Reply Brief — Beto v. King
Supreme Court brief1971
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Text
I ce co ee ee eee
Lower Courts’ Rulings ................
ee On GI i ees
Statement of the Respondent Regarding Conflicts
of the Circuits and Fact Question Presented
Has Not Heretofore Been Specifically Decided
fe er ere erry ©
Questions Presented and Response Thereto __.
Conclusion see
Certificate of Service _ .
CITATIONS
CASES
UNITED STATES SUPREME COURT
Anders v. California, 386 U.S. 738, 87 S.Ct.
ct. ae oe Fae ee rT ee
Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321,
ee "sR Gr at, tee ete
Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252,
en Ths ete eee er ae
Brookhart v. Janis, 86 S.Ct. 1245, 384 U.S. 1,
| Bee ere rors ved
Douglas v. California, 372 U.S. 353, 9 L.Ed.2d
ee ee ee ES ee a ee
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
Fe Ot PE oe oe eae
Glasser v. United States, 315 U.S. 60, 62 S.Ct.
a Se Serre eer eee
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100
| eee eee ee eee
Page
"TF Es oe
aranagaee
~ MO Cm NaeR
CASES
Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116,
Oe es rn hea wees na
Henry v. Mississippi, 85 S.Ct. 564, 379 U.S. 443
DU ec ne ew we ees
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019,
RS ae
Massiah v. United States, 377 U.S. 201, 84 S.Ct.
OR ee Re an
Michel v. Louisiana, 76 S.Ct. 158, 350 U.S. 91,
100 L.Ed. 83 hfe ce eter oe eee
Norvell v. Illinois, 373 US. 420, 83 S.Ct. 1366,
I I ee ae ee
Pointer v. Texas, 380 US. 400, 85 S.Ct. 1065,
OF OO >: Sr. re
Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158,
te Rh Rh 8 | o oR
Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167,
ee oe
Shelley v. Kramer, 334 US. 1, 68 S.Ct. 836,
PMU oy eae einen
Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572,
er a le cw ac
Wade v. United States, 386 U.S. 218, 87 S.Ct.
A ie ES
White v. Ragen, 324 U.S. 760, 65 S.Ct. 978,
og
UNITED STATES DISTRICT COLUMBIA
Bruce v. United States, D.C. Cir., 379 F.2d 113
Harried v. United States, D.C. Cir., 389 F.2d 281
Harrison v. United States, D.C. Cir., 387 F.2d
203, see also 359 F.2d 214 ..............
Haziel v. United States, D.C. Cir., 404 F.2d 1275
Heard v. United States, D.C. Cir., 419 F.2d 682,
see also 348 F.2d 43; 390 F.2d 866; 263 F.
Setar Sate ee a Oe ern ora Tae
Holmes v. United States, D.C. Cir., 370 F.2d 209
Scott v. United States, D.C. Cir., 427 F.2d 609
Ill
CASES
Spriggs v. Wilson, D.C. Cir., 419 F.2d 831 _..
a States v. Hammonds, D.C. Cir., 425 F.2d
_, SI aptie ice ti ar at O ey
FIRST CIRCUIT
Goitia v. United States, First Circuit, 409 F.2d
524, cert. denicd, 397 U.S. 906 .........
Lamoreux v. Massachusetts, First Circuit, 412
ee ee et a ee he
Marxuach v. United States, First Circuit, 398
F.2d 548, cert. denied, 393 U.S. 982 .....
SECOND CIRCUIT
United States v. Follette, Second Circuit, 358
SE geno, agi oes as aa pa ee a
United States v. Garguilo, Second Circuit, 324
a a a eee a te eo
“a States v. Katz, Second Circuit, 425 F.2d
United States v. Lovano, Second Circuit, 420»
F.2d 769, cert. denied, 397 U.S. 1071 ......
United States v. Reinecke, Second Circuit, 383
WO sy Garside Oe cs ds
United States v. Phillips, Second Circuit, 426
Pao 166... ww kia. COAT et eg aaa
United States v. Wilkins, Second Circuit, 351
F.2d 892, cert. denied, 383 U.S. 916, 383
We eeu yar es Mey es
THIRD CIRCUIT
Cannon v. Maroney, Third Circuit, 373 F.2d 908,
cert. denied, 352 U.S. 898, 1 L.Ed.2d 90, 7
RC I it ie eh te es ie
United States v. Rundle; Third Circuit, 394 F.2d
SNe rey rei cray area Re
Walker v. United States, Third Circuit, 422 F.
Re ee ee ee en el
19, 21
IV
CASES
FOURTH CIRCUIT
Braxton v. Peyton, Fourth Circuit, 365 F.2d 563,
Com. Denied, 369 US. 929................
Coles v. Peyton, Fourth Circuit, 389 F.2d 224,
Cert. Denied, 393 U.S. 849 ..............
Fields v. Peyton, Fourth Circuit, 375 F.2d 624. .
Horne v. Peyton, Fourth Circuit, 356 F.2d 631,
Cert. Denied, 385 U.S. 863................
Ingram v. Peyton, Fourth Circuit, 367 F.2d 933
Kelly v. Peyton, Fourth Circuit, 420 F.2d 912. .
Martin v. Virginia, Fourth Circuit, 365 F.2d 549
Osborne v. United States, Fourth Circuit, 371
eas Se ee
Owsley v. Peyton, Fourth Circuit, 368 F.2d 1002
Rambo v. Peytona Fourth Circuit, 380 F.2d 363
Root v. Cunningham, Fourth Circuit, 344 F.2d 1,
Cont. Deeies, 362 US. SOG... «ii...
Stem v. Turner, Fourth Circuit, 370 F.2d 895. .
Stevens v. Maryland, Fourth Circuit, 382 F.2d 429
Sykes v. Virginia, Fourth Circuit, 364 F.2d 314
United States v. Cook, Fourth Circuit, 400 F.2d
$77 Cert. Denied, 393 U.S. 1100 ....:...
United States v. Pearce, Fourth Circuit, 412 F.2d
op, OS Oe ere ee
SSS Para rt Tara ar aL eee eee ene
FIFTH CIRCUIT
Baker v. Wainwright, Fifth Circuit, 422 F.2d 145,
Cert. Denied, 399 U.S.927.........
Bell v. Alabama, Fifth Circuit, 367 F.2d 243,
Cert. Denied, 386 U.S.916..........
Beto v. King, Fifth Circuit, 429 F.2d 221
Bostick v. United States, Fifth Circuit, 400 ae 2d:
449, Cert. Denied, 89 S.Ct. 725, 393 US.
1068 | Be gen goth nee
Page
19
54
Vv
- CASES
Page
Breedlove v. Beto, Fifth Circuit, 404 F.2d 1019 15, 67
Brooks v. Texas, Fifth Circuit, 381 F.2d 619 ..
Bursten v. United States, Fifth Circuit, 395 F.2d
976, see also 3 A.L.R.F. 644 .............
Busby v. Holman, Fifth Circuit, 356 F.2d 75...
Calloway v. Powells, Fifth Circuit, 393 F.2d 886
Campbell v. United States, Fifth Circuit, 401 F.2d
SRR rr itn heat F-tahee eee Seer ee
Caraway v. Beto, Fifth Circuit, 421 F. 2d 636...
Cohen v. Wainwright, Fifth Circuit, 418 F.2d
565, Cert. Denied, 399 U.S. 933 ..........
Cowens v. Wainwright, Fifth Circuit, 373 F.2d
34, Cert. Denied, 387 U.S. 913...........
Dougherty v. Beto, Fifth Circuit, 388 F.2d 810.
Doughty v. Beto, Fifth Circuit, 396 F.2d 128 _.
Fitts v. United States, Fifth Circuit, 406 F.2d 518
Fortner v. Balkcom, Fifth Circuit, 380 F.2d 816
Foster v. Beto, Fifth Circuit, 412 F.2d 1079. __.
Greer v. Beto, Fifth Circuit, 379 F.2d 923...
Harris v. Deeves, Fifth Circuit, 412 F.2d 892 __.
Harrison v. United States, Fifth Circuit, 387 F.2d
a octane ae eh ee
Henderson v. United States, Fifth Circuit, 419 F.2d
NS ent set ey i Ge
Hintz v. Beto, Fifth Circuit, 379 F.2d 937 __.
Hollingshead v. Wainwright, Fifth Circuit, 423
F.2d 1059, Reversed, Per Curiam, 384 US.
31, 16 L.Ed.2d 333, 86 S.Ct. 1284. —
Hollis v. Beto, Fifth Circuit, 352 F. 2d 550,
Cert. Denied, 382 U.S. 1020; 20 A.L.R. 2d
BS Age” Se iE eee Gane ene ae
King v. Wainwright, Fifth Circuit, 368 F.2d 57,
Cert. Denied, 389 U.S. 995 | ae
Lamb v. Beto, Fifth Circuit, 423 F2d85
McCollum v. Bush, Fifth Circuit, 344 F.2d 672,
Cert. Denied, 382 U.S. 883 ,
42
A
vi
CASES
MckKissick v. United States, Fifth Circuit, » 379
F.2d 754
‘ Mosley v. Dutton, Fifth Circuit, 367 F.2d 913,
cert. denied, 387 U.S. 942.
Odom v. United States, Fifth Circuit, 377 F.2d
853
- Pineda and Bailey v. Beto, Fifth Circuit, 340
F.2d 162 |
Quarrels v. Dutton, Fifth Circuit, 379 F.2d 934
Randazzo v. United States, Fifth Circuit, 339
F.2d 79
Roberts v. Dutton, Fifth Circuit, 368 F.2d 465
United States v. Grimes, Fifth Circuit, 426 F.2d
706
United States v. Johnson, Fifth Circuit, 417 F.2d
332
United States v. Long, Fifth Circuit, 419 F.2d 91
United States v. Mancuso, Fifth Circuit, 423 F.
2d 23 .
United States v. Valdez, Fifth Circuit, 418 F.2d
363
White v. United States, Fifth Circuit. 396 F.2d
282
White v. Beto. Fifth Circuit. 399 F.2d 302
Williams v. Beto, Fifth Circuit,. 354 F.2d 698
Windom v. Cook, Fifth Circuit, 423 F.2d 721
SIXTH CIRCUIT
Henderson v. Cordwell, Sixth Circuit, 426 F.2d
150 |
Morton v. Henderson, Sixth Circuit, 389 F.2d
699
Schaber v. Maxwell, Sixth Circuit. 348 F.2d 664,
cert. denied. 371 U.S. 853, 9 L.Ed.2d 88, 83
S.Ct. 53. 371 U.S. 899, 9 L.Ed.2d 132, 83
S.Ct. 191
Stack v. Bomar. Sixth Circuit, 354 F.2d 200
63
47
VE
CASES |
Townsend v. Bomar, Sixth Circuit, 351 F.2d 499 |
United States v. Cale, Sixth Circuit, 419 F.2d
897
United States v. Medlin, Sixth Circuit, 353 F.2d
789, cert. denied, 384 U.S. 973, 385 U.S. 889
United States v. Murphy, Sixth Circuit, 413 F. 2d
1129, cert. denied, 396 U.S. 896
United States v. Sisk, Sixth Circuit, 411 F.2d
1192, cert. denied, 396 U.S. 1018
Vavis v. Bomar, Sixth Circuit, 344 F.2d 84, cert.
denied, 382 U.S. 883
Whitsell v. Perini, Sixth Circuit, 419 F.2d 95
SEVENTH CIRCUIT
Johnson v. United States, Seventh Circuit, 422
F.2d 282...
United States v. Barney, Seventh Circuit, 371
F.2d 166, cert. denied, 387 U.S. 945; see also
1 A.L.R. 3rd 989 |
United States Ex Rel. Feeley v. Ragen, Seventh
Circuit, 166 F.2d 976 |
United States v. Marine, Seventh Circuit, 413
F.2d 214, cert. denied, 396 U.S. 1001
United States v. Meek, Seventh Circuit, 388 F.
2d 936
United States v. Poole, Seveneh Circuit, 379 F.
ee ae eke
United States v. Rubio, Seventh Circuit, 404 F.
2d. 678, cert. denied, 394 U.S. 993
United States v. Stahl, Seventh Circuit, 393 F.
: 2. Sere
Wilson v. Phend, Seventh Circuit, 417 F.2d 1197
Zurita v. United States, Seventh Circuit, 410 F.
7 eee
Page
MLL
ee a iia ie he el ee AE ot
;
sl
,
. eran CHRO
Comrell v. United States, Bighth Circuit, 415
—— 89H
US. 10m
Cardareilo v. United ye Circuit, 975
F.2d 222. cor. denied, S. 837°
Heper \. Swensen, Bighth Circe. 401 F.2d
cert. denied, 998 US. 1109
, Kress v. United Staves, Bighth Cirowit, 411 FS
M 16
_ Larry Buffalo Chief v. Se Seats, Ce Ch
cuit, 425 F.2d 281
= United States, Bighth Circuit. 403 F.2d
s
beg United States. Eighth Circuit, 401 F.
‘882
= . United States, Ninth Circuit, 378 F.2d
l
33
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rites
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at: ane
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. > i |
LAW REVIEWS
American Bar Association Journal, Volume 55,
Pages 254-256 3 > 4
Amenvan Law + Annotated, Vobame 24.
Pages 67
Columbia Law Review, Volume 47, 1947, pp.
11$-122 Ag
Harvard Law Review, Vobame 78. 1434 16
Seuthwestern Law Review. 22, No.’ 2,
1968. a s
Texas Bar Volume 3 4, April 22,
1970, ra 5
Texas Law , Volume 41, 1962, Page 347 16
Virsinia Law Review, Volume 49, 1963, Page ~
1$31
United States Law Review, Volume 65, No. 1,
1931, —. 67
CONSTITUTION OF THE UNITED STATES OF AMERICA
Sixth Ameadment | a i3
Fourteenth Amendment eae 13
Pi
A. INTRODUCTION
The Petitioner, the State of Texas. has made application
for writ of certiorari to this Me Court to review
the judg.zent of the United States Court of Appeals for
the Fifth ‘Circuit, entered in the captioned cause on July 6.
1970. See 429 F.2d 221. ~
i}
The Court's attention, as to the lower Courts’ rulings, |
is directed to Appendix “A”, the opinion of the Fifth
*.
th
and ths Honorable Court
ApERCveary
Givected w the dowkdens fy the Ditrict Court and the
ee
eee
C. PACTS OF CAUSE
A farther recitation of the facts conceraine thie came
FRR Circelt found at WS F Supp. 64F and 429 FM
221
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45, 77 L.Ed. 138, 84 ALR. $27, $3 SQ. 55.
However. what is usually not recognized is that the night
to counsel cnoompasses effective assistance of counsel.
It is subénitted that Powell, supra, from the opinion.
stands for two propositions:
1. ee ea ae
court im a capital case;
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this, too, was a denial of due process within the meaning
of the Fourteenth Amendment. (65). [t is the latter state-
cussing incompetency or ineffective assistance of counsel.
We have travelled far since Powell, supra, but the issue
more?” “How good must counsel be in order to satisfy
1968, Southwestern Law Review, Page 260. sy
Probably the real question is the following: If an indi-
vidual js entitled to have the assistance of counsel for his
defense in a criminal trial, pursuant to the Sixth Amend-
tent assistance or will any type assistance do? What must
a warm body with a law degree do?
Thus, to isolate the issue in this response is not to ignore
those historical and revolutionary cases such as Betts v.
Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595:
Gideon v. Wainright; 372 US. 335, 83 S.Ct. 792:
Johnson v. Zerbst, ¥4 U.S. 458, 58 S.Ct. 1019, 82 L.Ed,
1461; Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84
L.Ed. 377; Smith v. O'Grady, 312 U.S. 329 61 S.Ct. 572,
85 L.Ed. 859; Griffin v. IMlinois, 351 U.S. 12, 76 S.Ct.
585, 100 L.Ed. 891; Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed. 2d 493; Pointer v. Texas, 380
U.S. 400, and Douglas v. California, 372 US. 353, 9
L.Ed.2d 811, 83 S.Ct. 814, but to use them as & stepping
stone and proceed directly into the waters of the ineffective,
In Glasser v. United States, 315 US. 60, 62
S.Ct. 457, Mr. Justice Murphy, in a factual situation
where the trial court, though advised of the possibility
an attorney's usefulness to the defendant for whom the
attorney had entered his appearance as an associate coun-
sel, appointed the attorney as the codefendant’s counsel,
eflective assistance of counsel as guaranteed by the Sixth
Amendment to the Constitution. (467-468 ). 7
In Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167
former Mr. Justice Clark, writing for a unanimous court,
10
discussed a procedural rule of the State of Georgia which
required that objections to a Grand Jury must be made
before the Indictment is returned. It was held thai the .
defendant Reece did not have the asyjstance of counsel
until after he was indicted: Quoting from Powell, supra,
Mr. Justice Clark said:
In Hawk v. Olson, 326 US. 271, 66 S.Ct. 116,
Mr. Justice Reed also speaking for a unanimous court,
it was held that the “denial of effective assistance of
counsel does violate due process.” (118). The Court con-
cluded under the facts:
We think there was an allegation that no effective
assistance of counse! was furnished in the critical time
between the plea of not guilty and the calling of the
jury.
This Honorable Court in White v. Ragen, 324 U.S. 760,
65 S.Ct. Rep. 978. where one of the Petitioners in that
cause made allegations similar to the one at Bar, held:
i :
ee
adjective “effective” as 4 modifier to the word “Assistance”,
it ts submitted this is most certainly implied. In Avery v.
' Alabama, supra, Mir. Justice Black pointed out in his opin-
ton that a warm body was got cnough. “The Canstitution’s
Suasenteo < auitanne <6. dumeat cannes Go-cathilin® Gy
mere formal appointment.” (322). | ——_
in Michel’ v. Louisiana, 350 U.S. 91, 76 Sup.Ct: Rep.
158, Mr. Justice Clark, again writing for a majority of
. the Court, discussed the allegation of denial of effective
representation of counsel. The issue surrounded several
alleged facts:
i. a ee
2. Age of the attorney; and .
3. Health of the attorney...
This Hosiorable Court, accepting the trial court's and the
Supreme Court of Louisiana’s findings that the facts did
not show a lack of effective counsel, held, after considering
that the attorney was a well-known criminal lawyer with
nearly fifty years’ experience at the bar, that: “The mere
fact that a timely motion to quash was not filed does not
overcome the presumption of effectiveness.” U.S. ex rel.
Feeley v. Ragen, 7 Cir., 166 F.2d 976. “The delay might
be considered sound trial strategy, particularly since ghe
codefendant could not be found.” “We cannot infer lack
of effective counsel from this circumstance alone.” “Such
an inference would vitiate state rules of procedure designed —
ee ee
trial.” (164).
iene, apn aitints dikes den einai
in the case at Bar, this Respondent, not in reference to
é
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Cordwell,
Respondent is
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contrary.
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iat Hil i a it i
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HH 13
he has only himself to blame. Cf. Henderson v.
pote antenna dena ;
Sixth Circuit, 426 F.2d 150.
ahd BL eH a Lea:
SUSE TT i HEE te
Prairetit a iit
, pte aT | a ke af ijt
Heat: i: H it 7 tat teadt
Dall eo
Zee 3 ee : of :
FrHeit ial Tit hitall td
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) with Stovall v.
87 S.Ct. 1967, 18 L.Ed.2d.
from other contexts. 218, 87 S.Ct.
(1967). The aporopriate standard for ineffec-
ive assistance of counsel, as set forth in Bruce, supra,
DEd24 1149 (1967
Hf
“ad
ital
clause
here
Sixth Amendment ‘has i
ee oe
388 US. 293
IV A
18
ts whether gross incompetence blotted out the essence
Sa (610).
cuit, 426 F.2d 777, and United States v. Phillips, ‘Second
Circuit, 426 F.2d 1069. :
425 F.2d 181, supra.
Failure to subpoenae a witness is not sufficient. United
‘States v. Grimes, Filth Circuit. 426 F.2d 706, and Fitts
v. United States, Fifth Circuit. 406. F.2d 518.
I isa possible conflict of interest between two ~
later complain. kinry Sufato Chic v. South Behet.
In a Glasser, supra, situation, the Fifth Circuit in Baker
v. Wainwright, 422 F.2d 145, reversed for deprivation of
effective assistance of counsel where the same attorney
_ fepresented -two_ co-defendants. Cf. Walker v. United
States, Third Circuit, 422 F.2d 375; United States v.
Lovano, Second Circuit, 420 F.2d 769, and United States
v. Cale, Sixth Circuit, 419 F.2d .897
‘See also White v. United States, Sth Circuit, 396 F.2d
282. In an unusual situation regarding the issue of in-
>
ie
20
effective assistance of counsel, the Seventh Circuit, in
Johnson .v. United States, 422 F.2d 555, not being able
to determine whether the defendant was challenging the
effectiveness of his trial counsel, but of counsel who failed
to file a bill of exception, denied relief.
In Caraway v. Beto, Fifth Circuit, 421 F.2d 636, a
court appointed attorney was held ineffective where he
visited the defendant only once three days before trial
and this conference lasted just fifteen minutes, but the
conference did not involve a discussion of possible de-
fenses nor the advisability of pleading guilty. No informa-
tion was sought concerning witnesses and no attempt was
made to interview any witnesses.
No objection was made to exhibits offered into evidence.
Further, evidence of an extraneous offense was admitted.
In Harris v. Dees, Fifth Circuit, 412 F.2d 1079, in
answer to the challenge of competency, the Court an-
swered step by step the objections to counsel's activities.
In one of the few cases involving the challenge of
ineffective assistance of counsel on appeal, the Court's
attention is directed to U. S. v. Johnson, Ninth Circuit,
412 F.2d 1342. After discussing the issues, the Court
held that the contentions urged were not arguable and
were therefore frivolous.
In the realm of representing co-defendants, the best
stated rule regarding ineffective assistance of counsel
where this occurs is as follows:
The rule in this circuit is that some specific instance
of prejudice, pescelion ie enue Range ce resulting
from a joint representation must be shown to
before it can be said that an Pod snogy To wo
21.
denied the effective assistance of counsel. U. S. v.
Lorano, Second Circuit, 420 F.2d 769. (773).
In Kelly v. Peywn, Fourth Circuit, 420 F.2d 912, it
was pointed out that the magistrate who signs the war-
rants for a defendant's arrest may not later represent him
in Court. Thus, if an attorney has a conflicting interest,
he cannot act with that degree of loyalty which effective
representation requires. The interesting facet of Kelley,
Ibid., is that the first issue was discussed under the issue
of depriviation of the effective assistance of counsel where-
as the failure of the attorney to consult with the client
fell within the realm of ineffective representation.
The Sixth Circuit, as pointed out in Kelley, Ibid., also
follows the non-distinction between retained and appointed
counsel, (914),
The District of Columbia Circuit, in Spriggs v. Wilson,
419 F.2d 831, where a trial judge, in his chambers, after
reviewing a draft classification file, decided there was a
basis for the classification and then granted the defendant
& continuance, held the expeditious manner of trying the
case denied the defendant effective assistance of counsel.
“Lack of diligence in discovering evidence which was
not used at the trial is not necessarily to be equated with
ineffective assistance of counsel.” Quoted from Opie v.
Meacham, Tenth Circuit, 419 F.2d 465. However, the
newly discovered evidence would have impeached or con-
tradicted some of the witnesses who testified,
The necessity of showing of injury is well put by the
Fifth Circuit in United States v. Long, 419 F.2d 91. Two
days before trial counsel notified the court he had been
retained, Prior thereto, the defendant had other retained
22
counsel who never officially withdrew from the case.
A motion for continuance was overruled. It appears there
was no showing of what a continuance would have~
accomplished was made; thus, no ineffective assistance
of counsel. See also United States v. Valdez, Fifth Circuit,
418 F.2d 363.
Where the evidence is overwhelming as to the euilt of
the accused, his chance of upsetting a conviction on the
ground of ineffective assistance of counsel is slim where
he makes claims his attorney did this or did not do that
during the trial. See Whitsell v. Perini, Sixth Circuit, 419
F.2d 95. However, what about the sentencing and punish-
ment phases? In other words, when does the trial attorney's
function cease as to being adequate and effective for his
client?
The distinction between a direct appeal attack and a
collateral attack, in the realm of ineffective assistance of
counsel, is, of course, always present. See Heard v. United
States, District of Columbia Circuit, fig F.2d 682.
The mere fact that counsel is abcent during part of the
trial is insufficient, in itself, to sustain ineffective assistance
of counsel. However, in Henderson v. United States,
Fifth Circuit. 419 F.2d 1277, it was emphasized that
nothing harmful occurred to the accused.
In the area of Massiah v. United States, 377 United
States 201, 84 S.Ct. 1926, 18 L.Ed. 2d 246, and Wade v.
United States, 386 United States, 218, 87 S.Ct. 1926,
18 L.Ed. 2d 1149, it was held in Schantz v. Eyman,
Ninth Circuit, 418 F.2d 11, that the defendant was denied
the assistance of counsel where, in a post-indictment situa-
tion, the county attorney sent a psychiatrist to the home
aS
23
of the defendant, requested an interview for the purpose
of making a psychiatric examination, was refused and
then proved at the trial this refusal.
An accused who lays the groundwork for later claiming
ineffective assistance of counsel gets no relief from the
courts. In Cohen v. Wainwright, Fifth Circuit, 418° F.2d
565, the defendant on the date of the trial, told the court
that his attorney of record was not really his trial attorney
but his writ of habeas corpus attorney. The court held
there was no error in putting the defendant to trial without
granting a continuance. The “writ of habeas corpus
attorney” became the trial attorney. See also United States
v, Johnson and Bradley, Fifth Circuit; 417 F.2d 332,
/where the defendants discharged retained counsel, asked
for and received court appointed counsel, and then asked
for and received a one day continuance.
Even though it may not be difficult to conceive of
bizarre factual situations involving an attorhey-client rela-
tionship, one of the best is shown by Wilson v. Phend,
Seventh Circuit, 417 F.2d 1197. There the retained ai-
torney was also the owner, editor and publisher of a daily
newspaper distributed throughout the county. The particu-
lar case for which ‘that defendant was tried apparently
received a great deal of publicity; in his attorney's news-
paper as well as others, with little of the publicity being
advantageous to the accused. There was little communica-
tion between the parties prior to trial; no motions for. °
‘Change of venue or continuance were made and the
attorney did not pursue leads for witnesses or evidence
furnished by the accused, After trial, things did not
change much. No motion for new trial was filed. The
“Seventh Circuit, Judge Cummings speaking for the Court,
unanimously held:
24
These assumed facts, taken together, are clearly
eiflisient to ladiente that delentans uns eonsiated
without the benefit. of effective counsel, as required
by the Sixth and Fourteenth Amendments to the
United States Constitution. (1199).
In discussing the fact there is no distinction between
retained and court appointed counsel, the Court further
said:
In our decision in Lunce v. Overlade, 244 F.2d 108
(7th Cir. 1957), we held that self-retained counsel
_May be so inadequate and incompetent as to deprive
the accused of representation and reduce the trial
a
Ww
The distinction between retained and appointed
counsel overlooks the fact that, in either case, the
State has obtained a conviction against io accused
under such grossly unfair circumstances as to cast
doubt upon the factual basis upon which of
guilt rests. We agree with other courts h have
held that in such circumstances sufficient state action
exists to invoke the protections of the Fourteenth
Amendment. Wilson v. Rose, 366,F.2d 611, 615-616
(9th Cir. 1966): Whitaker v. Warden, 362 F.2d 838,
841 (4th Cir. 1966); Jones v. Huff, 80 og me
App. D.C. 254, 152 F.2d 14; 15616 SS ae
v. United States, 298 F.2d 643, 463, 464 (Sth Cir.
1962). (1200).
A failure of the trial attorney to make and file a motion
to suppress evidence where such action is a reasonable
trial tactic is not grounds to complain. U. S. v. ane,
Eighth Cir., 417 F.2d 1021.
by
to
9 Cir cuit ) 417 F.2d 332.
comments
attorney are i ;
, 415 F.2d 352,
“upp
i ’s retained counsel to
advise the defendant of his right to appeal his convicti
eprived the defendant of his consti
tutionab right to. effec-
’ supra,, as authority, the
bp Aaa erg v. C
held that failure of ee
_ tive, trial counsel. Citing G
Court said:
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26
Can an individual defendant who voluntarily and in-
telligently waives the right to licensed counsel, neverthe-
less, challenge his own ineffectiveness of the assitance of
counsel where he represents himself? See Arnold v. United
States, Ninth Circuit, 414 F.2d 1064. There, the “layman-
attorney” claimed that his refusal of an offer to dismiss a
count of the indictment involving the death penalty would
have, if he had been a licensed attorney, been grounds
for disbarment as incompetent to Turther practice law.
The Court said “Not so” as “Errors of judgment exemplify
neither incompetent nor inadequate representation.”
(1060). See also Osborne v. United States, 4th Circuit
371 F.2d 912 (923).
Although it is recognized that an accused has the right
to counsel at every stage where assistance of counsel is
critical, the fact that one does not have counsel at a
particular proceeding or stage does not vitiate his convic-
tion unless he was prejudiced. United States v. Murphy,
Sixth Circuit, 413 F.2d 1129.
Even where trial counsel confesses unfamiliarity and
lack of.preparation, if the record reveals otherwise, there
is no denial of effective assistance of counsel. United States.
v. Marine, Seventh Circuit, 413 F.2d 214.
Also, where the attorney overcooperates, he is likely
to be challenged, if the client is convicted. However, the
client or ex-client runs into the gauntlet of the presump-
tion of competency, whether retained or court appointed.
In Kress v. United States, 411 F.2d.16 (8 Cir. 1969),
this court very recently affirmed old and established
. principles by stating that there is a presumption of
competency of court appointed counsel; that the re-
quirement of the Sixth Amendments is met when-
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Aiso, if a defendant enters a plea of guilty, his
wishful thinking will get him little relief. See Cantrell v.
United States, Eighth Circuit, 413 F.2d 629.
Lack of rapport between an accused and his court ap-
pointed counsel will generally not rise to the level of a
claim of deprivation of a constitutional right. See
Lamoreux v. Massachusetts, First Circuit, 412 F.2d 710;
Shaw v. Uniter States, Eighth Circuit, 403 F:2d 528,
cf. U.S. v. Rundle, Third Circuit, 394 F.2d 748.
“Again, the lack of preparation or allowance of time for
preparation goes to injury. How was the accused injured?
Merely because his attorney was appointed two (2) days
_ before trial, in itself, is insufficient to sustain ineffective:
assistance of counsel. See Foster v. Beto, Fifth Circuit;
412 F.2d 892, and U. S. v. Sisk, Sixth Circuit, 411 F.2d
1192, i
The Courts will not ordinarily second guess an attor-
ney’s cross examination, even if it could have been more -
exhaustive. See United-States v. Pearce, Fourth Circuit,
412 F.2d 895. :
The fact that an attorney presents too many defenses
goes to trial strategy and is not grounds for ineffective
assistance of counsel. Wright v. Craven, Ninth Circuit, 412
F.2d 915, |
28
_ A conflict of interest allegation may afford an accused
relief; in Zurita v. U. §., Seventh Circuit, 410 F.2d
477, where the accused had retained counsel at trial and ©
then retained counsel was appointed on the appeal, it was
pointed out that where the attorney had business dealings
with the robbed bank, this, in, itself, called for an evi-
dentiary hearing. See also Goitia v. U. §.: First Circuit,
6409 Fd $24. | >
The Ninth Circuit, in determining the incompetency or
ineffectiveness of counsel, ses the perfunctory, bad faith,
sham, pretense, farce,-méckery, shocking 40° the court's
conscience, and lack of opportunity for conference and
preparation standard as enunciated in Williams v. Beto,
Fifth Circuit, 354 F.2d 698. See Bore thert v. U. ‘ Ninth
Circuit, 405 F.2d 735.
Ordinarily, a client is bound by his attorney's actions.
Cf. Brookhart v. Janis, 86 S.Ct. 1245, and Henry v, Mis-
- sissippi, 85 S.Ct. 564.0 Z :
The issue of adequacy of counsel and effective assistance
- counsel regarding juvenile. proceedings is seen ist Haziel
_U. §., U.S.C.A., D.C., 404 F.2d 1275.
~~”
A unique theory case, without obtaining any relief, is:
_ US. v. Rubio, Seventh Circuit, 404 F.2d 678, where*the’
defendant was charged with a narcotics violation. At the —
_ time of his arrest, a sizeable sum of money was seized.
The Defendant contended that by failure of the Govern-
ment to return all or part of the money (the.Govern- ——
ment eventually returned $1,000.00) deprived him of the.
effective. ‘sistance of counsel. The Defendant failed be-
_ cause the failure; alone, to return the money did not raise
a constitutional violation. No prejudice was-shown to have .
_ fesulted to the defendant.
The fact that /a defendagt’s heating. sid battery run
down will not
denial of fu tal fairness test, See Campbell v. U. S.,
Failure to file a weer new trial is generally not
for error as being denied effective assistance of
not /indigent and desired to retain their own counsel, but
wh a oo
t cases is Bostick v.-U. §., Fifth
— 400 Fad 9; Cert. Denied, 89 S.Ct. 725: See
S. v. Stahl, Seventh Circuit, 393 F.2d 101. ac
IC A
deciginasy committee conpeoning “tnsthical er
|. Hooper v. Swenson, Eighth Circuit, 401 F.2d 352.
A/rather interesting case involving individuals who were __
w”
conducting the defendant's defense did not deprive the de-
fendant of the effective assistance of counsel. U. S. vy.
Cook, Fourth Circuit, 400 F.2d 877. |
A troublesome area of the Sixth Amendment will, un-
doubiedly, extend to the bilateral versus unilateral activi-
ties of trial counsel in making objections, failing to make
Objections and, in general, conducting the trial strategy
of a criminal case. See Mize vy. Crouse, ‘Tenth Circuit,
399 F.2d 593.
A defendant has a rough road to hoe if he has pled
guilty and later wishes to challenge the effectiveness of
his counsel. See White v. Beto, Fifth Circuit, 399 F.2d
302, and. Reeves v. Wilson, Ninth Circuit, 395 F.2d 435.
In a factual situation involving several interesting facets
to the issue at Bar, the Court’s attention is directed to
. Marauach v, U, §,, First Circuit, 398 F.2d 548, There, one
attorney started out representing both defendants: Thére-
after, a second attorney entered as co-counsel. On the day
— the jury was ordered to be empanelied, one of the defend-
ants failed to appear because of illness. On the same day,
a bomb was discovered in an automobile of a government
witness. When the court inquired if the defendants’ attor-
neys knew anything about it, one of the attorney's (the
second) had to be hospitalized. Thereafter, the trial court .
overruled a motion for continuance and tried the co-
defendant. who had also absented himself and was located.
in a hospital, and was brought to court by a marshal. The
attorney who went to trial testified that he had “incon-
venience” with the English language and was unfamiliar —
with the Federal rules. It appears that from the record
this attorney was easier to understand than the first attor-
ney and also showed the attorney had more than an ade-
31
quate command of the English language. The Court found .
no error. ;
Failure to elicit testimony of an exculpatory nature
while a defendant is on the stand will not render a trial.
_ @ farce. “There must be some showing that such evidence
was available at the trial.” (800) Sanchez v.:U. S., Ninth
Circuit, 398 F.2d 799. ( |
Many times, an aftorney’s inadvertance will cause him
to be held ineffective. This was shown in Calloway v. -
Powell, Fifth Citcuit, 393 F:2d 886, opinion by Circuit
Judge Godbold, where an attorney was appointed orally
to appear at a preliminary hearing. When the attorney
showed: up, the defendant, probably unknown to the
attorney, through his family, had not one but two re-
32
fault of the defendant, neither of which is proved
in this case, confusion among attorneys about who
is to represent the criminal defendant cannot erode
away his right to effective counsel.
The counsel here furnished did not meet constitu-
tional standards, The right to counsel is the right to
effective counsel. Powell v. State of Alabama, 287
US. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This
Court has interpreted counsel to mean “not errorless
counsel, and not counsel judged ineffective by hind-
sight, but counsel reasonably likely to and
rendering reasonably effective assistance.” MacKenna
v. Ellis, 280 F.2d $92, 599 (Sth Cir. 1960). Effec-
tive counsel includes familiarity of counsel with the
case and an opportunity to investigate it if necessary
in order meaningfully to advise the accused of his
options. Brooks v, State of Texas, 381 F.2d 619
(Sth Cir. 1967); Roberts v. Dutton, 368 F.2d’ 465
(Sth Cir, 1966); see Collingsworth v. Mayo, 173
F.2d 695 (Sth Cir. 1949), An accused represented
by appointed counsel has a right to expect a measure
of devotion to his cause at least equal to that ex-
pected from retained counsel of the accused's own
choosing. Johnson v. U. S., 328 F.2d 605 (Sth Cir,
1964). Under the circumstances revealed by this
record it is apparent that appointed counsel, sur-
prised by being called to the arraignment and having
only a brief conference with the accused in the
courtroom, did nut measure up to constitutional re-
quirements, See Williams v. Beto, 354 F.2d 698
(Sth Cir. 1965). The absence of constitutional
standards is underscored by the defendant's felt
necessity to seek the advice of the sheriff's depart-
ment investigator before entering his plea.
Merely because a defendant claims his attorney did
not interview and call certain witnesses is insufficient
33
unless it is shown what materiality they would have
added to the case. See Bush v. U, S., Ninth Circuit, 393
F.2d 478, .
ge
In Cross v. U. S., Eighth Circuit, 392 F.2d 360, it was
held that in light of defense counsel's statement to the
trial court that his willful neglect of duty resulted in the
defendant's case not being investigated or developed called
for an evidentiary hearing. Both the defendant and the
attorney got hearings in this case.
Chief Justice Burger, in Harried v. U. S., D.C. C.A.,
389 F.2d 281, where the defendant had retained counsel,
discussed the issues raised in that case concerning the
charge of ineffective assistance of counsel revolving
around trial strategy and tactics, However, the Court
dissected each of the grounds raised to show that in-
effective assistance of counsel was not sustained by the
facts.
Interesting dicta that the charge of ineffective assistance
of counsel constitutes an occupational hazard of defend-
ing certain cases is found in Smith v, U. S., Ninth Circuit,
389 F.2d 564,
Failure to ask for a change of venue is, by itself, in-
sufficient to support a charge of ineffective assistance of
counsel, Morton v, Henderson, Sixth Circuit, 389 F.2d
699,
The homemade version of a public defender system was
taken to task in Coles v, Peyton, Fourth Circuit, 389 F.2d
224, The dissenting opinion felt differently about the
merits of the charge of ineffective assistance of counsel
than did the majority of the Court. However, Circuit
Judge Winter's statements, in a clear and orderly fashion
44
regarding what is expected of counsel, contain more of
“things” to do in order to satisfy the requirement of
effective and adequate assistance of counsel.
Included among the things that counsel admitted they
did not do are the following: Counsel made no in-
vestigation of the reputation of the prosecutrix for
chastity. Counsel made no. attempt to determine the .
identity of, or to interview the prosecutrix’s male
companion, Counsel made no attempt to interview
Carrie Herbert or to determine what her testimony
wouk} be. Counsel did not explain the elements of
the crime of forcible rape to petitioner, including
the necessity of proof of penetration, and question
him in regard thereto. In short, counsel did no more
than interview petitioner on the three occasions pre-
viously alluded to and to accept the statements he
made to them during the interview, Counsel were
unequivocal that they did not know that the prose-
cutrix had been examined medically and that they
had no knowledge of the written, signed medical
report. :
To support our conclusion that petitioner is entitled
to a writ of habeas corpus, we need look only to the
principles to be distilled from Twiford v. Peyton,
372 F.2d 670 (4 Cir. 1967); Martin v. Common-
wealth of Virginia, 365 F.2d 549 (4 Cir. 1966);
Braxton v. Peyton, 365 F.2d 563 (4 Cir. 1966);
and earlier authorities, and apply them to the facts
of this case. The principles may be simply stated:
Counsel for an indigent defendant should be ap-
pointed promptly. Counsel should be afforded a
reasonable opportunity to prepare to defend an ac-
cused. Counsel must confer with his client without
undue delay and as often as necessary, to advise him
of his rights and to elicit matters of defense or to
ascertain that potential defenses are unavailable.
35
Counsel must conduct appropriate investigations,
both factual and legal, to determine if matters of
defense can be developed, and to allow himself
enough time for reflection and preparation for trial.
An omission or failure to abide by these requirements
constitutes a denial ‘of effective representation of
counsel unless the state, on which is cast the burden
of proof once a violation of these precepts is shown,
can establish lack of prejudice thereby,
Although counsel for petitioner were a ted over
three weeks prior to trial, the delay of almost three
months in their appointment and the fact that they
were appointed to represent such a great number of
other defendants to. be tried at a forthcoming term
of court constitutes a colorable fact. Perhaps the
burden of representing so many persons accused of
felonies explains the woefully inadequate services
rendered to petitioner. Whatever the reason, ~the
services of counsel were ineffective in at least severa!
regards.
The record is clear that counsel did not explain the
clements of the crime of rape to petitioner, especially
the element of penetration. If the recollection of one
of petitioner’s counsel was accurate that petitioner.
was “trying” to have intercourse with the prosecutrix,
penetration may not have occurred, in which event,
under Virginia law the substantive crime would not
have been committed. McCall v. Commonwealth,
192 Va. 422, 65 S.E.2d 540 (1951). Effective
representation of counsel would require exploration
of this possibility under the facts of the case. -
Virginia law also interposes consent as an absolute
bar to a prosecution for rape when the alleged
victim is over the age of consent, and previous want
of chastity is relevant and probative evidence of
consent, Bailey v. Commonwealth, 82 Va. 107
(1886); Va. Code Ann. § 18.1-44 (1960 Repl.
Se ee RR aR oe RG TRI I AEN NO ARTA 40) 0
ee
36
Vol.). Even if counsel were satisfied that lack of
penetration was unavailable as a defense, effective
representation would require some investigation of
the reputation of the prosecutrix for chastity under
the facts of this case, especially when petitioner's
version of the.incident, as understood by both of his
counsel, was that he had an encounter with a com-
mon street walker, Effective representation would
similarly require some investigation to determine the
identity of, and some attempt to interview, the male
companion of the prosecutrix and some attempt to
interview Carrie Herbert to ascertain if evidence to
support a defense of consent could be uncovered.
Similarly, some inquiry should have been made to
ascertain if the prosecutrix were medically examined,
not only because the report which: was in existence
would be proof supporting a lack of penetration, but
also because the report disclosed the identity of the
medical examiners from whom inquiry could be made
as to whether their examination disclosed the pres-
ence or absence of signs of physical violence on the
person of the prosecutrix with its direct relevance
to the question of consent.
Merely by cumulating errors of trial counsel will not
get any relief unless one can show where a different result *
would have altered the end result. See Speer and McCrea,
Ninth Circuit, 388 F.2d 110,
However, even though in making a determination of
whether an attorney was or was not effective, adequate
or competent, constitutes sécond guessing, most courts shy
away from the term or phrase “second guessing.” Again,
it is not what the attorney did or did not do which will
result in the attorney being held ineffective, but whether
what he did or did not do constituted substantial prejudice
to the defendant. See U. S. v. Meek, Seventh Circuit, 388
F.2d 936.
a
37
As seen above, it is unos dissent who sees the
case differently from the majority opinion as to holding
an-attorney to have been ineffective. The reverse of this
was seen in Daugherty v. Beto, Fifth Circuit, 388 F.2d
810. Circuit Judge Rives felt that at least part of the
standard of effective assistance of counsel should be the
same whether the defendant had retained or codrt ap-
pointed counsel, If an attorney had a court appointed
_ Client he is entitled to the same type of representation
~ expected of un attorney with a well heeled client,
Many times, it is the omission of disclosure to the
client which will get the attorney in hot water. However,
‘most courts follow the “exceptional. circumstances” rule
that the elient is bound by the omissions of his attorney;
such as the stipulation of evidence and waiver of con-
frontation of witnesses. See Poole v. Fitzharris, Ninth
Circuit, 396 F.2d 544,
The Fifth Circuit has also discarded the time factor
us controlling. As Circuit Judge Coleman said in Doughty
v. Beto, Fifth Circuit, 396 F.2d 128:
When the proof shows that a defendant is fully in-
formed of his rights, admits his guilt, and is relieved
of the likelihood of a life sentence, we cannot
condemn the efforts of an attorney as being in-
effective. The time spent is only one of the elements
to be considered and the totality of the facts may
not be -over-ridden by a judicial stop watch. (130).
It is not unusual for judges, ‘as well as attorneys, to
look at a record and reach a different conclusion regard-
ing competency or effective assistance of counsel. In
Vizcarra-Delgadillo v. U. S., Ninth Circuit, 395 F.2d 70,
the majority of the Court gave defense counsel a pat on
(
4
48
the back. The minority, concluding that counsel's eflorts
were directed at achieving a legally impossible result
because of counsel's erroneous interpretation of the law,
took counsel to task on his lick of knowledge of the law;
the course of pursuit; the lack of investigation, and the
lack of information conveyed to the defendant regarding
the consequences of his plea, Circuit Judge Browning's
statement, in essence that it is not how you played the
game yesterday, but how you play today which is what
counts, is appropros to many cases:
The question is not whether appellant's counsel was
qualitied by training and experience to render effec-
tive legal assistance to appellant, but whether he did
so. Brubaker v. Dickson, 310 F.2d, supra at 37.
The record demonstrates that he did not. (74). See
also Coles v. Peyton, 4th Circuit, 389 F.2d 224.
A trial judge, by everstepping his bounds of propriety
in commenting upon the evidence and ip lengthily and
partisanly interrogating witnesses in the presence of the
jury may result in depriving a defendant of his right to
an impartial trial such as to deprive him of effective
assistance of counsel. See Bursten v. U._S., Fifth Circuit,
398 F.2d 976. | : |
What is the effect on a defendant if‘he is represented
by af attorney-imposter? His conviction is void and the
subsequent use at a new trial of evidence presented during
the void trial will entitle him to a new trial. See Harrison
v. U. S., D.C. C.A., 387 F.2d 203. :
The fact that.trial. counsel had previously defended the
government's informer and main witness will not, standing
alone, gain a defendant relief. See Harrison v. U. S., Fifth
Circuit, 387 F.2d 614. p
39
te Pile ee
Circuit Judge Jameson of the Ninth Circuit in Benson.
v. State Board of Parole & Probation, et al., 384 F.2d
238, said that counsel's “inability to make a silk purse
out of a sow's car ought not refiect’on their competency” ~
(241). ae
In U.S. v. Reinecke, Second Circuit, 383 F.2d 129, in
discussing the - distinction between tactical or strategic
errors and failure to show any prejudicial errors, Circuit
Judge Waterman, writing in answer to the State’s con-
tention that unless it is shown that counsel's incompetency
is attributable to the State a defendant may not complain,
said: - ie
am % ,
Nevertheless, the State contends that collateral relief
from a state conviction may not be had unless coun-
sel’s incompetency may be. attributed to the State,
citing Farrell v. Lanagan, 166 F.2d 845 Cir.),
cert. denied, 334°U.S. 853, 68 S.Ct. 1509, 92 L.Ed.
1775 (1948). Such incompetency, it is urged, must |
be of the sort of which the trial court may. take
cognizance and which it has a duty to correct. It
cannot be gainsaid: that this position has its pro-
‘ponents. See, ¢.g:, Davis v. Bomar, 344 F.2d 84
(6 Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 177,
15 L.Ed.2d 124 (1965); see U.S. ex rel. Darcy v.
Handy, 203 F.2d 407, 427 (3 Cir. 1953). Other
courts, however, have more wisely focused their
attention on the merits of each claim of ‘incompetency
of counsel, see, ¢.g., U.S. ex rel. Fazio v. Fay, supra;
U.S. v. Garguilo, supra; Snead v. Smyth, 273 F.2d
838 (4 Cir. 1959); Riddle v. McLeod, 240 F.2d
206 (10 Cir. 1957), thereby insuring that each de-
fendant has received the fundamental fairness re-
quired by the Fourteenth Amendment. While it is
Clear that certain acts of incompetency may occur
in the presence of and be obvious to the trial court,
oe 7 wo
see, ¢.g., U.S.°ex rel. Darcy v. Handy, supra, it is
equally clear that many forms of ineffective assistance
of counsel will not, as here, be readily apparent to
the trial court. Note, Effective Assistance of Counsel,
49 Va. L. Rev. 1531, 1554 (1963). It is-no answer -
fo presume that an accused defendant acquiesces in
the errors .of Iris retained counsel unless he notifies -
the trial court that he is not acquescing therein, the
average defendant would be unlikely to.discover his
lawyer's inadequacies until it is too late to notify the
court. 49 Va. L. Rev. at 1555. Here, for example,
Maselli was unaware ‘that his right 6 take an in-
digent appeal had been lost by Piccolo’s inaction
until it was’ too late to advise the trial court, there-
_ after his subsequent Tequests for permission to appeal
_ and’ .for the assistance of appellate counsel” were |
denied by the state courts. i
The State tells us that relieving defendants of respon-
sibility for the sort of misconduct of their chosen
counsel which transpired here will invariably “* * *
put a premium on incompetent. and ineflicient counsel
whose: mistakes could be inore certainly relied upon
as effective aid for reversal than the sound and com-
petent advice and trial conduct of the most efficient
counsel”. Popeko v. U.S, 294 F.2d 168, 171 oi:
1961). We do not share this belief. As we have —
~~ already observed, relator does not suffer here from
counsel's tactical or strategic errors, the detection of
which would impose upon the courts the intolerable
burden of inquiring into counsel's designs at every
stage in the proceeding, see 49 Va. L. Rev. at 1554.
And, while overzealous counsel might occasionally
commit deliberate errors with the express or implied
consent of his client, see, ¢.g.. People v. DeSimone,
9 Ill.2d 522, 138 N.E.2d 556 (1956), such cases
will be rare, 49 Va. L. Rev. at 1541, and should be
treated on their own facts. Here, counsel’s post-trial
conduct contrary to his client's wishes is not attrib-
41
utable to the accused, who was unconscionably
prejudiced thereby. Fundamental fairnéss requires -
- that he be granted the rights which -were lost to
him through no fault of his own. eee ae
Moreover, to hold-otherWise would result in invidious
discrimination against indigent defendants. As “there
can be no equal justice where the kind of an appeal
a man énjoys ‘depends on the amount of money he.
- has’”, Douglas v. State of California, 372-U.S. 353,
355, 83 S.Ct. 814, 816, 9 L.Edd 811 (1963),
quoting from Griffin v. People of State of Illinois,
351 U.S. 12, 19, 76 .S.Ct. 585, 100 L.Ed. 891
(1956), we must seek to “assure penniless defend-
ants the same rights and opportunities on appeal—
as nearly as is practicable—as are enjoyed by those
persons who are in a similar situation but who are
uble to afford the retention of private counsel.”
Anders v. State of California, 386 U.S. 738, 745,
$7 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Here,
it is clear that the loss of Maselli’s appellate rights,
rights so_ useful to his codefendant Reid, was occa-
sioned by his indigency as well as by his counsel's
incompetency. Had he been financially able to employ
private counsel on appeal Maselli would most as-
suredly have followed Piccolo’s inadequate advice to
seek an appellate specialist and might even have in-
duced Piccolo to handle the appeal. This is precisely
the situation in which the Supreme Court has sug-
gested that the Fourteenth Amendment requires a
State to grant relief. See Norvell v. State of Illinois,
373 U.S. 420, 422-423, 83 S.Ct. 1366, 10 L.Ed.2d
456 (1963).
Chief Judge Haynesworth in Stevens v. Warden, Mary-
land Penitentiary, Fourth Circuit, 382 F.2d 429, sympa-
thized with the defendant as to the sentence he received
and felt it was harsh and uncalled for under the facts of
42
the case, but felt the Federal Court was powerless to afford:
relief. The Eighth Amendment was not discussed, How-
ever, Judge Haynesworth did answer each of the defend-
ant's allegations concerning his charge of incompetency of
trial counsel. = pen ae
Of course, it appears, at least on the surface, that some
Circuit Courts require more of an attorney than others.
Cireuit Judge Rives in Brooks v. Texas, Fifth Circuit,
381 F.2d 619, stated that “This Circuit has been strict
in its requirement of the effective, assistance of counsel”
(624). There, the attorney was held ineffective because
“he failed to make objections and failed to make adequate
preparation, among other things. ‘
Inadequate representation duc to overwhelming amount
‘of work in public. defendet’s office. See Lewis v. Hender-
son, Sixth Circuit, 381 F.2d 523.
TENTH CIRCUIT: Mockery, sham or farce. Johnson
and Johnson v. U. S., Tenth Circuit, 380 F.2d 810. —
An attorney who confessed that “He (the defendant) -
was a hard man to represent, he didn’t recognize the im-
‘portance of the facts in his own case, he couldn't follow
counsel's advice . . .” “There were mean facts which I
-- was never able to present to the jury because of circum-
stances beyond my control . . .”, was held to be grossly
inadequate in Fortner v. Balkcom, Fifth Circuit, 380 F.2d
816. :
Merely because an attorney has a fatal heart attack
shortly after the trial will not get any relief. Rambo v.
Peyton, Fourth Circuit, 380 F.2d 363.
If a client commits perjury and then tells his attorney
he committed perjury and the attorney, without author-
‘
43
ization from the client, tells the court, and the client is
not present when this conversation occurs, has the client
been denied the effective’ assistance of counsel? It appears
the answer is “Yes” by reading the opinion of McKissick
vw iU~LS.z, Fifth Circuit, 379 F.2d 754.
What happens if defense counsel has been misled ° by
misstatements of the prosecution? In U. S. v. Poole, Sev-
enth Circuit, 379 F.2d 645, the defendant obtained relief.
_ Where it was shown that the complaining witness was
supposed to have been examined by a certain doctor. 4
Defense counsel tried to but did not locate this doctor.
Apparently, this was the end of his investigatio ‘After
the jury verdict, defense counsel then learned thet a another
doctor was the one who made the examination. Though
~~, the Court reversed on the basis of supervisory powers, it
would appear that by the actions of the prosecution, the
defendant. was denied the effective assistance of counsel.
Circuit Judge Bell, in Hintz v. Beto, Fifth Circuit, 379
‘F.2d 937, writing for a unanimous Court, held that where
the defense lawyer was given ‘a psychiatric report the
_ Morning or day of the trial, although the result of same
had been previously conveyed to the attorney, and the
attorney moved for a continuance in order to examine
and study the report, which was overruled, but no issue
was made as to the defendant’s mental condition during
the trial, the defendant was denied the effective assistance
of counsel.
The Court of Miiaila for the District of Columbia in
Bruce v. U. S., 379 F.2d 113, Circuit Judge Leventhal
writing the majority opinion and Judge Bazelon writing
a dissenting opinion, denied relief to a defendant. How-
ever, some interesting things were brought forward:
44
Appellate‘ counsel erects a structure of ineffective
assistance of counsel resting on a foundation claim
that appellant was given plainly erroneous advice by
defense counsel, who considered that the crime of
robbery had been established by appellant's presence
when his companions decided to and did rob a store,
and his sharing in the loot, Appellant's additional
responses to the plea judge is explained substantially
as follows—that it was because defendant was crro-
neously told by his counsel that he was guilty, that
he answered “Yes” when the judge, after admonishing
him to tell the truth and not to “dilly dally with this
Court”, asked him whether he knew before entering
the High's store that a robbery was to take place
there, and whether he had the intention of participat-
ing in that robbery. This background, argues counsel,
shows that the guilty plea was not made “under-
standingly,” i.e., yaderstanding “the meaning of the
charge, and what. acts amount to being guilty of the
charge,” and that due to ineffective assistance of
counsel appellant has never had his day in court.
We begin our analysis by putting aside for the time
being the answers given by appellant at the plea pro-
ceeding. In earlier cases it was said that a claim
based on counsel's incompetence cannot prevail un-
less the trial has been rendered a mockery and a
farce. These words are not to be taken literally, but
rather as a vivid description of the principle that the
accused has a heavy burden in Showing requisite
unfairness. Although the cases are rare and extra-
ordinary, it appears that an accused may obtain re-
lief under 28 U.S.C. § 2255 if he shows both that
there has been gross incompetence of counsel and
that this has in effect blotted out the essence of a
substantial defense either in the District Court or on
appeal.
It would not be fruitful to attempt further delineation
of the applicable standard by reference to generalities,
45
except i to say that a more powerful showing
of inadequacy is necessary to sustain a collateral
attack than to warrant an order for new trial either
by the District Court or by this court on direct
appeal,
Assuming for discussion that the requisite incompe-
tence can be made out by showing an ignorance of
critical doctrine discoverable with rudimentary prep-
aration, we are not persuaded that this is such a
case, The advice of defense counsel was not formu-
lated, and cannot fairly-now be supported, as a tac-
tical estimate of a “high probability of conviction.”
But it is likewise plain that his advice that appellant's
Own statements showed him guilty was not based
on the premise that he was guilty by virtue of mere
resence and guilty knowledge, a premise that we
ave held unsound. The advice of defense counsel
focused on the existence of a general plan to get
some money by doing “mischief.”
The fair import of counsel's testimony was, in short,
that he understood it was agreed to rob someone,
somewhere, That is how we take his questioned ad-
vice, particularly in view of appellant's failure, not-
withstanding his burden, to define “mischief” further
through either cross-examination of defense counsel
or appellant's own testimony. Appellate counsel does
not argue differently. His point is, apparently, that
robbery requires the intent to take property from a
particular victim, not merely a general intent to rob
that remains unfocused.
~ Without saying whether or to what extent we agree
with the decisions we now cite, we note that there
is authority to support the proposition that when a
rson plans with others to rob someone, somewhere,
is presence without protest at the scene of the crime
undertaken by others is sufficient to constitute en-
couragement and sufficient participation for aiding
46
and abetting. Again, without taking a position on
the merits, we note that appellant's robbery guilt may
be established under the rule that one who enters
into a conspiracy to commit an offense is guilty of
any substantive offense committed by his co-con-
spirators that is in furtherance of and a reasonably
foreseeable consequence of the conspiracy.
It may be that appellant would have fared better if
his counsel had been more experienced, knowledge-
able or aggressive, had sought to question or limit
rather than apply the full measure of doctrines of
vicarious liability. But certainly the doctrines cited
refute the claim that the advice of defense counsel
establishes that he lacked the minimum standards of
competence necessary to satisfy appellant's constitu-
tional right to counsel.
In Greer v. Beto, Fifth Circuit, 379 F.2d 923, the
following is found:
Under the facts before us, it is apparent that a sharp
issue is presented as to whether appellant had the
* effective assistance of counsel, as was his due, at the
trial in light of the undisputed fact that no medical
evidence whatever, psychiatric or otherwise, was
offered on the question of his sanity, His trial counsel
testified by interrogatory that he did not know of
any doctor who had examined appellant. His explana-
tion, by a fair inference, was that appellant had only
recently been found sane. This failure to offer testi-
mony was compounded by the introduction into evi-
dence of the jury verdict rendered in the sanity trial
finding appellant sane. In addition the trial was be-
fore a different jury and the issue of insanity was
being tried anew. We think that this, without more,
makes out a prima facie case of ineffective or in-
adequate assistance of counsel.
47
Quarrels v. Dutton, Fifth Circuit, 379 F.2d 934, is an
interesting case, to say the least, in that the defendant
actually plead guilty to four indictments alleging a date
at which time he was duly incarcerated by the officials of
the State of Georgia. Circuit Judge Ainsworth pointed
out that in the Court’s original opinion, 354 F.2d 985,
emphasis was placed on the adequacy of counsel. Still the
Court held that, nevertheless, the lower Court was to
determine what facts there were to show how the defend-
ant plead guilty to a crime charged against him when he
was incarcerated.
The fact that a client may feel he is .more competent
than the attorney in reference to the trial of a case is in-
suflicient to sustain error, Argo v, U, §., Ninth Circuit,
378 F.2d 301.
Circuit Judge Goldberg of the Fifth Circuit, in Odom vy.
U, §., 377 F.2d 853, had the following to say regarding
this very troublesome issue of ineffective assistance of
counsel: .
A defendant is. entitled to the effective assistance of
counsel, Gideon v. Wainright, 1963, 372 U.S. 335,
83 S.Ct. 792, 9 L.Ed.2d 799; Powell v. State of
Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.
159. We have found no Supreme Court decision bas-
ing a finding of deprivation of a fair and impartial
trial on lack of effective appointed counsel, and lower
courts have been somewhat less than explicit as to
what does and does not constitute effective assistance.
It is abundantly clear, however, that the guarantee
does not underwrite errorless counsel, or successful
counsel, or the best counsel available. It is equally
true that errors of judgment and tactical errors on -
the part of any attorney do not constitute a denial of
effective assistance. To be judged ineffective, counsel
AS
4 -
“« f
must have been “* * * so incompetent as to deprive
his chent of a trial inc any real sense render. the
trial a mockery and a faree is one descriptive ex
pression.” Mitchell, supra, 259 Bod at 794. Only
if the attorney's conduct is “shocking fo the con
science of the Court can the charge of inetfective
counsel prevail Seott vo US. 6G Cw P9864, aad
Pod 72, cont. demed 379 UES. 842, 84 SCO RE, 4
TP dd as,
Keeping in nind that Odon’'s allegations of ineffective
‘assistance must be limited: to matters ascertainable
from the recom we turn to the facts of the case at
bar Appellant contends that his counsel was derelict
iW tanh fo object to questions ‘put by the Court
and propounded by the prosecutor and to arguments
made by government counsel At worst, these are
tacheal errors and are net misconduct amounting
ty ineffective representation. Counsel's omissions in
this case are closely akin to these ta Burton v. US.
1948) SOULS) App. DC. 208, TST Peltd 17, cert.
demed 320 US. 788 6 S.Ct 473, 90 Ld. 479,
where appellant alleged that his counsel ina murder
trial was incompetent for faring to object to certain
testimony and failing to rebut certain evidence. The
court pereeted these contentions on the ground: that
they constituted good trial strategy and added:
“But if this assumption were incorrect: they would
not be ground for reversal. There are few trials free
from mustakes by counsel, After judgment and on
appeal, errors in judgment as to the conduct of the
defense are easy to point out. * * * Under such
circumstances it is well settled that error in judgment,
INcompetency or mismanagement of the defense by
coutisel is generally not ground for a new trial”. -
ld. at IS.
Moreover. trial counsel's effectiveness in the court
below is established by our reversal of this case
49
on a testimonial error to which counsel made timely
objection. He who wars must sometimes win and
sometimes lose. ‘The Constitution, it must be re-
membered, commands a battle, but not a victory.
This is possibly the only case where trial counsel's
effectiveness resulted in the defendant getting a new trial
and at the same time being challenged as ineffective on
appeal.
The Fourth Circuit in Fieldy vo P ‘yton, 375 F.2d 624,
Circuit Judge Sobeloff writing. the opinion, it was held
that once a defendant made out a prima facie case of
ineffective assistance of counsel, the burden of proving
lack of prejudice shifts to the State. ‘Thus, a late appoint-
ment and lack of preparation by counsel will make out
a prima facie case of ineffective assistance of counsel,
It is not unusual for the Government or State to argue
as in the case at Bar that because of counsel’s excellent
past reputation or because the defendant had stood before
the bar of Justice at some time in the past, the defendant
has not shown, regardless of the facts of the particular
case, he had ineffective assistance of counsel. The Fourth
Circuit has rejected the latter as “The right (to effective
assistance of counsel) is not conditioned on the absence
of a past criminal record.” Fields v. Peyton, Ihid. The
Eighth Circuit, in Cardarella v. U. S., 375 F.2d 222. has
also rejected the former contention, even though the
attgrneys were found to be competent and effective.
v
True, the mere fact that persons on trial are repre-
sented by “four such distinguished lawyers” with
“broad legal experience” (Judge Duncan's characteri-
zation) does not, of course, negative a charge that
ussistance of counsel in a specific case was ineffective
50
in the constitutional sense. However, no one reading
the trial record in this case, as we have done, can
fail to agree with the evident conclusion of Judge
Duncan that the case was well tried for all defend-
ants and with professional fidelity.
The rule applicable is that a charge of inadequate
representation can prevail “only if it can be said
that what was or was not done by the defendant's
attorney for his client made the proceedings a farce
and a mockery of justice, shocking to the conscience
of the Court.” O'Malley v. UL S., 6 Cir, 285 F.2d
733, 734 (1961). See also Mitchell v. U. S., 104
U.S. App. D.C. $7, 259 F.2d 787, 793 (1958),
cert. den, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86,
Dayton v. UL S.. EES U.S. App. D.C. 341, 319 F.2d
74), 743 (1963). cert. den. 375 U.S. 947, 84 S.Ct.
357, 11 L.Ed.2d 277; Scott v. U.S. 6 Cir, 334
23d 72, 73 (1964), cert. den. 379 U.S. 917; and
Frand v. U.S. LO Cir. 301 F.2d 102, 103 (1962).
In Frand, the principle was stated in this fashion:
“But the constitutional right to the effective assist-
ance of counsel does not vest in the accused the right
to the services of an attorney who meets any specified
aptitude test in point of professional skill. * * .* It
is instances in which resulting from the ‘substandard
level of the services of the attorney the trial becomes
a mockery and farcical that the judgment is open
to collateral attack on the ground that the accused
was deprived of his constitutional right to effective
assistance of counsel.”
May a defendant equate his attorney's intolerable rude-
ness with militant advocacy and obtain relief? Apparently
not as seen in Carter v. U. S., Ninth Circuit, 373 F.2d
911. From the opinion, it appears that a certain amount
of hostility arose between the trial judge and trial counsel: |
sufficient to warrant a finding of contempt on the trial
51
attorney, which contempt was sustained on appeal. Thus,
an accused, by his selection of counsel cannot take present
advantage of unsuccessful tactics which could have been
chosen with deliberate premeditation. “What 2bout court
appointed counsel in the same situation? 3
In order to raise error for failure to call witnesses, it
is incumbent on an accused that he name his witnesses
and what they would have testified had they been called.
See Cowens v. Wainwright, Fifth Circuit, 373 F.2d 34.
Concerning trial errors, Circuit Judge Smith of the
Third Circuit said:
It is well settled that errors committed during the
trial of a criminal case in a state court are not subject
to review in a habeas corpus proceeding in a federal
court unless it is shown that the errors were sO
conspicuously prejudicial as to deprive the defendant
of a fair trial. Jackson v. People of California, 336
F.2d 521, 524 (9th Cir. 1964); Pike v. Dickson,
323 F.2d 856, 860 (9th Cir. 1963), cert. den. 377
U.S. 908, 84 S.Ct. 1164, 12 L.Ed.2d 179; Harrison
v. Boles, 307 F.2d 928, 931 (4th Cir. 1962). There
was no such showing here. (U. S. of America ex rel
James CANNON, Appeltant v. James F. MARONEY,
_ Superintendent, State Correctional Institution, Pitts-
burgh, Pa., No. 16201., 373 F.2d 908, (910)).
What is the status of an accused who claims he had
ineffective assistance of counsel and there is presently no
transcript available, no record on appeal and the trial
attorney is deceased? By the Tenth Circuit in Guerra y.
Rodriguez, 372 F.2d 472, he runs into a presumption that
his trial attorney adequately protecteff his rights.
Ordinarily, when the district attorney makes full dis-
closure to either retained or court appointed counsel of
52
his file and this file is used to interview the defendant,
even though this period of time may be relatively short,
the defendant will usually obtain no relief on the grounds
of ineffective assistance of counsel. See Allen v. Rodriguez,
Tenth Circuit, 372 F.2d 116..
A defendant usually fares badly as to credibility where
he does not attack the effectiveness. of his trial attorney
until a late date. The Tenth Circuit, at least, views the
defendant's testimony with extreme caution when this oc-
curs. See Sobota v. Rodriguez, Tenth Circuit, 371 F.2d
909.
A defendant who is. in part, contributorily negligent,
if the Court please, as to obtaining counsel, will usually.
suffer for his own neglect. See U. S. v. Barney, Seventh
Circuit, 371 F.2d 166.
Ordinarily, a defendant cannot impeach legal records.
However, in Holmes v. U. 8., D.C. C.A., 370 F.2d 209, it
was held the accused could impeach the records ‘of the
District. of Columbia Court of General Sessions which
showed a particular attorney was appointed for a prelim-
inary hearing. However, the allegations were suflicient to
raise the serious issue of whether the defendant was effec-
tively denied a preliminary hearing and whether such
denial was prejudicial.
As earlier mentioned, mere failure to make a particular
objection is insufficient to gain relief. However, in Stem
v. Turner, Fourth Circuit, 370 F.2d 895, it was held:
ee
But a failure by trial counsel to investigate, or
vigorously to press, the illegality of the search under
North Carolina law would be strong evidence of in-
effectiveness of counsel unless waiver, measured by
53
>»
f
federal standards . . . occurred as an clement of
trial strategy. (900).
What if trial counsel fails to object, when the objec-
tion would have been good, and the government subse-
quently puts on evidence which would have made the ob-
jection bad? He is not ineffective. In fact, his trial
strategy may be deemed good. See Weller v. U. §., Ninth
Circuit, 369 F.2d 919,
The Fifth Circuit, as shown by King vy. Wainright, 368
F.2d 57, has held that the defendant suffers for any mis- .
takes retained counsel makes. There, the defendant did
not receive direct appellate review because of a procedural
error his retained counsel made. The Court held that this
was not because of any action by the State. (59).
As previously mentioned. it is .the totality of the cir-
cumstances of the case which will or will not render an
attorney ineffective. In Roberts v. Dutton, Fifth Circuit,
368 F.2d 465, the attorneys who were court appointed
were held ineffective. There, the Court took the cumula-
tion theory and pointed out in the opinion the following: zl
1. Only one minor objection was made during the.
trial;
2. The trial lasted only approximately 114 hours;
3. The charge was a capital offense;
4. The time spent in interviewing the defendant was
relatively short and only one attorney did this;
5. The lack of thorough cross examination of one or
more witnesses; and
6. The failure to assist the defendant in making a
Statement to the jury.
54
In other words, if the defendant had relied on just one
item, he probably would not have receive. any relief.
Failure of the attorney to adduce proof of defendant's
incompetency at time of trial when evidence was available
will render the attorney ineffective. See Owsley v. Peyton,
Fourth Circuit, 368 F.2d 1002.
In Bell v. Alabama, Fifth Circuit, 367 F.2d 243, Chief
Judge Tuttle, writing for a unanimous court, in a case
where a hearing was ordered on the defendant's allegations
concerning ineffective assistance of counsel, said: |
Considering next the allegations that appellant did
not receive the effective assistance of counsel, the
applicable test is stated in Williams v. Beto, 354 F.2d
698 (Sth Cir. 1965).
It is the general rule that relief from a final convic-
tion on the ground of incompetent or ineffective,
counsel will be granted only when the trial was a
farce, or a mockery of justice, or was shocking to
the conscience of the reviewing court, or the pur-
ported representation was only perfunctory, in bad
faith, a sham, a pretense, or without adequate oppor-
tunity for conference and preparation. Id.. at 704.
(Emphasis added. ) _
It is clear that this test applies to cases in which
counsel is retained by or for an accused as well as to
cases in which counsel is appointed to represent an
indigent defendant. Scott v. U. S., 334 F.2d 72 (6th
Cir. 1964). Contentions strikingly similar to those
made here were presented in Jones v. Cunningham,
297 F.2d 851 (4th Cir. 1962). A state prisoner
alleged in his habeas corpus petition that his assigned
counsel had entered the case only after he had
entered a plea of guilty; that the plea had followed a
coerced confession; and that counsel had advised
55
prisoner there was nothing he could do for him since
he had already made a confession. In reversing the
district court’s dismissal of.the petition, the court said:
“Especially striking is.the petitioner’s assertion that
the court-appointed lawyer, .after the most superficial
contact with the case and without making inquiry
into the circumstances, counselled surrender because
the defendant had given a confession—a confession
allegedly made under stress and coercion. No legal
representation is worthy of the name if the lawyer
makes no investigation of the background of the
client’s plea * * * or of the extra-judicial confession
which induced the plea.” Id. at 855: (Footnote
omitted. )
An unusual case regarding trial counsel’s actions is
Ingram v. Peyton, Fourth Circuit, 367 F.2d 933. It was
not shown whether trial counsel was court appointed or
retained. After trial was concluded, through no fault of
pre-trial investigation work done by trial counsel, it was
learned by trial counsel that the complaining witness or
chief witness had a prior conviction for perjury, but under
a different name. This information was not conveyed to
the defendant nor did trial counsel pursue the matter
further and, in fact, it was not learned until 16 years later
that this had occurred, together with the fact that a
motion had been presented to the trial judge, which was
denied. There was also a serious question of denial of
appellate rights in this same case. The Fourth Circuit
held that:
Looking to the substance of the matter, a prima facie
case has been stated, whether treated as the petitioner
contends, as a denial of the right of effective assis-
tance of counsel, or as a deprivation of the right of
appeal. (938).
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te reprent several hundred prevdy convicted reonh
Nie Hrotact, ef the day of the Dotondants trial, the
atirmey dinqred af soventy five other canes, The athens.
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te ddotormine wt the Detondant had comet at his penn
tral How aot keewe from the apimton whether the de
teowdant dial vial wet have comme, athe than comnel’s ,
wWretigataw whah bat Me CROMpANS the vhovkene a
the roowrds af the oomvectiams The Court held he was aot
moflontwe ax Ht was met shown that what he did wot deo.
vit aot show a harmtul comoquene: tw the defendant
Abe, the defendant honefited mmmenmely on the re imal
ae ee ee
law wall Be Noe Saadiy Bomar, Sith Ciro, 184 2 |
MW) Attorneys who save “prateful” letters fram a
wenally save face at a later date ane Shark, pee.
Cownrel at the habeas corpus hearing mm Molly » Gow:
— ifth Oiroum, 8) Fog $80, was held ty be competent
atal adoquate
Rsesly Receme the trial attorney ws found, sabsoguent
tw the tral, t have been physically and mentally and
emomonally exhausted during the tial ix invufticiont to ©
gam thet See i 8. vy. Medlin. Sixth Circuit, 883 Fld
The Second Circuit. in U.S. v. Wilkins, 381 F.2d 892.
held that “Appellant is bound by the strategy which his
counsel adopted. Henry v. State of Mississippi, 379 US.
443. 88 SCr. S64. 13 L.Ed. 2d 408 (1965), unless he
was © madequately represented as to make the trial a
mocktry of justice. United States v. Garguilo, 324 F.
"OS (2d Cir. 1963)." (895).
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the tnal
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per
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spallatap @p Gaede <b amma ane, te
Randazcse ¥. U. S.. 388 F.2d 79. His Honor said that
even Wo oan accuscd has coun! of bis own choosing.
CHloctive repeescatanon ws lackiag if coume!, unknown to
the accused and without he Lawwtedgcable assent nin
*.
+ im Root v. Cunningham, Scarth Circuit, 344 F.2d 1.
or fettered ot restrammed by commitarwats to others. (81).
4 here. the defendant chose and employed his own counsel.”
~~
]
(3).
The Eighth Circuit, in Hass v. U. S., 344 F.2d $6, held
that “It well may be that a case of mail censorship could
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av. ty the Tennessee Matate “deemed mune: m
the socal ahegiwe ” Clee a commventon foe mnndics on
the wun degree, the ponalty’ oo wnpreanmecnt fos
mu lows than ten veams my ause than twenty year
Tennessee Canke Annotated 2408
The get of appellants compliant wally ow that be
mci! 42 sentcme of twontyamne years for fest
degiwe munte:. instead of a pansble, and probabic.
sentence ot twenty vears for scoumnd degree mnndes
In Micellar: » Bush, bath Cuca, 44 6 OM O72,
that Court held that a forty (40) aunute poouchalogacal
examination, ducing tual, at dhe mewn tegess, was Mate
actuen amd the Sate of Texas demed the detendant a tau
trial and the eflectiwe assmtance ot counsel in adjaheatine
the defendant guilty and sentencing ham te lite imprison
ment without am peveluatrn testimony
Thus. as the alwe cases reflect regarding the cilective
or adequate or competent tral counsel, there ws a diversity
Mf views as to what dees oF dees at cumulate into cither
efflective or ineffective representation.
As alse previously noted, Federal Courts at the Circud |
level have created certain metaphors:
“farce.” “mockery.” “gross incompetence.” “perfunc-
tory.” “substantial.” “prejudicial.” “bad faith,” “sham.”
perfuncters. “pretense.” “shocking to the conscience
of the Court.” “lack of opportunity for conference
and preparation.” “der ol of fundamental fairness.” —
“yntergmty.” “public reputation.” “extreme circum-
stances.” :
67
Ht os sexpecttully submitted that repardiess of whether
counvcl be retamed, cout appointed o even a volunteer
he te held to the stmple tent, to-wat
Oded tread comet's representation of the accused from
a totality of the circumstances of the particular case
fall below minimum constitutional standards ville
cathy to semdcs ches a lack of cilective on
amimiance., therchy depriving the accused of duc
pewess of law umber the Sixth and bourtcenth
Amendments to the Constitution of the United States”
Wath thes sample standard. the facts of a partculas cave
will Contral, not metaphor. which, without the facts of
the partoular case, are meaningless
As to the issuc of retained versus Court’ appomted
counsel the distinction, if any, 1% Atuly a twentieth century
movajom. See Volume 65, Number 1, United States Law
Review, January, 1944, pages 64K, and Volume 24,-Amer
foan Law Reporter, Annotated, pp. V025 104%
The two (2) best discussions regarding this issue 16
seen im Vavis v. Bamar, supra, Sixth Circuit, 344 F 2d
84, and Breedlove v. Beto, Filth Circuit. 404 F.2d 1019.
However, whether one uses the Shelley v. Kramer,
supra, approach or some other approach the following
is clear:
1. The accused can only be Charged by the State or
Government;
2. The accused can only be prosecuted by the State
or Government; ‘
3. The accused can only be convicted by agencies
of the State or Government:
a —_
Therefore. for an accused w be defended by an indi
vidual hoemsed by the State or Government, to be charged
and prosecuted by cither State or Gaverament officials:
and to be convicted by the agencies and processes of the
State or Government and Ww say ther: » ao Mate oF
Government action reaching the incrodible. to say the
least.
Furthermore, what is sw disastrous. about granting a
new trial where either retained of court apwinted counsel
are involved where counsel was incapacitated as a result
of insanity. inebriation. iliness or lack of professional
capacity through want of legal traming”’ Sce “Incompetent
Counsel as Ground for New Trial in Criminal Cases.”
Columbia Law Review, 1947. Volume 47: pp. 115-122.
Otherwise. “ignorance. blunders. and mis.perchension of
counsel” can become the rule of law.
By the facts of this cause. the following is clear:
a Respondent had at trial a different attorney than
the one whom his family retained:
2. The trial lasted a mere one hour gnd fifteen
_ Minutes:
10. The rule was not invoked; thereby permitting the
it. No motion to suppress was filed;
12. Respondent's trial counsel asked of Respondent
13. No motion for new trial was filed: and
14. Respondent was sentenced the same day he was
It is, therefore, respectfully submitted, that the above
is more than sufficient to render this representation below
in summation, therefore, it is respectfully submitted
that this Respondent ‘lid not have the effective and ad-
}
®
\y
Respectfully submitted,
Marvin O. Tedcue
Attorney tor Respondent,
Thaddeus King. Jr.
909 State National Building
412 Main
Houston, Texas 77002
CApitol 2-1728
CERTIFICATE OF SERVICE
L. Marvin O. Teague. Attorney for the Respondent,
Thaddeus King. Jr.. and a member of the Bar of the
Supreme Court of the United States, do hereby certify
that a copy of the above and foregoing Response to Peti
Sn tee cee a
States Court of Appeals for the Fifth Circuit has been
mailed to Petitioner's Attorney by depositing same in the
United States Mail. postage prepaid, First Class, to Craw-
ford C. Martin, Attorney General of Texas, P. O. Box
12548, Capitol Station, Austin, ‘Texas 78711. on this the
— aay of Veouary. A.D. 1971.
MARVIN ©. TEAGUE
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