# Petition for Writ of Certiorari — Partington v. Kibe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1412%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 1000 ## Text a5 oA Supreme Court, U.S. ae a a, & a (Wh A FILED 2 2 9 4 OCT 1 1992 No. 92-___ OFFICE O£ HE 6LERK In The Supreme Court of the United States October Term, 1992 . EARLE A. PARTINGTON and CLIFFORD M.M. CLARKE, SR., Petitioners, GERALD H. KIBE, CHARLENE M. NORRIS, and STATE OF HAWAII, Respondents. ane ¢ Petition For Writ Of Certiorari To The Supreme Court of Hawaii ¢ PETITION FOR WRIT OF CERTIORARI . EarLe A. PARTINGTON (Counsel of Record) PARTINGTON & FOLey 2450 Pacific Tower 1001 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 526-9500 Petitioner Pro Se Paut T. Murakami Pacific Park Plaza, Suite 1475 711 Kapiolani Boulevard Honolulu, Hawaii 96813 Telephone: (808) 523-7006 Counsel for Petitioner Clarke COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Does a state supreme court violate the Sixth Amend- ment strong presumption of effectiveness and right of independence of counsel and/or the Fourteenth Amend- ment right to due process of law by (1) sua sponte adjudicating, without notice or hearing, that a criminal defense attorney ren- dered ineffective assistance of counsel when, as a matter of law, the appellate record in the crim- inal case does not establish ineffective assistance by the attorney, and (2) then subjecting the attorney to duplicative, successive attorney-disciplinary proceedings expressly premised solely upon the court’s inef- fectiveness adjudication? The The il LIST OF PARTIES petitioners in this case are: EARLE A. PARTINGTON, a criminal defense attorney CLIFFORD M.M. CLARKE, SR., the defendant and Partington’s client at trial and on appeal in State v. Clarke, Haw. S. Ct. No. 10041 respondents in this case are: GERALD H. KIBE, Chief Disciplinary Counsel of the Office of Disciplinary Counsel of the Supreme Court of Hawaii CHARLEEN M. NORRIS, Assistant Disciplinary Counsel of the Office of Disciplinary Counsel of the Supreme Court of Hawaii STATE OF HAWAII, the plaintiff in State v. Clarke, Haw. S. Ct. Nos. 10041 and 10063 iii TABLE OF CONTENTS TABLE OF AUTHORITIES..........----0 +e see reer OPINIONS BELOW............0 see eee cece ee eeee: BASIS FOR JURISDICTION ........------+- +52 ee CONSTITUTIONAL PROVISIONS AND RULES OF ere te rr eee ee eee STATEMENT OF THE CASE.........-----+++++s03> REASONS FOR GRANTING THE WRIT ........--- I. II. Certiorari should be granted to decide whether the Sixth Amendment strong presumption of effectiveness and right of independence of counsel and/or the Fourteenth Amendment right to due process of law protect the criminal defense attorney from a court’s sua sponte adju- dication of ineffective assistance of counsel without notice or hearing where, as a matter of law, the appellate record in the criminal case does not establish ineffectiveness .........--- Certiorari should be granted to decide whether the Sixth Amendment strong presumption of effectiveness and right of independence of counsel and/or the Fourteenth Amendment right to due process of law is violated by sub- jecting a criminal defense attorney to duplica- tive, successive disciplinary proceedings expressly premised solely upon the previously discussed ineffectiveness adjudication........ EE assess urassnencensinscnneevesaes 11 11 iv TABLE OF AUTHORITIES Page(s) CASES Caplin & Drysdale, Chartered v. Monsante, 491 U.S. ie RAMs rer ene Ser er rrr e 14 In re Yagman, 796 F.2d 1165 (9th Cir. 1989).......... 15 Matsuo v. State, 70 Haw..573, 778 P.2d 332 (1989) ....17 Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989), cert. denied, 110 S. Ct. 3302 (1990) ("Partington a CRS A eee ile hee 2,3,6,9 Partington v. Gedan, 961 F.2d 852 (9th Cir. 1992), cert. pet. pending (“Partington IV”).................. 2 Ratnor v. Young, 465 F. Supp. 386 (D.V.I. 1979) ...... 13 Strickland v. Washington, 466 U.S. 668 (1984)..11, 12, 16 United States v. Hashimcto, 878 F.2d 1126 (9th Cir. PEER IP aaan a iy trary opr ene, a Nira ROME ne a guna regen 13 United States v. Heinel, 9 U.S.C.M.A. 259, 26 C.M.R. Se IE a8 5 ea eae RECUR R Re eer ees Che ee 13 United States v. Miller, 884 F.2d 1149 (9th Cir. 1989) .... 13 Withrow o. Larkin, 421 US. 35 (1975) ..........6005: 14 CONSTITUTIONAL PROVISIONS a So I OE cin ck cacao erecdcceuecaee passim FS DUS INOW has Convene deususcsesercdin passim STATUTES ee A hn cae ene KN hE Coes RN KC ERA eens 3 Re Ws aa cw on os een noes chan nviusetaceeeuns 8 V TABLE OF AUTHORITIES - Continued Court RULES Haw. Haw. Haw. R ~ 3 S Page(s) ee | i ePeeeere ee eee re ee 17 = Me Prrwerrrererrr re exe, 3 Ce BROODS. cca ca csecaviescesaveneetes ries 3 No. 92-___ . In The Supreme Court of the United States October Term, 1992 * EARLE A. PARTINGTON and CLIFFORD M.M. CLARKE, SR., Petitioners, GERALD H. KIBE, CHARLENE M. NORRIS, and STATE OF HAWAII, Respondents. ¢ Petition For Writ Of Certiorari To The Supreme Court of Hawaii ¢ PETITION FOR WRIT OF CERTIORARI ¢ Petitioners herein respectfully pray that a writ of certiorari issue to review the order of the Supreme Court of Hawaii entered on July 9, 1992, in State v. Clarke, Haw. S. Ct. Nos. 10041 and 11633, which order denied Peti- tioner Partington’s Motion to Vacate and Modify Mem- orandum Opinion of December 27, 1985 (in No. 10041), and to vacate Judgment and Modify Memorandum Opin- ion of October 5, 1987 (in No. 11633), and for Writ of Prohibition Directed to Chief Disciplinary Counsel Ger- ald H. Kibe and Assistant Disciplinary Counsel Charlene 1 M. Norris of the Office of Disciplinary Counsel of the Supreme Court of Hawaii. OPINIONS BELOW The order of the Supreme Court of Hawaii entered on July 9, 1992 (see 1a-2a), is unreported. The opinion of the Supreme Court of Hawaii which was the subject of Part- ington’s motion was entered on December 27, 1985 (see 3a-5a), and is unreported. The orders of the Supreme Court of Hawaii interpreting the December 27, 1985, opinion were entered on September 24, 1990 (see 6a-8a), and October 11, 1990 (see Sa-1la), and are unreported. Petitioner Partington’s unsuccessful attempts to seek col- lateral review of the December 27, 1985, opinion and the first of two attorney disciplinary proceedings against him predicated upon that opinion are reported as Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989), cert. denied, 110 S. Ct. 3302 (1990) - (“Partington I”) (see 12a-94a) and Partington v. Gedan, 961 F.2d 852 (9th Cir. 1992), cert. pet. pending (“Partington IV”).} BASIS FOR JURISDICTION The order of the Supreme Court of Hawaii denying Petitioner Partington’s motion for relief was entered on July 9, 1992 (see 1a-2a), and is a final judgment or decree as the order expressly provides that no further filings 1 Partington IV is not reprinted in the appendix because further reference thereto is unnecessary. shall be accepted by the court in this matter (see 1a-2a). This Court has jurisdiction to review a final judgment or decree of a state’s highest court pursuant to 28 U.S.C. § 1257(a). s CONSTITUTIONAL PROVISIONS AND RULES OF COURT United States Constitution, Amendment VI: In all criminal prosecutions, the accused shall . have the assistance of counsel for his defense. United States Constitution, Amendment XIV: [NJor shall any state deprive any person of life, liberty, or property without due process of See Hawaii Supreme Court Rule 2: see 201a-235a. Hawaii Supreme Court Rule 13: see 236a-238a. * STATEMENT OF THE CASE In 1984 Petitioner Partington was appointed to repre- sent Petitioner Clarke in State v. Clarke in the Circuit Court of the First Circuit, State of Hawaii. Clarke was charged with first degree murder for the brutal, and eventually fatal, abuse of his girlfriend’s three-year-old daughter. Partington I, 880 F.2d at 117; 14a. Partington has been an attorney since 1969 and is a former federal defender in San Diego, a former assistant federal public defender in San Francisco, and a former deputy prosecut- ing attorney in Honolulu (Haw. S. Ct. No. 10041 Record (hereinafter “R”) at 337). Clarke’s trial and sentencing were highly publicized in the media. During the trial, Partington made no opening state- ment (11la-114a) and, for the purpose of impeachment, asked three prosecution witnesses if it were true that they believed that Clarke was guilty and thus were testifying in order to convict him (12la-122a). There was no direct evidence of Clarke’s guilt, and the child’s mother had previously been in state family court for neglect and possible abuse of the child, as set out in the Statement of the Case in Clarke’s Opening Brief (R 97-114). Part- ington’s pretrial motion to the family court for discovery of these confidential court records was denied (114a; R 104). Partington renewed his discovery motion in the family court on a Wednesday and it was heard in family court that same day, during a recess in the state’s case in Clarke’s circuit court trial (114a). At the hearing on the discovery motion, the family court reversed itself and ordered discovery (114a). However, based on the pros- ecutor’s representation that the child’s mother would not be called by the state in the circuit court trial until late in the day two days later (a Friday), the family court delayed releasing the discovery until the following Mon- day in order to review it first (114a). However, the foliow- ing morning (Thursday) in circuit court the prosecutor called the child’s mother as a prosecution witness (115a), claiming the prosecution had changed its mind overnight (R 104). After the prosecutor finished direct examination that same morning, Partington informed the circuit court that ee uw the defense was reserving cross-examination until after the family court discovery was Provided the following Monday (R 105). The circuit court refused to permit the defense to reserve Cross-examination and directed Part- ington to cross-examine the child’s mother at that time or not at all (115a; R 105). The circuit court further informed the defense that if it refused to cross-examine imme- diately, it would be limited to calling the child’s mother as its Own witness and cross-examination would not then be permitted (R 105, 109). Partington refused to cross- examine at that time (115a) and subsequently did not include the child’s mother among the several defense witnesses called. At the time for closing argument, Part- ington informed the circuit court in the presence of both the jury and Clarke that, in view of the court’s ruling on Cross-examination of the child’s motner, both he and Clarke felt that closing argument would be a waste of time; no Closing argument was given by the defense (122a-126a). Clarke Was convicted as charged (R 113). The trial judge said nothing at trial or sentencing about the defense tactics, but, after Clarke was found guilty and sentenced and the appeal was pending, the trial judge complained to the Office of Disciplinary Coun- sel (ODC) of the Supreme Court of Hawaii that Part- ington had been deliberately ineffective in refusing to give a closing argument (R 113). Partington Properly informed Clarke of the complaint, and Clarke wrote to the circuit court requesting a court hearing on the com- plaint (R 44-45); Clarke acknowledged in the letter that he had consented to waiving closing argument as a trial tactic (R 44-45). Partington, who continued on appeal as Clarke's court-appointed attorney, then moved the Supreme Court of Hawaii on behalf of Clarke to remand the case to the circuit court for a hearing on the trial judge’s complaint (R 29-46). The Supreme Court of Hawaii denied this motion (R 49). In Clarke’s opening brief in the Supreme Court of Hawaii (R 86-218), Partington raised fifteen issues under nine argument headings, which issues included pros- ecutorial misconduct (above and beyond that set out above), judicial impropriety, and numerous erroneous rulings by the trial judge (R 114-15). No claim of ineffec- tive assistance of counsel was then made, and at no time has Clarke ever accused Partington of rendering ineffec- tive assistance of counsel. Partington I, 880 F.2d at 123; 28a-29a. The appellate record was void as to the reasons for Partington’s trial tactics except for (1) Clarke’s letter requesting a hearing (R 44-45) and (2) Partington’s state- ment to the trial judge that it would be incompetent to cross-examine the child’s mother without first obtaining the requisite discovery (R 105). However, at oral argu- ment on the appeal, one of the justices of the Supreme Court of Hawaii accused Partington of having deliber- ately rendered ineffective assistance of counsel to Clarke at trial — an allegation that both Partington and the pros- ecutor denied during the argument (880 F.2d at 118; 14a). Notwithstanding that Partington’s trial tactics are all legitimate trial tactics in an appropriate case (110a-126a), the Supreme Court of Hawaii, on December 27, 1985, in an unpublished opinion and without addressing any of the fifteen issues raised by Clarke, reversed Clarke’s mur- der conviction holding sua sponte that any one of the following actions by Partington in Clarke’s trial, standing alone, constituted ineffective assistance of counsel: (1) the tata aia eid 7 refusal to make an opening statement, (2) the refusal to cross-examine the child’s mother the day she testified, (3) the refusal to call the child’s mother as a defense witness; (4) the eliciting from two Prosecution witnesses that they believed Clarke was guilty, and (5) the refusal to make a Closing argument (3a-5a). Clarke was subsequently retried and reconvicted of murder, and his conviction affirmed (in Haw. S. Ct. No. 11633), new counsel having been appointed for Clarke as Partington was at Tulane University obtaining a graduate law degree (R 337-38). The reversal of Clarke’s conviction automatically triggered a special disciplinary Proceeding against Part- ington (5a), pursuant to Hawaii Supreme Court Rule (HSCR) 13 (for text, 236a-238a). HSCR 13 Provides for “proceedings following final adjudication of ineffective assistance of counsel in criminal cases.” HSCR 13 pro- ceedings are conducted before a special master within and as a part of the criminal appeal in the Supreme Court of Hawaii under the appeal case number (here Haw. S. Ct. No. 10041). Clarke then invoked the attorney-client privi- lege to silence Partington (R 788-89; 880 F.2d at 123-24; 28a-31a). Partington refused to cooperate in the proceed- ing, claiming that the ineffectiveness adjudication and HSCR 13 proceeding violated his federal constitutional rights under the free speech, right to counsel, due pro- cess, and equal protection clauses (HSCR 13 7/9/90 Motions and Transcript (hereinafter “7/9/90 Tr”) at 10:22-35:6). Partington’s motion during the HSCR 13 proceeding for interlocutory review of his constitutional claims by the Supreme Court of Hawaii was denied (R 378-79). Clarke’s objection to the HSCR 13 proceeding against Partington was referred by the Supreme Court of Hawaii to the HSCR 13 special master (R 1228-29), who rejected it on the ground that Clarke lacked standing to object or participate (7/9/90 Tr 41:6-42:2). Neither Clarke nor Part- ington testified at the hearing, and the record therein was identical to that which was before the Supreme Court of Hawaii at the time of the 1985 ineffectiveness adjudica- tion against Partington. The hearing was purportedly de novo on the ineffectiveness issue, and at its conclusion the special master held that the Sixth Amendment strong presumption of effectiveness does not apply to attorney disciplinary proceedings and that Partington’s refusal to cooperate mandated a presumption of ineffectiveness resulting in a finding against Partington (see “Decision & Order” of Special Master, 7/31/90, not paginated in Record). Partington filed extensive exceptions raising, inter alia, the constitutional issues raised here (R 1369-1497). On review in September 1990, the Supreme Court of Hawaii refused to address the federal constitutional issues raised by Partington, but nonetheless ruled in Part- ington’s favor and dismissed the HSCR 13 proceeding after rejecting the master’s findings in their entirety (6a-8a). As clarified in October 1990 (upon the special prosecutor’s motion for reconsideration), the court again held that HSCR 13 proceedings are not de novo on the ineffectiveness issue as that issue was finally adjudicated in the reversal of the criminal conviction (9a-1la). Part- ington’s prior collateral attack in the federal courts, pur- suant to 42 U.S.C. § 1983 on the ineffectiveness adjudication and on the HSCR 13 proceeding had been Se | defeated by Younger abstention and immunity based in Part on misrepresentations from the HSCR 13 special master and justices of the Supreme Court of Hawaii to the federal courts that HSCR 13 Proceedings are de novo on the ineffectiveness issue. Partington I, 880 F.2d 116; 12a-94a. In July 1991, pursuant to HSCR 2 (which regulates Ordinary attorney disciplinary Proceedings) (for text, see 201a-235a), ODC initiated an attorney disciplinary pro- ceeding against Partington based on the 1985 ineffective- ness adjudication and identical in scope and subject matter to the HSCR 13 disciplinary proceeding. The 1985 ineffectiveness adjudication and the HSCR 13 special master’s finding against Partington (based upon a pre- sumption of ineffectiveness) are expressly pleaded in the petition initiating this second disciplinary Proceeding and are the sole bases for the Proceeding (158a-169a). Unlike HSCR 13 proceedings, HSCR 2 Proceedings are not original proceedings in the Supreme Court of Hawaii (208a-212a). In HSCR 2 Proceedings, the trial level (i.e., the hearing committee) and the first level of appeal (i.e., the Disciplinary Board) have no jurisdiction to decide constitutional issues: only the Supreme Court of Hawaii as the second and final review level has such jurisdiction (144a). On June 19, 1992, Partington moved the Supreme Court of Hawaii in State v. Clarke, Haw. S. Ct. Nos. 10041 and 11633, to vacate the 1985 ineffectiveness finding against Partington (and delete the reference to it in the court’s opinion in the second appeal) and to enjoin respondents Kibe and Norris from maintaining the HSCR 10 2 proceeding against Partington based solely on the inef- fectiveness adjudication or the HSCR 13 special master’s finding (95a-200a). Clarke —- who is not a party to, and has no right to relief in, the HSCR 2 proceeding - joined in Partington’s motion (R 1718-21). As to both Clarke and Partington, the Supreme Court of Hawaii is the state court of first and last instance in this matter. Partington’s motion in the Supreme Court of Hawaii raised the federal constitutional questions that are again raised here (110a-152a). First, Partington showed that, as a matter of law, each of the five tactics in question is well established as legitimate trial tactics and that, as to some of them, it is defense counsel alone who decides whether to employ the tactics (110a-126a). Next, Partington pointed out that the sua sponte adjudication of ineffective- ness by the state supreme court denied him due process, both as to the adjudication itself and as to any subsequent disciplinary proceeding predicated on that adjudication (126a-132a). Partington cited extensive federal and state authority stating that ineffective assistance of counsel may not be raised for the first time on appeal because the record is invariably inadequate to decide such an issue not raised below (132a-134a). Partington then argued that the second, duplicative attorney disciplinary proceeding against him not only violated the Sixth Amendment strong presumption of effectiveness and right of indepen- dence of counsel (134a-139a), but also was the kind of intrusive post-trial inquiry prohibited by the Sixth Amendment (139a-143a). Finally, Partington argued that respondents Kibe and Norris were attempting to usurp Clarke’s Sixth Amendment right to the effective assis- tance of counsel (150a-152a). | 11 On July 9, 1992, the Supreme Court of Hawaii denied all relief without explanation and firmly stated that fur- ther filings in State v. Clarke, Haw. S. Ct. Nos. 10041 and 11633, would not be permitted (la-2a). The HSCR 2 pro- ceeding against Partington is presently pending with the hearing set for February 1993. ¢ REASONS FOR GRANTING THE WRIT I. Certiorari should be granted to decide whether the Sixth Amendment Strong presumption of effective- ness and right of independence of counsel and/or the Fourteenth Amendment right to due process of law protect the criminal defense attorney from a court’s sua sponte adjudication of ineffective assis- tance of counsel without notice or hearing where, as a matter of law, the appellate record in the criminal case does not establish ineffectiveness. This case presents the important question of whether a state supreme court violates the Sixth Amendment strong presumption of effectiveness and right of indepen- dence of counsel and/or the Fourteenth Amendment right to due process of law by sua sponte adjudicating, without notice or hearing, that a criminal defense attor- ney rendered ineffective assistance of counsel when, as a matter of law, the appellate record in the criminal case does not establish ineffectiveness. In Strickland v. Wash- ington, 466 U.S. 668 (1984), this Court recognized that from the Sixth Amendment right-to-counsel clause arise a “constitutionally protected independence of counsel” and “a strong presumption” that defense counsel effectively represented an accused in a criminal case. 466 U.S. at 12 688-89. However, this Court did not address, and has never addressed, to whom these Sixth Amendment rights belong, who may assert them, and to what extent they protect a criminal defense attorney from harassment and damage or destruction to counsel’s livelihood. In Strickland (as in the typical case of an ineffective assistance claim), the government asserted, to the detri- ment of the accused, both the presumption of effective- ness and the right of independence of counsel. Consequently, these rights in Strickland were not the rights of the accused (and certainly the government has no Sixth Amendment rights), which leads to the conclu- sion that the rights in question belong to Strickland’s counsel, who was not a party to the case and thus was unable to assert his own rights. Certainly, if the govern- ment may assert the rights of defense counsel, then defense counsel may assert his own rights when he is a varty to the proceeding. Moreover, as the Sixth Amend- ment expressly vests rights in an accused, it is clear that an accused may, in an appropriate case, assert these rights as well. The remaining question is the scope of protection these rights provide in a criminal appeal such as State v. Clarke where (1) a claim of ineffective assistance of coun- sel is made by someone other than the accused, (2) the accused has never made a voluntary, knowing, and intel- ligent waiver of the attorney-client privilege, (3) the appellate record is void as to the reasons for defense counsel’s trial tactics and (4) none of defense counsel's acts and omissions constitutes ineffectiveness per se. This question is critical in the context of the instant case where the rights of the accused are purportedly vindicated by 13 the reversal of his conviction, but the criminal defense attorney is the one who suffers the devastating conse- quences of the reviewing court’s decision when the deci- sion is made without notice or hearing to counsel and without the slightest knowledge of whether it is justified on the facts of the case. The defense in a criminal case is under no obligation to assist the prosecution in having its evidence admitted or to undo the effect of an earlier erroneous ruling to which a proper objection has been interposed. United States v. Miller, 884 F.2d 1149, 1151 (9th Cir. 1989); United States v. Hashimoto, 878 F.2d 1126, 1134-35 (9th Cir. 1989); United States v. Heinel, 9 U.S.C.M.A. 259, 262, 26 C.M.R. 39, 42 (1958). Yet, Partington was adjudicated ineffective for not assisting the Prosecution even though such assis- tance would have violated his duty to Clarke. In reality, competent defense attorneys try to get reversible error into the record in criminal cases, and there is nothing improper with such efforts as long as they are not cor- rupt. Ratnor v. Young, 465 F. Supp. 386, 395 (D.V.I. 1979). The effect of the 1985 sua sponte final adjudication of ineffectiveness against Partington is to abrogate these rules and put criminal defense counsel in Hawaii on notice that their trial tactics will be second guessed to ensure that they do not legitimately take advantage of Prosecutorial misconduct and judicial Overreaching to benefit their clients. No longer may the defense choose its strategy and tactics in a criminal case confined only by the law and the Hawaii Code of Professional Respon- sibility, but such decisions must also be “politically cor- rect” so as not to offend the Supreme Court of Hawaii's idea of how a criminal case should be defended. 14 The question of whether the defense attorney’s Four- teenth Amendment right to due process of law is violated by the sua sponte adjudication of ineffectiveness arises because HSCR 13 (see 236a, first paragraph) mandates a special proceeding against the attorney. The Supreme Court of Hawaii has held that the ineffectiveness adjudi- cation is res judicata and may not subsequently be reliti- gated (6a-1la). In Withrow v. Larkin, 421 U.S. 35, 57-58 (1975), this Court discussed just such a fact situation and said that “a substantial due process question would be raised” if an adversarial proceeding were conducted where the ultimate issue was res judicata by virtue of prior “nonadversarial processes.” This due process issue has two aspects. The first relates to whether the nonad- versarial process violates due process because the deci- sion (such as the sua sponte ineffectiveness adjudication here) is thereafter res judicata. The second relates to whether the adversarial proceeding (such as either of the attorney disciplinary proceedings here) violates due pro- cess because the critical issue was finally adjudicated in the prior nonadversarial process and, being final, may not be relitigated. (The second aspect will be discussed under the second point.) In Caplin & Drysdale, Chartered v. Monsante, 491 U.S. 617, 647 (1989), Justice Blackmun, dissenting, recognized that there is a place in the criminal justice system for the defense attorney who is a maverick and risk-taker and for defenses that might displease some judges. The courts have a duty to protect such attorneys from actions which improperly “chill an attorney’s enthusiasm or creativity rl ee 15 in pursuing factual and legal theories.”2 In re Yagman, 796 F.2d 1165, 1182 (9th Cir. 1989). What the Supreme Court of Hawaii did to Partington is to claim the power to drive the maverick attorney, be he completely ethical, from criminal practice and force a Strait-jacket of conformity inhibiting the criminal defense bar. This is nothing less than the power to abrogate the Sixth Amendment right to counsel. II. Certiorari should be granted to decide whether the Sixth Amendment strong presumption of effective- ness and right of independence of counsel and/or the Fourteenth Amendment right to due process of law is violated by subjecting a criminal defense attorney to duplicative, successive disciplinary pro- ceedings expressly premised solely upon the previ- ously discussed ineffectiveness adjudication. The second important issue presented here is whether the Sixth Amendment strong presumption of effectiveness and right of independence of counsel and / or the Fourteenth Amendment right to due process of law 2 At the motions hearing in the HSCR 13 proceeding (see 7/9/90 Tr), four prominent criminal defense attorneys (includ- ing the Federal Public Defender) testified to the chilling effect the actions of the Supreme Court of Hawaii against Partington had had on the criminal defense bar, as well as to the fact that the record did not establish that Partington had rendered inef- fective assistance of counsel because it was unclear why Part- ington did what he did (the record being void as to the reasons) and bona fide reasons for Partington’s tactics may well have existed. The testimony of those four attorneys has never been contradicted. The extensive record of the HSCR 13 proceeding is part of State v. Clarke, Haw. S. Ct. No. 10041. 16 is offended where a criminal defense attorney is subjected to duplicative, successive attorney disciplinary proceed- ings expressly promised solely upon the previously dis- cussed ineffectiveness adjudication. In Strickland, this Court condemned intrusive post-trial inquiries into defense counsel’s conduct: The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be fol- lowed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adverse- ly affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the inde ‘endence of defense counsel, discourage the accepta .2 of assigned cases, and undermine the trust betu en attorney and cli- ent. 466 U.S. at 690 [emphasis added]. In Strickland, it was the intrusive nature of the post-trial inquiry that offends the Sixth Amendment. The fact that the inquiry affords the defense attorney an opportunity to defend himself is irrelevant to that issue because the focus is on the nature of the inquiry and not on the due process rights of the defense attorney. However, where the defense attorney is subjected to an intrusive post-trial inquiry without an opportunity to defend himself, then issues under both the Sixth and Fourteenth Amendments are raised. This is the exact situation here: Partington was sua sponte and wrongfully adjudicated ineffective and was sent through one attorney disciplinary proceeding without any right to iene ieatiaiaiaeaeil 17 contest the adjudication, and he is now being subjected to a second disciplinary proceeding in which that adjudica- tion is the predicate for the proceeding, the scope of which is identical to the first proceeding. While evading Partington’s repeated constitutional objections by refusing to rule on them, the Supreme Court of Hawaii had no difficulty in subjecting him to two intrusive post-trial inquiries (the two disciplinary proceedings) for his constitutionally protected conduct. However, for other criminal defense attorneys in Hawaii who have not displeased the Supreme Court of Hawaii, such proceedings would be “unfair” because the attorney must be given an opportunity “to explain his side of the story” in a nondisciplinary hearing in the trial court prior to any ineffectiveness adjudication. Matsuo v. State, 70 Haw. 573, 578, 778 P.2d 332, 335 (1989).3 Further, the Supreme Court of Hawaii has never explained how it or its agents acquired standing to assert Clarke’s Sixth Amendment right to the effective assistance of counsel, a right Clarke has never asserted against Partington and now expressly refuses to assert. Partington was not only finally adjudicated to have rendered ineffective assistance of counsel without notice or hearing and without any basis in the record for such an adjudication, but his ethical duty to his client, Clarke, prevented him from seeking to have the adjudication * The Supreme Court of Hawaii also amended its rules relating to post-conviction relief proceedings in 1989 to man- date that defense counsel be given an opportunity to be heard prior to an ineffectiveness adjudication in such a proceeding. Rule 40(f), Haw. R. Pen. P. 18 overturned and Clarke’s conviction reinstated in 1985. When that adjudication triggered the HSCR 13 proceed- ing, Partington was denied collateral relief in the federal courts by the state officials’ misrepresentation that the HSCR 13 proceeding would be conducted de novo on the ineffectiveness issue. When the HSCR 13 proceeding was finally reviewed in 1990, the Supreme Court of Hawaii held tnat the proceeding was not de novo on the ineffec- tiveness issue, but it terminated the proceeding in Part- ington’s favor by rejecting the special master’s finding and dismissing the proceeding. As the prevailing party, Partington had no avenue of direct review of the ineffec- tiveness adjudication or for having been subjected to a patently unconstitutional disciplinary proceeding. When Ciarke challenged the HSCR 13 proceeding, the Supreme Court of Hawaii sent him to the special master who ruled that Clarke had no standing to partici- pate or object. Partington’s motion for interlocutory review of the constitutional issues raised by the ineffec- tiveness adjudication and the HSCR 13 proceeding was denied. Within months after the termination of the HSCR 13 proceeding, the Office of Disciplinary Counsel brought a second disciplinary proceeding against Partington for which the Supreme Court of Hawaii denies all interlocu- tory review, even on the fundamental issue of whether a criminal defense attorney may be subjected to a disciplin- ary proceeding on these facts. The Supreme Court of Hawaii has repeatedly refused to address the constitu- tional issues raised by Partington. Clearly, the court will never address these issues for the court would then be forced to acknowledge that it had no basis for its sua sponte ineffectiveness adjudication against Partington. 19 The 1985 ineffectiveness adjudication is, therefore, beyond review outside this Court. This Court should define the relationship between the Sixth Amendment right to counsel clause and the Fourteenth Amendment due Process clause to provide appropriate protection to criminal defense attorneys whose only “vice” is to go the extra yard for their clients. Further, there is no state interest whatsoever in the rever- sal of criminal convictions because of nonexistent ineffec- tive assistance of counsel. The chilling effect on the criminal defense bar, coupled with the denial of due Process to Partington and the absence of any other forum for review, calls for this Court to address these issues. ¢ 20 CONCLUSION For the foregoing reasons, this petition for a writ of certiorari to the Supreme Court of Hawaii should be granted. Respectfully submitted, EARLE A. PARTINGTON (Counsel of Record) PARTINGTON & FOLEY 2450 Pacific Tower 1001 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 526-9500 Petitioner Pro Se Pau T. MURAKAMI Pacific Park Plaza, Suite 1475 711 Kapiolani Boulevard Honolulu, Hawaii 96813 Telephone: (808) 523-7006 Counsel for Petitioner Clarke DATED: September 30, 1992 : Sensibilities no doubt are changing on the question of judicial bias. In 1765 Blackstone could write: “ .. . the law will not suppose a possibility of bias or favor ina judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea,” 3 W. Blackstone, Commentaries on the Laws of England *361. While recusal on the basis of challenge by a litigant has existed in Roman law, canon law, and early English law, it had disappeared by Blackstone’s time, id., and was permitted in federal law only in 1911. Since that turning point there have been other Signs that judicial disqualification may be looked at more sharply. For example, Judge Aldrich’s decision in Perfect Parts was criticized by a student writer. Note, “Disqualification of Judges for Bias in the Federal Courts,” 79 Harv.L. Rev. 1435, 1451 (1966). In 1974 Congress enacted the statute requiring judges to disqualify themselves if a reasonable person could doubt their impartiality. 28 U.S.C. § 455(a). The practice of the Supreme Court in its first century in relation to circuit decisicns now looks Strange to us. It 56a may be that the time will come when the participation of panel judges in en banc circuit hearings will appear an impermissible breach of impartiality. It may happen even that prior ruling on a matter will disqualify a judge from sitting on another case involving the same issue. But it is still generally recognized that it is difficult to lay down an absolute rule disqualifying a judge because he has ruled against a litigant in an earlier context. Note, supra at 1452. What due process requires is being worked out case by case. Given the history and the current state of law, the federal courts should give the Hawaii Supreme Court a chance to decide what due process requires. In making that decision, a Justice of the Hawaii Supreme Court will be asking, “Have | so made up my mind by my earlier ruling in the criminal case that I cannot give a fair hearing to Partington’s explanation of why he thought his strategy was appropriate?” and “Will public confidence in the courts be diminished if |, a justice who’s already found Partington to have given ineffective assistance, now sit on a case where he is defending himseif against this charge?” A federal court is not in a position to anticipate how a justice of the Hawaii Supreme Court will answer those questions. The dissent places weight on a statement in Withrow, upholding a procedure in which a later acquittal by the administrative body concerned would not be “légically inconsistent” with a prior finding of probable cause. Withrow v. Larkin, 421 U.S. 35, 57, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975). There would, however, be no logical inconsistency between the Supreme Court reversing the murder conviction in Clarke because of ineffective assis- tance of counsel and then finding that in the disciplinary 57a proceeding against Partington he had explained his strat- egy so that the court was now Satisfied that he had not breached his responsibilities as a lawyer. The question of sixth amendment deprivation, decided in Clarke, is log- ically distinct from the disciplinary standards which Part- ington must meet to Satisfy the Bar. The dissent also places emphasis on the “practical” probability of Prejudice. But the dissent admits that a judge may charge an attorney with violating Fed.R.Civ.P. 11, order him to show Cause, conduct a subsequent hear- ing, and find against him. The dissent also admits that a court may cite an attorney for contempt of court, order him to show cause, and then preside over the contempt trial and find against him. As a practical matter, the probability of a judge in these circumstances having in mind a vivid impression of the Professional breach of the lawyer, and being influenced by this impression, is much greater than the Probability of an appeals court, months Or years after the initial decision that occasioned the reference of the lawyer to disciplinary Proceedings, being still prejudiced against the lawyer. The dissent is on treacherous grounds when it argues that practical preju- dice is more likely in Partington’s case that in the cases it accepts as routine judicial practice. Judges have not been Particularly good at recogniz- ing their own biases. The major federal reforms have been made by the legislature - the elimination of Supreme Court Justices reviewing their own decisions in 1891; the introduction of recusal motions by litigants in 1911; the reasonable person test of objectivity in 1974. 58a This history suggests the need for heightened self-scru- tiny. The impartiality that “the common lot of humanity will admit” is now closer to the ideal. REINHARDT, Circuit Judge, concurring and dissent- ing. I concur only in the order set forth at the end of part V of the majority opinion which awards certain costs and attorneys’ fees to Partington and the Defense Lawyers. | dissent from the rest of Part V and all of Parts I through IV. I do not believe that this is one of those exceptional cases in which Younger abstention is required. See World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir.1987). Rather, I believe we should now decide that by virtue of its prior decision in State v. Clarke, the Hawaii Supreme Court is biased against Part- ington on the issue whether he rendered ineffective assis- tance of counsel and that its holding of a disciplinary hearing would violate his due process rights. After apply- ing the three-part test from Middlesex County Ethics Comm. v. Garden State Bar Ass‘n., 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982), the majority concludes that Younger abstention is applicable. The majority would per- mit the Hawaii Supreme Court to resolve the question of its own bias. It reaches this conclusion solely on the basis of its reading of the third part of the Middlesex test. As the majority describes that part of the test, the plaintiff must be able “to litigate his federal constitutional claims . . . before a competent and unbiased state adjudicator.” Majority op. at 125. Because the majority concludes that 59a the Hawaii Supreme Court may not be biased on the “constitutional question”, it opts for abstention. The majority misconceives the third part of the Mid- dlesex test. Bias plays no role in the application of the three-part test. Rather, bias is an entirely separate matter. Where bias exists, Younger abstention is inapplicable, regardless of whether the three-part test is met. Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4, 95 S.Ct. 1524, 1530-31 & n. 4, 44 L.Ed.2d 15 (1975). The bias need not be on any particular claim. All that is necessary to bar abstention is that the Hawaii Supreme Court be biased on the disci- plinary proceedings. Here, under Hawaii Supreme Court Rule 13, the supreme court would have to determine whether Partington rendered ineffective assistance of counsel to Clifford Clarke. However, that court has already decided in State v. Clarke that Partington’s assis- tance was ineffective and that a murder conviction against Clarke must be reversed for that reason.1 Thus, Part- ington would be subjected to judgment by a tribunal which has already reached a judgment on the merits of his case.? Because of its prior actions, the Hawaii Supreme Court is, as a matter of law, a biased forum with respect * At the oral argument in State v. Clarke, one of the justices of the Hawaii Supreme Court accused Partington of miscon- duct, contending that he had been deliberately ineffective at trial. As discussed in the text, the Hawaii Supreme Court ultimately reversed Clarke’s conviction on the grounds that he received ineffective assistance from Partington. ? Subjecting Partington to disciplinary proceedings before a biased tribunal would violate his due process rights. See, e.g., Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). 60a to the Partington proceedings and the federal courts need not abstain. The majority offers recusal of all of the justices of the Hawaii Supreme Court as a solution to the prejudgment problem. However, the structure of Rule 13 makes it clear that recusal of the entire court is not an availablle option in this case. Rule 13 was specifically designed to ensure that the justices of the supreme court would nnake the final determination of ineffective assistance, not a differ- ent group of judges. Recusal of the entire court in cases like Partington’s would run directly contrary to the lan- guage and intent of the rule. My conclusion that the Hawaii Supreme Court is biased against Partington is not meant to disparage the members of the court. They are undoubtly able individ- uals and are entitled to a presumption of honesty and integrity. They have no adverse pecuniary interest. Nev- ertheless, other “[c]ircumstances and relationships must be considered.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Bias exists where a court has prejudged, or reasonably appears to have prejudged, an issue. The disciplinary proceedings must “satisfy the appearance of justice.” In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). In State v. Clarke, the justices concluded that the legal assistance Partington provided Clarke was ineffective, the very determination they would be called upon to make again in the Rule 13 proceedings. For this reason, a “realistic appraisal of psy- chological tendencies and human weakness” compels the conclusion that the Rule 13 proceedings involve an intol- erably high risk of bias or prejudgment by the Hawaii 6la Supreme Court. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Under these circum- stances, abstract principles of comity, Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as important as they are, do not bar a federal court from exercising its jurisdiction. In my view, we would not only be performing our duty as a federal court properly, but would be saving the Hawaii Supreme Court the expenditure of much unneces- sary time and effort were we to declare Rule 13 uncon- Stitutional now. I see little choice for the Hawaii court when Partington’s case reaches the justices. If they fail to invalidate the rule, certainly the federal courts will ulti- mately be required to do so. I RULE 13 Hawaii Supreme Court Rule 13 provides a procedure for determining whether a defense attorney should be disciplined for providing ineffective assistance of coun- sel. Under the rule, whenever a criminal conviction has been overturned on that ground by either the supreme court or the intermediate appellate court3, the supreme court appoints a special master to decide whether action against the attorney is warranted. The special master, in turn, appoints a special prosecutor. At the conclusion of the proceedings, the special master dismisses the pro- ceedings or recommends to the supreme court that cor- rective action be taken against the attorney. Beth the 3 See note 28, infra. 62a attorney and the special prosecutor may file exceptions to the special master’s decision with the court. The supreme court reviews the special master’s decision; the Court then makes an independent determination* whether the attorney provided ineffective assistance to the defendant and on that basis decides whether to dismiss the proceed- ings or order corrective action against the attorney. I] PREJUDGMENT Clearly, the critical feature of the Rule 13 proceedings is the determination of the Hawaii Supreme Court is required to make with respect to counsel’s ineffective- ness. It must make this critical determination regardless of whether it or the intermediate appellate court made the earlier determination that counsel’s representation was ineffective, and reversed the criminal conviction on that ground. Here, we are presented with an extreme form of the Rule 13 process: the supreme court, sua sponte, raised and determined the ineffectiveness issue during the criminal proceeding; it would now be required to resolve the identical issue a second time in the disci- plinary proceeding. The majority first asserts that Younger abstention is appropriate here because “[t]he Hawaii Supreme Court has never had the opportunity to hear Partington’s argu- ment that due process requires that he not be judged by the court after it has ruled on his performance in the 4 See note 12, infra. eee) en ae ao-naee tram Ol 63a criminal case. . .. We cannot and should not guess how the court will respond.” Majority op. at 126. Thus, the majority apparently takes the Position that Partington must demonstrate not only that the Hawaii Supreme Court has prejudged the merits of the disciplinary pro- ceeding but also that the court has prejudged the issue of whether it has prejudged the merits of that proceeding. The majority’s argument misconceives the basic rule governing abstention and biased state tribunals. The fun- damental principle is that compelling an individual to present his case to a biased tribunal offends due process and federal courts will enjoin such an unconstitutional proceeding. Gibson v. Berryhill, 411 U.S. 564, 570, 577, 93 S.Ct. 1689, 1693, 1697, 36 L.Ed.2d 488 (1973). When a federal claimant alleges that a state adjudicator is biased, it is the federal court which determines whether that allegation is correct. See Gibson, 411 US. at 578-79, 93 S.Ct. at 1697-98; see also Kugler v. Helfant, 421 U.S. 117, 125, 127-28, 95 S.Ct. 1524, 1531, 1532, 44 L.Ed.2d 15 (1975). The question is not referred to the state court. If the federal court concludes that bias exists, the finding of a due process violation follows automatically. Gibson, 411 U.S. at 577, 93 S.Ct. at 1697.5 No more is required. The federal court does not abstain.® In short, abstention > Cf. Kugler, 421 US. at 128, 95 S.Ct. at 1532 (framing the abstention issue as whether the “judicial system provides pro- cedural safeguards to guarantee that [the federal court plain- tiff] will not be denied due process of law in the state trial or appellate process”) (emphasis added). ° An exception exists where the state provides an alternate procedure which ensures a fair tribunal in place of the biased (Continued on following page) 64a doctrine does not require a person to ask a tribunal that is biased on the merits of his case whether it is in fact biased. Nor must that person ask the biased tribunal whether the fact that it is biased would violate the due process clause. Clearly, it would — as a matter of federal constitutional law, and a federal injunction, not absten- tion, is the appropriate remedy. Indeed, the parallel between Partington’s situation and the one considered by the Supreme Court in Gibson is striking. Gibson, like the present case, was a disciplinary proceeding (license revocation) before a body that was allegedly biased on the revocation issue. Thus, the licensee faced a potential due process violation. Notably, in Gibson, the Court did not inquire into whether the state licensing agency was biased on the question of the val- idity of the challenged statutory procedure. Rather, it considered only the question whether the agency was biased as to “the revocation of appellees’ licenses.” 411 U.S. at 578, 93 S.Ct. at 1697. Moreover,-it held irrelevant the fact that the state courts would review the revocation proceeding de novo. Id. at 577, 93 S.Ct. at 1697. Finally, the fact that petitioners had not sought to invalidate the unconstitutional state procedure in the available and unbiased state court forum did not deter the Court from affirming the district court’s action enjoining the state proceeding. Procedurally, our case and Gibson are identi- cal. In my opinion, Gibson is controlling here. If the WS” SANE te) Bike Sm + (Continued from previous page) 4 a _ tribunal, e.g., by way of recusal. See Kugler v. Helfant, 421 U.S. 117, 127-128, 95 S.Ct. 1524, 1532, 44 L.Ed.2d 15 (1975). The applicability of the recusal exception is discussed in Section III, infra. 65a Hawaii Supreme Court is biased as to Partington’s disci- plinary issues, the result here Should be the same as in Gibson; we should not abstain. The majority attempts to distinguish Gibson on the basis that “a tribunal comprised of optometrists does not have the ability to entertain constitutional claims.” Major- ity op. at 127 n. 4. This is not a material distinction. In deciding that Younger abstention was inappropriate, the Supreme Court did not even mention the fact that “a - tribunal composed of optometrists” cannot hear constitu- tional claims, let alone rely on that fact (if indeed it is a fact).” Rather, the Court found Younger abstention unwar- ranted simply because the state tribunal (composed of optometrists or not) was biased on the revocation issue. No more was required to be shown in Gibson; no more should be required here. This point can not be overemphasized. If, as appears clear, the Hawaii Supreme Court is biased as to the merits of Partington’s disciplinary Proceeding, that tribunal is not competent to hear that proceeding - regardless of whether non-merit issues may be raised ” I must confess that I do not know whether the majority’s description of the powers possessed, in 1973, by the Board of Optometry under Alabama law is correct. In California until a few years ago, administrative agencies, including licensing boards, did have the power (and the duty, I believe) to make rulings on constitutional issues. This was so regardless of whether the board was an industry board or an industry-labor board, composed exclusively of laymen, or some other type of board. The Attorney-General’s office provided advice to all these boards on constitutional questions and the boards then made their rulings. Long after 1973, the voters of California adopted an initiative measure removing from all administra- tive boards, including those composed of lawyers, the power to declare statutes unconstitutional. 66a during that proceeding, or whether the court is or is not biased as to any of those non-merit issues. Conversely, the majority asserts that Younger absten- tion is required here because the Hawaii Supreme Court “has the ability to entertain and resolve constitutional claims.” Majority op. at 127 n. 4. In essence, the majority appears to be contending that it is proper to force an individual to appear before a biased tribunal in a disci- plinary proceeding, so long as that tribunal could con- ceivably avoid reaching the merits of the proceeding. My reading of Gibson leads me to the contrary conclusion. An individual can not be summoned before a biased tribunal when the primary issue before the tribunal is the very issue on which it is biased. It is fundamental that compel- ling an individual to present his case to a biased tribunal offends due process. Gibson, 411 U.S. at 570, 577, 93 S.Ct. at 1693, 1697. An individual required to appear before a state tribunal that is biased on the merits of the proceed- ing may resort directly to federal court, whether or not the state tribunal has the authority to dismiss the pro- ceedings for-bias, lack of jurisdiction, or on any other grounds.® As Gibson illustrates, the fact that there are state remedies for resolving or determining the fairness of the procedure is irrelevant, regardless of when or in what state forum that determination could be made. 8 Where state law provides that a biased judge must recuse himself, the state law does not, of course, require the individual to appear before a biased tribunal (except, possibly, in some instances for the limited purpose of filing the disqual- ification motion). The question of recusal is discussed in Sec- tion III, infra. 67a In Gibson, the Supreme Court stated explicitly that Younger abstention is not required “simply because [state] judicial review, de novo or otherwise, would be forthcom- ing at the conclusion of the administrative proceedings.” 411 US. at 577, 93 S.Ct. at 1697 (footnote omitted). More- over, it is clear that the federal court plaintiff in Gibson had a completely unbiased state court system in which to seek injunctive relief prior to the administrative proceed- ings and thus had perfectly adequate state court remedies for his due process claims. For example, he could have asked a state trial or appellate court, rather than a federal district court, to enjoin those proceedings. An unbiased state court is, as the majority points out, generally pre- sumed to be as capable as a federal court of protecting federal constitutional rights. Nevertheless, the Supreme Court in Gibson did not require the plaintiff, to first seek relief in state court. Rather, he was permitted to go directly to federal court to obtain the appropriate remedy ~ a federal court injunction against the proceedings in the biased state forum. The only difference between the facts and circum- stances of Gibson and those in this case (other than the distinction previously discussed) is that in Gibson, the State provided both an entirely unbiased state court review of the unconstitutional proceedings and an unbi- ased state court system in which to seek an injunction against the unconstitutional proceedings, while here, there is neither an entirely unbiased state forum in which Partington could seek injunctive relief before the uncon- stitutional proceedings are held mor one in which he 68a could do so afterwards.’ In Partington’s case, the Hawaii Supreme Court is not only the biased forum, but also the first and last judicial body from which Partington may seek relief. Thus, the state court remedies in Gibson were, if anything, far more hospitable to the plaintiff than those offered to Partington here. As Younger abstention was improper in Gibson, it is a fortiori improper here, if as | conclude, the Hawaii Supreme Court is biased on the ineffective assistance claim.!° The majority’s confusion regarding abstention and bias appears to be due to its misunderstanding of the third prong of the Middlesex test. The majority consis- tently describes that prong as requiring that Partington have the ability to litigate his constitutional claims before an unbiased state adjudicator. Majority op. at 120-121, 125-126. Actually, the third prong of Middlesex does not mention bias — because under Younger that issue is dealt with separately. The third prong requires only that Part- ington have “an adequate opportunity in the state pro- ceedings to raise constitutional challenges.” 457 U.S. at 432, 102 S.Ct. at 2521. The critical fact that the majority overlooks is that in Younger, the Supreme Court recog- nized that even if the three-part test for abstention (as ® | seriously doubt that, as a legal matter, a lower court, in Hawaii or elsewhere, has the authority to enjoin a proceeding before a higher court. 10 In some instances, a claim of bias would be sufficient to preclude abstention, at least until the federal court has had an opportunity to resolve the factual issues relating to the claim. Here, however, there are no factual issues in dispute with respect to the alleged bias. 69a later described in Middlesex) was met, abstention would be improper if the state action was brought in bad faith or for purpose of harassment or in other extraordinary cir- cumstances. 401 U.S. at 53-54, 91 S.Ct. at 754-55; see also Middlesex, 457 U.S. at 437, 102 S.Ct. at 2524. Bias on the part of the state tribunal is one of those extraordinary circumstances which renders Younger abstention inap- propriate, even if all three prongs of the Middlesex test are met. Kugler v. Helfant, 421 U.S. 117, 124-25 & n. 4,95 S.Ct. 1524, 1531 & n. 4; cf. World Famous Drinking Emporium, 820 F.2d at 1082. Thus, it is simply irrelevant whether Partington will be able to raise his constitutional claims before the Hawaii Supreme Court or whether the Court is biased as to those claims; for if the Court has prejudged the merits of the disciplinary proceeding, it is a biased tribunal and Younger abstention is inapplicable." The majority dismisses the Court’s Statement in Kugler that bias is a separate element by calling it dictum. Majority op. at 22 n. 3. Whatever the merits of that categorization, it seems apparent that the Court was cor- rect when it reached its conclusion. Younger abstention is barred when, inter alia, “extraordinary circumstances” render the proceedings unfair, a concern that is '! It is worth noting that a letter dated April 27, 1987 to Partington from the Chief Justice, a letter the majority appears to accept as the view of the entire court, Majority op. at 126, Suggests that the court has in fact prejudged the due process claim. See ER 444 (Chief Justice finds “mystifying” Partington’s contention that he could not receive an impartial hearing on the ineffectiveness claim). Surprisingly, at a later point in the majority opinion, the letter is summarily dismissed as at most reflecting the opinion of the Chief Justice. Majority op. at 128 n. A 70a independent of whether the federal court ptaintiff will have an adequate opportunity in the state proceedings to raise his federal constitutional claims. Middlesex listed as examples of this rule a proceeding brought in bad faith or for purposes of harassment. 457 U.S. at 435, 102 S.Ct. at 2522. Certainly a proceeding brought before a biased tribunal is even more unfair to a licensee, and even more violative of his due process rights, than a proceeding that is merely initiated for an improper purpose. In the case of bad faith or harassment, the licensee is required to submit to a proceeding unnecessarily, but should prevail on the merits; in the case of bias, the licensee does not have a fair chance to prevail at all, and an adverse result is, for practical purposes, a foregone conclusion. Thus, the Court’s determination in Kugler that bias is an “extraordi- nary circumstance” barring Younger abstention was com- pelled by reason and logic as well as precedent, and the majority clearly errs in rejecting the Court’s analysis. In any event, whether bias is considered separately from the three-prong Middlesex test, or whether we disre- gard the clear language in Kugler and consider bias to be a part of the third prong of that test, the result in this case would be the same. As previously discussed, under Gib- son it is clear that bias on the merits of a disciplinary proceeding is sufficient to preclude Younger abstention. The majority next concludes that the Rule 13 pro- cedure does not present an unacceptable risk of prejudg- ment on the ineffectiveness issue, ilthough it is far from clear why it reaches that conclusion.!? Majority op. at 125. 12 At one point, the majority argues that Partington has not alleged that the Hawaii Supreme Court is biased “on the (Continued on following page) ——— ringing this appeal was unreasonable and vexatious, | ,suld impose sanctions pursuant to 28 U.S.C. § 1927. 95a NOS. 10041 AND 11633 IN THE SUPREME COURT OF THE STATE OF HAWAII STATE OF HAWAII, ) CR. NO. 59285 Plaintiff-Appellee, ) (Filed ) June 19, 1991) VS. ) CLIFFORD M. M. ) CLARKE, SR., Defendant-Appellant. ) ) MOTION TO VACATE JUDGMENT AND MODIFY MEMORANDUM OPINION OF DECEMBER 27, 1985 (IN NO. 10041), AND TO VACATE JUDGMENT AND MODIFY MEMORANDUM OPINION OF OCTOBER J 1987 (IN NO. 11633), AND FOR WRIT OF PROHIBITION DIRECTED TO CHIEF DISCIPLINARY COUNSEL GERALD H. KIBE AND ASSISTANT DISCIPLINARY COUNSEL CHARLENE M. NORRIS MEMORANDUM OF POINTS AND AUTHORITIES AFFIDAVIT OF EARLE A. PARTINGTON AFFIDAVIT OF KAREN A. ESSENE EXHIBITS 1 - 8 and CERTIFICATE OF SERVICE EARLE A. PARTINGTON #1568 Partington & Foley 2450 Pacific Tower 1001 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 526-9500 Pro Se 96a NOS. 10041 AND 11633 IN THE SUPREME COURT OF THE STATE OF HAWAII STATE OF HAWAII, CR. NO. 59285 Plaintiff-Appeliee, VS. ) ) ) ) CLIFFORD M. M. CLARKE, SR., ) ) Defendant-Appellant. MOTION TO VACATE JUDGMENT AND MODIFY MEMORANDUM OPINION OF DECEMBER 27, 1985 (IN NO. 10041), AND TO VACATE JUDGMENT AND MODIFY MEMORANDUM OPINION OF OCTOBER 5, 1987 (IN NO. 11633), AND FOR WRIT OF PROHIBITION DIRECTED TO CHIEF DISCIPLINARY COUNSEL GERALD H. KIBE AND ASSISTANT DISCIPLINARY COUNSEL CHARLENE M. NORRIS COMES NOW Attorney Earle A. Partington and respectfully moves this Honorable Court for an order (1) vacating the Judgment and Notice of Judgment filed Jan- uary 20, 1986, and modifying the Memorandum Opinion of this Court filed on December 27, 1985 (in No. 10041), by withdrawing all of the Opinion after the first para- graph save and except the last sentence which reads “Reversed and remanded.”; (2) vacating the Judgment and Notice of Judgment filed November 16, 1987, and modifying the Memorandum Opinion of this Court filed on October 5, 1987 (in No. 11633), by deleting the follow- ing words in the second sentence of the first paragraph: “because of the ineffective assistance of appellant's trial ’ 97a Disciplinary Counsel Charlene M. Norris Prohibiting them: (a) from using in any manner whatsoever in the pending HSCR 2 Proceeding against Earle A. Partington the sua sponte finding made by this Court in No. 10041 Earle A. Partington the Decision and Order of Special Master filed July 31, 1990, in No. 10041, and (c) from asserting Defendant Clifford M.M. Clarke, Sr.’s constitu- tional rights over his objection. This motion is made Pursuant to Rule 27(a) of the Hawaii Rules of Appellate Procedure and is based on the affidavits of Earle A. Partington and Karen A. Essene, Exhibits 1 through 8, and Memorandum of Points and Authorities attached hereto, and the record and file in these cases. DATED: Honolulu, Hawaii, June 16, 1992. /s/ Earle A. Partington EARLE A. PARTINGTON Pro Se 98a NOS. 10041 AND 11633 IN THE SUPREME COURT OF THE STATE OF HAWAII STATE OF HAWAII, CR. NO. 59285 Plaintiff-Appellee, vs. ) ) ) ) CLIFFORD M. M. ‘ CLARKE, SR., ) ) Defendant-Appellant. MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS TABLE OF AUTHORITIES .................--- iv [101a] I. INTRODUCTION; RELIEF SOUGHT; AND SUTIN can oc nc ccdcauondescces 1 [106a] ee | ey + 1 [106a] Se ee 2 [108a] a ys re 3 [109a] Il. THE SUA SPONTE ADJUDICATION OF INEF- FECTIVENESS MADE AGAINST PART- INGTON IN NO. 10041 WAS UNCONSTITUTIONAL AND WITHOUT BASIS IN LAW OR FACT IN THE RECORD OF WC ee 4 [110a] A. THERE WAS NO BASIS IN LAW OR FACT IN THE RECORD FOR THE ADJUDICA- TION OF INEFFECTIVENESS. .......... 4 [110a] 1. The decision not to make an opening Wi 5 ik cee kore ee ckse ae eee 2. The decision not to cross-examine a prosecution witness when discovery had not yet been made available . .8 [114a] a nneeeeniidsnaneieainnae el 99a 3. The decision not to call the same prosecution witness .............. 11 [118a] 4. The decision to elicit witnesses’ testi- mony that they believed the defen- ee reerrTeeeeere 14 [121a] 5. The decision not to make a closing eee eee eee eee 15 [122a] B. THE INEFFECTIVENESS ADJUDICA- TION AGAINST PARTINGTON WAS UNCONSTITUTIONAL AS A DENIAL OF DUE PROCESS OF LAW.......... 18 [126a] 1. Due process requires a Matsuo hear- ing prior to any adjudication of inef- ard 18 [126a] 2. The ineffectiveness adjudication against Partington is res judicata in the HSCR 2 proceeding in violation of due process of law............ 19 [127a] 3. The ineffectiveness adjudication absent a prior Matsuo hearing causes any subsequent disciplinary proceed- ing to necessarily violate due process a reer e Cay er ee 21 [129a] C. ANY ISSUE OF INEFFECTIVENESS MUST FIRST BE DECIDED BY THE TRIAL COURT AFTER REMAND FOR A MATSUO HEARING BECAUSE THAT ISSUE MAY NOT BE RAISED IN THE FIRST INSTANCE ON APPEAL...... 23 [132a] D. THE INEFFECTIVENESS ADJUDICA- TION MUST BE VACATED .......... 25 [134a] III. PROHIBITION IS THE APPROPRIATE REM- EDY AGAINST KIBE AND NORRIS...... 26 [134a] er yee ee 26 [134a] B. PARTINGTON HAS A CLEAR AND INDISPUTABLE RIGHT TO RELIEF . .27 [135a] C. PARTINGTON LACKS ANY OTHER MEANS TO ADEQUATELY REDRESS THE WRONG OR TO OBTAIN THE REQUESTED RELIEF ................ 31 [139a] 1. The wrong to be remedied here is requiring Partington to defend him- self in an attorney disciplinary pro- ceeding which is itself unconstitutional, a wrong for which prohibition is the only remedy ...31 [139a] 2. Kibe and Norris refuse to recognize the necessary implications flowing from this court’s orders, and only this court is in a position to enforce tS OW OOCOTS 5 .ccccccccecccnccs oe 13a] Ww The absence of interlocutory review during HSCR 2 proceedings means that prohibition is the only available remedy in this case .............. 35 [144a] | D. KIBE AND NORRIS ARE ABUSING THEIR POWER AND ARE USURPING CLARKE’S CONSTITUTIONAL NE Sori os ee ee aD 1. Kibe and Norris have no intention of conducting a de novo hearing on the ineffectiveness issue, as required by due process of law...............36 [145a] 2. Kibe and Norris are usurping Clarke’s constitutional rights to the effective assistance of counsel... .40 [150a] ee ee Sree eee 42 [152a] 10la TABLE OF AUTHORITIES Page CASES Arnold v. Higa, 61 Haw. 203, 600 P.2d 1383 a Darren ar ener or gee CADET in Aa WR Ae ne 26 [135a] Barry v. State, 675 P.2d 1292 (Alaska App. POUND SESORKGD Ae espace Gasd cues cetaxcieaee 24 [133a] Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir. i EEE TE TET REET Tee OTe a ee 30 [139a] Blanco v. Wainwright, 507 So. 2d 1377 (Fla. i eee ee ee eer ee ene ete 25 [133a] Chocallo v. Bureau of Hearings and Appeals, 548 F. Supp. 1349 (E.D. Pa. 1982), aff’d, 716 F.2d 889 (3d Cir.), cert. denied, 464 U.S. 983 (1983)... .41 [151a] Chung v. Ogata, 54 Haw. 146, 504 P.2d 868 SEEM AS OSS ca tiad cee ence Cue eur teen 26 [135a] Commonwealth v. Tarver, 253 Pa. Super. 185, 384 eae BE CUOUTE be og hn sds ccdwecwek ene eas 5 [11la] Commonwealth v. Westcott, 523 A.2d 1140 (Pa. re cougar eee 25 [133a] Craig v. State, 594 S.W.2d 91 (Tex. Crim. App. eae: EEE PTT ee Or ne ea: 9 [116a] Crisp v. State, 271 Ind. 534, 394 N.E.2d 115 OME a nak eck wek Mya e Thea e ae vee 7, 28 [112a, 137a] Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 Sen ibs inns aN eyuon ukinvereuuumele try 25 [133a] Dossey v. State, 489 So. 2d 662 (Ala. Crim. App. a OE a rey ee Fem enre rie Fanta at Ne 24 [133a] Gilliard v. State, 462 So. 2d 710 (Miss. 1985)... .5 {11la] HOH Corp. v. Motor Vehicle Indus. Licensing Bd., 69 Haw. 135, 736 P.2d 1271 PEW oo. ca eae 35 [144a] Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 580 Se I ce ee ee es 26 [134a] 102a Jackson v. State, 52 Md. App. 327, 449 A.2d 438 (OGD) . on vk aso vee we le eee 25 [133a] Kaelemakule v. Kaelemakule, 33 Haw. 725 44) 26 [135a] Lanham v. State, 99 Tex. Crim. 410, 269 S.W. 799 (1925) . ov ni dds cnueuus abeeaeeea eee eee 15 [122a] Lowe v. City of Eugene, 254 Or. 518, 451 P.2d 117, 459 P.2d 222, 463 P.2d 360 (1969), cert. denied, 397 U.S. 1062 (9970). i.s.s050545 eee 22 [(131a] Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989) . on eccdesceess.uee bene ee eee 18 [126a] McCaw v. Moore, 39 Haw. 157 (1951).......... 26 [134a] In re Mecier, 143 Vt. 23, 460 A.2d 472 (1983) ..25 [133a] Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (9902). s6 6... Fives 35 [145a] Morse v. People, 168 Colo. 494, 452 P.2d 3 (rrr ry es ty 24 [133a] Nakagawa v. Heen, 58 Haw. 316, 568 P.2d 508 (1979)... icc cnvadcs sandeep eee 26 [135a] Office of Disciplinary Counsel v. Marsland, No. 15179 (Haw. Mar. 7, 1991) ..:4.:s50033 ee 35 [144a] People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272 (970) 6.2 20000 6, 14 [112a, 121a] People v. Bourdon, 10 Cal. App. 3d 878, 89 Cal. ptr. 415 (1970) . . 665.4icc eee 36 [145a] People v. Diggs, 177 Cal. App. 3d 958, 223 Cal. Rptr. S61 (T9GR) oc css hrccues Ase 16 [123a] People v. Gaines, 58 Cal. 2d 630, 25 Cal. Rptr. 448, 37S P20 TOG (ISG) sos cas ee Ce 16 [123a] People v. Huffman, 71 Cal. App. 3d 63, 139 Cal. Rote. 266 (1977) . ...0..0cncanctaeeee tee 6 [112a] K&S 103a People v. McMullen, 82 Ill. App. 3d 1042, 38 III. Dec. 308, 403 N.E.2d 539 (1980)............. 15 [123a] People v. Pangelina, 153 Cal. App. 3d 1, 199 Cal. eee 5 [112a] People v. Pope, 23 Cal. 3d 412, 152 Cal. Rptr. 732, Se re 24 [133a] In re Poole, 136 Vt. 242, 388 A.2d 422 (1978). ..36 [145a] Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. ee ok ks on von dks kw Seva 27 [136a] Ratner v. Young, 465 F.Supp. 386 (D.V.I. 1979). .13 [120a] Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 I i cava vunevanes 24 [133a] Rudolph v. State, 238 So. 2d 542 (Ala. 1970)... .36 [145a] Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958)......... 36 [145a] State v. Adams, 14 La. Ann. 620 (1859) ........ 15 [122a] State v. Aliberti, 401 N.W.2d 729 (S.D. 1987) ...25 [133a] State v. Antone, 62 Haw. 346, 615 P.2d 101 ee i State v. Chee, 140 Ariz. 171, 680 P.2d 1232 ecu avewawcds 16 [123a] State v. Cuevas, 53 Haw. 110, 488 P.2d 322 EE Ses FE re eae ee en 11 [118a] State v. DeGuzman, 68 Haw. 14, 701 P2d 1287 ccs cee ee cue 14 [121a] State v. Felder, 351 S.E.2d 852 (S.C. 1986)...... 25 [133a] State v. Fontenot, 368 So. 2d 121 (La. 1979)... .25 [133a] State v. Gutierrez, 1 Haw. App. 268, 618 P.2d 315 eee cay ak kids oth bu aw canuuees 6 [112a] State v. Kahalewai, 54 Haw. 28, 501 P.2d 977 Sg OCS IPS Ae ane 9 [115a] State v. Kraft, 96 Idaho 901, 539 P.2d 254 (1979)...5 [111a] ll 104a State v. Murphy, 59 Haw. 1, 575 P.2d 448 NI oo civics cue ketene aa ea ee 14 [122a] State v. Oshiro, 69 Haw. 438, 746 P.2d 568 4s Peep ere tre rer ree eT ers 26 [135a] State v. Painter, 224 Neb. 905, 402 N.W.2d 677 PE is cukaisvksuxn paws niccsweekenaeeeeee 25 [133a] State v. Renshaw, 276 Md. 259, 347 A.2d 219 | ry ee oe ep aatrenss 6, 15 [112a, 123a] State v. Slapnicka, 376 N.W.2d 33 (N.D. 1985). .25 [133a] State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 SOR 5c cae Rasen bo eAe os soos RR 24 [133a] State v. Walker, 80 N.J. 187, 403 A.2d 1 (1979) .25 [133a] State v. Whitsel, 339 N.W.2d 149 (lowa 1983) ..25 [133a] Strickland v. Washington, 466 U.S. 668 (1984). 9, 14, 27-29, 31, 38, 39 [115a, 121a, 136a-138a, 140a, 141a, 147a, 149a] United States ex rel. Crispin v. Mancusi, 448 F.2d 233 (2d Cir.), cert. denied, 404 U.S. 967 (1971)..... 5 [1lla] United States v. Barham, 666 F.2d 521 (11th Cir.), cert. denied, 456 U.S. 947 (1982) ............. 24 [133a] United States v. Calabria, 614 F. Supp. 187 (E.D. Pa. | PPR ae emer ee ee rene me ay neem pia 9 [11l6a] United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)...............39 [149a] United States v. Gauthier, 34 M.J. 595 (A.C.M.R. SONG aa oi ak eek ees nde ee nee eS 42 [15la] United States v. Hashimoto, 878 F.2d 1126 (9th Cir. MU Oa es as Py Sys ek miata aria nears a awe 14 {121a] United States v. Heinel, 9 U.S.C.M.A. 259, 26 C.M.R. | EE ee Peer ry ee erty ee 14 [121a] United States v. Ivey, 546 F.2d 139 (5th Cir. cere yeh cairn wigs eds e ree as 11 [118a] ee 105a United States v. Kazni, 576 F.2d 238 (9th Cir. RPMs ae ca ek nunasy see et ee eee 23 [132a] United States v. Miller, 884 F.2d 1149 (9th Cir. DNS arte ee 14 [121a] United States v. Moore, 180 U.S.App.D.C. 227, 554 short Minstainedhy sicidi,, CRE RIE 9 [115a] United States v,. Murray, 751 F.2d 1528 (9th Cir.), cert. dented sub nom. Moore v. United States, 474 Je, Ti.) See 5, 9, 12 [11la, 116a, 118a] United States v. Porter, 431 F.2d 7 (9th Cir. he ia! eee ne eer ARAN ME. sets a 23 [132a] United States v. Rewald, 889 F.2d 836 (9th Cir. ies] ER EERE ETE TPES eT Wie ne 24 [133a] United States v. Robiison, 502 F.2d 894 (7th Cir. aide, TEROE OSCE PE ere rigs Poe ta 6 [112a] United States v. Rodriguez, 582 F.2d 1015 (Sth Cir. LEP Te re ar A nett =) 24 [132a] United States v. Salovitz, 701 F.2d 17 (2d Cir. MOOR: ki na5 wince cha Fosteeet eee 5 [112a] United States v. Turchich, 451 F.2d 333 (8th Cir. if) eet eis oy ole Se, k 11 [118a] United States v. Weaver, 882 F.2d 1128 (7th Cir.), cert. denied sub nom. Schmanke v. United States, 7 US. 6 GO. ue ee 18 [125a] United States v. Williams, 681 F.2d 198 (3d Cir. i ee Ae Pte Nt ook lS Wi eA 18 [125a] White v. Commonwealth, 695 S.W.2d 438 (Ky. App. COUP: 60:5 Kia Xie eve ks 05 sr eee 25 [133a] Withrow v. Larkin, 421 U.S. 35, 95S. Ct. 1456, 43 L. oe . oietet yi 21 [129a, 130a] Wolfe v. Au, 67 Haw. 259, 686 P.2d 16 (1984) . .26 [134a] Wright v. State, 513 A.2d 1310 (Del. 1986)..... 24 [133a] 106a CONSTITUTIONAL PROVISIONS og ee ae a eer rrr reer Ty 12 [118a] U.S. Const. amend. VI.............0.000: ee 12 [118a] STATUTES Haw. Rev. Stat. § 602-5.....................-..3 [109a] RULES 3 ae ee ae re rer mee mn o 9 [115a] Ps Oe, MI: ON Os een nce c ena easonwawale eres 15 [122a] EE NS ON is Ciccidecetaea eee es 34, 38 [143a, 148a] ae ee ) eT Tre reer rm er OTHER AUTHORITIES 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 11.14 (3d ed. 1977)............ 11 [118a] Acton, Lord: letter to Bishop Mandell Crieghton (Apr. 3, 1887), quoted in The Concise Oxford Dictionary of Quotations 1 (2d ed. 1981) ..... 40 [149a] Chee. 2k Cree OG. TOWGK oii es inc cuwwacacees 12 [118a] HAWJIC 2.4 (1969) ..... 0c... ccceecceeccueeees 12 [118a] MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION; RELIEF SOUGHT; AND JURIS- DICTION A. INTRODUCTION On December 27, 1985, this court in No. 10041 sua sponte made an adjudication against movant attorney a 107a Earle A. Partington that he had rendered ineffective assis- tance of counsel to Defendant Clarke in Clarke’s first trial. Partington had no opportunity to defend himself and, in fact, this court had denied him a hearing on this issue in No. 10041 prior to rendering the adjudication. The adjudication triggered a proceeding against Part- ington pursuant to Hawaii Supreme Court Rule (HSCR) 13, but the HSCR 13 proceeding still offered Partington no opportunity to defend himself for, as this court found in its order of September 24, 1990, HSCR 13 proceedings are not conducted de novo on the issue of whether inef- fective assistance was rendered. The HSCR 13 special master had purported to conduct a de novo hearing, but the master’s July 31, 1990, decision and order was declared a nullity by this court’s order dismissing the proceeding on September 24, 1990. On July 9, 1991, Chief Disciplinary Counsel Gerald H. Kibe and Assistant Disciplinary Counsel Charlene M. Norris of this court’s Office of Disciplinary Counsel (ODC) filed a petition against Partington pursuant to HSCR 2. The petition (see Exhibit 1, attached hereto) alleges as misconduct the same conduct of Partington which had been the subject of the HSCR 13 proceeding, although how or why Partington’s conduct was improper is nowhere set out. Over the objections of Defendant Clarke, who has never complained against Partington, Kibe and Norris are purporting to assert Clarke’s federal and state constitutional rights to the effective assistance of counsel in his first trial and, on that basis alone, are alleging that Partington violated the Hawaii Code of Pro- fessional Responsibility. 108a Kibe and Norris have no competent evidence what- soever that Partington violated the Code of Professional Responsibility in his handling of Clarke’s first trial, and, as will be set out infra, all of the tactics at issue are perfectly legitimate and ethical trial tactics, as a matter of law. While pretending that the HSCR 2 proceeding will be conducted de novo, as contemplated by this court’s rules, it is undisputed that Kibe and Norris will offer as “evi- dence” in the HSCR 2 proceeding (1) this court’s sua sponte finding against Partington of December 27, 1985, and (2) the HSCR 13 special master’s decision and order of July 31, 1990. As will be shown here, the HSCR 2 proceeding against Partington cannot possibly have been brought in good faith. That being so, Kibe and Norris filed the petition against Partington in bad faith for pur- poses of harassment. B. RELIEF SOUGHT Partington seeks the following relief from this court: 1. In No. 10041, that the Judgment and Notice of Judgment filed January 20, 1986, be vacated; 2. In No. 11633, that the Judgment and Notice of Judgment filed November 16, 1987, be vacated; 3. In No. 10041, that the memorandum opinion be amended to delete any reference to ineffective assistance of counsel; 4. In No. 11633, that the memorandum opinion be amended to delete the reference to ineffective assistance of counsel in No. 10041; a eT ‘ciate iat ei ia a 109a 5. That thereafter new judgments and notices of judgment, identical to the present judgments and notices of judgment save for the dates, be filed in Nos. 10041 and 11633; 6. In No. 10041, that this court issue a writ of prohi- bition directed to Kibe and Norris prohibiting them in the HSCR 2 proceeding against Partington from asserting Defendant Clarke’s constitutional rights over Clarke’s objection, and from utilizing in any manner: (a) the sua sponte adjudication of ineffectiveness of December 27, 1985; and (b) the HSCR 13 special master’s decision and order of July 31, 1990. C. JURISDICTION Jurisdiction for this court to act in this matter lies under HRS § 602-5, which includes the following provi- sions: § 602-5 Jurisdiction and powers. The supreme court shall have jurisdiction and powers as follows: * * *+ (6) To make or issue any order or writ necessary or appropriate in aid of its appellate or original jurisdiction, and in such case any justice may issue a writ or an order to show cause return- able before the supreme court; (7) To make and award such judgments, decrees, orders and mandates, issue nh a en ae a 110a such executions and other processes, and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to it by law or for the promotion of justice in matters pending before it. The purpose of the instant motion is to remedy the injustice done to Partington by the wrongful adjudication of ineffectiveness against him in No. 10041 and to stop the harassment of him by Kibe and Norris. The HSCR 13 proceeding against Partington in No. 10041 was an origi- nal proceeding in this court and Partington seeks to enforce this court’s September 24, 1990, order in that proceeding. The HSCR 2 proceeding now pending was brought by disciplinary counsel at ODC, which is an agency of this court. A writ of prohibition directed to disciplinary counsel must, of necessity, be issued from this court. The proper forum, therefore, lies with this court, which is vested with jurisdiction to hear this mat- ter. Il. THE SUA SPONTE ADJUDICATION OF INEFFEC- TIVENESS MADE AGAINST PARTINGTON IN NO. 10041 WAS UNCONSTITUTIONAL AND WITHOUT BASIS IN LAW OR FACT IN THE RECORD OF THAT CASE. A. THERE WAS NO BASIS IN LAW OR FACT IN THE RECORD FOR THE ADJUDICATION OF INEFFECTIVENESS. In State v. Clarke, this court found that Partington had (1) refused to make.an opening statement, (2) refused to cross-examine a critical prosecution witness, namely the llla victim’s mother, without first receiving discovery, (3) refused to call the victim’s mother as Clarke’s witness, (4) elicited testimony from two prosecution witnesses that they believed that Clarke was guilty, and (5) refused to make a closing argument (R! 286-89). Without being privy to discovery or attorney-client communications and with- out any accusation of ineffective assistance of counsel by the client himself, this court held that any one of these five acts or omissions (hereinafter, “the five tactical deci- sions”), standing alone, mandated reversal of Clarke’s conviction as plain error on the ground — raised sua sponte by this court - that Clarke had been denied effective assistance of counsel. Despite this court’s holding, none of the five tactical decisions constitutes ineffective assis- tance of counsel per se, for the following reasons. 1. The decision not to make an opening state- ment. As a matter of law, deciding “whether to make an opening statement to the jury is particularly within the realm of trial strategy.” Commonwealth v. Tarver, 253 Pa. Super. 185, 190, 384 A.2d 1292, 1295 (1978); accord State v. Kraft, 96 Idaho 901, 904-05, 539 P.2d 254, 257-58 (1979); Gilliard v. State, 462 So. 2d 710, 716 (Miss. 1985). Waiver of opening statement has been held to be “trivial,” United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 137 (2d Cir.), cert. denied, 404 U.S. 967 (1971), a “tactical decision,” United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied sub nom. Moore v. United States, 474 U.S. 979 (1985), ' Record in No. 10041. All record and transcript references in this memorandum are to the record in No. 10041. 112a and “a simple matter of trial strategy.” United States v. Salovitz, 701 F.2d 17, 20 (2d Cir. 1983). A defense attorney may waive opening statement as a matter of routine trial strategy. Crisp v. State, 271 Ind. 534, 536, 394 N.E.2d 115, 119 (1979); People v. Pangelina, 153 Cal. App. 3d 1, 6, 199 Cal. Rptr. 916, 918-19 (1984). Waiver of opening statement is not per Se ineffectiveness of counsel. State v. Renshaw, 276 Md. 259, 269, 347 A.2d 219, 226 (1975); People v. Aiken, 45 N.Y.2d 394, 400, 408 N.Y.S.2d 444, 448, 380 N.E.2d 272, 275-76 (1978); People v. Huffman, 71 Cal. App. 3d 63, 139 Cal. Rptr. 264, 270 (1977); United States v. Robinson, 502 F.2d 894, 896 (7th Cir. 1974). That an opening statement may be waived is recognized in Hawaii. State v. Gutierrez, 1 Haw. App. 268, 271, 618 P.2d 315, 317 (1980). During the HSCR 13 proceeding, one of the expert witnesses, Federal Public Defender Michael Levine, testi- fied on this matter, as follows: Q_ (By the HSCR 13 special prosecutor) Do you think it was potentially harmful to [Clarke’s] case [for Partington] not to have made an open- ing statement? A (By Mr. Levine) Could have been. Q Given - A_ It’s just impossible to know. Q Why? Given what was in the record where Mr. Partington - the day after he chose not to give an opening statement [, he] said he wanted to and in the middle of the trial he told the Court what he would have said in his opening statement. 113a What else do you need to know to make a decision as to whether, Mr. Partington should have made an Opening statement or not? A Well, I need to know what his Philosophy of his opening statement is, what changed his mind, why did he change his mind at various points, what conversations did he have with his client. And with respect to — for all I know his client was telling him what to do. And we’re Supposed to be independent of our clients in many respects but sometimes when a guy's looking at life in Prison without parole, you listen to your client. 7/9/90 Tr 191:17-192:12; accord id. 110:18-25 (statement of expert witness Philip Lowenthal that whether the deci- sion not to make an opening statement was ineffective depends on “knowing the evidence in the case, knowing what was going on between counsel and his client and what the strategic reasons were for deciding whether or not to make the opening Statement”). Based on the foregoing testimony and the record in this case, it is evident that Partington gave an opening statement, albeit not at the traditional time nor in the traditional manner, and, further, that no competent observer, reviewing the situation without benefit of the underlying attorney-client communications or the think- ing of the attorney, could Properly conclude that Part- ington’s decision not to make a traditional opening Statement constituted ineffective assistance of counsel. From the cases cited above, it is evident that even total Waiver of an opening statement may be trivial and is simply a matter of trial Strategy. In fact, as noted, the 114a opening statement may be routinely waived by an attor- ney. Consequently, in this case, where discovery had not yet been received and much presumably remained unknown about the prosecutor’s case (including a critical witness for the prosecution), it may have been wise to waive any opening statement. It was certainly not ineffec- tive, and, as a matter of law as will be shown, the deci- sion is strongly presumed to have been effective. 2. The decision not to cross-examine a pros- ecution witness when discovery had not yet been made available. The apparent reason for the decision not to cross- examine the victim’s mother involved prosecutorial mis- conduct and was based on the following facts that can be found in the trial record in State v. Clarke: Partington’s pretrial request for discovery of certain family court records had initially been denied — before the trial began. The family court judge reversed himself upon Part- ington’s motion (during trial) for reconsideration, but the decision as to which records to release was still pending. The prosecutor (on a Wednesday) misrepresented to the 2 Kibe and Norris’s failure to properly investigate this case prior to filing the petition is no better illustrated than in paragraph C of the petition which, in effect, alleges that Part- ington failed to make a certain pretrial discovery motion in State v. Clarke. As was thoroughly explored in the HSCR 13 proceeding the trial record is clear that Partington had, in fact, made the motion before trial. Kibe and Norris have known this fact since long before they initiated the HSCR 2 proceeding. a 115a family court that the victim’s mother would not be sub- ject to cross-examination until the following week. In fact, however, the prosecutor called the mother to the stand the very next day (Thursday) over Clarke’s objection. On the following day (Friday), the trial judge insisted Part- ington conduct his cross-examination immediately, even though the discovery was not yet available, and despite the prosecutorial misconduct that had delayed release of the discovery. The trial judge denied subsequent defense motions to have the mother recalled for cross-examina- tion. In State v. Clarke on appeal, Clarke’s statement of the case in his opening brief was accepted by the prosecutor (R 241). Under appellate rules,3 the prosecutor thereby implicitly admitted prosecutorial misconduct not only as to this sequence of events but also as to the denial of other discovery, including an alleged admission by Clarke and a prosecution witness’s statement (see R 114). The refusal to cross-examine the victim’s mother was the only proper course of action when the prosecutor called her before the necessary discovery was available to the defense. Attorneys must conduct careful investiga- tions and inquiries in order to make “informed decisions” on behalf of the client. Strickland v. Washington, 466 U.S. 668, 691 (1984); State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972); United States v. Moore, 180 U.S.App.D.C. 227, 230, 554 F.2d 1086, 1089 (1976). Further, cross-exam- ination may be reserved, and a court’s refusal to permit a defendant to reserve cross-examination has been held to * Omission of a counterstatement of a section is permitted if appellee is “satisfied with the section included in the appel- lant’s brief.” HRAP 28(c). 116a be reversible error. Craig v. State, 594 S.W.2d 91 (Tex. Crim. App. 1980). Declining to cross-examine a witness may be “a reasonable tactical decision,” United States v. Murray, 751 F.2d at 1535, and “in some circumstances, the best cross-examination is no cross-examination.” United States v. Calabria, 614 F. Supp. 187, 193 (E.D. Pa. 1985). During the HSCR 13 proceeding, one of the expert witnesses, prominent defense attorney Michael Weight, testified on this point, as follows: Q (By the HSCR 13 special prosecu- tor) . . . What’s your understanding of what happened? A (By Mr. Weight) . . . The prosecutor sand- bagged the defense in this case by deciding to call the witness the very next day, completely contrary to what they had said to Judge Town [the family court judge] previous. Judge Spencer [the trial judge] permitted that to occur. He then declined to permit counsel to postpone cross- examination until he had access and had read the Family Court records. And after Mr. Part- ington had in fact read the Family Court records, he was precluded from cross-examina- tion. Q Well, the Judge said to Mr. Partington, did he not, “You can go ahead and start now. After you've got the records maybe I'll let you restart later and you can call direct again, as your own witness later”? A_ I do recall the Judge saying that, and that was entirely improper. 117a Q You're certain that was the type of abuse of discretion that would have resulted in any reversal of a conviction? A They set Mr. Partington up. If he had jumped to the bait, it would set him up probably for an argument by Mr. Clarke at some future time that he was ineffective by jumping to the bait. He could have then, by initiating cross- examination, set himself up for God knows what when those records were revealed to him. 7/9/90 Tr 270:24-272:10. Thus, as a practical matter, by refusing to conduct cross-examination prematurely, Partington avoided being “sandbagged” by the prosecutor. At the same time, Part- ington left open the possibility that the trial court would correct its own error and permit cross-examination after the defense received the forthcoming discovery. As a iegal matter, Clarke was entitled to reserve cross-exam- ination until the defense received the discovery necessary to be sufficiently informed to conduct a competent cross- examination (or to make an informed decision not to cross-examine), particularly when the defense request for discovery was timely, and more particularly when the prosecutor’s unethical conduct delayed the receipt of dis- covery at the critical juncture. The family court judge who had denied the pre-trial motion for discovery on the merits later admitted he had erred and reversed his own decision (R 1249 (citing 5/18/84 Tr 43-47)). Considering the misconduct of the prosecutor, the error of the trial judge, and the admitted error of the family court judge, the only person who acted properly was Partington. 118a 3. The decision not to call the same prosecu- tion witness. As noted previously, the trial judge had insisted that cross-examination of the victim’s mother take place immediately at the end of direct examination. Subsequent motions to have her recalled were denied. After the pros- ecution rested, Clarke renewed his motion to recall the mother and his motion for mistrial. The trial judge denied both motions and said the defense would have to call the mother as its own witness and “proceed with her in that fashion” (5/22/84 Tr 135:20-140:14). Partington declined to call her as a defense witness. A trial lawyer has no duty to call any particular witness because a defendant in a criminal case has no burden or duty to call any witnesses. United States v. Turchich, 451 F.2d 333, 359 (8th Cir. 1971); United States v. Ivey, 546 F.2d 139, 144 (5th Cir. 1977); see 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 11.14 (3d ed. 1977). A defendant may rely on failure of proof by the government. State v. Cuevas, 53 Haw. 110, 113-14, 488 P.2d 322, 324 (1971); HAWJIC 2.4 (1969); CALJIC 2.61 (5th ed. 1988). The right to call witnesses is independent of the right to confront and cross-examine government wit- nesses, for these rights are separately identified within the Sixth Amendment to the United States Constitution and, likewise, within article I, § 14 of the Hawaii Consti- tution. The failure to call any witnesses at all may be “a reasonable tactical decision[.]” United States v. Murray, 751 F.2d at 1535. Given that a criminal defendant has no duty to call any witnesses, a defendant and his lawyer 119a have the right to decide not to call a particular witness, as in Clarke’s trial. During the HSCR 13 proceeding, prominent defense attorney Michael Weight again testified: Q (By the HSCR 13 special prosecutor) And Mr. Partington at that point said, “I’ve got the records. I now want to cross-examine the wit- ness” and the Judge says, “No, but I'll let you call her as your own witness.” A (By Mr. Weight) That was improper. Q Was there anything in the records to indicate whether the Judge would have let Mr. Part- ington ask leading questions? A_ It doesn’t matter. That’s not relevant. Q Why not? A Because first of all he has no obligation to call any witness. Any witness he does call, they’re vouching for their credibility, partic- ularly where you’re set up by having to call a witness who is obviously hostile and the State’s witness. Q Where does it say that, vouching for some- one’s credibility? A_ I’m sorry? Q Vouching for someone’s credibility? A Certainly. The argument would most cer- tainly be raised by the government had this witness been called by Mr. Partington. “Ladies and gentlemen, you heard what Debra Lynn Arcala testified to and Mr. Partington called her as his witness and Mr. Clarke - remember she ae 120a was testifying on his behalf and she said all those terrible things about Clarke.” Absolutely. Q You don’t think that’s an improper argu- ment? A_ I think it would have flown in that court. 7/9/90 Tr 272:24-274:1. Federal Public Defender Michael Levine testified on the same issue: Q (By Mr. Partington) Mr. Levine, if someone is denied by a court ruling the opportunity to cross-examine a witness, does a defense counsel run a risk of curing that error if he should call the witness as his own? A (By Mr. Levine) Yes. Q And would it be a legitimate trial tactic to preserve that error in the case? A Yes. Q And is that an appropriate kind of tactical decision a lawyer makes in a case? A Yes. 7/9/90 Tr 216:21-217:6. Thus, if Clarke had called the mother as his own witness, he risked being sandbagged by the prosecution (as explained by Mr. Weight) and would have incurred the considerable risk of curing the error and losing proba- ble reversible error on appeal (as explained by Mr. Levine). Preserving error is a legitimate tactic. Ratner v. Young, 465 F. Supp. 386 (D.V.I. 1979). The Ratner court said: 121la All competent defense lawyers in criminal cases try to get reversible error in the record. It is generally accepted that there is nothing wrong in such efforts as long as they are not corrupt. 465 F.Supp. at 395. The defense in a criminal case is under no obligation to assist the prosecution in having its evi- dence admitted or to undo the effect of an earlier erro- neous ruling to which a proper objection has been made. United States v. Miller, 884 F.2d 1149, 1151 (9th Cir. 1989); United States v. Hashimoto, 878 F.2d 1126, 1134-1135 (9th Cir. 1989); United States v. Heinel, 9 U.S.C.M.A. 259, 262, 26 C.M.R. 39, 42 (1958). If the preservation of such an error involves a trade-off of potential risks and benefits, then a tactical decision is involved. In that case, defense comnsel may make the decision independently, see People v. Aiken, 45 N.Y.2d 394, 399, 408 N.Y.S.2d 444, 447-48, 380 N.E.2d 272, 275 (1978), even without the consent of the defendant. State v. DeGuzman, 68 Haw. 14, 17, 701 P.2d 1287, 1291 (1985). In Strickland v. Washington, 466 U.S. 668 (1984), the Court emphasized that informed strategic choices are “virtually unchallengeable,” id. at 690, noting that courts must apply “a heavy measure of deference to counsel’s judgments.” Id. at 691. In the instant case, the decision not to call the victim’s mother as Clarke’s wit- ness involved precisely that kind of independent judg- ment. 4. The decision to elicit witnesses’ testimony that they believed the defendant was guilty. Partington elicited testimony from certain prosecu- tion witnesses that they believed Clarke was guilty. Elicit- ing such testimony is a perfectly legitimate tactic. The 122a right to show bias of a witness is well established. State v. Murphy, 59 Haw. 1, 17, 575 P.2d 448, 459 (1978); Rule 609.1, Haw. R. Evid. It is reversible error to deny the defense the opportunity to show that a witness wants the defendant to be convicted in a criminal case. Lanham v. State, 99 Tex. Crim. 410, 412, 269 S.W. 799, 800 (1925); State v. Adams, 14 La. Ann. 620 (1859). It may be noted that the principle is so well settled that a diligent search covering reported decisions in ail jurisdictions in the United States turned up nothing other than the two cases cited —- one written sixty-seven years ago, and the other 133 years ago. The kind of impeachment at issue here has, therefore, long since been established as perfectly legitimate. The use of such a tactic does not constitute ineffective assis- tance of counsel. 5. The decision not to make a closing argu- ment. Partington refused to make a closing argument other than to say: “Your Honor, in view of there having been no cross-examination of [the victim’s mother], my client and I feel closing argument would be a waste of time.” (R 113; 5/24/84 Tr 57:25-58:2; also R 1226.) That Clarke partici- pated in the decision to make this brief closing statement in lieu of closing argument is reflected in two ways: in the words just quoted (“my client and I feel... ”), and in the letter he wrote to the administrative judge shortly after being sentenced (speaking of the decision “I made” in “agreeing with my lawyer” (R 45)). 123a Closing argument may be waived as a trial tactic. State v. Renshaw, 276 Md. 259, 269, 347 A.2d 219, 226-27 (1975); People v. McMullen, 82 Ill. App. 3rd 1042, 1049-50, 38 Ill. Dec. 308, 313, 403 N.E.2d 539, 544 (1980); State v. Chee, 140 Ariz. 171, 173, 680 P.2d 1232, 1234 (1984); People v. Diggs, 177 Cal. App. 3d 958, 970, 223 Cal. Rptr. 361, 368 (1986); People v. Gaines, 58 Cal. 2d 630, 635, 25 Cal. Rptr. 448, 450, 375 P.2d 296, 298 (1962). At the HSCR 13 hearing, one of the expert witnesses (Michael Weight) was questioned on this issue, as fol- lows: Q (By the HSCR 13 special prosecu- tor) . . . [W]hat’s your opinion [on whether it was ineffective not to give a closing argument in this case?] A (By Mr. Weight) It was not ineffective. Q Why? A Because the structure of the case, as I under- stand it, and the way that the case was pre- sented by the government and by the Court could very well have dictated that the only clos- ing statement that could have any effect what- soever on the jury was precisely what Earle gave. Q Why? A Why? Q Yes. A Basically because Clarke was convicted by an overzealous prosecutor, unscrupulous in his tactics, compounded by the court. 124a Q What were the unscrupulous tactics. A [After summarizing the misconduct described above, Mr. Weight continued:] And therefore in the eyes of the jury and Earle sensed that the jury was truly incensed by this and realized that this was basically a super rail- road. It may well be that they would have been willing to acquit without him making the type of formal argument that we perceive a formal final argument to be. * * * Q And you don’t believe there were effective arguments Mr. Partington could have made in closing argument? A_ I’m not prepared to say that any arguments that he could have made would have been more effective than what he did in this case. Q You think that there were evidentiary points that could have been highlighted to the jury that his client was only guilty of manslaughter and that the government’s witness was lying? A There were evidentiary points that could be made. The tactical decision whether to make them or not was not one for me to second-guess at this point on the state of the evidence. 7/9/90 Tr 282:19-284:23. Another expert witness (Philip Lowenthal) testified on the same issue, as follows: Q (By the HSCR 13 special prosecutor) Isn’t it best left for final argument to bring home to the jury the significance of the question [of bias] if it wasn’t made self-evident during the examina- tion itself? a 125a A (By Mr. Lowenthal) Again, it’s a trade-off. Normally if you’re going to give a final argu- ment you’d want to raise that and say “Look how biased they were. They think he’s guilty already.” But, again, you're making a trade-off, right? If you decide not to give a final argument, you're obviously trading off all the points you would have made had you stood up and said that. And the trade off is, I think I can be more dramatic and I think it’s more effective. You get the agreement of your client, talk about it and you do what you’re going to do. 7/9/90 Tr 144:12-24. The record is clear that in Partington’s and Clarke’s view the case called for something other than a tradi- tional closing argument. As the expert witnesses pointed out, it was a tactical decision, with trade-offs to consider, and Partington’s closing statement may have been more effective than a full-blown, traditional argument. There is nothing unethical in telling the jury that the defendant thinks that a closing argument would be a waste of time; no authority to the contrary has ever been cited. In United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir.), cert. denied sub nom. Schmanke v. United States, 493 U.S. 968 (1989), the court said: Where a defendant, fully informed of the rea- sonable options before him, agrees to follow a particular strategy at trial, that strategy cannot later form the basis of a claim of ineffective assistance of counsel. [United States] v. Williams, 681 F.2d 198, 204 (3d Cir. 1980). . . . To allow that would be to exempt defendants from the conse- quences of their actions at trial and would 126a debase the right to effective assistance of coun- sel enshrined in the sixth amendment. Here, the record shows that Clarke and Partington discussed the question of closing argument and that Clarke made the final decision. That ends the matter. B. THE INEFFECTIVENESS ADJUDICATION AGAINST PARTINGTON WAS UNCON- STITUTIONAL AS A DENIAL OF DUE PRO- CESS OF LAW. 1. Due process requires a Matsuo hearing prior to any adjudication of ineffectiveness. Matsuo v. State, 70 Haw. 573, 778 P.2d 332 (1989), is the only published decision construing HSCR 13. In Mat- suo, this court explicitly held that, where the record is unclear as to the reasons for counsel’s decisions, counsel must be afforded an opportunity to defend himself in a non-disciplinary hearing in the trial court before any inef- fectiveness determination can be made. Id. at 578, 778 P.2d at 335. It would be “unfair” to the attorney, said the court, not to have an opportunity “to explain his side of the story” prior to being subjected to an HSCR 13 pro- ceeding. Id. It is self-evident that by the term “unfair” the court meant a denial of due process of law. In the instant case, none of the five tactics in issue is ineffective per se and the record is void as to the reasons for deciding upon the tactics. The case thus meets the criteria mandating a Matsuo hearing (i.e., in the trial court) prior to any adjudication of ineffectiveness. This court’s sua sponte adjudication of-ineffectiveness against Partington, which was made without a Matsuo hearing, 127a was unfair for the reasons stated in Matsuo. In short, Partington was denied due process of law. And, in the HSCR 2 proceeding presently pending against Partington, the same unfairness continues because he has yet to receive the benefit of a Matsuo hearing. 2. The ineffectiveness adjudication against Partington is res judicata in the HSCR 2 proceeding in violation of due process of law. The ineffectiveness adjudication against Partington in No. 10041 is res judicata and has been since December 27, 1985. At the end of the HSCR 13 proceeding in September 24, 1990, this court held: [T]he issue of whether Respondent Partington rendered ineffective assistance of counsel- - . . received final adjudication by this court in State v. Clarke, No. 10041 (Haw. Dec. 27, 1985) (mem.), and could not be relitigated under a Rule 13 proceeding. Order in No. 10041 (Sept. 24, 1990) (emphasis added). On October 4, 1990, the HSCR 13 special prosecutor asked this court for reconsideration in two aspects: first, that the order should be changed because of the lack of de novo review, otherwise Partington would have been denied due process, and, second, that this court should Provide guidance for “most respondents” in future HSCR 13 proceedings. On October 11, 1990, this court issued a second order, stating: Upon consideration of the Rule 13 Prosecu- tor’s Motion for Reconsideration and for Clari- fication, this court reaffirms that the Rule 13 ee 128a Special Master does not have the power to reopen the final judicial determination that a defendant received ineffective assistance of counsel. .. . The finding of ineffective assistance [is] itself conclusive. .. . Order in No. 10041 (Oct. 11, 1990) (emphasis added) (the remainder of the order providing the “guidance” requested by the special prosecutor for future HSCR 13 proceedings). Norris, in her letter to Partington of October 19, 1990 (Exhibit 7, attached hereto), clearly recognized the res judicata effect of this court’s December 1985 adjudication against Partington, for in her letter Norris stated: [G]iven the Hawaii Supreme Court’s final adju- dication that your conduct in State v. Clarke con- stituted ineffective assistance of counsel, this office’s investigation is limited to a determina- tion regarding whether ail of the circumstances attendant to your conduct supports a finding of a violation of any provision of the Hawaii Code of Professional Responsibility. (Emphasis in original.) Norris is clearly- recognizing two critically important points in this case: (1) that any viola- tion of the Hawaii Code of Professional Responsibility by Partington is predicated on his having rendered ineffec- tive assistance of counsel to Clarke, and (2) that the final adjudication that Partington rendered ineffective assis- tance to Clarke has eliminated the necessity of having to prove this predicate because the final adjudication is res judicata. As noted previously, however, Partington had no opportunity to be heard prior to the adjudication against him, and thus due process of law is denied 129a because the final adjudication of ineffectiveness is res ‘judicata. 3. The ineffectiveness adjudication absent a prior Matsuo hearing causes any subse- quent disciplinary proceeding to neces- sarily violate due process of law. In Withrow v. Larkin, 421 U.S. 35 (1975), the Court cofisidered the situation where the tribunal making the final adjudication had also made the probable cause determination to proceed. The Court said: The risk of bias or prejudgment in this sequence of functions has not been considered to be intolerably high or to raise a sufficiently great possibility that the adjudicators would be so psychologically wedded to their complaints that they would consciously or unconsciously avoid the appearance of having erred or changed position. Indeed, just as there is no logical inconsistency between a finding of prob- able cause and an acquittal in a criminal pro- ceeding, there is no incompatibility between the agency filing a complaint based on probable cause and a subsequent decision, when all the evidence is in, that there has been no violation of the statute. Here, if the Board now proceeded after an adversary hearing to determine that appel- lee’s license to practice should not be temporarily suspended, it would not implicitly be admitting error in its prior finding of probable cause. Its position most probably would merely reflect the benefit of a more complete view of the evidence afforded by an adversary hearing. 130a The initial charge or determination of prob- able cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation. Clearly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision a substantial due process question would be raised. Withrow, 421 U.S. at 57-58 (emphasis added). Here, the December 1985 ineffectiveness determina- tion against Partington was not merely a finding of prob- able cause, but a “final adjudication” of misconduct* resulting in the reversal of Clarke’s conviction for that very reason. This court expressly held in the HSCR 13 proceeding that the issue of ineffectiveness may not be relitigated. Thus, a finding of “not guilty” in the HSCR 2 proceeding (assuming such a finding is even permitted) would be totally incompatible with the final adjudication reversing Clarke’s conviction. By clear implication, With- row stands for the rule that due process is denied where the probable cause determination by court or agency is incompatible with any of the possible ultimate adjudications 4 That the ineffectiveness final adjudication was one of misconduct is beyond dispute. Ineffective assistance of counsel arises either from misconduct or incompetence. Partington’s vindication in the HSCR 13 proceeding is also res judicata that no incompetence was involved. 13la by the same court or agency.° Under Withrow, it is irrele- vant whether the “final” adjudication of ineffectiveness against Partington is res judicata in the HSCR 2 proceed- ing and it is equally irrelevant whether the proceeding will be conducted de novo, for it is the fact of the Original adjudication, not its effect, that offends due process. The instant case is the classic situation discussed in Withrow. Considering that neither the hearing committee nor the Disciplinary Board can hear any constitutional claims (as set out infra), the only forum in which Part- ington can raise the issue is this court, the very forum that has already rendered a “final” adjudication on the issue. A clearer violation of due process is hard to imag- ine. Absent a vacation of the final adjudication of ineffec- tiveness rendered against Partington in No. 10041, the rule in Withrow stands as an absolute bar to an HSCR 2 Proceeding predicated on his trial conduct in this case. ° Obviously, the concern in Withrow is bias on the part of the court making the ultimate adjudication. Note that it is the court as an institution that would be biased in the instant situation, and not merely some particular justices. The fact that justices different from those who made the Original adjudica- tion might make the ultimate adjudication is irrelevant. See Lowe v. City of Eugene, 254 Or. 518, 537, 451 P.2d 117, 459 P.2d 222, 223, 463 P.2d 360 (1969), cert. denied, 397 U.S. 1042 (1970) (a court “makes decisions as a court, not as a collection of individ- ual justices”) (emphasis added). 132a C. ANY ISSUE OF INEFFECTIVENESS MUST FIRST BE DECIDED BY THE TRIAL COURT AFTER REMAND FOR A MATSUO HEARING BECAUSE THAT ISSUE MAY NOT BE RAISED IN THE FIRST INSTANCE ON APPEAL. Many courts have discussed whether a crimina! defendant may assert ineffective assistance of counsel for the first time on appeal. Setting out the general rule, the Ninth Circuit has stated that “normally such a claim cannot be advanced without the development of facts outside the original record.” United States v. Kaznt, 576 F.2d 238, 242 (9th Cir. 1978). In extreme cases, however, “the failure of the trial court to take note sua sponte of the problem might constitute plain error which may be ? considered on direct appeal.” United States v. Porter, 431 F.2d 7, 11 (9th Cir. 1979). The Fifth Circuit has held that “claims of inadequate representation cannot be deter- mined on direct appeal where such claims were not raised before the District Court and there has been no opportunity to develop and include in the record evi- dence bearing on the merits of the allegations.” United States v. Rodriguez, 582 F.2d 1015, 1016 (5th Cir. 1978) (per curiam). The California Supreme Court has explained the problem as follows: In some cases, . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal, [for] [o]therwise, appel- late courts would become engaged “in the per- ilous process of second-guessing.” | ’ 133a People v. Pope, 23 Cal. 3d 412, 426, 152 Cal. Rptr. 732, 740, 590 P.2d 859, 867 (1979) (citations omitted). The Kansas Supreme Court has said: “Except in the most unusual cases, to assert a claim of ineffective assistance of counsel without any independent inquiry and investigation apart from reading the record is questionable to say the least.” State v. Van Cleave, 239 Kan. 117, 120-21, 716 P.2d 580, 583 (1986). The rule in this country as to whether a criminal defendant may raise the issue of ineffective assistance of counsel for the first time on appeal is either that the issue may not be raised or that it may only be raised in extraor- _dinary circumstances (not applicable here) — where the evidence of ineffectiveness in the appellate record is irre- futable. E.g., United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989); United States v. Barham, 666 F.2d 521 (11th Cir.), cert. denied, 456 U.S. 947 (1982); Dossey v. State, 489 So. 2d 662 (Ala. Crim. App. 1986); Barry v. State, 675 P.2d 1292 (Alaska App. 1984); Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986); Morse v. People, 168 Colo. 494, 452 P.2d 3 (1969); Wright v. State, 513 A.2d 1310 (Del. 1986); Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); State v. Whitsel, 339 N.W.2d 149 (Iowa 1983); White v. Commonwealth, 695 S.W.2d 438 (Ky. App. 1985); State v. Fontenot, 368 So. 2d 121 (La. 1979); Jackson v. State, 52 Md. App. 327, 449 A.2d 438 (1982); State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987); State v. Walker, 80 N.J. 187, 403 A.2d 1 (1979); State v. Slapnicka, 376 N.W.2d 33 (N.D. 1985); Commonwealth v. Westcott, 523 A.2d 1140 (Pa. Super. 1987); State v. Felder, 351 S.E.2d 852 (S.C. 1986); State v. Aliberti, 401 N.W.2d 729 (S.D. 1987); In re Mecier, 143 Vt. 23, 460 A.2d 472 (1983). 134a Therefore, even if Clarke had raised the issue of ineffectiveness in No. 10041, the above-cited cases from twenty different jurisdictions show that this court’s action in considering the issue for the first time on appeal was improper. All the problems that have arisen out of this court’s precipitous and unjustified adjudication based on a wholly inadequate record could have been avoided if the rule recognized by every jurisdiction to have squarely addressed the question had been followed by this court. D. THE INEFFECTIVENESS ADJUDICATION MUST BE VACATED. Because the sua sponte adjudication had no basis in law or fact, and because it was made in violation of due process of law in that Partington was denied a Matsuo hearing, the adjudication itself must be vacated. III. PROHIBITION IS THE APPROPRIATE REMEDY AGAINST KIBE AND NORRIS. A. THE LAW Prohibition is an extraordinary remedy which requires special circumstances for the writ to be granted. Wolfe v. Au, 67 Haw. 259, 262-63, 686 P.2d 16, 20 (1984); Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 241, 580 P.2d 58, 62 (1978). Prohibition is intended as a corrective remedy to prevent the commission of a future act. McCaw v. Moore, 39 Haw. 157, 160 (1951). 135a In determining whether special circumstances exist justifying the extraordinary remedy of prohibition, this court has looked for the following preconditions: (1) a clear and indisputable right of the petitioner to relief and (2) a lack of other means to adequately redress the wrong or to obtain the requested relief. State v. Oshiro, 69 Haw. 438-41, 746 P.2d 568-70 (1987); see Arnold v. Higa, 61 Haw. 203, 206, 600 P.2d 1383, 1385 (1979); Nakagawa v. Heen, 58 Haw. 316, 318, 568 P.2d 508, 511 (1977); Chung v. Ogata, 54 Haw. 146, 150-51, 504 P.2d 868, 870 (1972). This court has also said that prohibition is intended for cases of usurpa- tion or abuse of power. Kaelemakule v. Kaelemakule, 33 Haw. 725, 730 (1936). Partington seeks to have this court prohibit Kibe and Norris from acting illegally and abusing their power. More specifically, Partington seeks to prohibit them from utilizing as evidence in the pending HSCR 2 proceeding against him (1) the December 27, 1985, sua sponte adjudi- cation of ineffectiv [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1412%3A1. Public record. Not legal advice.