Opposition Brief — Gauthier v. Massachusetts

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In the JUL Sle

Supreme Court of the United States .

Ocroser Tirm, 1971

eure, a ‘

No. 71-6829 =

ARTHUR A. GAUTHIER, <“°

PETITIONER, q”

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF FOR THE

COMMONWEALTH OF MASSACHUSETTS

IN OPPOSITION

Rosert H. Quriyy,

Attorney General.

Joun J. Irwin, JR,

Assistant Attorney General,

Chief, Criminal Division.

Of Counsel: Davi A. Mrs,

Wru1am C. Hotmes Assistant Attorney General,

Francis J. TEAGUE Chief, Appellate Section.

—— —________________________}

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

PN on oo ke ve cv do kv cde cede ses 1

Argument

I. The Petition Fails To Raise A Substantial Fed-

eral Question And Is, Therefore, Jurisdiction-

NN fia a a ons oes Wika eee & 8" 3

II. If A Federal Question Does Exist, The Resolu-

tion Of The Question Is Not Appropriate In The

NE A har sigs vada. id dee cues. 9

lll. If A Federal Question Does Exist, The Question

May Be Better Phrased To Reflect The Special

ee ee 11

Ee i enet a a aie y a y 12

TABLE OF CITATIONS

Cases

Carnley v. Cochran, 369 U.S. 506 (1962) ............ 6

Commonwealth v. Beaulieu, 333 Mass. 640, cert. denicd,

801 U.S. 957 (1956) and 352 U.S. 857 (1956) ........ 2

Commonwealth v. Gauthier, 1972 Mass. Adv. Sh. 553,

I, eer ere ac, sf 2, 3, 10

Douglas v. California, 372 U.S. 353 (1963) .... 2, 6, 7, 8, 9

(rideon v. Wainwright, 372 U.S. 335 (1963) .......... 2

Griffin v. Illinois, 351 U.S. 12 (1956) ................. 6

Miranda v. Arizona, 384 U.S. 436 (1966) ............. 5, 6

Pate v. Holman, 341 F.2d 764 (5th Cir. 1965), modified,

343 F.2d 546 (Sth Cir. 1965) .................... 4,5

Swenson v. Bosler, 386 U.S. 258 (1967) ............. 6

United States ex rel O’Brien v. Maroney, 423 F.2d 865

(8rd Cir. 1970) 5

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il Table of Contents

Page

United States ex rel. Smith v. McMann, 417 F.2d 648

(2d Cir. 1969), cert. denied, 397 U.S. 925 (1970) 7, 8

10, 11

Zucht v. King, 260 U.S. 174 (1922) .....

Constitutional Provisions

United States Constitution,

Fourteenth Amendment .................. 4, 6, 9, 12

Statutes

sk Sr ine fe weer ere ose re 3

Massachusetts General Laws, ¢. 278, §29......... y)

$§33A-G........ 3

In the

Supreme Court of the United States

OctosBer TERM, 1971

No. 71-6829

ARTHUR A. GAUTHIER,

PETITIONER,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF FOR THE

COMMONWEALTH OF MASSACHUSETTS

IN OPPOSITION

Statement of the Case

Petitioner and three co-defendants were tried in 1955

before a judge and jury in the Superior Court for Essex

County, Massachusetts, on indictments charging each with

murder in the second degree, robbery, and conspiiacy. The

charges arose out of a violent robbery, during the commis-

& wk Rag cot CAL eS here eet

sion of which and after which the victim was brutally

kicked and beaten. The victim died as a result of wounds

inflicted in these attacks. Commonwealth v. Gauthier, 1972

Mass. Adv. Sh. 583, n. 1.1 Three defendants, including

petitioner, were convicted as charged, while one was ac-

quitted on the murder charge but convicted on the other

charges. The trial and conviction occurred in February of

1955 — eight years before this Court’s opinions in Gideon

v. Wainwright, 372 U.S. 335 (1963), and Douglas v. Cali-

fornia, 372 U.S. 353 (1963).

Petitioner was represenied at trial by privately retained

counsel. His trial attorney was expressly acknowledged

by the Massachusetts Supreme Judicial Court to have been

a capable trial lawyer (1972 Mass. Adv. Sh. at 554) (Brief

for Petitioner A3). Petitioner was also assisted by other

privately retained counsel. Following conviction, counsel

informed petitioner that he had a right to appeal, but that

they would no longer represent him. While his three co-

defendants did take direct appeals, petitioner did not —

apparently because he and his attorneys had concluded

that an appeal would be fruitless (1972 Mass. Adv. Sh.

at 555) (Brief for Petitioner A3). On appeal, the convie-

tions of his co-defendants were affirmed by the Massachu-

setts Supreme Judicial Court. Commonwealth v. Beaulieu,

333 Mass. 640, cert. denied sub nom. Weaver v. Massachu-

setts, 351 U.S. 957 (1956) and Boisvert v. Massachusetts,

352 U.S. 857 (1956). Petitioner did not request court-

appointed counsel, and the record does not indicate that

any state official knew of petitioner’s indigency or of any

desire on his part to appeal. Nevertheless, in November

of 1969 (1early fifteen years after the trial), petitioner

filed a motion for a new trial, pursuant to Mass. Gen. Laws,

ch. 278, 29. In this motion, petitioner alleged that he had

1A copy of the report of this case is attached to the brief for peti-

_tioner as Appendix A.

3

been deprived of his right to appeal, due to failure on the

part of his counsel and the trial judge to specifically inform

him of a right, if indigent, to court-appointed appellate

counsel. Following a hearing, the motion was denied, and

petitioner appealed under Mass. Gen. Laws, ch, 278, §§33

A-G. The Supreme Judicial Court affirmed. (1972 Mass.

Ady. Sh. 558) (Brief for Petitioner Appendix A).

In affirming the denial of petitioner’s motion for a new

trial, the Supreme Judicial Court emphasized that peti-

tioner had been represented at trial by retained and ca-

pable counsel, The Court concluded that the Commonwealth

was therefore justified in presuming that the counsel se-

lected by the defendant was adequately protecting his

rights, in the absence of events which would have placed

the Commonwealth on notice to the contrary. (1972 Mass.

Adv, Sh, at 558-559) (Brief for Petitioner pp. A7-A9),

Since the Commonwealth was not chargeable with such

notice, the Court concluded that any failure on the part

of petitioner’s trial counsel was not state action depriving

petitioner of due process or equal protection. Consequently,

there was no duty on the part of the trial judge to inform

petitioner of the right, if indigent, to court-appointed ap-

pellate counsei (1972 Mass. Adv. Sh. at 558-559) (Brief

for Petitioner pp. AS8-A9).

Argument

{. Tue Petition Fans To Raise a SupsTantiaL Feperau

QvEsTION AND Is, THEREFORE, JURISDICTIONALLY INsUF-

FICIENT.

Petitioner invokes the jurisdiction of this Court under

28 U.S.C. §1257 (3). A prerequisite of the discretionary

review which he seeks is a showing that a substantial

federal question has been properly raised in the state court

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proceedings. Zucht v. King, 260 U.S. 174, 176 (1922). It is

respondent’s position that this case does not involve a

substantial federal question, in that petitioner has not in-

dicated state deprivation of rights guaranteed by the Four-

teenth Amendment.

Petitioner contends that he has been deprived of rights

to due process of law and equal protection of the laws

guaranteed by the Fourteenth Amendment. In particular,

he contends that a convicted defendant, who was repre-

sented by privately retained trial counsel, is ipso facto

entitled to a new trial where he can show that he was in-

digent at the time for taking an appeal and that he was

not advised by counsel or the court of a right to appellate

counsel at state expense, if indigent. In making this con-

tention, petitioner alleges that: ‘‘ Before, during, and after

the trial, I was indigent and was unaware that I was en-

titled to the assistance of counsel upon appeal’? (Petition-

er’s affidavit in support of motion for leave to proceed

in forma pauperis). He further argues that while counsel

informed him of his right to appeal, they did not inform

him of the right to court-appointed counsel for purposes

of said appeal. However, at no point does he indicate actual

state deprivation of rights guaranteed by the Fourteenth

Amendment. Such state action is essential if he is to obtain

the post-conviction relief which he seeks.

It is not enough to show that indigency occasioned

the petitioner’s inability to employ counsel or to

appeal; the petitioner must show that the State de-

prived him of his Fourteenth Amendment rights. Pate

v. Holman, 341 F.2d 764, 775 (Sth Cir. 1965), modified,

343 F.2d 546 (5th Cir. 1965).

Where, as is here the case, an accused appears at trial

with privately retained counsel and does not challenge the

5

competence of that counsel, the state may properly assume

that the accused’s counsel will adequately protect his

rights, although this assumption is rebuttable. 341 F.2d

at 775. Moreover, ‘‘the very nature of the private attorney-

client relationship, brought into existence by the deliberate

choice of the defendant .. .’’ requires that this fundamental

assumption be made. United States ex rel. O’Brien vy.

Maroney, 423 F.2d 865, 869 (8rd Cir. 1970). Unless a court

is to assume the worst of privately retained defense coun-

sel, it ought not conduct the sort of across-the-board in-

quiry which petitioner proposes. Thus, the position taken

by the Fifth Circuit is that:

. when a defendant has retained counsel of his own

choosing the State cannot be held to have violated the

constitutional right of an indigent to counsel on ap-

peal, unless the need for appellate counsel is brought

home to the State, either by the defendant’s request

for appellate counsel or because a responsible State

official has actual knowledge that the defendant is in-

digent and desires to appeal his conviction. 341 F.2d

at 773.

The Third Cireuit also adheres to this view. 423 F.2d at

869-70. Similarly, this Court has recognized that where an

accused has retained counsel, warnings which would be

required in the absence of counsel need not necessarily be

given. Thus, in Miranda v. Arizona, 384 U.S. 436 (1966),

this Court held that before custodially interrogating a

suspect, the police must make known to him that he is

entitled to a lawyer and that if he is indigent, a lawyer

will be provided. However, in so holding, this Court added

the qualifying statement that:

A warning that the indigent may have counsel ap-

pointed need not be given to the person who is known

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to have an attorney or is known to have ample funds

to secure one .. . 384 U.S. at 473, n. 43.

In other words, some event must first occur to place

the state on notice that an accused, who appeared at trial

with privately retained counsel, nevertheless requires the

assistance of appellate counsel appointed by the court.

Such an event occured in Douglas v. California. © pra,

upon which petitioner puts misplaced reliance. This Court

stated therein:

The record shows that petitioners requested, and were

denied, the assistance of counsel on appeal, even

though it plainly appeared they were indigents. 372

US. at 354.

Similar events occurred in Griffin vy. Illinois, 351 U.S. 12

(1956), also relied upon by petitioner. Petitioners in Griffin

had, immediately after their conviction, filed a motion in the

trial court requesting a free trial transcript and stating,

in support of the motion, that they were indigents. 351 U.S.

at 13. In Carnley v. Cochran, 369 U.S. 506 (1962), also

cited by petitioner, the petitioner was tried without defense

counsel, which necessarily placed the trial court on notice

of his probable indigency. Since the record did not reveal

an affirmative waiver by him of the right to defense coun-

sel, and since this Court concluded that ‘‘the constitutional

infirmity of trial without counsel is manifest,’’ 369 U.S. at

517, this Court held that the petitioner had been deprived

of rights guaranteed by the Fourteenth Amendment. /d.

at 513-17. In Swenson v. Bosler, 386 U.S. 258 (1967), also

cited by petitioner in the present case, this Court struck

down a state appellate practice under which no provision

was made for the appointment of appellate counsel for in-

digent defendants. The case involved events which made it

7

apparent that the defendant was both indigent and desired

to appeal. Id. at 259-60.

When so viewed, the above cases do not support peti-

tioner’s contention that state trial courts should deliver

an across-the-board warning to all convicted defendants

of the right, if indigent, to court-appointed appellate coun-

sel. Rather, they indicate that before any such obligation

will attach (assuming that there is such a duty), the need

for court-appointed counsel must first be made known to

the state, whether by express request or implied notice.

Since no such express or implied notice is here involved,

the following statement by Judge Friendly, dissenting in

United States ex rel. Smith vy. McMann, 417 F.2d 648 (2d

Cir. 1969), cert. denied, 397 U.S. 925 (1970), seems partic-

ularly appropriate:

. I see no justification for holding that in 1959

Mow York should have perceived a constitutional duty

on its part to make certain that a convicted defen-

dant whom it had no reason to believe to be indigent

should be advised what New York would do for him

if he were.... I find it especially hard to condemn

New York for inaction in 1959, when it was not until

1966 that the Supreme Court brought its own rule

governing federal criminal appeals in line with what

the majority holds to have been constitutionally re-

quired all along. 417 F.2d at 658-59.

The majority in McMann was of the contrary opinion

that Douglas v. California does impose such a constitu-

tional duty.

We think the only practical, logical and fair inter-

pretation to be given to Douglas v. California is that

it imposes upon the state a duty to warn every person

8

convicted of crime of his right to appeal and his

right to prosecute his appeal without expense to him

by counsel appointed by the state, if he is indigent,

417 F.2d at 654.

Petitioner argues that the Massachusetts Supreme Judicial

Court, in rejecting his arguments for a new trial, has taken

a position inconsistent with that adopted by the Second

Cireuit in McMann. While it is true that the Supreme

Judicial Court rejected the broad interpretation of Douglas

given by the Second Cireuit, it is also true that the court

was faced with an altogether different question. In McMann,

the question was whether the failure to inform a defen-

dant having retained counsel of the right, if indigent, to

court-appointed appellate counsel entitled him to take an

appeal, despite his failure to perfect an appeal within

statrtory time limits. In the present case, the question is

whether a convicted defendant, given a similar fact situa-

tion, is entitled not only to an appeal but to an altogether

new trial. In McMann, the Second Cireuit was careful to

distinguish between the two situations:

Our holding does not require that a verdict be upset

for failure to warn, but only that the state should

allow the completion of appellate review, with counsel

if a prisoner so desires. If an appeal is taken and

material trial error is found by a state appellate

court, there may be a new trial required with the

familiar difficulties of proof long after the event. But

that is only if the state courts find that the conviction

on which the imprisonment was based was wrong in

the first place. 417 F.2d at 655.

Petitioner would have this Court, in effect, disregard

the limitation which the Second Circuit expressly placed

upon its holding, and apply the Second Circuit’s construc-

tion of Douglas to his own case. The ramifications of such

an application would, to say the least, be far reaching. It

should again be noted that petitioner was tried and con-

vieted eight years before this Court’s opinion in Douglas

vy. California, and that nearly fifteen years passed before

petitioner initiated the present action for a new trial.

Thus, petitioner’s argument, if accented, would have direct

bearing upon any pre-Douglas criminal prosecution in

which a convicted accused did not take a direct appeal

and was not specifically informed by either counsel or the

court of the right, if indicent, to court-appointed apyellate

counsel — a right which would not become expressly ob-

ligatory upon the states until much later. It is respon-

dent’s position that the allegation of stafe action which

petitioner makes is much too attenuated to justify <o far

reaching a result. Petitioner appesred at trial with re-

tained and capable counsel. No event occurred which would

have placed the state on notice that petitioner was indigent

or desired to appeal. Consequently, the state did not de-

prive petitioner of due process and equal protection when

making the justified assumption that petitioner was re-

ceiving adequate representation. The question raised by

this petition has thus been artificially framed as a federal

question, in that state deprivation of rights arising under

the Fourteenth Amendment is not here involved.

Il. Ir a Feperat Qvestion Dogs Exist, tHe ResoivtTion

oF THE Question Is Not APPROPRIATE IN THE PRESENT

Case.

Petitioner was tried and convicted in 1955. He was re-

presented at trial by privately retained and capable coun-

sel, and no events oceurred which would have made the

state chargeable with notice of the petitioner’s need and

10

desire, if any, for court-appointed appellate counsel. While

petitioner did not appeal, his co-defendants did. This latter

fact must have been noted by petitioner. It was a factor

stressed by the Second Cireuit in McMann, when remand-

ing that case for determination of whether petitioner Smith

knew of his right to appeal at no expense to himself:

[A]ppellant’s credibility was at issue and he knew

that a co-defendant with assigned counsel was taking

an appeal. 417 F.2d at 656.

Petitioner’s decision not to appeal was apparently made

only after petitioner and his counsel concluded that an

appeal would be fruitless. Thus, the trial court in the

present proceeding was prompted to remark:

the defendant in testifying he was not properly and

fully advised regarding his rights of appeal by his

original counsel, Attorney John R. Murphy, deliber-

ately and intentionally lied to this court . .. [T]he

defendant must have been completely aware of the

appeals being taken by his pals, the co-defendants,

and hence knew all he needed to know if indeed he

ever intended or wanted to appeal. The blunt truth

of the matter is that he and his attorney had con-

cluded that an appeal, if taken, would be fruitless.

(1972 Mass. Adv. Sh. at 555). (Brief for Petitioner

p. A8).

This conclusion was borne out by the fact that on appeal,

the judgments against petitioner’s co-defendants were af-

firmed.

Despite the above considerations, petitioner in 1969

brought the present action for a new trial. Nearly fifteen

years had by then elapsed since his trial and conviction

11

for a brutal murder and robbery. Nevertheless, he argues

that due process and equal protection entitle him to an

altogether new trial, with the state confronting all the

problems of proving guilt long after the events upon

which the conviction was based. Respondent suggests that

if the petition now before this Court raises a federal ques-

tion, the resolution of this question would not be appro-

priate in the cireumstances of this case. Respondent sug-

gests that it would be sound judicial policy for this Court

to refrain from exercising its discretionary certiorari

power with respect to this ease.

III. Ir a Feperan Question Dogs Exist, THE Question

May Be Berrer Purasep To Rertect tHe Speci,

Facts oF THE Case.

In framing the question, petitioner has failed to dis-

tinguish between the remedy which he seeks (a new trial)

and the relief sought by petitioner Smith in McMann (ap-

pellate review). Respondent Suggests that the issue pre-

sented to the Supreme Judicial Court of Massachusetts,

and, hence, the issue now presented to this Court, should

be phrased so as to reflect this distinction. Respondent

suggests that the question may fairly be phrased:

Whether due process of law or equal protection of

the laws guaranteed by the Fourteenth Amendment

entitle a defendant convicted of second degree murder

and other felonies to a new trial where the defendant

was represented at trial by privately retained coun-

sel, where such counsel refused to represent the de-

fendant beyond the verdicts, and where neither his

retained counsel nor the trial judge specifically in-

formed the defendant of the right, if indigent, to

court-appointed appellate counsel.

Bievrud. Pa Tye

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Conclusion

Briefly stated, respondent suggests that petitioner has

not raised a substantial federal question, in that state

action in violation of the Fourteenth Amendment is not

in issue; that if a federal question does exist, resolution

of the question would not be appropriate in the present

case, and that if a federal question does exist, it may be

better phrased to reflect the special facts of this case,

Wherefore it is respectfully submitted that the petition

for a writ of certiorari should be denied.

Respectfully submitted,

Rosert H. Quixn,

Attorney General.

Joun J. Irwin, JR,

Assistant Attorney General,

Chief, Criminal Division.

Davi A. MILLs,

Assistant Attorney General,

Chief, Appellate Section.

Of Counsel:

Witu1am C. Homes

Francis J. TEAGUE