Archie D. Wright v. W. J. Estelle, Jr., Director, Texas Department of Corrections

senters that “the practice” would be stricken assume will such a criterion it under equal prevail following adoption of hand as violative of the 1977rule. down out This is only logically, not unwarranted but protection. precedent without cited as a basis for de- right, deal with Here we claring state action unconstitutional. See citizens. I presumably innocent release of Steinberg, Fusari v. release conceive that such should cannot 521. reasonably it widely as be as available made beside the rationally point can be. It is may ground hap- for release that a rational suspect otherwise with an

pen to coincide may circumstance

category. Perhaps rationality, its but scrutiny strict

trigger scrutiny be deter- of that should

the aim is not category reason-

mine whether the purpose— its

ably calculated effectuate it who means release those WRIGHT, Petitioner-Appellant, Archie D. at trial —or wheth- appearance assure their drawn, narrowly eliminate er it is too ESTELLE, Jr., Director, J.W. Texas able to may not avail it others be because Corrections, Department of jail popu- of it and so swell themselves Respondent-Appellee. not be there. persons who need lations No. 76-2146. that the new majority with the agree presently be- only bail rule is the issue Appeals, Court United States rule and that fore the court Fifth Circuit. me, it pretty To facially unconstitutional. May pretrial detain- requires release of clearly categories its for satisfy any of ee if he can of which is appearance, one

securing 2). n. (Majority opinion, Since

open-ended. permitted by all means

this is so: since magistrate by the

rule must be considered whether release can be he decides

before not, I do not see that matters

risked or first, or last. The he considers third

which presumption of a

dissent’s discussion money paupers, for which

against bail say more than that the

seems to me no must consider this means last of

magistrate him, is paupers Clark, are there- all when before Thornberry, Roney, Gee grasp. Hill, refined for me to Judges, fore too Circuit filed specially concur- ring opinion. RUBIN, Judge, B. Circuit con- ALVIN Godbold, Judge, Circuit filed a dissent- curring. ing opinion Tjoflat, in which Goldberg and eloquent. rhetoric of the dissent joined. Judges, Circuit dilemmas, have two horns. goats, like But rule not unconstitutional bail The new not even the dissent does face and

on its It cannot be proposition.

suggest applied because

held unconstitutional concerning how the yet no evidence

there is it. The dis- Florida will execute

courts

THORNBERRY, CLARK, RONEY, GEE HILL, Judges, specially Circuit concur- ring. agree

While we with the result reached majority in we this must re- disagree spectfully majority’s with the rea- soning. We believe that the court is here faced with a foursquare ques- constitutional and, deference, tion all we think the Anderson, Ken Counsel for In- Staff merely court does a disservice in assuming mates, Huntsville, Tex., petitioner-ap- for argument for sake of the existence of a pellant. personal constitutional right Hill, Gen., Atty. Dibrell, John L. Joe B. declaring then that in any this case denial Gen., Div., Atty. Asst. Chief Enforcement of that is Wright harmless error. Kendall, Jr., Atty. M. First Asst. David Estelle, (5 1977). 549 F.2d Cir. Rivers, Gen., Atty. Gen., Richel Asst. Aus- This reasoning court’s offers little or no tin, Tex., for respondent-appellee. guidance bench and bar. One of our important most duties is to define law so litigants, lawyers, trial judges can proceed with some degree certainty.1 BROWN, Judge Before Chief and GEW- A trial judge must know a whether defend IN, THORNBERRY, COLEMAN, GOLD personal ant has control over his AINSWORTH, GODBOLD, BERG, MOR testify; little the judge is solace for GAN, CLARK, RONEY, GEE, TJOFLAT, know though that even may he violat FAY, Judges.* HILL and Circuit personal ed the testify, defendant’s COURT: BY THE Moreover, the error bemay harmless.2 panel opinion reported, case is this many court-appointed conscientious attor Estelle, Jr., Wright v. Archie D. W. J. Di- neys of this circuit to have deserve this rector, Department Corrections, Texas question they might go settled so that Cir., 1977, 549 F.2d 971. about their business without fear of Upon rehearing at New Orleans on Sep- violating right. a defendant’s constitutional tember en Court banc adheres The real case question is not panel opinion as published. is or judgment of the District Court is rather, right; it involves the AFFIRMED. proper authority allocation of between the * Judges nothing Rubin and not Vance were members rule more than of our abdication argued when responsibility. Court this case was and sub- participate did mitted and in the considera- Moreover, Chapman gives the court v. Cali- tion decision. of this fornia, 17 L.Ed.2d 705 judicial lipservice by little more than Chiantese, 1. United States v. 560 F.2d applying “clearly guilty” without rule artic- 75-3534, slip op. (5 [No. 242] Cir. ulating say the reasons therefor. To J., 1977) (Hill, concurring). testimony “would have altered say nothing the verdict” is to more than the obviously applies, 2. The harmless error rule for clearly Surely guilty. defendant was example, in cases in which evidence was erro- requires analysis more than As we under- this. neously admitted. In that context the Federal Chapman, stand court should deter- operate policy Evidence as a Rules of broad guilty mine whether the defendant guide judges. and as a for trial framework reasonable doubt but whether the defendant bar, however, being the court case have been convicted had error not standard, fashion a asked to been made. application in our view harmless error stand, take the conflict and his client. must be attorney re- first in course, authority in the Only has the solved the court. way in this reject court-appointed accept stance be reconciled with the California, 422 Faretta representation. to effective assistance of counsel. 2525, 45 .562 806, 95 S.Ct. Judge Godbold’s dissent would brand accept attorney, an (1975). If he decides here as ineffective for failure to delegated im necessarily has the defendant Wright inform that he had right a to testify to his at decisionmaking authority portant and for failure to tell him that the court delegation does scope torney. have any would to resolve impasse. This the deci importance turn on position Wright assumes that considered his judg frequently makes attorney sion—the attorney’s response request his to take very life of the defend affecting the ments the stand as a by threat the attorney to is twofold: who is question here ant. Wright leave defenseless. Such an assump- trial position strategy in a better tion is unwarranted. In the place, first position to ensure who is in a better dialogue Wright between and his attorney defendant.3 This interests best implicitly assumed that Wright could make recognition history filled with the court’s is the final testify. choice to It also clearly attorney. an No one could the value of Wright told that his lawyer was the sort a defendant is in a seriously contend that put professional who duty ahead of expedi- strategy than to dictate trial position better ency. however, Most significantly, there is Moreover, court-appointed a attorney. his nothing in exchange between lawyer attorney duty society owes a to see and client which support a finding possible the best defense given client is that counsel was threatening to leave attorney No could dis within the law. Wright defenseless or that Wright assumed yield to the duty if he must charge this insistence on testifying would forfeit his demands of his client. personal any counsel. Rather than assum- bar, Wright case at when advised In the ing possibilities these and condemning the testify, his attor- attorney that he would lawyer, we should commend counsel’s can- choice duty him a to evaluate that ney owed any If assumption made, dor. it should proper his client with advice. and assist be that attorney’s advice was in the attorneys professional are artisans Trial proper discharge of his duty provide ef- competitive arena that working highly in a fective counsel and was accepted so by education, all the skills which requires Wright. given them. training, experience While Faretta allows a defendant to have are entitled to no less. defendants Criminal client, a fool for a sur- necessary has a A defendant (Blackmun, J., dissenting), there is not have the gery, but he does nothing logic its that commands that the operation an require surgeon perform If, defendant also have a fool for an practice. medical at contrary accepted advice, torney. We panel would affirm the his counsel’s despite testimony ground that the decision whether to believe that his continues properly the continued services allocated to the important than defendant’s at more attorney torney an who insists he should not and not to the defendant.4 An at- decision to Process v. The same cannot be said for the Defense Counsel’s Unilateral 3. Waiver Right Testify, Hastings plead guilty guilty goes of the Defendant’s or not decision that —a deny very Const.L.Q. of a trial. To existence decision could be defendant control over this Wayman, In United States v. 510 F.2d denying a trial. the defendant (5 tantamount 1975), attorney representing Cir. an Here, course, the decision there is a trial and co-defendants refused to allow one of the de- merely strategy. attorney goes decision, reviewing fendants to made we said: decision to waive a defendant’s part tactics in is viewed as a unwilling We are to conclude that Mr. Auld’s Comment, attorney] Due alleged more than a dozen decisions. [the refusal to let Moore necessarily ineffective if he torney is not On the basis of these facts we need not testify, not to allow his client to determines consider question of whether a de great though give he should deference even fendant has a to testi however, testify, desire to to a defendant’s fy in his own behalf that can only be here concerned with constitutional we are waived him. Even if requirements and there is no constitutional deprived of such a court-appointed requirement attor- (assuming arguendo ney must walk his client to the electric one’s own behalf is a fundamental right) chair. we convinced, are was, as the court below it was harmless error beyond a reasonable GODBOLD, Judge, dissenting: Circuit doubt. California, TJOFLAT, whom GOLDBERG 18, 24, dissenting. Judges, join, Circuit It was harmless error Wright prison- Petitioner is a Texas state reasonable doubt because we have no following petitioner’s er under life sentence a convic- doubt testimony would appealed tion for murder. He has from the not have altered the verdict. The evi district court’s denial of federal habeas cor- connecting dence Wright to this crime court trial on pus. In state the merits was overwhelming.1 prosecution sought the death penalty. Wright Estelle, (CA5,1977). F.2d 971 represented was by court-ap- Petitioner two The order of the court en banc is no more pointed attorneys. During trial a conflict enlightening than the panel opinion. As Wright arose between and his counsel con- Judge Thornberry cogently points out in his cerning Wright should take the special opinion, concurring the court has testify stand to in his own defense. For failed to discharge responsibilities its in this Wright’s opposi- tactical reasons and over case. tion, counsel made the decision that Wright it, As I see requires case several testify should not and would not allow him inquiries: to take the During stand. these trial dis- (1) petitioner Was denied a constitutional cussions, lead Wright counsel told if right testify on his own behalf? Wright testify elected to attorney (2) petitioner If had a constitutional longer would no represent him. Neither right to testify can its denial be counsel moved for leave to withdraw nor treated beyond as harmless error a did either call the attention of the court to reasonable Chapman doubt under controversy in any other manner. California ? panel The of this court considered the (3) Regardless of the constitutional sta- appeal to (1) raise two issues: whether the right tus of a testify, petition- was right of the defendant to testify in his own er denied effective assistance of behalf ais “fundamental right” that could counsel? him; only be waived by (2) if it was a petitioner Did right waive his to testi- “fundamental right,” was the violation fy? beyond harmless error reasonable doubt un- California, der U.S. (1) The right constitutional to testify L.Ed.2d 705 panel The opinion disposed by of these issues a few I believe testify person- cryptic sentences: ally has achieved constitutional stature. testify [the on his defendant] own behalf was ence upon of co-counsel in the but rather the result presumed of a conflict of impact interest and peti- was the content and of what prejudicial to him. tioner would if have said he had testified. The judge petitioner’s state habeas attor- found that opinion peti- The refers to a conflict between neys Thus, allow him to court-appointed attorneys. tioner and one of his panel’s court-appointed reference to “one of his However, panel neither the nor the federal ha- attorneys” significance has no substantive in findings beas based their of harmless the case. upon pres- error reasonable doubt him, a have reasonable opportunity testify Because counsel them way explana- meet of defense or for the defendant. tion, represented by waive to be have here, client, as overrides When to testify and have a chance is committed. error constitutional behalf, in his other witnesses either call explanation. (Em- by way of or defense (a) The added.) phasis in dimension. California, Faretta 819- In criminal right2 of a n.15, was unknown testify in his own defense (1975), Supreme 572-73 n.15 Court re- origin.3 statutory in law and is common process ferred to due rec is now jurisdictions all American terms: Texas, state by statute.4 ognized This Court has often the con- tried, grants which that, though stitutional stature and statute. by constitution testify both literally document, in the expressed constitution, pro art. I § Texas process essential are to due law in a ac prosecutions “In all criminal vides: adversary It is process. accept- fair now right of ... shall cused ed, example, counsel, or both for that an accused has a heard himself being Criminal .” Texas Code of ... . on his own “Any de provides: art. 38.08 . Procedure . . (Emphasis added.) behalf permit shall be in criminal action fendant circuit This made similar reference in own therein testify his behalf to in ted Ellis, 592, v. (CA5, MacKenna 280 F.2d 595 modified, 1961) F.2d 928 1960), (CA5, 289 constitution the federal I believe (en banc): to federal courts state and requires now process is basic to due that an [I]t testify.5 often to Most a defendant allow person opportunity accused a fair to process. as right part due treated in a trial. story tell his fair 275, Oliver, 257, 68 1948, in Re 333 U.S. In state have also Several courts considered 682, 499, 508, 695 (1948), 92 L.Ed. S.Ct. right testify part to be of a Four out the minimum spelled Court Supreme to a fair right teenth trial.6 Amendment ain of con process of due case demands opinions Ferguson separate their in v. Geor presence of the (not in the tempt committed 570, 756, 5 gia, 365 U.S. 81 783 S.Ct. L.Ed.2d court): (1961), Justices Frankfurter and Clark re- process ... [D]ue urged making that a state statute a defend contempt with charged that one quires against incompetent testify at his charges ant own court be advised of n.3, Hastings Note, supra urges right privilege. 5. The this con- been both 2. It has called significance right-privilege di- no clusion. attach chotomy description. to it either refer 545, People Mosqueda, Cal.App.3d 540, v. 5 history right, a discussion of 3. For citing 346, Ferguson v. Cal.Rptr. (1970), 85 349 Due v. Counsel’s Process Defense Note: see Georgia, 365 570, 756, 81 S.Ct. 5 L.Ed.2d U.S. Right to Waiver of Defendant's Unilateral State, accord, 329, Pigg (1961); v. 783 253 Ind. Testify, Hastings 3 Law Constitutional Quarter- (1969); People 266, 330, v. N.E.2d 267 253 517, (Hereafter ly, (1976) as “Has- 519-29 cited Farrar, 294, n.20, Mich.App. 36 193 304-05 Note”). tings 363, (1972); People Rol v. 369 N.W.2d n.20 ston, 206, 200, 454, Mich.App. 187 31 N.W.2d 3481, statute, pro- federal 18 U.S.C. § 4. The Hall, 95, (1971); People Mich.App. v. 19 457 vides: n.17, 473, (1969); 172 483 114-15 N.W.2d n.17 persons charged trial of “In all Hernandez, People 111, v. 94 P.R.R. 116 against the United commission of offenses shall, person charged . . States . competent request, be a witness.” his own 1076 proce testify would process.7 nullify due violation of conviction collat-

was a constitutionally required process due eral Appellant attack. dural contended proceedings includes extra-judicial in some was incompetent because he was person testify: right of the affected take denied the stand in his 778, 786, 411 93 Scarpelli, U.S. Gagnon defense. We affirmed denial of 2255 § 656, 1756, 1761, (1973) 664 L.Ed.2d 36 S.Ct. relief but the appellant basis not that revocation); Morrissey v. Brew (probation had ground no Rather the 2593, 471, 489, 2604, er, 92 33 U.S. S.Ct. 408 appellant’s court-appointed was that attor- 484, (1972) revocation); (parole L.Ed.2d 499 ney testify had advised him but had 254, 269, 397 90 Goldberg Kelly, U.S. “further advised that even in light 1011, 1021, 287, 299-300 S.Ct. testify such advice he was free or not to benefits). (termination of welfare testify according judgment.” to his own also be con 404 F.2d 888. In Faretta v. California as Amend sidered included Sixth said, Supreme accepted Court “It is now guarantees of the defendant’s ment’s . that an accused has a . deny the against accusation to meet in his . own behalf . .” S., 62, 65, him, 347 Walder v. U. U.S. 74 authority cited for was not statuto- 354, 356, (1954), L.Ed. 503 98 S.Ct. ry Tennessee, but case law: Brooks v. 406 evidence, McKeithen, present Jenkins 605, 612, 1891,1895, U.S. 92 32 S.Ct. L.Ed.2d 429, 1843, 1852, 411, 395 U.S. (1972), 363-64 where the Court said (1969), his right L.Ed.2d dictum “whether the defendant is to testify (in on his behalf the in present witnesses important is an tactical decision as well as a witness), as present himself stant right”, matter constitutional Harris v. Texas, Washington v. York, New (1967).8 L.Ed.2d (1971), where the Court said that Other cases have the defendant has privilege perjure no identifying but without but “every himself criminal defendant McCord, U.S.App.D.C. source. U. S. privileged in his own defense or (1969) (“as 420 F.2d a matter so”, to refuse to do and Ferguson v. Geor- law, a is always vouchsafed gia. testify”); the constitutional Fowle Thus, S., 48, although Supreme the Court (CA9, 1969) (the has v. U. 410 53 F.2d directly never addressed the of right testify to “a basic issue a de constitutional right fendant’s testify, circuit to the case guarantee”). This assumed Par- law S., (CA5,1968), clearly (as v. U. 404 888 indicates the sons F.2d that that Court well as by right many of issue)9 denial counsel defendant’s to lower to courts consider the Georgia privilege 7. The Court discussed two statutes. The “has come to be incompetent having importance made the to a right One defendant bé an similar to the to be permitted at his trial. witness own The other present present at one’s trial and to a defense.” to the defendant sworn statement take stand to make an un- Bentvena, 916, (CA2, U. S. v. F.2d 319 943 right but denied him the to 1963), cert. denied. by ques- have his counsel elicit his statement appellant only validity the tions. The the restraint on the Court held this was a violation of due process. raised say, accept, are 9. There cases that or that the counsel, questioning by and testify right constitutionally guaran to is not cases, approaching teed. Some of these the Logically holding it would seem to follow through entry point issue the of effectiveness from this that a cannot defendant be counsel, upon have relied the rubric of the right take the at all. denied to stand How- right strategic of counsel to make a or tactical ever, validity the Court did not reach the decision and have concluded that counsel’s lim incompetency appellant statute since had not right testify itation of the defendant’s to it. attacked Justices Frankfurter and Clark not ineffective counsel in the constitutional urged validity should Court reach Lane, g., (CA7, E. sense. Sims v. 411 661 F.2d statute, incompetency which in their 1969), denied, 943, 378, cert. 396 U.S. 90 S.Ct. process. violated due U.S. at 599 and view 365 (1969); Garguilo, 24 L.Ed.2d 244 V. S. v. 324 602, 773, 81 S.Ct. at 771 5 L.Ed.2d at 799 (CA2, 1963); Smyth, F.2d 795 Newsom v. 261 and 801.

1077 Cook, v. position, Winters 489 right F.2d 174 a that feels banc). my (CA5, 1973) (en Under mandated. These matters allo- constitutionally cases, may not great a defendant cated to counsel reading encompass of these bulk stand, by a to take the of decisions made trial. be denied orderly where statute, judge (except by the The Supreme squarely Court has not held otherwise), by his attor- commands trial that the right is so fundamental ney. personal that the defendant. But Burger, concurring Chief Justice Wain- testify is fundamental (b) wright 72, 92, Sykes, v. 433 U.S. personal to the defendant 594, (1977), 612 n.l by waived counsel. may not be indicated his belief that the decision to tes- believe, a defendant has consti- If, as I tify is only one of few basic decisions testify, question be- tutional personal sup- defendant. He cited in court-appointed counsel whether comes port Report the ABA on Standards Relat- exercise ability to a defendant’s control ing to Prosecution Function and Defense are rights so right. Some 5.2, Function, (1970), 237-38 which §§ they are deemed be fundamental states: defendant, and deci- rights of the personal (a) relating Certain decisions to the con- only are concerning them exercisable sions ultimately duct of the case are for the by and not counsel: by the ultimately accused and others are for de- Boykin v. plead guilty, whether decision fense counsel. which are to decisions 1709, 238, Alabama, 89 23 395 U.S. S.Ct. by be full made accused after consul- whether to (1969); 274 decision counsel (iii) tation with are ex trial, v. U. rel. Adams S. ask for in his own behalf. 236, 269, 87 McCann, 63 L.Ed. 317 U.S. S.Ct. court Winters Cook this en banc S.,U. (1942), Patton v. 281 U.S. held a constitutional challenge (1930); decision L.Ed. S.Ct. composition by could be grand jury waived Noia, appeal, Fay counsel; inherently personal it was “an (1963); 849, L.Ed.2d right of In dic- importance.” forego as- whether to decision tum the court said: funda- “Such California. Faretta v. sistance plead mental include the are allo- less fundamental decisions Other , to waive guilty . . trial the rubric counsel under cated to defense appellate jury, waive review can be made strategy and testify personally." and the Id. at knowledge or consent de- without added). (emphasis fendant, object to whether to ille- such as evidence, of Faretta California and Henry Mississippi, seized rationale gally precursors, relating L.Ed.2d 408 its himself, leads to con- object jury to to com- accused to defend the (1965), and whether denied, v. Brewer Morrissey Goldberg Kelly. v. 1958), (CA4, cert. 359 and 452 F.2d predate body Hayes 883, (1959); 969, Gideon and All the of law that 79 S.Ct. 837 Russell, concerning right (CA6, 1969). developed Gideon has since to 859 None of v. 405 F.2d counsel, counsel, obligations appointed handing the of down decisions had the courts these power appointed on and the limitations the Supreme indications in them the Court's before Also, Faretta, York, counsel to withdraw. some these ear New Brooks v. Tennes Harris v. lier found see, Georgia eases which counsel not ineffec Ferguson right v. the and to ap tive retained and some involved stature, testify in the like is constitutional or mockery" plied or test now discred S., the "farce v. this circuit in Parsons U. indications from ited in circuit. McCord, this S. Fowle v. in U. other and circuits Johnson, S., dissent, developed ex rel. Wilcox v. U. U. S. and 555 later in this For reasons . testify (CA3, 1977). regard earlier as one All of these cases decision to the defend- F.2d 115 the make, Thus, right recognizing predate the to must I would hold the ant himself decisions right constitutionally required in various to be ineffective if as Scarpelli, Gagnon usurped. extrajudicial proceedings, were to funda- prisonment the is a elusion that a defendant who desires to to the defendant for mental reserved speak, without ever having heard the sound choice on whether making In the decision. of his voice. California, See McGautha v. choice on whether to testify, just as the to 1454, 402 U.S. himself, defendant elects represent L.Ed.2d participant active to become an whether The decision whether to is a mat- and his life lib- proceeding that affects higher ter of quality dignity and than trial action, own and inject to his voice erty and happenings such object to to to the extent process into the personality “[Wjhatever evidence. may else be said of system permits. those who Rights, wrote Bill of surely narrow world courtroom In the there can be no doubt that they understood faith, mistak- may have even if defendant the inestimable worth of free choice.” Far- en, persuasively own tell his ability in his California, etta 833-34, U.S. at may story jury. He desire to face his 45 L.Ed.2d at 580-81. In state jury, position, and the his accusers discussing defend may His submit examination. interest himself, the Circuit D.C. said: to the that he hope extend content An accused has a impact personalized upon will have confront his accusers gain ... jury advantage having from taken present rather than to seek the position stand shelter himself Or, regard the Fifth Amendment. without merely as a witness . upon to tell impact jury, his desire as a but man plead who elects to public “his in a forum be of may side” his own cause. ... A defendant Indeed, overriding importance him. has the moral alone stand in his some circumstances the without hour of trial. . . . if Even the de- risks, may wish regard speak from likely fendant will lose the case anyway, stand, jury, over the head of he has the right he suffers whatever —as larger to a audience. It for his consequences there may be—to the attorney muzzle him. knowledge that was the claim that he S., put Green U. forward that was considered and re- (1961) (plurality 5 L.Ed.2d 670 opinion), jected, and to the knowledge that in our Justice Frankfurter the personal free society, devoted to the ideal of indi- and fundamental nature of a defendant’s worth, vidual he was not deprived of his address his accusers. “The most choice, free will to make his own in persuasive counsel speak be able to hour of trial . . (Emphasis . add- for a might, defendant as the defendant ed.) halting eloquence, speak for himself.” U. v. Dougherty, U.S.App.D.C. 76, S. Id. at S.Ct. at at 673. F.2d On the same Indeed, history replete our with trials of subject Supreme Court said this: court, who defendants faced determined to assistance of counsel and the speak before pronounced: their fate was correlative dispense with a law- Socrates, justice who condemned Athenian yer’s help legal are not formalisms. They hemlock; I, of the cup heedless Charles rest on go considerations that to the sub- challenged jurisdiction who position stance of an accused’s before monarch; Cromwellians over a divine Su- public law. The conscience must be satis- Anthony, argued san B. who for the female fied that fairness dominates the adminis- ballot; Vanzetti, and Sacco and re- who justice. tration of A.n must accused deny vealed the flaws of their tribunal. To the presenting means of a the to his best defense. story defendant tell his from . the When the stand dehumanizes the administration of the administration justice. accept hedged of criminal law cannot a decision that ... is about jury allows a to to or im- by condemn death as it is safeguards the Constitutional accused, deny weigh to Counsel should these considera- of an protection the for tions in first and decide instance of his free choice the exercise him in or he thinks the whether not defendant safe- of these dispense with some right to ought That testify. to decision should be counsel], of as the advice guards [such defendant, told to the with the reasons arbitrary an denial on such and to base may properly urge for Counsel it. to conduct cannot choose a man rule that dangerous it is or defendant that unwise unless, against his . . . his defense However, if for him to take the stand. a him, al- a to advise will, lawyer has he despite defendant wishes to advice himself reasonably deems he though necessary yield to it is to contrary, to needs, im- is to his own advisor for best . stubbornness. . Counsel his it and call privileges his a man in prison always clearly the de- should outline to the Constitution. testifying fendant the hazards of his McCann, at ex rel. v. U. S. Adams (whether put counsel wants to him 241-42, 279-80, 87 L.Ed. on). client, But if this fails to daunt the 274-75. against and advice testifying if counsel’s person- as decisions Like other him, client persuade fails to should be plead to to the defendant —whether al allowed to to utilize assistance jury, for a to ask guilty, Amsterdam, the De A. Trial Manual for appeal to defend- whether of —the (2d Criminal Cases 1-390 fense of §§ to the testify is fundamental to ant’s 1971).10 ed. judicial process. dignity and fairness Judge concurring opinion, special his the harshness not countenance We would Thornberry the issue as not describes a defendant legal system put that a is opportunity no he had to a trial which as and the defendant but involv- story. reverse out We would tell his authority ing proper allocation of be- court had de- a where the conviction hand attorney He tween and client. concludes to an uncounseled defendant nied for attorney that the decision is because to take testify though wished he position is in decide counsel better on stand. strategy trial ensure the best interests is less basic where no deference, client. it With is not may, counsel. Counsel the defendant has attorney enough say can do it should, proba the defendant advise and, can, better, if he label the matter then testifying, his but the consequences ble strategy.” Rather must examine “trial one defendant, for the ultimate decision is subject matter involved in the decision oneself, represent Far as with respect to other be made. With forego California, and the etta to make his own permitted the defendant good appeal, “he need have no or ration regard an at- without to whether the decision Com decision,” for better," reason his Shiflett torney might al be able “do Virginia, 447 F.2d 50 at 53-4 example, monwealth refusal defendant for a 994, 92 denied, 405 (CA4, 1971), accept proffered plea cert. plead guilty and L.Ed.2d 462 The wis bargain, and a refusal defendant choice thinks though or unwisdom of waive counsel dom Surely it. The preferable. to make trial is we would does not diminish bench permit require he his client to lawyer’s authority vindicated when stand waive his Fifth Amend- take the client. advises his ordinarily prejudiced attorney against he is "Requiring better when an believes, attorney represented places an who judgment no his client examine contrary attorney attorney: the latter an burden on unfair testify.” developing should always faced the burden strategy light of what evidence Robles, his trial People Cal.Rptr. Cal.3d presented in Nor is a court. is available and 466 P.2d 716-17 1080 quoted judgment Connecticut, of v. although Fahy counsel’s from rights,

ment 375 U.S. 85, 229, be much (1963): value thereof should 84 S.Ct. 11 the tactical L.Ed.2d 171 the defendant’s. better than question “The is whether there ais rea- possibility sonable that the evidence com- Judge Thornberry’s observation plained might have contributed to the attorney need not walk his client conviction.” phrase, but striking chair is a electric 23, upon premise. 827, a erroneous It is the Id. 386 at based U.S. 87 S.Ct. at 17 court, day lawyer’s. not the L.Ed.2d at 710. The Court then established a general is he who suffers federal rule for error that [the defendant] “[I]t consequences though if the defense fails.” Faretta harmless of constitutional dimen- California, 820, sion, drawing Fahy 422 at 95 at relating U.S. S.Ct. standard 2533, improper evidentiary 45 L.Ed.2d at 573. Because admission of mat- “[t]he State, ter: lawyer and not his consequences will bear the We, therefore, no more do than adhere to rep- ... his choice conviction meaning [to our Fahy case when we resent must be honored out ‘that hold, do, himself] as we now that before a federal the individual which is the life- respect for harmless, constitutional error can be held ” 834, of the law.’ Id. at 95 S.Ct. at blood the court must be able to declare a belief 2541, at 562. beyond that it was harmless a reasonable doubt. (2) Harmless error 24, 828, Id. at 87 S.Ct. at 17 L.Ed.2d at panel adopted opinion court 710-11. constitutionality pretermitted the Chapman The Court in specifically ex- and held that if the cluded from the new federal harmless error existed its denial constituted harmless error rule constitutional errors the converse of Chapman v. beyond reasonable doubt under the “unimportant insignificant” ones Chapman California. The rule of harmless within the rule: applied constitutional error should not be rights are some constitutional so [T]here this case. basic to a fair trial that their infraction Chapman Supreme rejected Court can never be treated harmless error the contention that all federal constitution- reversal, require saying:

al errors automatic 23, 827, 710, Id. at at 87 S.Ct. 17 at L.Ed.2d that be We conclude there some citing as examples coerced confessions errors which in the setting (Payne Arkansas),11 to counsel particular unimportant case are so (Gideon wright)12 v. Wain to an insignificant they may, consist- impartial judge ).13 (Turney Beyond v. Ohio Constitution, ent with the Federal be rights Chapman, these enumerated in sever harmless, requiring deemed auto- al other pale seem matic reversal the conviction. harmless error Georgia, rule. See Price v. 323, Id., U.S., 22, 827, 1757, 87 17 386 398 90 S.Ct. U.S. S.Ct. 26 L.Ed.2d 300 (double Kiff, jeopardy); L.Ed.2d at 709. was concerned Peters v. 493, 2163, highly prejudicial with the effect of evi- 407 92 U.S. S.Ct. 33 L.Ed.2d 83 way (1972)(grand selection); or comments their finding dence into cf. Brookhart (in instance, Janis, prosecutorial 1245, the trial 86 U.S. S.Ct. testify). (1966) (right comment on defendants’ failure to L.Ed.2d 314 to cross-examina tion); California, respect type With to this of error Court Anders 386 U.S. 13. 11. 356 U.S. L.Ed.2d L.Ed. 749 (1958). (1967) (right fy merely if he desires rather than analyze testimony the substance of what his would appeal). decide, right have been. The defendant’s appli- the testify escapes also right to right as well as his to the evidence he may Like the rule. harmless error cation present, constitutionally protected. is Chapman, be outside recognized rights It is is fundamental. testify right Finally, right the the resembles to fair process the due part rights recognized requiring of other as auto in some even as such is impossible, matic reversal because is and It is embraced proceedings. extra-judicial perhaps improper, attempt judge meet and the, the defendant right of appearance in the on effect and to against him accusation deny jury. the stand would have had on the behalf, including in his evidence present Many rights oper excluded from the decision a witness. The as Chapman require himself of automatic rever ation a choice between will is their denial completely sal because taints participa- and active at trial passivity mere veracity process of the trial or because inject can which the defendant through tion produces the denial of the such subtle acts, into the personality voice unquantifiable his own influences that we are is the defend- Taking the stand process. judge unable to its effect.14 We cannot it, to face his if he wants opportunity, ant’s know whether a defendant denied counsel story, submit jury, tell attorney, would have fared better with an accusers examination, ability such and exercise an impartial or whether would have those who will persuade differently many discretionary ruled on the may have to he trial, may vitally affect his or whether a points racially raised at a decision make gives grand jury the defend- neutral would have acted differ the witness box And life. larger ently. a world than speak a forum to ant such as Considerations courtroom. testify produces The denial of the right to make the these equally incapable being a situation of ana- vitality fairness, dignity and the lyzed in the net amount of evi- terms of century judicial process. the twentieth of necessary Chapman dence to convict. case, matter involving improper another similar- an evidence testify bears jury. To determine if falling getting outside before rights

ity to the substantial beyond error reasonable explained, the there was harmless already I have Chapman. As the test of whether doubt the court used like the testify, trial, probability that plead there is a reasonable right to improper might matter have contributed to free of double to be guilty, and the verdict. If the concern here were im- to the defendant. personal jeopardy, evidence, involved, presumably proper exclusion rights are When the converse —whether it apply because test be rule does harmless error evidence, if reasonably probable with the “ultimate we are not concerned admitted, to a ver- might have contributed trial, preventing with but consequences” substantially approach by the dict. That is being overcome from the individual panel analyzed in this which Georgia, su- Price process. See criminal what would have said 26 content of pra, 398 U.S. concluded that exclu- indi- from the stand and recognize that an at 306. We injury beyond of it was error without to decide sion right personally denied vidual because it “would a new trial reasonable doubt guilty deserves plead whether to the verdict.” This treatment have altered there was sufficient of whether regardless evidentiary problem is the issue as an Similarly, here we to convict. evidence testimony excluded appropriate if the right to testi- the individual’s protect should ly say capable sense, that the error was harmless are not these 14. In analysis reasonable doubt. we cannot truthful- because can, Judges an unthinking paternalism witness.15 that of a mere toward criminal assurance, degree identify a reasonable defendants. merely trivial or cumulative out and sort In Faretta the Supreme Court vacated judgment a reasoned and form

evidence the conviction aof defendant who was not jury it impact upon the of what possible permitted appear pro se. There was no erroneously heard or failed to hear. There hint that Faretta would have fared better the degree speculation, but risk is appointed (indeed, without his lawyer it acceptable. keeping Where the error is in that, implied was might as one expect, he judge the from the stand the can defendant worse), might yet fare the Court did not what the consider the content of even see fit to discuss the possibility of might nonparty have said the same as for a error without injury Chapman. under weigh possible witness. But he cannot the jury impact upon the of factors such as the willingness to mount the stand Adequacy of counsel

rather than avail himself of the shelter of panel Neither the nor the en banc court Amendment, his the Fifth candor and cour has addressed the issue of ineffective coun- (or them), persuasiveness, lack tesy sel, although historically this has been the respect processes. for court These are entry point usual for consideration of the subjective factors, among elusive and even right to testify. If the might perceive persons who and hear the constitutional in dimension and defendant, significantly, they but more are defendant, depriving counsel’s him of the appel matters neither communicated to an right would be counsel ineffective in the late nor susceptible of communication constitutional sense—a court could hardly attempts Appellate appraise him. im countenance on tactical or strategic pact upon the of such unknown and grounds counsel’s depriving his client of purely speculative. unknowable matters is such a objection. over the client’s panel, In this case the the en banc But, even if the is not itself court, only addressed themselves to the con status, of constitutional or is not personal to tent of what the defendant would have possible is still that all the They gave said. no consideration to the circumstances surrounding the denial of the arising additional concerns from the de right to testify, including itself, the denial being kept stand, fendant himself from up to add ineffective counsel. The majority and, indeed, opinions do not reveal that have not possibility. considered this I be- the court is even aware of these other con lieve counsel inadequate case, in this cerns. Wright both because was denied the exer- truly judge Because we cannot the effect cise of his constitutional and because being of the defendant’s denied the manner in which counsel handled stand, take the and because we should be Wright’s effort to protecting concerned both I, course, believe that denial of a fed- choose whether to and the substance eral constitutional to testify testimony, suggest supports majori- I finding of ineffective ty’s assistance of entirely reliance on mis- coun- court, however, sel. The placed. To such an apply outcome-determi- need not reach analysis native this issue to denigrates posi- worst decide that counsel deprived respect petitioner tion of the individual with to his of his rights. defense and own trial and at best exhibits petitioner had a to testify under see 15. For a true “exclusion of evidence” defense exculpatory did not know of her re- Wainwright, Jackson v. (CA5, F.2d marks. We treated the matter as an evidentia- 1968). issue, and, ry question focusing upon content, Identification was a crucial held prosecution exculpatory failed to disclose that we could not assume that this evidence eyewitness concerning jury’s statements made an would not have effected the delibera- appearance alleged rapist. eye- tions, of an therefore nondisclosure was not harm- state, witness was not called and the less reasonable doubt. Indeed, Although they Texas did not tell petitioner constitution. Texas directly addressed court any have not had role or interest in courts the matter. advice testify against the full, of a defendant was entitled to fair and counsel,16 consti language of his get accurate advice. He did not it. Also Moreover, Texas Code is clear. tution counsel neither sought ruling from the clearly secured Procedure of Criminal concerning dispute court nor even ad- was not informed testify. Wright right to the court vised of its existence. Counsel’s statutory constitutional or either his position, pure simple, was “do what we right. say quit.” intentioned, or we However well this was coercive. It was a threat counsel ineffective be of an would also hold overreaching option appointed counsel, not available to the coercive cause of to testi Wright’s in which demand were representation manner who not free to cease of wills between handled. A battle fy was without leave of court. In his brief respon- client, in this attorney and such occurred acknowledges dent the coercive nature and in Par unnecessary. As done propriety doubtful of the threat: S., the client counsel can advise sons v. U. threat, Petitioner’s counsel’s harsh direct- tell him he is free to testify but also not to frightened defendant, ed at a may well judgment he wants if in his own go ahead have constituted an ethical violation of the matter can call to.17 Counsel professional However, his responsibility. attention and ask for instructions or court’s fraudulent, negligent was not or incom- bring dispute to the surface he can petent. for leave to withdraw. through a motion respondent, Brief of August 9,1976, filed p. Roeder, v. 435 F.2d 1004 U. S. Von See 10. grounds sub nom. (CA10), vacated on other 67, S., 326, v. 404 U.S. U. S.Ct. Counsel representation abandon Schreiver on his own ipse dixit. Anders v. See Cali- fornia, 738, 1396, 386 U.S. S.Ct. shortcomings case the of defense In this (1967) (leave L.Ed.2d 493 required of court Counsel failed to counsel were several. for counsel to appeal); Tripp withdraw on with information con- petitioner provide R., v. Rosa R. Santa St. consequences of the dis- cerning legal (1892); 36 L.Ed. 371 ABA Code of and client. Counsel pute between counsel Professional Responsibility, DR 2-110. Nor they tell that could with- petitioner did can he use the threat of abandonment as a only with leave of court and that if draw Wilcox, tool of coercion. supra. By See counsel would they withdrew successor the order of the appointing appointed court not ad- appointed. to be Counsel did have counsel is in the living courtroom as the permitted that Faretta petitioner vise the embodiment of A Gideon. court cannot represent himself if he so desired. him bearer, countenance a dispute threat this shield They petitioner did not tell impose client, uttered to his will on might be settled the court appropriately withdraw. he will walk upon filing petition unprotected of a out and leave itself State, provision, interpreting room. See Harris v. 16. In the constitutional 425 S.W.2d 642 State, (Tex.Crim.App.1968); not faced resolution the Texas courts have Ward (Tex.Crim.App. 1968); Leahy Ex of a conflict between client and counsel. S.W.2d 876 Lovelady, State, (Tex. 207 S.W.2d 396 Parte 152 Tex.Cr. 111 Tex.Cr. 13 S.W.2d 874 (1947) (Tex.Crim.App.), Crim.App.1928). held that counsel who disposi These cases are not put they the defendant on the stand self-representation had failed to tive because deal with nevertheless rendered effective assistance had rather than the wholly of counsel. The case seems concerned questions strategy with of trial rather than 17. Note statement of federal district counsel who refused a defendant’s de- present might in the “It case: have been testify. Beyond Lovelady, Texas cases mand to fully admonishing better for after merely may infringe a de- hold that the court client, permit persist him should he self-representation to main- fendant’s demanding to do so.” efficiency good in the court- tain order and designated he has been ward whose safeguard. permit impris- To this is “to COMMANDER’S PALACE PARK ASSO- call it privileges in his on a man CIATES, Plaintiff-Appellant, Adams v. U. ex rel. Constitution.” S.

McCann, 87 L.Ed. GIRARD AND PASTEL CORPORATION harmless error doctrine does al., Resort to the Defendants, et inadequacy overcome of counsel. circuit, consistently held that we R.O. Van Ness and Commander’s Palace suffering inadequate counsel need not one Park, Mobile Home adequate show to receive a new Defendants-Appellees. change the result on retrial. No. 76-2677. Wainwright, 564 F.2d 1125 See Bonds Smith, (CA5, 1977); Lumpkin v. 439 F.2d United States Court of Appeals, (CA5, 1971); cf. v. Califor- Fifth Circuit. nia. I would therefore hold enti- effective tled to a new trial with assistance May counsel. rights? Did waive his course, Of even fundamental Alabama,

be See 395 Boykin waived. at at 23 L.Ed.2d at

U.S. (1969); S., Patton v. U. 281 at U.S. (1930); Fay at 74 L.Ed. at 870 S.Ct. Noia, (1963); at 869 Faretta

L.Ed.2d v. Califor-

nia, 835-36, U.S. at S.Ct. at requires at 581-82 Waiver voluntarily relinquish

that the defendant Zerbst, right.

known Johnson v. 1019, 1023, L.Ed. ap- Whether this case is

proached as a case or as

an ineffective counsel there has been

no constitutionally effective waiver

defendant. regret

I has unwilling court been squarely.

to face this case I would meet it recognize

head on. I

of the defendant on his own be- Constitution,

half embraced our that it

is fundamental and to the defend-

ant, and that it is reach

harmless constitutional error rule. Inde-

pendently foregoing, I would hold appointed

also that counsel for this defend-

ant were ineffective. respectfully dissent.

Case Details

Case Name: Archie D. Wright v. W. J. Estelle, Jr., Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 10, 1978

Citation: 572 F.2d 1071

Docket Number: 76-2146

Court Abbreviation: 5th Cir.