. App. P. 25(a) ....... eee wees 1, 3 Ped. FB, Ape. Fl PB. onc cccesvses a 29 POG. B. AMG. FDO. ia ces ccces - 15 ren. me mpe. 7. @......5-. vet | i, 3 Fed. R. Civ. P. 11.. 15 TABLE OF AUTHORITIES - Continued Page ee a Oe & Ce re erie ony aie gh passim Haw. DR 4-101(c), codified at Haw. S. Ct. R. 2.2(a) CEU ol ett sec sae teceb ss tan esa cases ta eienie 9 Haw. R. Penal P. 40 (1969). ... 0... e see cece cereus. 26 OTHER AUTHORITY: R. Stearns, E. Gressman, & S. Shapiro, Supreme Court Practice § 6.3 (6th ed. 1986).............-.++:. 3 ld No. 89-1531 &. — In The Supreme Court of the United States October Term 1989 a — EARLE A. PARTINGTON, Petitioner, JOSEPH M. GEDAN and HOWARD T. CHANG, Respondents. a 4 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit a — RESPONDENTS’ BRIEF IN OPPOSITION > _— Respondents Joseph M. Gedan, Special Master ap- pointed by the Supreme Court of Hawaii in State v. Clarke No. 10041 (Haw. Feb. 3, 1986), et al., officers of the State of Hawaii (“State officials”), and Petitioners in No. 89-1506 (U.S. pet. for cert. filed Mar. 22, 1990), pray that the petition for writ of certiorari in No. 89-1531 be denied, or that on any review given, that the judgment below favor- able to the State officials be affirmed. » i rh OPINIONS BELOW The amended opinion of the Court of Appeals is reported at 880 F.2d 116 (9th Cir. 1989), and is reprinted in the appendix to Petitioner Earle A. Partington’s Peti- tion for Certiorari, No. 89-1531 [“Pet. App. (No. 89-1531)”] as Appendix [“App.”] “A” and in the Appen- dix to the State officials’ Petition for Certiorari, No. 89-1506 [“Pet. App. (No. 89-1506)”] also as Appendix [(“App.”] “A.” The order of the United States District Court for the District of Hawaii, granting, inter alia, the State Officials’ motion to dismiss, is reprinted at Pet. App. “C” (No. 89-1506). The unreported Memorandum Opinion of the Supreme Court of Hawaii in State v. Clarke, No. 10041 (Haw. Dec. 27, 1985), is reprinted in Pet. App “D” (No. 89-1506). Other orders of the Supreme Court of Hawaii or the Hawaii Rule 13 Special Master, dated De- cember 6, 1984, and January 26, February 1, February 12, and February 27, 1990, are reprinted in the appendix to this opposition [“Resp. App. (No. 89-1531)”] as App. “C,” “E,” “FE” “H” and “I,” to assist the Court in evaluating No. 89-1531. See this Court’s Rule 15.1.! a a ' The Order of the Supreme Court of Hawaii dated De- cember 6, 1984, appears in the record below as part of Exhibit “B” to the Complaint, No. 87-0172 (D. Haw. filed Mar. 9, 1987) (Clerk’s Record [“C.R.”] 1). The remaining orders, which were issued after the denial of rehearing by the court below on December 22, 1989, see Pet. App. “B,” No. 89-1531, are for that reason not in the record in this action, but are properly ten- dered to this Court if, contrary to Respondents’ arguments, infra (citing e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987)), post-filing events are relevant to this Court’s review nere. — JURISDICTION The judgment of the Court of Appeals for the Ninth Circuit affirming the District Court’s dismissal, pursuant to Younger v. Harris, 401 U.S. 37 (1971), and its progeny, was entered March 13, 1989. A timely petition for rehear- ing was filed with the Clerk of the United States Court of Appeals for the Ninth Circuit in San Francisco, on March 27, 1989, by the State officials, seeking reversal only of attorneys fees award against them in the court below. See Pet. App. 216-32 (No. 89-1506). A petition for rehearing, and suggestion of the appropriateness of rehearing en banc, dated March 27, 1989, was untimely filed in the court of appeals on March 29, 1989, sixteen days after judgment. See Fed. R. App. P. 25(a); 40. Both petitions and the suggestion for en banc review were denied by the court of appeals on December 22, 1989. See Pet. App. “B,” No. 89-1531. Despite the untimeliness of Partington’s petition for rehearing in the lower court, the timeliness of the State officials’ petition for rehearing may well render the peti- tion for certiorari in No. 89-1531 timely under 28 U.S.C § 2101 and this Court’s Rule 13.4. See Missouri v. Jenkins, No. 88-1150, 58 U.S.L.W. 4480, 4484 (U.S. Apr. 18, 1990); R. Stearns, E. Gressman, & S. Shapiro, Supreme Court Practice § 6.3 at 313 (construing former Rule 20.4 of this Court). However, the issue is not free from doubt. Strictly speaking, the State officials’ Petition for Rehearing below did not seek to alter the “judgment” of the court of appeals in Petitioner’s appeal, but rather was addressed to an issue “ ‘[cJollateral to’” and “ ‘separate from’ the decision on the merits.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988) (citations omitted). As this Court recently reaffirmed, the practice of suspending the finality of a lower court judgment “does not extend to petitions for rehearing seeking only to correct a formal defect in the judgment or opinion of the lower court.” Jenkins, 58 U.S.L.W. at 4483 n.13. This rule would appear to apply a fortiori here, as the State officials did not seek any correction of the judgment of affirmance entered below (and, indeed, were entirely satisfied with that judgment). If the Court concludes that the State officials’ petition for rehearing below does toll the time both for the State officials and for Petitioner here, however, the Petition here, like that in No. 89-1506, having been filed within 90 days of the denial of rehearing below, is timely under 28 U.S.C. §§ 1254(1) and 2101(c). As will be briefed below, despite its arguable timeliness, the Petition in No 89-1531 also contains substantial defects under Article III. >. _ CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article III, section 2, clause 1 of the United States Constitution provides in relevant part that The Judicial Power [of the United States] shall extend to... Cases ... [and] to Controver- 7 The Sixth Amendment to the United States Constitu- tion provides in relevant part that In all criminal prosecutions, the accused shall enjoy the right .. . to have the Assistance of Counsel for his defence. The Fourteenth Amendment to the United States Constitution provides in relevant part that ee i 5 No State shall . . . deprive any person of life, liberty, or property, without due process of law[.] Section 1257 of Title 28 of the United States Code provides in relevant part that Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed Ly the Supreme Cour. ..:. Section 1738 of Title 28 of the United States Code provides in relevant part that The records and judicial proceedings of any court of any .. . State [of the United States] . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken. Section 2111 of Title 28, United States Code, provides On the hearing of any appeal or writ of certiorari in any case, the court shall give judg- ment after examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. Article I, section 14, of the Hawaii Constitution of 1978 provides in relevant part that [In all criminal prosecutions, the accused shall enjoy the right .. . to have the assistance of counsel for the accused’s defense. Hawaii Supreme Court Rule 13 is reprinted in Pet App. “D” (No. 89-1531) and in Pet. App. “E” (No 89-1506). . STATEMENT OF THE CASE As stated in our petition in No. 89-1506, this case arises out of the application by the courts below of the rule laid down almost two decades ago in Younger v. Harris, 401 U.S. 37 (1971). Reflecting this Nation’s com- mitment to maintaining “the comity between the States and the National Government” and avoidance of “unwar- ranted determination of federal constitutional questions,” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987), the Younger doctrine takes as its siarting point the premise that “[c]ertain types of injury, in particular, the cost, anxiety and inconvenience of having to defend against a single criminal [or important civil] prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term.” 401 U.S. at 46. Since its an- nouncement, Younger dismissal has been held applicable in numerous cases. While not all such expansions have been met with total approval, Younger’s extension to suits seeking to restrain state attorney disciplinary proceed- ings “within the jurisdiction of the appropriate State Su- preme Court” (see Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S. 619, 627 (1986)), has this Court’s unquestioned support. See Middlesex County Eth- ics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982); id. at 438 (Marshall, J., joined by Brennan, Blackmun, and Stevens, JJ.). This Court’s rulings make clear that Younger concerns are at their zenith when state courts have not been given the chance to pass on federal claims. Thus, “when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.” Pennzoil, 481 U.S. at 15. Indeed, the require- ment that a federal plaintiff show “state procedural law bar[s] presentation of [its] claims,” Moore v. Sims, 442 U.S. 415, 432 (1979), is an established one, which traces its origins to principles dating back over 185 years, and which have “for so long been applied by this Court that [they are] beyond debate.” Debartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988) (citing Mur- ray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (Mar- shall, C.J.)). In this case, the district court, backed by findings that Petitioner’s evidence “failfed] to create even an inference of prejudice” against him by the Supreme Court of Hawaii, see Pet. App. 88 (No. 89-1506), and the court of appeals, on review of the district court’s dismiss- al, concluded that these principles prohibited Petitioner's attempt to restrain, as in Middlesex, ongoing state attor- ney discipline proceedings, particularly where, as in Moore and Pennzoil, appropriate and sufficiently protec- tive avenues for litigating federal issues had not yet been exhausted in the state courts. Whether, having been dis- missed by both courts below, Petitioner has raised any substantial basis for overturning these exercises of re- straint is the main issue here. A. Background of the Litigation; Supreme Court of Hawaii Rule 13 and the Protections Available to Respondent Counsel. This case arises from the paradox created by the Sixth Amendment mandate that an indigent “accused shall en- joy [not only] the right .. . to have the Assistance of Counsel for his defense,” but “ ‘the right to the effective iii aa assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Haw. Const. art. I, § 14; State v. Antone, 62 Haw. 346, 615 P.2d 101 (1980). Because of the vexing reality that a defendant may “win by losing,” and Hawaii's “legitimate wish” “that [its] judgments remain intact on appeal,” Wheat v. United States, 486 U.S. 153, 161 (1988), the Hawaii Supreme Court in 1984 promulgated a rule intended properly to deter and remedy the unneces- sary generation of “ineffective assistance” errors. Rule 13 provides for the commencement of a Special Master’s inquiry and recommendation “[w]here the con- viction of a criminal defendant has been overturned and a new trial ordered because of a finding that the defen- dant had ineffective assistance of counsel in the proceed- ings against him or her, and the order has become final[.]” Haw. S. Ct. R. 13 (Pet. App. 88 (No. 89-1531)). The Rule requires appointment of a master “to determine whether action against the counsel alleged to have been incompetent is warranted” (id. 92), and authorizes ave- nues for raising of defenses by the respondent “why corrective action . . . should not be taken,” appointment of a Rule 13 prosecutor, discovery, evidentiary hearing, recommended decision, and review in the Supreme Court of Hawaii (id. 92-9). Review is also available under the all-writs power, Haw. Rev. Stat. §§ 602-5(6) & (7). For several reasons, both evident on the face cf the rule, and from other provisions of Hawaii law, the deci- sion of all issues by the Special Master, including the underlying issue of ineffective assistance, is de novo. The Rule expressly treats a respondent attorney as having been only “alleged to have been incompetent,” and grants the Special Master (and the Supreme Court) the express authority to dismiss the proceedings for any reason “why corrective action . . . should not be taken” (Rule 13 744, 7 (Pet. App. 88-89 (No. 89-1531)). These include the claim that ineffectiveness did not occur (or, relatedly, was in fact “caused” by a judge or prosecutor). Under settled Hawaii preclusion principles, the triggering finding of ineffectiveness has no bar, merger, issue preclusive, or law of the case effect, particularly when reversal occurs on a direct appeal. This is true as a respondent attorney could not possibly be in privity with his former client on the ineffectiveness issue. See Santos v. State, 64 Haw. 648, 652, 646 P.2d 962, 965 (1982) (per curiam); cf. Martin v. Wilks, 109 S. Ct. 2180, 2185 (1989) (“party seeking a judg- ment binding upon another cannot obligate that person to intervene”). A fortiori, any federal reason why sanctions may not issue may be advanced to the Master. See 1d. Hawaii law also makes clear that the respondent attorney is not required to respect the confidences of his former client. Under DR 4-101(c), codified at Haw. S. Ct. R. 2.2(a) (1984), the respondent lawyer “may reveal . . . con- fidences or secrets necessary ... to defend himself against an accusation of wrongful conduct.” No Hawaii case, moreover, limits this “self-defense” exception to the attorney client privilege to instances where the client charges that the lawyer’s conduct is wrongful. The Rule permits full review of the master’s report in the Supreme Court of Hawaii. See Rule 13, 410 (Pet. App. 90 (No. 89-1531)). The state court retains full discretion to order “dismissal of the proceedings” (id.), and, under Hawaii law, it is clear that the Supreme Court may con- sider any federal claim why remedial measures ought be 10 denied, even if the Master may not. HOH Corp. v. Licens- ing Board, 736 P.2d 1271 (Haw. 1987). So understood, Rule 13 closely and compellingly serves interests at the heart of Hawaii's criminal justice system. The Rule’s overriding purpose is to protect crimi- nal defendants who are in fact innocent, but whose de- fenses are not believed (or not advanced at all) on account of their counsel’s ineffectiveness. In this critical way, the Rule reflects the state court’s commitment “to enforce the Supreme law of the land.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 240 in.2 (1985). The Rule “stands as a disincentive for competent attorneys” to turn criminal trials “ ‘into reversible trials,’ ” State v. Smith, 68 Haw. 304, 313-14, 712 P.2d 496, 502 (1986), and, by recog- nizing that “the law” includes a defendant’s own rights, confirms that “counsel is precluded from taking steps or in any way assisting the client in presenting false evi- den.e or otherwise violating the law.” Nix v. Whiteside 475 U.S. 157, 166 (1986). B. The Rule 13 Proceedings Here and Proceedings in the United States District Court. Late in 1985, the Hawaii Supreme Court triggered the filing of a Rule 13 case against Petitioner Earle A. Part- ington, a Honolulu lawyer, by finding on direct appeal that Clifford Clarke was denied effective assistance of counsel by Partington’s representation at Clarke’s murder trial in 1984. State v. Clarke, No. 10041 (Haw. Dec. 27 1985) (Pet. App. 86 (No. 89-1531)). Though Partington, as appellate counsel, had not included trial ineffectiveness in the Opening Brief in 11 Clarke, he did inform the appellate court prior to argu- ment that the state trial judge had complained to the Office of Disciplinary Counsel about his failure to make a closing argument, and moved, on Clarke’s behalf, for a remand to the trial court “for the limited purpose of holding a hearing on the competence of [Clarke’s] present attorney at the trial.” Motion to Remand, No. 10041 (Haw. Nov. 9, 1984), Resp. App. 6 (No. 89-1531). The trial judge’s complaint, brought to the attention of the Hawaii Supreme Court by Clarke’s motion, stated that “by failing to give a final argument to the jury on behalf of his client and by stating in the presence of the jury that it would be a ‘waste of time’, Mr. Partington intentionally attempted to make reversible error, i.e., to prejudice his own client’s case for the purpose of forcing an appellate court to reverse what Mr. Partington antici- pated would bea conviction.” Letter from Leland Spencer to Office of Disciplinary Counsel (Aug. 1, 1984), at 3, Exh “B” to Complaint, No. 87-0172 (D. Haw. filed Mar. 9, 1987), Clerk’s Record 1, Resp. App. 16 (No. 89-1531) infra. According to the partial transcript attached to the court’s letter, also presented to the Supreme Court of Hawaii, at the time closing was to be given, and with the record reflecting the presence of the jury, Partington had stated that “in view of there being no cross-examination of Debra Lin Arcala, my client and | feel closing argu ment would be a waste of time.” Tr. at 2, Cr. No. 59 (Haw. Cir. May 24, 1984), Resp. App. 19 (No. 89-15 The Supreme Court of Hawaii was also informed of a letter Clarke wrote to the Hon. Robert Won Bae Chang, a judge of the Hawaii Circuit Court for the First Circuit \ “ lame ae hf n ‘ . t. 3 ~ ‘ " C > 4 i f ¢ ‘ . " oe" - ° : " i f a. Lo ‘ - . 1 ° “ : “he | ‘ . > s ‘ - N a > , y ne . ( — oe ps ms ) rt ~ ae ‘ mC . i b f h ’ 4 P L o ad ‘ ‘ r | c > ‘ ie 4 > ¢ ‘ ‘ “ + 5 OL ’ . : ) Sr ° 1 m 4 fi -_ - , ‘ ; ‘ x J ‘ ‘ - . " f f } > + nt ‘ f f — , if + > , » h > - { ; c 4 f - if > * — hy . 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Sl aad 2 > > A ye ~~ sf “- —~ y¥ — _ ; ad 4 Pp q a : ‘ rs oi ; , + S r ¢ - ae > Iv pu “ 4 y+ + > { - - MW) ou > > ~ P ‘ aa 7 i : : b , sf ont ff - ¢ — ° “ oe" . ‘ if -- “ft ~ . ~~ . x ‘ ¢ — i ‘ 1 “y n Ae , s rt s 4 ¢ — i , Of y » . ‘ f . ) fo - f . ~-4 7 mf sf _— - ys . a 4 4 ~~ . 4 > , 4 ‘ ne ‘ ‘ . ¢ n Z 13 because he (1) did not make an opening statement; (2) did ot cross-examine the victim’s mother ostensibly because the State did not make available records concerning her (3) did not call the mother after receiving the records; (4) elicited testimony from two State witnesses that they yught Clarke was guilty; and (5) did not make closing argument. See id.; 880 F.2d at 118, Pet. App. at 3 (No 39-1531). Following the judgment of vacatur, Rule 13 proceedings were commenced in February 1986 with the appointment of Joseph M. Gedan as Special Master. Se 880 F.2d at 119, id. at 8. Partington filed an answer assert 4 ing that his decisions in Clarke were based on legitimate it that the attorney-client privilege barred Uc ica mM aa TY, ror > mo tha h -i~ th swrof rp Id H ta r 4 T i it Ca Ate Lilt DaSsis therefore iu“ OWa\>rG ; YT 1 79 TT - 7 hh — int C loa, | r Yoshi. rin Au sctf Nal ~ WwW ‘as appol = d UIE LO PF rOsSecu yr itl # UY > sole i 4 "7 | > = ) Y vu Tr 1130@h+ r A nr ] vI-tr rhe ' > } . ] } 1 il4 \ lar AC Nnaving neve! ~ So -6 Ga in Atis appeal OUTTIYV! , . ; 1 | } r : r + hi ~ trictian hit + +> + Yr np trig eversdl i us CONVICTION OUT at MOST ONILV a new ([Tla Re Ty Ann 4 (NJ ) RQO_.1527 } 134 nor 0] th; 4 yerr INCOL ‘ @. ‘ A \4 iA at . SCC AK Liil’s see ao rr ; : r +Or _ r 4;A etinct a +t + meort mo r review NOr Qia rartingto! SEEK ilavVe tO bILETVele INne nirn ) ippedli purposes ref [ 7 ~y 1 ’ 1 Tr } +> ; ; - C ’ — +} at > rncoodina , Y a i] } > - , } >] ya in Kule 13), Respondent Partington filed the action below im th he United States District Court for the District Hawaii, seeking an injunction prohibiting the State offi cials from proceeding against him under Rule 13 and declaratory judgment that Rule 13 is unconstitutional. 88 F.2d at 119-20, Pet. App. 8-9 (No. 89-153] In his suit, Partington asserted that the penden = | wMCeLICLAC LIL Y I rf he Rule 13 case violated his rights under the First, Fifth and Sixth Amendments. as incorporated by the Four teenth Amendment, and the Equ al Protection Clause. [d 14 at 119. On July 1, 1987, the District Court, Kay J., granted Petitioners’ motion to dismiss, or for summary judgment, under Younger v. Harris, 401 U.S. 37 (1971), and its proge- ny (Pet. App. 86-87 (No. 89-1506)). Citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423 (1982), the court rejected Part- ington’s suggestion “that the Hawaii Supreme Court has prejudged this case,” and found the absence of “even an inference of prejudice” (Pet. App. 88 (No. 89-1506)). The court rejected the claim that Withrow v. Larkin, 421 U.S. 43 (1976), forbade dismissal (Pet. App. at 88-89 (No. 89-1506)), and noted Partington did not argue that Rule 13 “is ‘flagrantly and patently’ unconstitutional” so as to counsel against dismissal (id. at 90). Having so found, the court rejected Partington’s summary judgment motion (1d.). C. Proceedings in the United States Court of Appeals. On appeal,? a divided Ninth Circuit panel (Wallace, and Noonan, JJ.), affirmed, reasoning that Partington’s challenge was “strikingly similar” to that in Middlesex. In response to Petitioner’s two main arguments why Young- ers familiar three-part test was not met, namely, that “the attorney-client privilege procedurally bars him from dis- puting the Hawaii Supreme Court's finding of ineffective- ness of counsel” and that “both the special master and the Hawaii Supreme Court are biased against him,” 880 * A more complete recitation of the arguments on appeal is presented at pp. 11-14 of the Petition in No. 89-1506. Because of the limited grounds on which Partington seeks review, a shorter summary of the argument below is provided here. - ee 15 F.2d at 123, 124, Pet. App. 17, 20 (No. 89-1531), the court of appeals reasoned that, under Pennzoil and other au- thority, Partington’s challenge to the adequacy of the State proceedings for Younger purposes failed on its face. 880 F.2d at 122, 123-28, Pet. App. 15, 16-30 (No. 89-1531). The majority rejected any claim that the state proceedings were animated by “bad faith” and dismissed claims that Rule 13 was “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph,” id. 128-29, Pet. App. 30-32, and denied as not properly raised the claim that the Clarke reversal’s assert- ed immediate defamatory impact made abstention inapt. id. 129-30, Pet. App. 32-33.3 Judge Noonan concurred and filed a separate opinion comparing the law of statutory recusal that controls the proceedings in the federal courts. 880 F.2d at 131-38. Judge Reinhardt dissented on the ground that because “the Hawaii Supreme Court, sua sponte, raised and decided, on the merits, the issue of ineffective assistance of coun- sel in a manner adverse to [Partington,]” the state court, in any subsequent review of a recommendation from the Special Master, would not be, “as a practical matter, an unbiased adjudicator.” 880 F.2d at 140, Pet. App. 61 (No. 89-1531). Although the record in the Rule 13 action might be substantially different than in the Clarke appeal, and > Having affirmed the dismissal below, the two-judge ma- jority nonetheless imposed “Rule 11” sanctions against the State officials for seeking their appellate damages under Fed. R. App. P. 38. See Pet. for Cert. at 14-16 (No. 89-1506). Judge Reinhardt concurred in the sanctions, but on other grounds. See Pet. App. 82-83 (No. 89-1531). 16 indeed might never reach the Supreme Court if the Spe- cial Master found, for example, that Partington’s actions were legitimate responses to the trial judge’s rulings in Clarke, Judge Reinhardt reasoned that, since it would be “logically inconsistent” for the state court to find that Partington was not “ineffective” in light of Clarke, the proceedings could not be cured by a timely motion for recusal, as a panel recusal “would be directly contrary to the disciplinary system the Hawaii Supreme Court actu- ally intended.” Pet. App. 68, 77 (No. 89-1531). After petitions for rehearing were filed, the Supreme Court of Hawaii decided Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989), a post-judgment proceeding under Rule 40, Hawaii R. Penal P., which in the circumstances of that case, involving a criminal conviction that had survived direct review, held that it would be “unfair” to initiate a Rule 13 proceeding without allowing the attorney ac- cused of ineffectiveness-to be heard first. This decision was calied to the court’s attention by Partington under Fed. R. App. P. 28(j). In November, 1989, the Hawaii Supreme Court also amended Rule 40 to provide that in postconviction proceedings where ineffectiveness of counsel is raised, the attorney accused of ineffectiveness shall be given notice and an opportunity to be heard. This matter, however, was not raised below by any party. On December 22, 1990, the court denied all rehearing peti- tions and rejected Petitioner’s request for en banc review Pet. App. “B,” No. 89-1531. D. Further Proceedings in the State Courts. Following the denial of rehearing in the court of appeals, the Special Master issued an Order to Show Cause why the Rule 13 case should not proceed to a 17 hearing. See Resp. App. “F” (No. 89-1531). Partington did not respond formally to this Order, and, instead, filed a motion, in the Supreme Court of Hawaii, in the nature of mandamus, seeking dismissal of the Rule 13 proceedings with prejudice and recusal of the justices on the basis of the state court’s asserted “institutional bias” and the “ut- ter futility” of the Rule 13 proceeding in light of Clarke's purported assertion of the attorney/client privilege. See Resp. App. “D” (No. 89-1531). On January 26, 1990, the Supreme Court of Hawaii, per its acting Chief Justice, denied the motion “without prejudice to any timely ex- ceptions that may be filed, or other timely relief that may be sought, after the submission of the master’s decision and proposed order[.]” Resp. App. “E”. The Master en- tered further procedural orders and denied Partington’s informal request for recusal. Resp. App. “F”. On February 12, 1990, the Supreme Court of Hawaii denied, also as premature, a second motion to the Court in the nature of mandamus, seeking immediate disqualification of the Master and Rule 13 prosecutor, as well as further rulings as to the course of proceedings below, (Resp. App. “G” and “H”). The Special Master, despite this disposition, took notice of several of Partington’s claims, and issued further rulings, for example, that the Rule 13 proceedings would be de novo as to all issues, and that the Rule 13 prosecutor shall have the initial burden of proof. Resp. App. “I” (No. 89-1531). On February 23, 1990, a new Rule 13 prosecutor was appointed, who has, since the petition was filed in No. 89-1531, obtained Clarke’s express writ- ten waiver of the attorney client privilege for “all confi- dential communications” “concerning Mr. Partington’s decision: 1) whether or not to make an opening state- ment, 2) whether or not to cross-examine or recall De- bralin Arcala, and 3) whether or not to make a closing argument.” Resp. App. “J” (No. 89-1531). arene 18 REASONS FOR DENYING THE WRIT The petition in No. 89-1531 presents no issue merit- ing this Court’s review, and should be denied. As shown already in the State officials’ petition in No. 89-1506, taken seriously, the premises of Partington’s federal at- tack on the ongoing Rule 13 proceedings at issue here require repudiation of not only settled abstention pre- cepts but principles of restraint that are “beyond debate.” Debartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988). Although the asserted “Sixth Amendment” bar to Partington’s “fair opportunity to litigate” has been marred by a waiver and standing defect from the begin- ning of this lawsuit, was not firmly pressed in the courts below, and in any case depends on reading the Sixth Amendment in ways the Court has rejected, see Weather- ford v. Bursey, 429 U.S. 545 (1977), Clarke’s recent waiver of the attorney client privilege eliminates any argument at the start, let alone any that could overcome Younger. Likewise, Petitioner’s “institutional bias” arguments, taken seriously, would wrongly weaken the rigorous standards that must be met to effect judicial recusal as a matter of federal constitutional law, see Aetna Life & Casu- alty, Inc. v. Lavoie, 475 U.S. 813 (1986), and, as the court below held, do not deal with Younger’s requirement that Petitioner “assert its state remedies [to eliminate bias] in a timely manner.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 n.16 (1987). The Petition never addresses this, and, in the end Petitioner’s bias argument is simply the improper 19 suggestion that state judges “will not enforce the su- preme law of the land,” Atascadero State Hospital v. Scan- lon, 473 U.S. 234, 240 n.1 (1985). Finally, while it is debatable whether Petitioner pre- served his claim that the asserted immediate impact of State v. Clarke exempts this case from Younger dismissal, that claim plainly presents no basis for review as Peti- tioner faces no more than “the cost, anxiety and inconve- nience of having to defend against a single criminal [or important civil] prosecution[.]” 401 U.S. at 46; See also Paul v. Davis, 424 U.S. 693 (1976). In sum, while the Petition may “involve significant policy issues,” they are not issues presenting any true conflict with this Court’s precedents or with those of other federal courts, or which otherwise merit this Court’s review. The court below, as to its judgment of affirmance, did not depart from accepted practice so as to justify exercise of this Court’s supervisory power. In fact, from abstention to re judicata, Petitioner’s arguments, if granted, would rewrite long-settled law governing established relationships among the state and federal courts. A. The Dismissal of Petitioner’s Claims Under the Younger Doctrine Was and Remains Consistent with the Sixth Amendment. Running throughout each of Petitioner’s arguments why review should be granted is the novel argument that the mandatory dismissal required by straightforward ap- plication of the Younger doctrine is somehow overcome in Rule 13 cases, which are intended to effect the Sixth Amendment, on the basis that those proceedings offend a a ee 20 the Sixth Amendment. See Pet. for Cert. at 11, 12, 13, 14-16, 20-21. Perhaps none of the arguments in the Peti- tion have less merit than this set of novel contentions, and, indeed, none of the judges below remotely sug- gested the Sixth Amendment issues Partington raises were, Younger aside, even “colorable” or “important.” Pet App. 32, 37-38 (No. 89-1531). Partington’s arguments, fairly stated, purport to raise two sorts of Sixth Amendment interests: (1) a purported “right of independence” of counsel (Pet. App. at 21); and -) the asserted Sixth Amendment interest in client confi- dences (Pet. App. 14). For at least the following reasons, neither of these asserted interests in the slightest merits this Court’s scarce resources. As to the first asserted interest, it is dubious whether Partington has Article III or prudential standing. As to the former, the ineffective assistance issue in Clarke was at least arguably decided as a matter of state constitution- al law as to which the federal standard enunciated in Strickland v. Washington, 466 U.S. 466 (1984), is not coter- minous. Thus, even if, for “injury-in-fact” purposes, Part- ington now stands in the shoes the State would have worn had it sought review in Clarke, it is dubious whether any federal court had authority over the State’s interest in the so-called “presumption of effectiveness.” See Michigan Long, 463 U.S. 1032 (1982). As to the latter, while on occasion, this Court has recognized that counsel may assert their clients’ rights, see Department of Labor v. Trip ett, 58 U.S.L.W. 4388, 4390 (U.S. Mar. 27, 1990), here Clarke, as an indigent defendant provided appointed counsel, had no “due process right” to Partington’s style of representation. Id. “Petitioner does not, nor could [he] 21 defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel Caplin & Drysdale, Chartered v. United States, 109 S. Ct 2646, 2652 (1989). Indeed, as Clarke raised no claim in his appeal that, if granted, would have required outright acquittal, Clarke himself would have had no standing to appeal to this Court under 28 U.S.C. § 1257 on the Hawaii Supreme Court’s remand in Clarke on a “presumption of effectiveness” issue. Partington thus lacks standing. In- deed, Partington virtually admits he lacked standing to seek review of the Clarke ruling. See Pet. for Cert. at 22 n.28. If he lacked standing then, he lacks it now. Compan ASARCO v. Kadish, 109 S. Ct. 2037, 2045 (1989). In addi tion, although this Court has derived from the Sixth Amendment a sphere of autonomy reserved to defen- dants themselves to conduct their own defense, see Faretta v. Caiifornia, 422 U.S. 806 (1975); McKaskle v. Wiggins, 466 U.S. 168, 178 (1984), this sphere of autonomy has never been extended to appointed counsel, and, indeed, it is clear that the State’s “legitimate wish” “that [its] judg ments remain intact on appeal,” Wheat v. United States, 486 U.S. 153, 161 (1988), may override even defense strat- egies to which the client expressly and knowingly con sents, a point that applies a fortiori to Clarke’s equivocal acquiescence in Partington’s actions Indeed, Partington’s full forfeiture of any oppor tunity to argue before the petit jury, even for a conviction of a lesser included offense, raises serious doubts of Partington’s effectiveness under any standard, even with a “presumption of effectiveness.” See Evitts v. Lucey, 469 U.S. 387, 395 (1984); Anders v. California, 386 U.S. 738 U S. 353 (1963) (1967); Douglas v. California, 372 oie) The main point here is that, even if everything above 7m + on this score is wrong, Partington’s argument that he was not ineffective is no basis for avoiding abstention. Coun- sel’s effectiveness must simply be decided in state court Partington makes no argument that the existence of Rule 13 is, on these Sixth Amendment grounds, “ ‘pat- ently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be make to apply it,’ ” 401 U.S. at 53-54, quoted, Pet. App. 31 (No 89-1531), and such an argument, if made, would plainly be frivolous. Likewise, it would border on the absurd ti prohibit any inquiry into Partington’s actions on the ground that there could be no “reasonable expectation of determining that action under Rule 13’s correctiv standards was warranted. See Kugler v. Helfant, 421 US 117, 126 n.6 (1975). Partington’s contention relating to the Sixth Amend ments protections for attorney/client confidences like wise does not merit review. As an initial matter, this Sixth Amendment” argument was not firmly pressed below, and, indeed, the Court of Appeals was generous t Partington in “interpret[ing]” Partington’s privilege argu- ments as even addressing the “opportunity to litigate prong of Younger’s familiar three-part test. See Pet. App 15 (No. 89-1531). To the extent the Court of Appeals decided the “Sixth Amendment” issues below “without th Lil e benefit of briefing or argument” (Pet. for Cert. at 9 this defect can be laid squarely at Partington’s door. Th: Issue 1S not one provoking “plain error’ review, see Frishy Schultz, 108 S. Ct. 2495, 2401 (1988). and certiorari is nannranry Ipproy riate “> Pp 23 Second, it is dubious whether Partington has any standing to assert Clarke’s purported Sixth Amendment rights in his communications with Partington. Because Partington would be better off, 1.e., free of any “federal” limit on his right to dispute the charge of ineffectiveness if the Sixth Amendment were interpreted to permit dis- closure of Clarke’s confidences, Partington does not meet even the minimal “injury-in-fact” requirements of Article III. See Caplin, 109 S. Ct. at 2650. Partington is simply the wrong person to be asserting Clarke’s Sixth Amendment interest in attorney/client confidentiality. Third, contrary to Partington’s arguments, the Sixth Amendment has never been interpreted to generate the per se bar on compelled disclosure of client confidences So long as those confidences are not used against the accused, there is “no violation of the Sixth Amendment insofar as it is applicable to the States by virtue of the Fourteenth Amendment.” Weatherford v. Bursey, 429 U.S 545, 558 (1977); cf. Michigan v. Harvey, 110 S. Ct. 1176 (1990); Michigan v. Jackson, 475 U.S. 625 (1986) Although Partington suggests cases where Rule 13 could be abused to generate improper coerced disclosure of client confidences for use in subsequent criminal trials (see Pet. at 16), these facts are not before the Court. The issue here, at most, is whether Rule 13 offers Partington an opportunity to “raise his constitutional claims ‘and have [those claims] timely decided by a competent state tribunal.’ ” Pet. App. 16. This being so, the Ninth Circuit was on more than solid ground in asserting that, at best, the issue here was whether “Hawaii's interpretation of the attorney-client 24 privilege imposes a procedural bar that effectively pre- vents him from testifying on the issue of ineffectiveness because he cannot ied present his trial strategy de- fense.” Pet. App. 1 Although the Ninth Circuit suggested this as a pro- cedural due process interest, it is doubtful whether the matter even rises to that level. As the Ninth Circuit observed ina related context, “[c]ourts have consistently rejected arguments that deprivation of evidence [due to a privilege] constitutes a denial of due process.” Graham v. leledyne-Continental Motors, 805 F.2d 1386, 1390 (9th Cir 1986) (cases from seo circuits). As the Ninth Circuit held here however, what makes ‘artington’s challenge to the Rule 13 proceedings against him plainly meritless is Pennzoil’s requirement that the ittorney-client privilege must be shown by “unam- biguous” authority to bar disclosure of the evidence Part- ington asserts he needs to defend himself. See 481 US. at 15. Partington does not even assert such authority, as a matter of state law, exists, and virtually concedes this issue. See Pet. for Cert. at 15 If this were not enough, Partington’s assertion that Clarke has “refus[ed] to waive the attorney client privi lege” (id. at 14), has never been during this case’s pen- dency, and, in any case, is not now, fully accurate. As noted, Clarke in 1984 revealed the tactical considerations leading to Partington’s decisions, and, in any case, has now effected a broad waiver of the privilege. See Resp App. 21, 54-59 (No. 89-1531). “Federal courts lack juris- diction to decide moot cases because their constitutional! authority extends only to actual cases or controversies Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1984 [his principle bars Partington’s “Sixth Amendment claim.4 B. Partington’s Assertions of “Institutional Bias” are Wholly Insufficient to Overcome Dismissal. Partington’s claims of “institutional bias Pet 9-11) likewise do not merit review. Indeed, as noted our petition in No. 89-1506, such unsupported challenges to the fairness of judges have often led to sanctions. S McLaughlin v. Union Oil of California, 869 F.2d 1039, 104 (7th Cir. 1989); Glass v. Pfeffer, 849 F.2d 1261, 1268 — L - i L.A Cir. 1988); INVST v. Chem-Nuclear Sys., 815 F.2d 391 402-03 (6th Cir. 1987); Mater v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985). In fact, taken to its conclusion tioner’s argument would render the Justices of this ( constitutionally disabled from hearing appeals challer ing their past rulings. This could not be the Petitioner’s and 4 Withrow v. Larkin, 421 U.S. 35 (1975), is belied Court’s remarks in Aetna Life & Casualty Co. v. Lavoie, 475 U.S. 813 (1986), in which the Court made clear that even judge’s “general frustration” with a class of insufficient to establish any constitutional! 7 at 821. indeed, as this Court observed in a related * Although this Court’s procedur me moot pending appeal is to vacate thi idgn remand with instructions to dismiss the pla States v. Munsingwear, 340 U.S. 36 (195 that disposit ilready been effected under the Younger doctrit thus, grant ing review even for the purpose of vacating and remand unnecessal’ry 26 depriving the state courts ” ‘of [the] opportunity’ to re- consider previously rejected constitutional claims is fun- damentally at odds with the principles of comity.” Srmth v. Murray, 477 U.S. 527, 535 (1986) As recognized by the panel majority, Petitioner s ar- gument that Younger could be overcome depends on two claims, both of which are incorrect, and neither of which is sufficient to overcome Pennzoil’s admonition that pro- cedural inhospitality in the state courts must be demon- strated by “unambiguous authority.” First is the contention that Rule 13 does not provide de novo review, a contention rejected not only by the Chief Justice of the Supreme Court of Hawaii's informal statements, see Pet App. 26, but by the District Court, the Court of Appeals and the Master. Insofar as these rulings, generous to Part- ington’s claims, are reviewed “with great,” United States Hohri, 482 U.S. 64, 74 n.6 (1987), if not “rigid defer- ence,” Posadas v. Tourism Co., 478 U.S. 328, 339 & n.6 1986), Partington’s arguments of procedural inhos- pitality seek only to infect these proceedings with the very sort of “plain error” that prompts reversal in this Court. See Frisby v. Schultz, 108 S. Ct. 2495, 2501 (1988) Given these standards of deference and restraint, nothing in Matsuo v. State, 70 Haw. 573, 778 P.2d 332 1989), or the recent amendments to Haw. R. Penal P 40(f), which, at most, properly give more process to coun- sel whose trial strategies survive direct review, in the least alters the basis of dismissal. It is error to urge otherwise. See Frisby, supra. Likewise, Judge Reinhardt’s assessment of the Justices of the Supreme Court of Ha waii simply ignores the findings by the District Judge who by reason of his position has “special insights into Withrow, 421 U.S. at 58. Here, based on , local realities,” Partington’s own submission that the facts were not in dispute, Judge Kay found that “[t]he plaintiff's argu- ments fail to create even an inference of prejudice’ Pet App. 88 (No. 89-1506)). As to the second issue, as the panel properly found what makes Partington’s arguments of bias especially unmeritorious is Partington’s failure properly to employ} the state court recusal procedures that this Court held in Kugler v. Heifant, 421 U.S. 117 (1987), decided the same day as the reversal of preliminary relief in Withrow, pro vided the “procedural safeguards to guarantee that [state litigants] will not be denied due process of law.” Id. a 128. Judge Reinhardt’s suggestion that full-panel recusal is not contemplated under Rule 13 is simply wrong vesting authority to review Rule 13 recommendations the Supreme Court of Hawaii, rather than in the three member Intermediate Court of Appeals in Rule 13 cases referred pursuant to final order of the Supreme Court Rule 13 simply assures that all Rule 13 cases in w! ich review is needed are reviewed by a five member Court Particularly in light of Pennzoil’s requirement of un ambiguous” inhospitality in the state courts, the courts below were fully justified in finding that Partington en ved every necessary opportunity to litigate, and 28 Pennzoil remains the law, which it should, Partington has no basis for being in federal court.° C. Partington’s Challenges to the Asserted Immediate Impact of the Clarke Ruling Would Overrule Younger Itself and Do Not Merit Review. Altnough Partington hints that the asserted immedi- ate impact of the reversal in Clarke warrants exempting this case from Younger’s settled mandate, each of these arguments is predicated on the improperly imputed bias and procedural inhospitality that the Court of Appeals properly rejected, and which this Court, too, would be required to reject were review granted here. Seen in this light, Partington’s claim that review ought be granted to correct the Ninth Circuit’s refusal to address his “immediate impact” argument is nothing less than a challenge to Younger’s main premise, namely, that “the cost, anxiety and inconvenience of having to defend against a single criminal [or important civil] prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term.” 401 U.S. at 46. Although the Ninth Circuit did not reach this argument, the Court of Appeals, the State officials submit, acted well within > Thus, even if this case 1s not viewed as of the day it was filed, see Pennzoil, 481 U.S. at 17, Partington’s recent, but pre- mature invocations of the state court’s mandamus authority to effect, under state law, the recusal he has been denied by federal law (see Resp. App. 36, 49 (No. 89-1531)), are insuffi- cient to overcome Younger abstention, as Partington “cannot escape Younger abstention by failing to assert [his] state rem- edies in a timely fashion.” Pennzoil, 481 U.S. at 17 n.16. 29 its discretion in concluding that the issue had not been properly preserved below, insofar as Appellant’s Open- ing Brief, contrary to Fed. R. App. P. 28 and Ninth circuit procedure, did not inform the Court specifically where the “immediate impact” argument was raised in the trial court. Our main point here is that “this Court reviews judgments, not opinions,” Chevron U.S.A. v. Natural Re- sources Defense Council, 467 U.S. 837, 842 (1984), and the order in Clarke, as to Partington, was not reviewable in the inferior federal courts under the Younger doctrine. Indeed, insofar as Partington has not been deprived of anything to which due process precepts attach, see Paul v. Davis, 424 U.S. 693 (1976); FDIC v. Mallen, 486 U.S. 230 (1988), and the state court has not “arrived at a final, definitive position regarding how it will apply the [law] at issue to the particular [conduct] in question,” Wil- liamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191 (1985), review ought be denied because the dismissal below was required not just by the Younger doctrine, but by the more fundamental Article II] requirement of a ripe controversy. See Ariyoshi v. Robin- son, 477 U.S. 902 (1986), on remand, 887 F.2d 215 (9th Cir. 1989); compare Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535-38 (3d Cir. 1988); see also Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S. 619, 629 (1986) (Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ., concurring in the judgment). As the Ninth Circuit suggested, Partington’s “immediate impact” argu- ment, like his remaining arguments, will be subject to review here under 28 U.S.C. § 1257 upon any final judg- ment in the Supreme Court of Hawaii on review of the Rule 13 case. 30 Petitioner was properly remanded to seeking federal review here “in the customary course.” Pennzoil, 481 U.S. at 18.6 a -_ CONCLUSION For the foregoing reasons, the writ in No. 89-1531 should be denied. WARREN Price, III* Attorney General State of Hawaii _ *Counsel of Record CoriINNE K.A. WATANABI First Deputy Attorney General State of Hawaii STEVEN S. MICHAELS Deputy Attorney General State of Hawaii State Capitol Honolulu, Hawaii 96813 (808) 548-4740 Counsel for Respondents (Petitioners in No 89-1506) 6 Minimal respect for Congress’s prescribed avenues for review ought to require Partington to seek review of any adverse orders in the state courts pursuant to 28 U.S.C. § 1257 See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Indeed, to any extent the denials of mandamus in the Rule 13 proceeding constitute “law of the case” adverse to Partington, they are entitled to at least deference in these proceedings, although they are subject to review pursuant to 28 U.S.C. § 1257. Compare 28 U.S sn § 1738 with Christianson 7 ’ Colt Industries Operating Corp., 108 S. Ct. 2166 (1988). la APPENDIX “A” NO. 10041 IN THE SUPREME COURT OF THE STATE OF HAWAII OCTOBER TERM 1984 STATE OF HAWAII, Plaintiff-Appellee, CR. NO. 59285 APPEAL FROM THE JUDGMENT AND SENTENCE ENTERED ON JULY 2, 1984 VS. CLIFFORD M. M. CLARKE, SR., Defendant-Appellant. FIRST CIRCUIT COURT HONORABLE LELAND H. SPENCER, JUDGE ee ee ee ee ee, ee ee ee ee el FILED 1985 APR 29 PM 3:17 Sandra N. Yasui CLERK SUPREME COURT APPELLANT’S OPENING BRIEF* [material deleted in printing] |. THE TRIAL COURT ABANDONED ITS ROLE OF IM- PARTIAL JUDGE AND ASSUMED THE ROLE OF PROSECUTOR IN THIS CASE AS WELL AS INTER- FERED WITH THE APPELLANT'S ATTORNEY-CLI ENT RELATIONSHIP. On this issue Appellant relies on the cumulative et- fect of the trial court’s conduct and rulings set out in A *Addenda, tables and other material deleted in printing 2a through F above combined with the following. At trial the State offered a photograph (State’s Exhibit “5”) and x-rays (State’s Exhibit “13A-F”’, “14A-B”, “15A-B”) into evidence without having provided discovery. The trial court admitted the photograph and the x-rays ruling that failure to grant discovery is not a basis to exclude evi- dence (17 May 84 R.T. 42:17-44:25, 46:17-19; 21 May 84 R.T. 101:5-102:10). When the State offered two transcripts of the recorded interviews with Appellant’s son, the trial court sua sponte and over Appellant’s objection recessed into chambers where it edited the transcripts for the State determining what portions would be admissible (21 May 84 R.T. 87:10-22, 98:23-99:6). A trial judge presiding over a trial has the obligation to maintain impartiality and fairness in the proceedings before him. State v. Alfonso, 65 Haw. 95, 98, 648 P.2d 696, 699 (1982). The trial judge must not violate the basic principle that the judicial and prosecutorial functions are separate and distinct and are not to be merged. United States v. Jacquillon, 469 F.2d 380, 387 (5th Cir.1972); United States v. Marzano, 149 F.2d 923, 926 (2nd Cir.1945). It is not the role of the trial judge who thinks the prosecutor inadequate to step in to the point where the jury will regard him as associated with the prosecution. United States v. Cuevas, 510 F.2d 848, 850 (2nd Cir.1975). Con stantly restricting the defendant beyond any bounds ot discretion while giving the prosecutor free rein is an example of a violation of the basic principle. Killilea 7 United States, 287 F.2d 212, 217-218 (1st Cir.), cert. den 366 U.S. 969, 81 S.Ct. 1933, 6 L.Ed.2d 1259, reh. den. 368 U.S. 872, 82 S.Ct. 64, 7 L.Ed.2d 73 (1961). And if a judge’s conduct in a trial does not comport with the appearance 3a of justice, the conviction must be reversed. United States v. Gigax, 605 F.2d 507, 510 (10th Cir.1979). The conduct of the trial judge throughout this case showed an extraordinary bias for the State. The prosecu- tor was given unbridled rein to offer evidence of dubious or no value and designed solely to show that the Appel- lant is truly a thoroughly rotten person. Non-compliance with the rules of discovery to the prejudice of the Appel- lant was repeatedly sanctioned by the trial court. Where the prosecutor did not know how to get in prior consis- tent statement evidence, the trial court sua sponte and over Appellant’s objection took the transcripts which contained the statements and edited them for the State. Appellant’s cross-examination of State’s witnesses was repeatedly curtailed without cause and in the case of the alleged victim’s mother it was blocked entirely unless Appellant’s counsel wanted to cross-examine without the vital Family Court records relating to the mother’s con- duct with the alleged victim. And when Appellant's counsel sought to make an offer of proof in regard to these records, the trial court refused to accept the Family Court material in the record. This is but the tip of the iceberg in regard to the trial court’s conduct. Only a full reading of the record can give a true flavor of the extraor- dinary bias of the trial court for the State. Finally, notwithstanding the clear statement by Ap pellant’s counsel that both he and Appellant felt that closing argument would be a waste of time and therefore would not be given (24 May 84 R.T. 40:5-41:22), the trial court said nothing at that time and then later complained against Appellant’s counsel to the Disciplinary Counsel 4a for failing to make closing argument (R 242-244). Appel cep aas lant’s counsel was compelled by his ethical duty to advise Appellant of this complaint which obviously infringed on the attorney-client relationship as evidenced by Appel- lant’s letter to the Circuit Court (R.241, 262-263) While \ppellant recognizes that a judge has a ¢ 1ttornev misconduct, here the trial court made no ef inquire as to whether Appellant had knowingly and 11 , 1 , ] mri, ‘ 1 roa "ing 1 Y rviTY ry + 19 + ty t Lilgel Li y vv aly cu L A Sing argl ment as a tTla LaCie ’ 1 1 } 7 tho tria ~-\11 ] 4 + - >] _ cy r aro f stead, the trial court filea 1's COME aint in 1gnorance O! (~ -+ and wu sthaiit recard to t “On Vathtetatal= on it. raACTS ANC WILItOUUL TOP atd UU US COMSCQUCTILCES L Lilt l : . : . aia . a a > | a) mim , -h, - Yr 4 wr } str? j a) r rnev-cCil tC FeiatiONsili} Sucn conauct 18 evlaell« - _— hia rainct tt ADD 1] a no in fa \r A >» Ss aya > t ps i L caalitd ibt | \ L 4 LA [ 4 1 5A { on > +4 [- \ QU , } [ } +11 2a IOo4 “a 7 +} +} } ] rt } ; han — = . ry . \ es Ort IA as % s¢ Lit i \ yu awi a 4 + } + | - a rr 5 U a pecame a Proseculo Na LI i¢ . + + >| ++ + , > y ++ rt + I nuea eV ter (Crld t OT — ‘ f ' — ~ [ t * ) S > i\ \ . * a , ¥ * > > 7 | eT KS | t ~ | > i ] y } y f ty \ ] \ YA ) P \ , YQ v\ i é ~ I at A 7; ot }@. LART I A AT TITN f y\ AINLI 1 AIN 1 ~ A LA . \ ++ rr > y Ay , i a APPENDIX “B” NO. 10041 IN THE SUPREME COURT OF THE STATE OF HAWAII OCTOBER TERM 1984 STATE OF HAWAII, ) CR. NO. 59285 » : Bus > sO } Plaintiff-Appellee, APPEAL FROM VS. THE OGM NI CLIFFORD M. M. CLARKE, SR., | Defendant-Appellant. FIRST CIRCUIT COURT ) ) } ) HONORABI ) LELAND H ) SPENCER ) JUDGE FILED* 1984 NOV 9 PM 3:37 Eugene L. Sabado CLERK SUPREME COURT MOTION TO REMAND CASE TO CIRCUIT COURT FOR LIMITED PURPOSE OF HEARING ON COMPETENCE OF PRESENT COUNSEL MOTION TO APPOINT SEPARATE DEFENSE COUNSEL FOR PURPOSE OF SAID HEARING COMES NOW Defendant-Appellant, Clifford M. M Clarke, Sr., by and through his court appointed attorney Earle A. Partington, and respectfully moves this Honor able Court for an order remanding this case to the Circuit “Certificate of service and other material deleted in printing Court for the limited purpose of holding a hearing on the competence of Defendant-Appellant’s present attorney at the trial of this case, and to further appoint separate counsel for Defendant-Appellant at said hearing. These motions are made pursuant to Rule 6 of the Rules of the Supreme Court of the State of Hawaii and is based on Hawaii Revised Statutes Chapter 8, the attached Memorandum of Points and Authorities, the attached Exhibits “A” and “B”, the Affidavit of Counsel attached hereto, and the record and file in this case. DATED: Honolulu, Hawaii, November 9, 1984. fa NO. 10041 1—E SUPREME COURT O OCTOBER TERM 1984 STATE OF HAWAII — 4] 4 a ~ aan STATE OF HAWAII ») CR. NO. 59285 Plaintiff-Appellee, : ER vs THE JUDGN CLIFFORD M. M. CLARKE, SR.. Defendant-Appellant AFFIDAVIT OF EARLE A. PARTINGTON STATE OF HAWAITI CITY & COUNTY OF HONOLULU bk ” I~ + } , ~ r | Karle A. Partington, being first duly sw deposes and says the following l [ am the court appointed attorns on 1] aus oe ce dant-Appellant both on this appeal and it ’ i i s 4 ’ vy because my client is indigs i re 7 [ Or COuUNSeI! ) A , y y 2 Yefendant-Appse it iS present incarcerated since his arrest on the murder charge tor which he was convicted 3. Because of the nature of the charge against Di fendant-Appellant (murder of a three year old child) and the personality of Defendant Appellant, my relationshiy with him has not been easy. Defendant-Appellant lieves he is wrongly incarcerated for a crime he did not commit, and has often expressed im ° : vo + ! } ys ; | . : isfaction at my inability to get him out OF prison P . | : — ' , 1 sTyA Moy = sac h rr oor rrat 1h tino + inis Impatience NaS VeEeCN ALVLPTAVATCA DY Ue at 1 ’ , 1.) , nro ritingao thy mr ' ; ‘ 11 ve by 4 ’ ) PIVOTCL ULI: LhlkD appedl a Gelay callse¢ Vy a Utiay + ~~ + + + . , rad , , a a mor , +} ; ,rVC , ; ; [ I ] ret > prepa ¢ . I n trian - P ‘ . ~ + y + ¢ ) " . 1 ¢ ? n ‘i \ AuUYvUS ) t ecelvVvea i! e % T) mlin YY , mn "+ YY | } } tr sciplinary (4 insel a complall madat \ é ie a a | +> ‘ ’ Fr re 7 | 4 —— ’ ‘ S CadaSt t raDit Clana ( + } 3) f +} ; ] n , — "No YN | ’ Ts, ri4 a y ay } t _ yin + ; 4 ; by nee iy —_ 4 ’ , ; } ; 4 ‘ Ala ‘ ‘ ‘ \ at ‘ \ .’ ¥ \ T » 4 na + Ant Sal) ; +} , ' ; » +t " A 7/8 4 agaSACU . y 1 A : | | > _ , > | , > , ‘ | A i\ ~ t A de endaal AD De iT i i > ' >} _ tor } , AA, kingaia 4 / > 4 ci v¥ vii A ibtksiay 4 ‘ 7 Jr NX mre , ] ) A | , ‘ + ’ ts \ ¥ t ti ? t ¥ Xs ) 4 o + 4 ~ ‘ ’ mr rt y + + y } ] Ud ‘ Lp Pe a AUUTESSCU \ ( i,t rf 4 > bes ( sane ] , » + ’ , an , , +} . » +t ’ ; y’ At al aSk ; i i tall t ( + + ] \ ts ‘ | ARO OY 7 » +} } [ CY a } \ { Gd 1S | ige 4 1 + ++ } +} n n n S lt er W I e \ I ] \ Cx! ~ th vy bina | } } / } ) — ; 5 ne mee 5 Ve 1a sy t | . ’ ; ; , , ? ; Ss YyVt > f t t { 7a ‘ +> , ry | , } ‘ ‘ . a, ,‘7*,% , 7% ,siTy ii Will nim Sis ie i SeT i , ae donk nplaint, | have found Defen i y ’ ‘ y y , ry , ror ry y my Impetence to represel I , , 1 ’ + ) tFona »+ tare ; hy ntly Vefendant-Appellant ha : 7. ' | : h ir } tris t La ¥ t i ypave btiiil at iia lain | 4 j Mmplaint as proot (nat | did s © IS NOW SUSDICIOUS as ft WwW presenting him in this appea y ua ge ope ncer Ss CcOmpla ‘% ] nr . ] + . I Moy lmpalring ny re ii I int and unless this matter is . . ‘ , + >? . > rs ( Cr i Can effectively repre CIrIpDTLICOD at rA . : FURLAEK AFFIANT SAY] S CaTi¢ YT. TST ‘ AIN1 . ; 7. | j ) SCT] Cad and Sworn LW) bef Té Or} 4 NX . } ] { > JIN Gay oO! OVemMmDeI! sel | as -~ onn F. Schweigert IOTARY PUOBT IC | 4 ; to + NOTARY DLIC State I vv, vy " 2 14 , Sy~mirao Commission Expires: 3 1Va NO. 10041 IN THE SUPREME COURT OF THE STATE OF HAWAII OCTOBER TERM 1984 STATE OF HAWAII ) CR. NO. 59285 APPEAL FROM THE JUDGMENT AND SENTENCE ) ) ) CLIFFORD M. M. CLARKE, SR. : ENTERED ON ) ) ) A Defendant-Appellant JULY 2, 1984 ) FIRST CIRCUIT ) COURT ) ) HONORABLE ) LELAND H ) SPENCER, ) JUDGE MEMORANDUM OF POINTS AND AUTHORITIES [hese Motions present a rather unusual situat [he trial judge below feels that Defendant-Appellant present counsel did not adequately represent Defendant Appellant at trial. The trial judge did not take any actior at the trial nor did he wait until after the appeal was over and the attorney-client relationship terminated action. Rather he waited only until he was no involved in the case to complain to the Discipli Counsel thereby causing serious problems in the ney-client relationship on appeal Litho . mite _| _ 1, er hither present counsel must De relleve ry? 5 ' ‘T yh] TY) ry -~ . . > rr = io f a f ~ > 3 -+ 3 ~ n mn ~ 4 a ~ ~~ > pa + 7 - ~_ J — —/ ¢ ~~ ohne 7 fb oma = ; * ~ rr 2/7 rv) , os ee ben rs ~ “ a , == = ~~ = ur a = ~ ve ae x + a ‘ = wy “a = OM a ~— & = wv ™ a ae ee wi) . a — ~ iJ ~ e - ~ sin ‘ J io bene shHm- _ y y = ~~ L bb. . ~~ - | - . — - - if me 17% 4 es > - i, / ovat a 3 +o os / guna ~ out = _ mel ming ee ~ = ~ on f f » wal 4 ° ~ ee ond 5 a c | ed | —— ed a oe ee | Saal ~ |, ) - ‘* y i | - / ‘ean | - 4 +: ~ a - ‘ eet + -_, oles rr ~ > oe = ‘ae f — — ¢ » ous 4 y) a os tt re. ~« : ~ y . oe + ae ~~ { —G . y . WY + ~ ~ > > r- 7 * “ ww UY _... C ° — -- - lant y) ( f ot _ — 4 - --+- o— f + -—~ a — ” r “ = ro " on J 4 ~ ~ A = - - rt ' - * oA ji SS ¢ saan p> J papa s - » oO & 5 , > » . =; be a Oe ~ > wy . —~ 3 1s ‘ ne a a co U - ap he amt 1 . " J ~ - . wv r- ~ ~ ‘,ne f Ne v ~~ + + . oud . oil ~ i‘ > : ; ~ + - y . , * ~ J ae f ~ —~ a ow - — / ¢ > . - + he ~ , J = o~— — , re ae ’ b ae ‘ ~ “ + — ow 5 A -~ yond * a ada " - ie ~ — - ) — “ : — f , ;: . one - , - > 1 * “a ous 4 Co — _+ LU - 4 , v ; | - _ ‘ ie Z ¢ JS Gl ~ y > \ - " OCT. 30, 1984 Honorable Robert W.B. Chang [amw riting this letter to you concerning my trial. | feel that I didn’t get a fair trial because of udu Leland Spencer being prejudice against me | have a copy of letter that was sent to my Attorne\ charging him in not representing me good during my trial. Judge Spencer didn’t give my lawyer ample time to cross examine Debralin Arcala, and making my lawyer use Ms. Arcala as a witness in my behalf Judge Spencer also charged my Attorney making a closing argument at the end of my trial At that time my Attorney Ear] Partington suggested to me for not making a closing argument as a tactic find pitty from the Jury at that time. | agreed because didn’t fully understanding court procedure and tactic Now I feel that I made the w rong decision in agree ing with my lawyer. Because I did want a closing argument, but took my lawyers advice. In the letter that | having in the matter of Judge Spencer I feel that Judge Spencer has been interfering with Client, Lawyer relation during the trial eatin cincteniatiiieeeiienie ra © | would like to ask for a hearing in this matter deeply appreciate a respond from you Thank You Very Much Clifford M. M. Clarke Sr Nm APPENDIX “C” NO. 10041 IN THE SUPREME COURT OF THE STATE OF HAWAII OCTOBER TERM 1984 STATE OF HAWAIL ) CR. NO. 59285 > . . : a ) Plaintiff-Appellee, VS. ) CLIFFORD M. M. CLARKE, SR., | Defendant-Appellant. ) FILED 1984 DEC -6 PM 1:30 Eugene L. Sabade CLERK SUPREME COURT ORDER ) Upon consideration of Appellant's Motion to Re mand Case to Circuit Court for Limited Purpose of Hear ing on Competence of Present Counsel and Motion to Appoint Separate Defense Counsel for Purpose of Said Hearing, and documents in support thereof, and it ap pearing that there is insufficient ground to grant leave t withdraw as counsel for Appellant Clarke under Hawaii Rules of Appellate Procedure 50, IT IS HEREBY ORDERED that the motion to remand is denied, without expressing an opinion on the issue of effective assistance of counsel. It is unnecessary to rule on ———————————— APPENDIX “D” NOS. 10041 AND 11633 IN THE SUPREME COURT OF THE STATE OF 1 \\) Vs T FFORD M 4 \ WIXI M. M. ¢ ARK DIN Ty ; | ’ + Vetendant-Appellant i \* ’ \ \A , \ \ 4 “= OF ‘ 1114 —y ( LA 2 cE M \ () \ # \ \ { } \ \ yr \ ( NO) } () Af \ \ \ Ff \ " \ ™ \ LIVIN OU tr: ( M |! . 4 ‘ i. ) ‘ 1) VIO DD) MEA