*1 BUTLER, Raymond Appellant, E.
v. STATES, Appellee.
UNITED
No. 10330. Appeals.
District of Columbia Court of 22,
Argued 1979. En Banc March 29, April 1980.
Decided Wasserstrom, Defender J. Public
Silas
C.,
Service, Washington,
appellant.
D.
Farrell,
Atty.,
W.
Asst.
Michael
U. S.
C.,
whom
J.
Washington,
Earl
Sil-
D.
bert,
C.,
Washington,
at the
Atty.,
U. S.
D.
en
John A.
argument,
time of
banc
C.,D.
Terry,
Atty., Washington,
Asst. U. S.
brief,
appellee.
were on
KELLY,
NEWMAN,
Judge,
Before
Chief
GALLAGHER, NEBEKER,
KERN,
HAR
RIS,
FERREN, Associate
MACK and
Retired,
REILLY,
Judges,
Judge,
Chief
YEAGLEY,
Judge, Retired.*
Associate
MACK,
Judge:
Associate
reviewing
en
proceeding
In this
banc
convictions, we have examined
criminal
1)
challenges to
the denial
a motion
2)
as-
the effective
suppress evidence and
who,
to a
prior
sistance
of his
told the motions
perjury, and
client’s
to commit
intention
go
to a bench
permitted
his client
Although the
judge.1
trial before the same
question
presents
first issue
a troublesome
Ohio,
88 S.Ct.
light
Terry
need deal
difficulty, that he understood that counsel story, put Mr. can’t [Defense Counsel] man, was a busy appreci- but that he would you you on the stand after told him that having ate a counsel with more time. you didn’t have it. It really any-
Counsel addressed the court in return to doesn’t make difference that, say object being while he if, did not way, government's as I understand case, removed from the he had talked to his pistol evidence in be that the day client for an appoint- hour on the your was recovered from the small of ment, conferred him for 30 minutes back. What difference does it make prior preliminary hearing, to a filed the you say you you whether had it or didn’t suppress. motion to The real reason for his have it. Where did it come from? Out said, complaints, length client’s was the of thin air? of incarceration occasioned the defend- Thereafter in answer to the court’s fur- such, parole ant’s status. evidence is [“The about, inquiry ther as to what the case was Honor, Your that he’s in violation of the government’s evidence was detailed parole even if he wins because both counsel. Parole can the de- Board determine that In the course of the discussion pistol fendant . had on him . .”] (noting evidence defense that he Conceding jail that he visited “two, three, revealing be these matters on four months” counsel contin- ued: record but for the accusation of ineffective during the long colloquy convince followed3 course
assistance) spoke of his efforts to suppression client that if the motion which the court told the unsuccessful, convict- probably he would help would not the law and Constitution pistol charge (a felony by virtue ed of the (/. to make him in the decision he had e. plea previous conviction) that a guilty), enter a if plea whether pistol exchange guilty charge, went the motion *3 allocution, government’s waiver him, nied, it was all for that under over con- give him a chance for stronger would nothing have these circumstances he would time. current with, would see the bargain jury to that a “pickle.” in a protested pistol pistol 'and he would then be appellant When that search, govern- charge illegal thought added that it stemmed from an The court search, illegal told coun- THE For an 2. The defendant denied that he ever DEFENDANT: Honor, pistol type get I sel that he and added: Your sideration, should some con- being illegal me, itself. the search by you supposed representing And you to be you Well, see, telling what I’m supposed THE COURT: ain’t make no statements to is, hearing thing goes anyway. to on the now if the such as that decided motion and the motion is Honor, the CPW 3. THE DEFENDANT: Your then, you you, you put because an end to it search; illegal the assault stems from really anything with have to work don’t illegal stems from an search. point government knows it. that and the Well, see, you’re talking theo- THE COURT: they going to make a What in the world are talking ry have been and I’m facts. You your deny bargain plea you I for? If February; jail right? since is that evidence, they’ve suppress got motion to Yes, THE DEFENDANT: sir. evidence, physical they’ve got the evi- you can THE COURT: What’s the maximum jury. front of the dence and there it is in get on a CPW? you they’re going to do on What do think I, felony is a This COUNSEL]: [DEFENSE law, Now, felony? you know the I CDW Your Honor. telling guess. You in here me have come felony? THE COURT: This is a your rights about the law and about and all MR. Yes. GILMAN: Now, you like seem the Constitution. forty months THE DEFENDANT: It can be me, juries man to I what will smart but know years. ten yet you I where have do. haven’t seen a case being for it THE COURT: What’s the basis felony? physical pistol that on that evidence —I’m you right, telling Mr. Butler. I wouldn’t tell conviction of MR. GILMAN: Previous you wrong anything for If this in the world. crime, Your same Honor. denied, you goes it’s motion THE COURT: CPW? really pickle. are in a Yes, And I MR. Your Honor. GILMAN: APO, Now, you got on that some chance today, file have an information which I shall see, the fact of the because all know Honor, copies indicating Your that. I have juries go slow on those kind of matter — the counsel and defendant. So, things. We all I don’t know know that. THE Phew! COURT: they’ll you got do if the APO and CDW Honor, what I have Your [DEFENSE COUNSEL]: look the same That doesn’t too trying any time. explain, just mind tried to I don’t good. thing they see is The can that case, mur- but I’d rather take on the hardest they’re pistol going it all in wave front der case in the world and have a chance simple room with pistol charge, them and because take it win it than a you don’t, telling you you facts of life I have I’m what the either have it or them. defendant, wrong persuade you piece give I I wouldn’t tried to are. things revealing anything. wouldn’t be these information Now, you you accused me of record but for fact he’s to do. do want We’ll what dispose ineffective assistance of counsel. of it one either hear the motion your other, situation way THE COURT: Mr.—I believe know what I’d or the and don’t you sane is some here —What need now what the do with the I don’t know motion. judgment. is and We all know what the law way are and in the world for facts have no and all know what we all the Constitution you going tell to do me to what I’m that, see, help you right but that now won’t it, I’ve heard I can’t that until motion. decide you got make at this time. in the decision Butler, you think, they offer Mr. but see, you question because is do want — pretty disposition under the circum- decent over, really, is decid- the motion it’s all when your worth would be well stances anything bargain with. ed. You don’t take it. while to then, APO. and the It’s all over the CDW pretty disposi- ment had offered “a passed following day decent over until the and that tion under the circumstances and it would attorney appointed appel- another be your be well worth while take it.” might lant listen to. Counsel said he would get to remain in or out of happy either The court advised that he must appellant he hated to see Appellant decide what he wanted to do. going tragic make the mistake of to trial. counsel,” point,
noted at accept one “I another, and at The court told that he saw no go “I want on with the counsel, During trial.” this discussion the court ex- reason to remove an abortive dis- plained justify the officers could appel- cussion followed as to chances by showing they warrantless search securing ap- lant his own and the suspicion had reasonable patdown, for a accept pellant then said suspicion reasonable “means almost government’s offer.5 When the court be- *4 anything, you to tell the truth” and that the gan Super.Ct.Cr.R. inquiry, its advice of defense counsel was sound.4 reluctance, again expressed the court refus- accept and instructed plea, ed to counsel, Defense private after a confer- government to call its first witness for the ence appellant, told the court that problem purpose suppress. was that the motion to the defendant did not him; trust he requested testimony the case officer police be After from one Well, Really, THE DEFENDANT: I want to know 5. THE COURT: I don’t know what justify suspicion. what your problem would sitting reasonable is. You have been over Well, see, THE COURT: jail; therein lies the February, sitting right? there since problem and, really, Butler, Mr. Yes, I’ve been THE DEFENDANT: sir. asking question years, the same for and to right? THE COURT: Is that you truth, you tell you now want me to tell Yes, THE DEFENDANT: Your Honor. suspicion what reasonable means. got thing hanging THE COURT: You understood, THE DEFENDANT: I Your Hon- head; your right? over or— Yes, THE DEFENDANT: Your Honor. anything. THE COURT: It means almost you parole got THE COURT: And situa- means, THE DEFENDANT: It THE COURT: It means almost sir— your hanging tion over head. anything, to Yes, THE DEFENDANT: Your Honor. you tell the truth. Now, you got get THE COURT: to walking THE DEFENDANT: Does it mean way, got get road some kind of to ahead car, down the street like I this. wasn’t near a just deadtiming over somewhere. You’re say so can’t I was near a car. Does that there. You’re headed nowhere where appear suspicion? to be reasonable you just sitting jail. are much time How really much, THE COURT: It doesn’t. That you can do on it? Butler, thing Mr. is about the best I can tell THE DEFENDANT: I was told I can do ten you. years. got say. THE DEFENDANT: This is what I to Yes, you years THE can do ten COURT: Honor, [DEFENSE Your if COUNSEL]: jail, years’in it. You can do ten too. D.C. please Court, explain I have tried to to that, THE DEFENDANT: I understand Your police Mr. Butler that if the officer testifies Honor. pop up that he saw Mr. Butler from behind a Waiting question on it. The is THE COURT: street, midnight, car on a dark something evasive, near and do to, know, you you got what want to do. You suspicious, or look practical things, be about these Mr. Butler. police op- the Court believes the officer you There’s some make a stand in and some posed believing to not the defendant’s ver- don’t, your you sion, and if I were in circumstanc- justifiable then that’s reason to search any go I have hesitation to ahead pistol. es wouldn’t for you got dispose of But it. decide that gave THE COURT: You him sound advice. yourself. for [DEFENSE And he seems to COUNSEL]: Honor, interpret right, disagrees THE DEFENDANT: All Your with the officer’s ver- —he automatically accept government’s— judge sion and I’ll thinks that jury going accept govern- or to believe him. I have THE You’ll tried COURT: explain offer, practicalities you? to police to him the ment’s will testimony. officer’s THE DEFENDANT: Yes. See, THE do, COURT: he you knows more about this THE COURT: Is that what want to advice, it, case than I do. But his your as I hear Mr. Butler? Is that determination now? sound. Yeah, my THE DEFENDANT: determination. Now, you you do what want to do. have Mr. Butler appellant’s apprehension6 the mo- I advised scribing suppression getting was denied and a trial will him ... tion for court assist competent attorney date set. . a very appeal. handle his Trial was scheduled October had heard the the same who before Thereafter, of trial written waiver morning suppress. On that coun- motion testimony executed. preliminary disposed sel and appeared at the officer waiting while matters by stipulation. Two motion was admitted counsel told the brought to court. Defense identify pistol other officers testified nonjury “we intend” court that charge. give the assault Mo- details of stipu- anticipated, because which judgment acquittal for a were de- tions lations, ten min- would take no more than nied, testify, the defendant elected not spoke evidentiary utes. After counsel and the defense rested. matters, in answer to closing argument, defense counsel inquiry, indicated that did not court’s time,” speaking first “to save the court client take the stand: think his inter alia: stated I Court explained problems Honor, about it as being Your as honest last time whether not he regarding case, I think this be in this think can telling having truth about whether or pivot upon will is a case which pistol. stating what So reserve I’ll do *5 or incorrect Your was correct not Honor gets until he and let him make the here Sep- at the suppressing pistol in not will decision but think he take I don’t suppress. 25th tember motion stand. Counsel explained he had taken this ap- [*] [*] [*] [*] [*] [*] proach because he had assured regard police In to the assault appeal an way that this still have he would officer, argument would submit on get- him in and that the court would assist acquittal judgment made on the [that ting attorney. force the defendant was entitled meet spoke The court of its recollection that not police with force if the officer was prior least one conviction. good performing his duties in faith]. prior Government counsel recited all convic- that, to find the With I’d ask Court attempted robbery tions: in the United if Honor disbe- guilty Your defendant not Court, possession imple- States District testimony. lieves Government’s carrying ments of 'in crime - govern- hear court did not from The pistol without a license in 1971. Defense guilty on ment and found defendant indicated, upon inquiry from the both counts. court, difficulty that would not have appel- with those event convictions
lant took the stand. I. trial, When case was called for central, factor, startling rather A
fense counsel stated the record: blush, in an un- complex issues first raises going just are to have a trial We set- prehearing In a usual factual context. spoken Court. I Mr. Fri- Butler a motions told ting, defense counsel has he was day, agreement with that ad- as a result of coun- (apparently again morning vice at time and this ultimately client) has sel’s advice to his 9:15, at about at that time Mr. Butler trier-of-fact, merits of his become prefer go indicated he that we his client the fact client’s trial before Your Honor. court perjury. intends to commit $ conduct ‡ ‡ $ $ $ counsel’s we are asked—does did do not be heard. The Defense counsel did call client he wished suggested ask if that the court him so. perjured or use the of counsel aid to the assistance amount to ineffective defendant takes testimony. Before the govern- Amendment? The under the Sixth circumstances, the law- the stand these argues the fact that counsel ment the fact that yer should make a record of pretrial setting with the accu- faced in the taking the stand the defendant is having ineffective assist- sation of rendered appropriate in some the advice of counsel finding here precludes ance of counsel our to the revealing manner without the fact to re- performance amounted his ex- lawyer court. The must confine prejudice. versible error absence identifying the witness amination to analysis pointing is made A skillful him to permitting defendant protecting lawyer conflict that a faces to the trier or make his statement and at his client’s confidences the same facts; lawyer may triers of the responding allegation to an ineffec- time of the de- engage in direct examination remind, however, We would tiveness. in the conventional fendant as a witness may face a conflict in lawyer likewise may argue manner and not later the de- protecting his client’s confidences and fendant’s known false version of facts refraining lending support to what he worthy of belief and she) testimony. The (or believes to be false the false testimo- rely upon not recite or of first first described conflict is a matter ny closing argument. in his here; the second not. impression ap- discussed in The Standard has been confidence is protection client’s as- there was ineffective peals urging that professional responsibili- basic a tenet of so at trial. sistance of counsel real ty yields only that it in the rarest of States, D.C.App., In Thornton v. United dilemma, ethical dilemmas. Thus in such a denied, A.2d cert. 429 F.2d advice, disassociation, passive rep- and even gave 50 L.Ed.2d resentation, may be resorted to in lieu of lawyer the trial tactics approval to exposure.7 These are the accommodations who, taking the knowing his client was suggested by the ABA for Crimi- Standards having been perjury, stand to commit (Approved nal Justice: Defense Function *6 withdraw, restricted his right denied the Draft, 1971), where a under circumstances the recommendations of representation to lawyer to his facts defendant admitted the ABA Standard. lawyer’s inde- guilt, which establish his the States, D.C.App., In Johnson v. United pendent investigation the admis- establishes spoke degree 162 we 404 A.2d true, on his sions are but the client insists (of testimony) false proffered certainty of right provides to trial. 7.7 that Standard lawyer may claim required is before lawyer must advise his client commentary to quoted We a dilemma. taking testify falsely, stand 7.7: Standard do so if the defendant insists that he will predi- is of this dilemma The existence The lawyer must if feasible. withdraw admitting in- upon cated the defendant’s Standard continues: lawyer which are facts to his culpatory not (c) the case is If withdrawal from lawyer’s own investi- corroborated court, permitted by feasible or is not main- long as the defendant gation. So during the or if the situation arises innocence, lawyer’s realistic tains his testifying upon guilty insists does not defendant he is in fact appraisal that 164 behalf, unprofes- preclude vigorous it is defense. falsely in his own [Id. lawyer to lend sional conduct for the n.2.] Duty Confidentiality: Disclosure questioned wheth- have Some commentators System, Adversary 29 attorney representing Misconduct in an in a Client a defendant er an Freedman, (1976). Rutgers Law- L.Rev. 332 M. his client’s disclose criminal case ever Adversary System yers’ perjury. in an States Ethics See United intention to commit Responsibility— Johnson, of Professional ABA Code 555 F.2d Cf. rel. Wilcox v. ex (3rd 1977), citing 4-101(C)(3). DR Michael Callan n.13 Cir. David, Responsibility Professional Harris inconsistency upon Johnson that an to his client her defense.
We held in proffered was insuf- between two defenses If in truth has committed the defendant testi- ficient to establish that the intended (a do not in this fact we know mony reversing false. a conviction case) she that falsehood for- does not ground improper- fair, that the trial court feit her trial. 730.] [Id. ly imposed the restrictions 7.7 of Standard not The court that its result was found counsel, noted: inconsistent with ethical standards speaks to a in which Section 7.7 situation expose would not subornation falsity testimony is defendant’s alia, noted, ABA perjury. It inter that the merely suspected. known and not Like did deal with a trial had Standards wise, previous our in which this cases jury: “The before without Stan- problem arose involved situations quite sensibly to assume that dards seem knew, attorney which the on inde based expected counsel will act such not be pendent investigation the case or on quandary fashion as disclose client, prior that the discussions omitted). (footnote finder.” at 731 fact Id. testimony defendant’s was false. It in that context we held the courts It is safe to therefore that say attorney could, with the de consistent of a de- weighed which have the dilemma right, represen fendant’s limit his her or counsel, the unenviable fense faced tation in accordance with 7.7. Thorn § position representing a client whom ton v. supra; United Herbert v. perjury, approved knows will commit 340 A.2d (for least) the recommended trials at (1975); see also ex rel. United States the ABA Standards accommodation of Johnson, (3d Wilcox Cir. v. F.2d requirements meets which both ethical 1977). here, veracity Where refrain- protecting confidences and clients’ falsity testimony is defendant’s per- is ing wrongdoing. lawyer conjectural, the ethical dilemma does story let tell own mitted to his client (footnote omitted).] arise. at 164 [Id. charge subsequent and is from a insulated Both involved Johnson Thornton are ineffective of counsel. We assistance interest, juries. there cases tried before Of approach prefera- persuaded that this fore, reasoning the Ninth Circuit implicit hold- ble one and we reaffirm spectre testimony a case where the of false that defense ings of Thornton and Johnson of a trial. Low arose the context bench possession when in of substantial Cardwell, 1978). (9th F.2d ery Cir. going his client is indicating facts Lowery The court held in that defense testimony jury, may, before a give perjured (without to withdraw stat motion *7 representation, consistent with effective ing reason) passive repre a with coupled procedures of follow the recommended sentation 7.7 was in accord Standard 7.7. Standard (of an unequivocal such announcement the it should be noted As to instant factfinder perjury) counsel’sbelief of to the support an initially that the record does not deprive process. as to the defendant of due that counsel knew inference that defense Hufstedler, (Judge concurring specifically perjury. to commit going client was denial would have the decisionon the rested court raised the issue the Counsel as of Sixth Amendment to effective hearing stage “because pre-motions the counsel.) sistance The said: of court and in this case” expect he wants to We the basic that proposition start with he had he’s me before that “because told if, circumstances, in- under these counsel the time he pistol, today for first and has, forms of the fact finder his belief in point true.” At that tells me that’s not action, by that disabled fact finder counsel that his client time knew judging the merits of the defend- him representations to his made inconsistent Further, has
ant’s defense.
gun.
He ad-
opposition
possession
of
placed
action
himself in
about
openly
vised
that he could not commit
the court’s
that
was
surmise
the defendant
said,
but he
the court
perjury,
also advised
that
about to
we
“if
commit
why.
done
fully
he had
so and
We think he
trial court
inquire
were to
into
matter,
unnecessarily betrayed the
necessarily
confidences of
it would
touch
client,
having
a
privileged
factor
serious conse-
attorney-client communications.”
quences
Monroe,
in view of
was
Id.
a
supra,
what
to follow.8
at 164.
intended
accused,
shield
for an
would become
argued
But
that the fact that counsel
sword if
in
as to
interpreted
such manner
reacting
challenge
to a
to effective
permit
betrayal
of the confidence
one
of
pretrial
of
stage
assistance
counsel at
protection.
who has sought its
The effect
government,
makes difference. The
rely
of such
interpretation
would be to deter
on our
ing
decision in Monroe v. United
raising legitimate
defendants from
claims
denied,
389 A.2d
cert.
of ineffective
assistance
counsel.
439 U.S.
L.Ed.2d 683
position
defends
as having
government argues, however,
counsel’s
that
merely responsive
inquiry
been
hearing
alleged incompetence
on
court.
trial,
whether held
or
in-
before
after
herent adversary
that
characteristics and
In Monroe we
“a
held that
trial court’s
fairly
cannot
be expected to resolve
primary duty under the Sixth Amendment
every
necessity
doubt as to
disclosure
when confronted with
claim
favor of a
challenged
client who has
coun-
inadequate preparation
and consultation
performance.
sel’s
We are
told that
counsel is to decide whether counsel has
issue as to how much counsel may say under
prepared
consulted with the defendant and
such
easy
circumstances
not an
and
one
proper
his case
Id.
manner.”
at 819.
that even if one or more of the remarks
We held that
the court must conduct an
were precipitous
unnecessary,
and
we
inquiry sufficient to determine the truth
appellant’s
should not reverse
conviction
scope
and
allegations
defendant’s
ground
of ineffective
assistance
it must
“findings
that
make
of fact of rec-
counsel unless
record
demonstrates
[emphasis
original]
ord
sufficient
per-
prejudiced by
ac-
meaningful
mit
appellate review on the is-
tions.
ability
sue of the
preparedness
[empha-
sis
of counsel
demonstrating
to render effective We
difficulty
find little
added]
assistance .
..”
Id.
on this
precise point
See also
record the
at which
However,
Farrell United
D.C.App.,391
stopped.
A.2d counsel should have
(1978). Nothing
validity
that we said in Monroe even if we
assume the
were to
can be read
suggesting
government’s argument,
the trial
the issue
in assessing
court
capability
prepar-
prejudice
taking
assessed
cannot be
without
edness
counsel can inquire into the
mer-
into consideration
events which subse-
its of
defense or the substance of
quently transpired.
Had defense counsel
testimony
defendant’s
requested
disqualify
defense
coun-
itself
may ethically
sel
such
address
issues.
In-
be certified to another
the case
deed,
Johnson,
subsequently
(and
court for
and trial
had such
questioned the
of a
no
propriety
request
granted)
court’s re-
been
there would be
questing
proffer
(even
inquiry.
where need for such
He did not do so
*8
trial was had
the
jury),
respect
and with
we
effect
to
find that the cumulative
Johnson,
necessary
independence
In United States ex
Wilcox v.
to
rel.
mutual trust and
122,
supra
representation.
apparent
the Third
noted:
Circuit
effective
It is
that
attorney may
not volunteer a mere unsub-
adversary system
It is essential to our
that
opinion
protesta-
ability
that his client’s
freely
stantiated
client’s
to
a
communicate
and in
perjured.
so
tions of innocence are
To do
confidence with his counsel be maintained
sys-
attorney
a
unnecessarily
would undermine
cornerstone of our
inviolate. When an
client,
justice.
the
tem of criminal
discloses
confidences of his
chilling
creates
effect which inhibits the
Moreover,
the court has
it.”
the court not
shared
actions taken
counsel9 and
viola-
deprived appellant
process
of due
in
the view defense counsel as to the facts
strategy,
of the
also as
tion
Fifth Amendment.
but
to
best defense
affirming his
good judgment
belief
II.
again
although
again.
of counsel
and
And
may
right
have
the assessment
been both
judicial
The essence of the
role is neutral-
(and
and
the course fol-
well-intentioned
ity. Byrd
v. United
D.C.App., 377
compassion),
out
lowed thereafter borne
400,
(1977).
judge
A.2d
A
“must
trial
court,
it is clear that the active role of
objective partic-
remain a
and
‘disinterested
”
that he
trying
in
the defendant
in
his
convince
ipant
proceeding’
and “[o]nce
enter a
should follow counsel’s advice to
position
neutral
been
jeopardized,
charge, was
judicial
per-
plea
guilty
pistol
to the
evenhandedness
should
that
improper.
‘the
disappears
vade
courtroom
”
imperiled.'
fair trial
be
Byrd
v. United
we re-
Haughton
Byers, A.2d
that a de-
manded a
with directions
case
(1979) (citations omitted).
20-21
plea of
withdraw a
fendant’s motion to
under circumstances
imagine
guilty
granted
It
how the
is difficult
trial
free
showed that
neutrality
judge
of a
could remain
where
record
compromise
told
bounds
beyond permissible
when
had been
court went
in that
government’s
encouraging
We noted
plea.
that
that
would un-
proved beyond
can be
doubt
reasonable
case that while the
convincing a
commit
doubtedly
and that
the defendant
intends to
have a difficult time
regard for the
nature
perjury.
jury
When the court has
of his
based on the
innocence
however,
who
defense,
is,
as the
ability
honesty
lawyer,
“[i]t
here,
credibility
appel-
and it
apparently
court
did
runs the risk of conviction
con-
decide, preferably
suffer
after
necessarily
the defendant would
lant
must
Under
he wishes
proportion
regard.
sulting
to such
whether
direct
guilt or
certifica
jury finally
recusal and
determine
such circumstances
have
said
tion,
proce
may be
desired
“whatever
innocence” and that
another
(see Thornton, supra)
consider-
appellant’s plea,
hold
dure
of the wisdom of
failing to do
control
Error in
fairness must
that
it is mandated.
ation
fundamental
that
sits as the
We
Id.
compounded
when the
. .”
at 405.
cautioned
so is
process clause com
in a Rule
situa-
The due
the trial
remarks
trier-of-fact.
court’s
factfinding.
that de-
the fine line
mands
fairness
tion must not cross
fundamental
Pennsylvania,
Id. at 404.
See McKeiver v.
403 U.S.
from coercion.
marcates advice
L.Ed.2d 647
instant
trial
remarks in the
court’s
Byrd
case are
to those made in
similar
—the
life,” the
expressly
folksy
advice
the “facts of
The trial court
this case
about
govern-
strength
its
references
prehearing stage
indicated
belief
to the
at the
story:
position,
speculation
ment’s
changed
had
that
defendant
incarceration,
of de-
length of
the chances
“And I
in the world
don’t have
doubt
sup-
prevailing
on the motion
represented
that he
had
fendant’s
you
he did
your
press
or at
before a
if
pistol
him.” “Now
on
based
admoni-
plea
interposed
change
your story,
Mr.
enter
[Defense Counsel]
—all
for
was one
put you
you
can’t
after
told
tions
the decision
on
stand
judicial
defendant
assessment
him that
didn’t
you
Joslin,
est)
support
request to with-
the defendant’s
9. We note
in United States v.
plea
U.S.App.D.C.
guilty,
to constitute
the fail
draw
was held
GALLAGHER, Associate
that
lawyer
tells the trier
YEAGLEY,
Judge,
own
Associate
defendant’s
whom
Retired,
joins concurring
part, dissenting
in
has no case and
the defense
fact
that
Ac-
and lie.
part:
plans
to take the stand
client
client's
re-
ruling on the
cordingly, after
Judge
concurring and dis-
join
I
Perron’s
see Thornton
counsel,
quest
for new
join
I do
opinion, except
senting
429,
States,
A.2d
cert.
D.C.App., 857
United
I
in footnote 4.
view
him on his discussion
denied,
644,
1024,
97 S.Ct.
429 U.S.
unnecessary
opin-
as
that discussion
judge should have
L.Ed.2d
believe it should be left
another
ion and
participation.1
further
himself from
recused
presented
is
day when such an issue
on a
concrete record.
however,
agree,
I
cannot
opinion that
I
in Part
court’s
premise
PERREN,
Judge, concurring in
Associate
client confi
duty
protect
lawyer’s
dissenting
part
part:
to defend
lawyer’s
dences limits the
case,
trial,
prior
appellant
In this
asked
ineffective
against
a client’s accusation
appoint
lawyer
rep-
another
the court
presented
under
the circumstances
ness
objecting
resent him. While not
removal
duty
a
to conduct
The trial court has
here.
case,
counsel for
defend-
from the
a
into
thorough,
inquiry
a
on-the-record
so,
representation
doing
to date.
ed his
assistance
of ineffective
pretrial
claim
ultimately
he informed the court —which
States, D.C.
v. United
counsel. Monroe
of fact —that
is an
became
trier
“[t]his
denied,
cert.
820-21,
811,
App., 389 A.2d
case,”
open and shut
and that his client
1006,
621,
does not constitute
put
“in
that he would not
him on the
ney-client privilege and cannot be used
defendant
gun, as
chief”);
deny
cf.
possession
the criminal
Diversified
stand to
Industries,
Meredith,
previous admis-
572 F.2d
was aware from his client’s
Inc.
testimony
(8th
1978)
banc)
such
(en
(only a limited
sion to him that
Cir.
attorney-client privilege
perjury.
waiver of the
oc-
amount
separate
nonpublic
curred in a
SEC
originally argued
be
When this case
*12
investigation).4
division, Judge
Judge
a
Harris and
fore
I—
believe,
dissenting
to affirm the con
summary,
Mack
In
under the circum-
—voted
viction,
duty
out that since it is the
way
pointing
stances of this
the
best
a
judge when a defendant makes
of a trial
protect
right
a
client’s Sixth Amendment
pretrial challenge to the effectiveness
counsel, as
effective assistance of
well
inquiry
an
to determine
counsel “to conduct
way
preserve
rights
only
lawyer’s
the
a
allega
scope
truth and
of defendant’s
the
4-101(C)(4),
permit
DR
is
an un-
under
tions,”
Monroe v. United
during
inquiry
limited
the Monroe-Farrell
811,
denied, 439
820 cert.
389 A.2d
hearing, coupled with assurance that disclo-
621,
1006,
(1978);
683
99 S.Ct.
58 L.Ed.2d
hearing
sures of client confidences at that
States, D.C.App.,
v. United
Thornton
will be
the new trier of fact.
withheld from
1024,
429,
denied,
cert.
429 U.S.
A.2d
REILLY,
Retired,
(1976), defense
Judge,
said to
disciplinary
light
of the incident —which
conduct
of our own
police version
private
rules,
original
with his client’s
opinion suggests
proce-
consistent
ex-
admission,
defendant had
if he
dure counsel should have followed
plan
with counsel’s
pressed dissatisfaction
client
take
proposed
knew that his
stand,
the witness
putting
not
him on
perjured testimony was
give
stand and
prompted
such dissatisfaction
¶7.7
recommended in
follow the course
„demand
change
Association;
of counsel.
fendant
Bar
Standards
the American
if
withdrew or
Counsel was aware
Relating to the Prosecution Function and
case the
obsta-
was removed from the
Function, viz., to
the Defense
advise
of defendant’s
accomplishment
cle to the
testifying, if the latter
client
have been
of trial
tactics would
scheme
insisted,
to move to withdraw and if
then
short,
away.
while counsel
cleared
granted,
permit
withdrawal were
certainty
predict with
been able to
defendant
without direct exami-
say
the wit-
what the defendant
reciting
rely-
nation and to refrain from
stand,
lawyer appointed,
were a new
ness
ing upon
testimony
closing
false
ar-
of his
privy
to “the intention
majority
gument
jury.
The
cites our
client,’’4
applicable
which was all
in the Thornton
decisions
required.
rule
Johnson v. United
disregards
also
plurality opinion
holdings”
“implicit
A.2d 162
4-101(G)(4),
permits a
DR
which
thrust of
But in neither case did this
that effect.
*14
lawyer
communica-
to reveal a confidential
conduct,
than
court hold that such
rather
.
.
defend himself
tion “to
4~101(G)(3)
disclosure under Rule
It can
wrongful
of
conduct.”
an accusation
the
preferred
was
course of action for
neglect
charges
that
scarcely be doubted
lawyer
presented
whose client
him with
prepa-
inadequate
of a
interest and
client’s
such a dilemma.
an accusation of
for trial amount to
ration
Thornton,
merely
compliance
In
we
held
Yet
are told
professional misconduct.
deprive
7.7 did not
the de-
Standard
compelled
here felt
to
that when counsel
assistance,
fendant of effective
and in John-
to defend
to such disclosure
order
resort
province
that
a trial
son
it was
the
proc-
himself,
deprived his client of due
upon
judge to
the Standard
impose
disquali-
failing to
the court to
by
ess
move
Moreover,
seem
counsel.
it would
obvious
the
to another
fy
certify
case
itself
that when trial counsel is faced with
trial because the revelation was
judge for
adverts, he
opinion
to which the
“dilemma”
prejudicial
to
client.
by looking
to
rules
should resolve
According
opinion,
to
had counsel in
this
than
court rather
the recommendations
(as-
adopted
course of action
this case
organization,
nonjudicial
of a
no matter
granted)
was
“there
suming such motion
respected.
how
inquiry”
for
been no need
such
would have
the ABA
view of
esteem accorded
e.,
request
inquiry into the merits of
[i.
fur
by
majority opinion,
one
Standard
only
This conclusion
for new counsel].
de
appropriate.
ther comment seems
A
ignores
prejudice
fact that whatever
to
fense counsel who follows this recommenda
here was self-in-
occurred
defendant
judge
signal
tion
to the trial
that
sends
flicted,
holding in Thornton v.
but also our
opinion
giving
is
perjured
the defendant
it is error for a
testimony. Thus
is some truth to
there
á motion for
before whom
Lowery
of the court in
v. Card
observation
to
a second
pending
was
direct
withdrawal
well,
(9th
1978),
Cir.
cited
F.2d
was transferred
judge to whom
case
lawyer
approval by
plurality,
trial,
inquiring into the
to refrain from
step
complied
with the first
grounds for
motion.
4-101(0(3).
See DR
thereby
may,
per-
ABA
in-
client’s intention to
procedure
recommended
disclose
complex
the trier of facts
client’s
jure
extremely
formed
that his
is an
himself
testimony
say,
But
as that
false.5
to
aby
has been addressed
question which
did
setting
court
aside a conviction under
and commentators.
number of courts
[Id.
attack,
collateral
that “if in
[fact]
at 122.]
fendant has
committed
footnote,
court decision cited
In a
she does not
that falsehood forfeit her
Henderson,
205 Kan.
was State v.
right
dangerously
to a fair
trial” comes
(1970), in which the Kansas Su-
P.2d 136
holding
in a crimi-
close
that a defendant
attorney
that an
preme Court decided
right
Supreme
nal
to lie. The
a client’s intention
permitted to disclose
emphasized
right
Court has
such
no
respect
With
to “commen-
perjury.
commit
exists:
tators”,
added another
the court
footnote:
Every
privileged
criminal defendant
is
See,
J. Michael
and Harris
g.,
e.
Callan
defense,
in his own
or to refuse
David,
responsibility and the
Professional
do so. But
cannot be
privilege
Confidentiality: Disclosure
Duty of
construed to include the
to commit
Adversary Sys
in an
Client Misconduct
York, 401
perjury.
v. New
[Harris
tem,
(1976) (disclo
Rutgers L.Rev. 332
L.Ed.2d 1
so
sure
not be made since to do
should
(1971).]
disclosing
would be
tantamount
We,
course,
are not
decisions
bound
guilty
charged);
of the crime
client is
appeal
of the United States courts
Freedman, Lawyers'
M.
Ethics in an Ad
circuits,
exception-
the various
with the
(1975). Compare,
3-4
versary System
holdings
of the District of Columbia
Project
ABA
on Standards for Criminal
prior
February
Circuit handed down
Justice: The Prosecution Function
Hence, it
startling
1971.6
find our
Function,
the Defense
Defense Function
adopting
court
case which
rationale of a
7.7(c) (1971) (attorney should not dis
§
premise
on a
repudiated
high
rests
intention)
close
with ABA
client’s
Code
est
nation.
It
diffi
equally
Responsibility
Professional
and Canons
support
cult
some of the dicta in an
Ethics,
4-101(C)(3),
DR
Judicial
at 17
opinion
Circuit,
Third
which the
*15
(disclosure
made).
be
should
majority
relies,
also
ex rel.
States
Johnson,
115, 122 (1977),
Wilcox v.
555 F.2d
It
an
appears
examination of these
from
although the facts of that case are distin
principal
arguments
the
writings
that
guishable from the case
us.7
now before
duty
the
of disclosure have been
here,
Unlike the plurality opinion
developed
Wilcox
in Professor Freedman’s “Law-
holding
refrained from
yers’
Adversary System,”
that a counsel’s dis-
in an
Ethics
closure of an
perjury
intended
amounted to
inviolability
which
the
of the trust
asserts
point,
a breach of confidence. On this
the
confidentiality
attorney-client
of
com-
[or
court remarked:
A
all circumstances.
under
munications]
book,
critique of this
attorney representing
Whether an
a de- well-reasoned
how-
must,
ever,
in a
or
depicts
fendant
criminal case
indeed
the author’s “view of eonfiden-
Lowery Cardwell,
Ryan,
5.In
coun-
6. M.A.P. v.
Under the Code might attorney think the Three of this dilemma have resolutions his discretion and dis- obliged to exercise permit the ac- proposed. been One is to told close confidences when the client has without testify by a narrative cused stand, that, attorney if to the called through lawyer’s question- guidance perjury. crime In- will commit the contending ing. compromises This both interpreta- offering his stead of crabbed exempts lawyer principles; 4-101(C)(3), Disciplinary tion of Rule duty disclose false evidence might argued a de- Freedman subjects implicit disclo- the client an in a perjury in own defense fendant’s imparted of information counsel. sure special type crime criminal resolution, of relative- suggested Another included within that should not be the advocate be ly origin, recent is that 4-101(B)(3). meaning Disciplinary Rule duty to reveal entirely from the excused so, special existence of the very Even that of the client. perjury if the whose liber- rights a defendant accorded but involves This is a coherent solution counsel, the appointed ties are at stake — an It the advocate several costs. makes trial, privilege, fifth amendment It would invite deception. instrument of doubt, proof and oth- beyond a reasonable client, cover of the unscrupulous under right against adding ers-—militates to ask the advo- attorney-client privilege, per- allow the client to compel counsel to plausi- devising the most cate’s advice jure ethically require even himself and perjury. ble argue client’s false the counsel the dilemma is The other resolution (Footnote omitted.) story jury. the client’s lawyer must reveal plurality opinion here does not While the perjury. A criminal accused *16 suggest urge a to that counsel should advocate, right of an to the assistance testimony, its thrust would believe false behalf, right and a his own on his client to compel indeed allow coun- communication of confidential perjure himself. However, not an should accused sel. of counsel to assistance have a note the contro- interesting It is Furthermore, an committing perjury. versy and the among the commentators only in obligation, an advocate has of Criminal Justice Stan- draftsmen the law ethics but under professional the attention of the dards has received well, implication in commis- to avoid by American Bar appointed Commission Review, Rotunda, at 15-16. 8. 89 Harv.L.Rev. Id. Book (1975-76). of Draft of ABA Model Rules
9. See “Discussion Conduct,” for comment Professional released 32; pp. 1-30. Feb. U.S.L.W. No. perjury prison prior of for of a sion or other falsification of conviction unrelated crime, It follows that the advocate evidence. and the offenses for two which disclose a if efforts perjury must client’s provide was convicted in this for maxi- of prevent commission have Nevertheless, mum af- years. terms of 10 failed. sentences, imposing prison ter new the trial suspended then the sentences and view, my grounds stated for the probation. placed appellant on Even the last are and call compelling resolution for unprejudiced judge scarcely most could retention of the provisions current have accorded him more lenient treatment. need pre- Code as annotated. If the venting attorney complicity deception re-
quires privileged disclosure of even infor- APPENDIX trial, mation in a civil no why I see reason MACK, Before Associate HARRIS principle govern the same should REILLY, Judges, Chief Judge, Retired. lawyers proceedings. conduct in criminal majority opinion As the seems hold oth- Opinion REILLY, by for the court Chief erwise, respectfully dissent. Judge, Retired. unpersuasive holding Also is the by Dissenting opinion Judge Associate counsel’s revelation to the court was so MACK. prejudicial neutrality of the trial judge was fatally compromised and hence REILLY, Judge, Chief Retired: he should have recused himself and certi- This is an appeal from a two-count con- judge fied the case to another for trial. As (1) viction in a nonjury trial assault on there were no contested issues of fact (D.C.Code 1973, police 22-505(a)), officer appellant eventually this accepting case— (2) carrying pistol without a license against testifying his counsel’s advice —the (D.C.Code 22-3204). Appellant as- § majority authorities cited have little signs as error a denial motion bearing or no here. The record of the trial suppress (viz., pistol) the evidence itself, distinguished the preliminary urges and also ground reversal colloquy suppression hearing, con- ineffective assistance of counsel. piece tains not one which evidence justified contention, acquitting Appellant’s on appellant either first based charge assaulting police assertedly officer or an unreasonable search and sei- carrying an gun. unlicensed It is therefore police zure who officer found the any way difficult conceive of in which pistol requires on person, brief dis- appellant deprived process, due un- cussion. The confrontation which resulted less majority feels that appellant’s night arrest occurred late one to a trial judge ignorant entitled before a city block street in a where several his intention to commit perjury and there- officer, parked. police cars were perhaps ready fore whole what- swallow previously several per- made arrests of testimony appellant ever give chose to stealing sons for items from automobiles in proceeding it may indeed be as- location, —if precise turned off the head- sumed would have taken the lights car approached of his as he unmarked a trial judge. stand in before another block alley.1 means He stopped building car at the front of the
The record discloses that the trial *17 line, keeping alley, of it in the prejudiced against was far from the rest “and appellant moment, despite just of his I sat there disclosure intention. for a observed tried, appellant At the time he was my my right.” was in far as I could to and He left why off, lights Anybody perpe- 1. Asked he had his block turned .... that was replied: trating officer a crime would know in advance that coming usually stop, someone was and for you going King- If turn into that street Place, obvious reasons. headlights up man show on the fronts houses on the west side of the 862 has been sustained in
cause for arrest exists Ohio, 1868, v. 1, his 20 Terry the front of 392 88 so that U.S. then drove forward Williams, and Adams v. Suddenly (1968), the sidewalk. car was on L.Ed.2d 889 1922, He testified: headlights. 1921, turned on the 32 92 S.Ct. U.S. headlights, put I on the “The moment after on (1972), stop if the “is based L.Ed.2d 612 up from stand I observed the defendant ar- by ‘specific and suspicion supported and ” west side of the parked car on the behind a ticulable facts.’ immediately walked Appellant street.” him, in this case are satisfied that We drove abreast away, but the officer was cor denying suppression he was out, him what court’s order stepped and asked hid by appellant Here, doing. appellant When informed rect. was discovered around,” the officer hanging night on a “just he was late at parked den behind a car was This some identification. requested been by the officer to have block known gave the forthcoming, appellant and cars. thefts from prior of numerous scene the officer address which a residence officer question momentary detention for Hence a then started Appellant false. believed to be re police obviously reasonable ing was an and behaving suspiciously, away, to back See, v. United g., Stephenson e. sponse. was arm- whether he asked him officer 606, (1972), D.C.App., 296 A.2d negative, but replied in the Appellant ed. denied, cert. 93 S.Ct. retreat, told the officer as he continued L.Ed.2d 197 he was down. As pat he would him him so, questioning begun, brushed had the ob- attempting appellant Once do resulting aside, provide plau- arm and vious officer’s failure of rea- scuffle, what he “most felt him- explanation having the officer sible concealed A weapon.”2 sonably car, was sure was uncooperative parked self behind a his struck in which struggle ensued answers, tactics, were and his evasive A second times. the first officer several allay the officer’s scarcely calculated to scene, helped officer, arriving on original these circum- suspicions. Under extract a appellant and first one to subdue stances, foolhardy would have been pistol from his waistband. interroga- pursued the officer to have frisking suspect tion without further Thompson v. pointed out As have like- suggested whose behavior a reasonable A.2d D.C.App., 368 being dangerous.” lihood “armed and cases, other in numerous and Ohio, Terry See 392 U.S. ques- stop and policeman to of a S.Ct. at 1884. though probable no even person tion a Street, portrayal 1500 block of Euclid he lived in the Northwest, and limited 2. The dissent’s selective my following quotation best of recollec- and to the the facts warrants tion, Hilltop. testimony suppression hearing To the best he said he lived in from the recollection, arresting my tom area has been officer: building vacant. At this was down or vehicle, my got approached stopped out and I nérvous, noticeably head time he became Butler, just my question, I asked first Mr. staring by me car, and he sort of twitched doing and at him he was behind the what questions, asking like look- just hanging I ing him these he stated he was this time normal, your eyes nobody would blink. like else there was around. At 11 o’clock on the street. Due to the away began just up me. He Popped from behind a car. He looked began up petit away large to back larcenies from me. He amount back area, occurring little, I in that him if and other offenses was department pile fingerprints. and at this time I asked no, police just going spot-check him, weapon card to fill out a he said on form, they’re backwards, com- moving used to and at a little started them in and pat You can send going him down 1 told him 1 was time larceny petit they compare fingerprints my right outside, reach I went to might Anything in that be used my pushed cards. arm He his back. arm around away Immediately, area. his left hand. identi- defendant for some I then asked the my of his to the small hand further shoved fication, he didn’t at which time he stated back, grabbed the butt of what onto where any, In conversation he lost his wallet. weapon. reasonably was sure was most lived, and he said him where he I then asked *18 ord, it. by characterizing rather than merely colleague’s dissenting Contrary suppression hearing to our As soon court, incident, following scription the officer’s artic- to order called in no grounds suspicion colloquy rested occurred: ulated way upon the “familiar talis- whatsoever prelimi- aAs COUNSEL]: [DEFENSE litany” he had encountered the manic matter, nary Mr. Butler has advised me “high The offi- appellant in a crime area.” would address the Court about like to between cer had found him concealed counsel, we started the mo- since haven’t parked many 'a block where so cars on yet. tion objects in pilferage such thefts Honor, THE DEFENDANT: I Your parked previously that in cars had occurred represent don’t wish [defense counsel] location, approaching the officer had I yet. me. haven’t If secured counsel deliberately headlights in the turned off his appoint the Court would me another expectation well uncover a might represent get my me till I own Ohio, Terry sneak thief at work. counsel, it all right. prefer would be I grounds disputed only for the that. stop and search were that the officer had Well, THE COURT: [defense counsel] loitering front a retail seen two men previously appointed to represent shop suspected, they continued because you matter, in this was he not? hang there, might they be around Yes, THE DEFENDANT: Your Hon- joint” breaking “casing with a view to It though or. seems as I had trouble leading in. Had the officer in that communicating with I [defense counsel]. ques- shop been informed that the retail Association, wrote the Bar the Public De- burgled, justi- tion repeatedly had been fender Service and the Judge try frisking questioning fication communicate with counsel], [defense suspects stronger. have been much up was locked February and I saw very This was the situation which confront- once, in April. I [defense didn’t counsel] ed the officer in the case before us. see no Sep- more until [defense counsel] deprivation Appellant’s of effec asserted tember really haven’t had presents tive assistance of counsel a some rather, time he hasn’t had time to to— question. what more novel In Thornton v. talk to me my about case. I understand 357 A.2d cert. very man, that he’s a busy appre- and I’d denied, ciate someone who has a little more time L.Ed.2d 626 we dealt with the dilem than he has. client, ma of a counsel whose liter statement, By that clearly trial, ally changed on the eve of so pretrial raised a claim of ineffective assist- version of the incident for which he towas ance of counsel. Faced with such a situa- be tried that counsel could only conclude tion in recently another we stated: testimony new version would When a pretrial defendant makes a chal be perjurious, counterproduc lenge to the effectiveness of counsel— Here, comparable tive. change a somewhat whether court-appointed or retained— occurred, in stories but within the context requests appointment of new beginning suppression ground counsel on the due hearing. to lack investigation, preparation, Moreover, unlike what occurred Thorn- reason, other rendering substantial is ton, appellant either in testify, never did assistance, reasonably effective the trial suppression hearing ator the trial. As court has a duty constitutional to conduct explain, signifi- shall differences are inquiry sufficient to determine the cant. scope truth and allega of the defendant’s proper understanding
A develop- tions. v. United D.C. [Monroe ment problem App., (1978) (citations can best A.2d omitted).] quoting significantly rather the rec-
I along. Judge have moved for trial all See also States, that he never supra Thornton v. United Smith’s calendar was such 434-35; at get States, Brown v. United could a trial. We had a continuance U.S.App.D.C. two or three The last time was (en 264 F.2d times. banc) denied, September 4th, that the case (Burger, J., concurring), urged cert. and I 911, 79 possible be heard as because L.Ed.2d 1262 soon my up, it was defendant is locked benefit- judgment
While the defendant is that the suppression hearing in was time on ting by up conducted the same being locked prior to our eight months $1,500 decision in parole and on su violation Thornton v. United pra, nearly and bond, credit prior going get to to years three our because he’s opinion in Monroe served time that he’s eventually for the proceeded trial court precise violations, to conduct for jail for both inquiry. an ly such charge. Defense counsel ex parole pistol for the violation and plained position in detail: that I nev- is concerned defendant please If it [DEFENSE COUNSEL]: him for jail to see er came down to Court, appointed I was represent to months, I two, three, and I concede four Butler, Mr. I believe February, 1st of suppress]. filed a motion did not. I [to This thereabouts. incident occurred case, Hon- Your and shut open This is an 31st, suppose I January so it was Febru- two or, approximately I talked for where I met with Mr. ary 1st. Butler in the defendant, appro- filed an hours with the him spoke and I cellbloek least or two motion, are one there priate the facts about case. I hour officers, for the police witnesses that are again prior the prelimi- him met with word this defendant’s government, nary February 12th, 1975, date on the incident to an theirs as I thirty-minute confer- least hid at minutes ten took about street that ence, again day him and\ spoke put you where It is not a case occur. and we hearing in preliminary hid a evidence, the de- because character which I had of the police wiexamination moral crime of for a parole is on fendant officer. The believe, came Indictment an alibi he doesn’t turpitude, and in April. I filed suppress a motion and, scene on the was arrested because he evidence. That to be going heard on vías Honor, I ex- frank, because Your to be the preliminary May, date be- case, ishe in this wants to pect he lieve. Honor, Your object be- don’t put him want to not that I do concerned ing removed as counsel in the me before told stand, he’s because just I’d like to state on the record that today pistol, he had Mr. Boiler has called the Public Defender true. not that’s me he tells first time Office, complained Vehas to the Griev- ance Committee and the text real of his briefly to digress juncture, At this complaint he doesn’t under- simply Judge dissenting opinion refer to the stand, my been incar- opirnTlj he’s why apparently she While which follows. Mack cerated long. so two-year back- Hb\as a as- effective was denied believes up time parole my It pre^tly. con- a rather makes she sistance judgment not to try to gvt make him “I do states: She trary observation. $1,500 bond because I have ^lked in his incorrect counsel suggest parole officer and he is going astute than or less facts assessment released until this matter is litigated. Nonethe- strategy.” legal choice of in his The evidenceis such,Your Honor, that counsel less, concludes she he s in violation of parole even if he [his] advo- as an client representing “was not wins the case, because the Board Parole cate.” can determine defendant had pistol manifestly contradict- on him, That conclusion which is a violation parole success- Defense conditions. the record. ed *20 it you either have
pistol charge, because persuade you don’t, I have tried to fully negotiated plea bargain; a defendant, I wouldn’t be reveal- government prepared drop to but for charge ing things on record police of assault on a these officer and agree assist- me not to allocute at fact accused of ineffective sentencing he’s hearing plead if were to of guilty to ance counsel.
flected his
ing three observations:
license. As the trial court’s
such a
discussion.
and the court terminated the Prior
matter
pistol charge.
lies, Your Honor.
tation I have tried to
I don’t see how in the world a
convince Mr.
ful in
have
unsuccessful
assault on
have
[DEFENSE COUNSEL]:
I have tried
[DEFENSE COUNSEL]:
charge
[*]
thereto,
developed,
suppressing
plea;
a
could avoid
tried to
good
problems by making
of
[*]
then expressed reservations
defense
on suppression
carrying
Butler
police
chance with
impress
That’s where
from the
[*]
convicting
officer;
counsel
pistol,
—It’s
a
impress upon him
[*]
pistol
if we’re success-
inquiry
first
beginning
my represen-
then may
Your
the jury
but if we’re
....
[*]
further re-
him the
the follow-
without a
agreed
into the
quarrel
Honor,
pistol,
[*]
or a
[to]
on
to counsel
judge
this record.
binding
stated Monroe
or without evidence
after
Such
fense counsel:
such conclusion
D.C.Code
lant’s
represented properly.
interests..
really
done all he can under the circumstances.
ler,
want to
There are
think he’s
THE
must
hearing
assertion
is
made the
must fail.
type
upon
COURT:
1973, 17-305(a).
do
be made
[defense counsel’s]
three
I know when a case has been
us
[as
you got
from’the defendant and de-
adequately represented
§
finding, which we
of
could
unless
following
to
v.
basic
The
ineffective assistance
tendering
by the trial
to
to
first is
reasons
support
situation,
reached
is
decide what
States,
factual
“plainly
Assuredly no
that the trial
a
fault.
why appel-
plea].
it.”3 See
Mr.
court, is
supra
recently
finding
wrong
us on
your
But-
He’s
you
It’s
of
Second,
pleads
obligation
that if he
pistol
light
the fact
charge,
clearly
prov-
which I think
can be
situation
type
trial
court in
doubt,
beyond a
to deter-
en
reasonable
and the
inquiry
“to conduct an
sufficient
allocution,
government waives
he has a
scope of the defendant’s
mine the truth and
stronger
much
chance for concurrent
Monroe United
allegations,” see
impress
I tried to
him.
an officer
time.
counsel as
supra
defense
that,
the court
obliged
acquaint
He won’t talk to me about
and with
to
back-up
years
permit
time that should be a
an informed
two
facts
with sufficient
prime
finding
representation
consideration.
as to whether
I have
trying
the hardest
[DEFENSE
[*]
just
any
[*]
tried to
murder case
COUNSEL]:
[*]
but I’d
explain,
[*]
in the world
rather take on
Your
I don’t mind
[*]
Honor,
[*]
satisfied the
new counsel
counsel
court from
mate reason
have been
being
requisite standards.
for the defendant’s
able to
have
silent as to
precluded
properly
seeking of
Here, for
the ulti-
evaluate
the trial
the circumstances.4
simple
than a
to win it
a chance
sufficiency
under
their
the circumstances.
noted
v. United
We further
in Monroe
819.)
(389
supra:
A.2d at
required to evaluate the
The trial court is not
colleague
dissenting
hints that
4. Our
attorney,
strategic options open
sub-
to an
representa-
counsel’s candid discussion of
personal opinions for that
its
stitute
obviously
“pav[ed] the
difficult client
tion of an
way
engage
attorneys,
otherwise
fense
or to
impartiality.”
chal-
No such
required only
for denial of
speculative judgments.
It is
lenge
judge’s
in the
made
trial
role was
steps
taken
the concrete
ascertain
court,
argument been
nor has such an
preparation
to evaluate
case and
hearing, appellant
prepared
tender
Third,
noted,
(although,
later
guilty plea
contention of denial of effec-
counsel is belied
changed
mind).
brought
play
tive assistance of
That
into
colleague’s
unlikely
our
dissenting
source:
provisions
Super.Ct.Cr.R.
subsec-
opinion.
acknowledgment
pos-
While
(c)
guilty
court in
requires
tion
which
is inher-
tangible
session of
evidence which
per-
plea
“address the defendant
filing
suppress
ent
of a
motion
of,
open
inform him
sonally in
court and
merits,
not later admissible
a trial
understands,
the fol-
and determine that
*21
377,
v.
390
Simmons United
88
(1)
charge
lowing:
the nature of
967,
MACK,
Judge,
Associate
dissenting:
open
case,
This is an
and shut
Your
Honor,
approximately
where
talked for
I respectfully dissent.
Monroe v.
defendant,
two hours with the
filed an
States,
811,
D.C.App.,389 A.2d
cert.
motion,
appropriate
and there are one or
denied,
1006,
621,
439 U.S.
99 S.Ct.
officers,
two
police
witnesses that are
L.Ed.2d 683
this court held that
the government,
where a
and this defendant's
claim of ineffective assistance of
counsel
word
theirs as to an incident on
context,
is raised in a pretrial
by
standard
the street that took about ten minutes to
competence
which the
of de
you
fense
a case where
put
counsel is to
occur.
It is not
be measured is that
“
evidence,
which is
range
‘within the
character in
because
competence
”
attorneys
demanded of
fendant
for a crime of moral
parole
criminal cases.’
is on
819, citing
Id. at
Richardson,
turpitude,
McMann v.
and he doesn’t have an alibi
759,
14,
and,
U.S.
771 & n.
because he
on the scene
S.Ct.
was arrested
(1970).1
25 L.Ed.2d
frank,
Honor,
In adopting
to be
Your
because I ex-
standard,
we also held
pect
case,
that since a
he wants to
in this
he is
noted, appellant voluntarily
App.,
(1973), petition
6. As
did not take
However,
in the circumstances of this
put
concerned that I do
want to
him
the issue is not so
whether the
much
stand,
because he’s told me before
had effective
has
assistance of
pistol,
today
had the
and
for the
sense,
counsel in the traditional
as whether
first
time he tells me that’s not
true.
he has had
assistance
counsel at all in
point
constitutional sense at a
critical
By expressing
personal
as to
views
shaped
derogation
his fate in
mean
legitimacy
merits of the facts
ingful right
to trial.
read the
cannot
before
available defenses
statement of
trier-of-fact, appel-
ultimately sat as
conclude that this is the
of coun
assistance
represent
to adequately
lant’s counsel failed
contemplated
sel
Sixth Amendment.
client
under the standard we set forth in
amendment,
That
Supreme
Court
Monroe. For the trial court to have disre-
said, was
to do away
intended
with the
garded
impact
prejudicial
law
common
limitation of
assistance
conduct was
of constitutional dimen-
error
counsel to
of law
excluding
matters
sion.
matters of fact.
See United States
respon
significant
The trial court bears
Wade,
224-25,
sibility
assessing
evaluating
the mer
1930-31, 18
here,
L.Ed.2d 1149
And
of an
of counsel
its
ineffective assistance
whatever
competence
of counsel as a
inadequate
alleges
an accused
claim. When
lawyer
legal
strategy,
his choice
representation,
the trial
must not
fact
is that he was not
representing
thorough
inquiry as
undertake a
factual
client as an advocate.5
complaint,
the substance of defendant’s
as a
law
also must determine
matter of
*23
(in the context of
Supreme
Court
the basis of those facts whether defense
case)
specifically
has
noted
appellate
performance
com
counsel’s conduct
substantial
requirements
constitutional
ports
the mandate of
the Sixth
ap
mandate that
equality
process
fair
making
that determina
Amendment.
in the role of an active
pointed counsel act
tion
must
evaluate
facts
opposed
his
as
client
advocate
behalf
carefully
legal
certain
con
and be
that his
Califor
curiae. Anders v.
that of amicus
to
fundamentally
ap
clusion is
When
sound.4
1396, 1400, 18
nia,
87 S.Ct.
386 U.S.
pellant’s
preju
highly
defense counsel made
vein,
juris
(1967). In like
this
493
L.Ed.2d
dicial
concerning
statements
his client and
are
indigents
recognized
has
diction
objection permitted
later without
his client
acting
by counsel
representation
to
entitled
go
judge,
trial before
same
counsel
court,
“pot
as
passive
as a
friend
professional compe
did not exhibit
“
in an ad
advocate
diligent, conscientious
compe
tence which
range
‘within the
v.
Tate
United
versary process.”
tence demanded of attorneys in criminal
”
269,
245,
261,
359
253
F.2d
cases,’
U.S.App.D.C.
Monroe,
123
supra
quoted
at 816
Ham
States v.
United
Richardson,
(1966).
McMann
See also
759,
v.
397 U.S.
&
166, 170, 425 F.2d
n.14,
monds,
U.S.App.D.C.
observed
circumstances,
former
required
personal
to make a
assessment as
A defendant’s assertion of a
falsity, guilt
to truth or
or innocence
the trial
presents
ineffectiveness
claim of
pledged
which counsel is
to defend.
steps
opportunity to' take
judge with the
required
regard.
Extreme caution is
repre-
to eliminate
deficiencies
pur-
The course of conduct which counsel
resources
of counsel before the
sentation
may
implications
profound
judicial
have been invested
sues
system
respect
possibility
of a fair trial for
The dis-
trial.
.
.
full-blown
claims,
premature speculation
the client. Counsel’s
pretrial,
raised
position of such
pretrial stage
at the
as to a client’s intent
the tradi-
may serve as an alternative to
from a
perjury
quite
to commit
different
point
focal
for con-
post-conviction
tional
certainty
defense counsel’s
at trial that the
advocacy,
quality
of defense
trol
perjury,
client does intend to commit
at
expedite
to minimize or
serve
possibility
perjury
longer
trial the
is no
ineffec-
disposition of the number of
quite
imminent.8
speculation
mere
claims.
tive assistance
[Id.
818-19.1
ther,
suggest
openly placed
I do not mean to
that a defense coun-
his action
him-
upon learning
sel
that his client has
opposition
self in
to his client
her de-
committed or intends to commit
does
consequences
fense.
of such action on
duty
guard
owe
client a
his confi-
part
judgment,
in our
are such
*25
dences,
stage
pro-
for even at this
of criminal
deprive
as to
the defendant of a fair trial.
If
ceedings
may
defense counsel’s disclosures
de-
perjury
in truth the defendant has committed
prive
example,
his client of a fair trial. For
in
(a
case)
fact we do not know in this
she does
Lowery
Cardwell,
(9th
v.
9. Chief Justice Warren a staunch advo- saying that this no basis there lawyer’s duty cate of intent to commit disclose client’s lying. jury A tells witness perjury, recognized lay jurors the case that such is infer present different considerations are where such A [Burger, of Conduct: Standards will not. judge sitting disclosures are made before a 11,Q. Viewpoint, Judge's 5 Am.Crim.Law the trier-of-fact than where trier-of-fact. the intends to commit the sits as added).] (1966) (emphasis setting forth his views as to *26 appellant persuade in fact not to 10. Counsel did proper dealing method of with a client who presented and he no witnesses. Much taking insists on and government’s testimony developed stand, at the Burger Judge] [then Circuit stated: to, pretrial hearing stipulated was motion lawyer’s If in those circumstances the imme- judgment acquittal charge on the assault diate either withdrawal from the case is denied, expressed was and feasible, permit or if the refuses again opinion on withdrawal, that the case would turn lawyer’s course clear. He is suppression may engage issue. in direct examination 872 nervous false, noticeably was and became view, my concerns, upon questioning. continued his ac-
Despite counsel’sethical
a conclusion
support
facts
neither
in-
these
petitioner’s
tions were so adverse
afoot, nor that
activity was
that criminal
deprive
of effective
terest as to
[her]
presently danger-
appellant was armed and
matter how
of counsel. No
assistance
that the
ous. The officer himself confirmed
may
commendable
have been
thing
appellant
he saw the
only “suspicious”
motives,
saving
himself
his interest
up
parked
to. stand
from behind a
do was
of the canons
potential
violation
his head-
car when the officer turned on
client,
the end
to his
and
was adverse
support the infer-
lights.
equally
The facts
of a dili-
product was his abandonment
have crouched
appellant may
ence that the
Cardwell,
[Lowery v.
575
gent defense.
an
car when he saw
parked
in fear behind a
1978)(Hufstedler,
(9th
F.2d
Cir.
unmarked,
its
cruiser with
dark-colored
J.,
omitted).]
(citations
concurring)
moving slowly down a
lights extinguished
mandated because of
I believe reversal is
sidewalk,
alley
pulling
dark
onto
well as
of counsel as
ineffective assistance
only when the
appellant
and that
stood
ground.
on another
lights
on his
and became
officer turned
point
Significantly,
identifiable.
at
II.
any
appellant did not run or make
furtive
“stop
We need to be reminded that a
the nearest
movements but walked toward
frisk” is a search and seizure within the
intersection,
where he was followed
meaning of the Fourth Amendment and stopped
police
certainly
And
by the
officer.
satisfy
must therefore
constitutional stan-
an abnormal
increasing nervousness is not
Ohio,
Terry
dards of reasonableness.
being
questioned
reaction to
followed and
1, 16,
20 L.Ed.2d
S.Ct.
by police
officer.
(1968).
majority recognizes,
As the
respect
With
to the lateness of
hour
stop
supported by “specific
must be
high crime
and the fact that
this was a
facts.” I would
articulable
add that
area,
held, by them-
these factors have been
search conducted
an officer must be a
selves,
justifi-
as to the
not to be conclusive
weapons
justified
limited one for
and is
stop
frisk. This court has
cation for a
only if the officer observes unusual conduct
“facts
stated that it eschews the notion that
(1)
which leads him to
that crimi-
conclude
significance
they
assume added
because
(2)
activity may
nal
be afoot and
that the
high crime
happen to have occurred in a
person
dealing
he is
be armed and
litany, with-
area. This familiar talismanic
presently dangerous. Id. at
at
more,
support an
great
out a
deal
cannot
engaged
inference that
upon
“articulable facts” here
which
criminal conduct.” Curtis v. United
the officer based his
conclusion that
D.C.App., 349 A.2d
See
search
appel-
was warranted are that the
States, D.C.App.,
Kenion v.
302 A.2d
United
lant rose from
parked
behind a
car and
(1973).11 may
presence
“It
be that
high
walked down a
in a
street
crime area
early
hour in
city
streets of this
an
m.,
p.
stopped
11:00
when
could not
morning
suspicious
.
. but
identification,
produce
gave an address
something
required
more than that
policeman incorrectly
which the
interrogation.”
believed justify police detention and
sighting
States, supra,
In Kenion v.
where a
11. In Curtis v. United
high
alley
gathered
people
an
in a
walking
an
three
were seen
down
man and a woman
alley
weather,
poor
m.,
one of whom
p.
area in
crime
police
at about 7:20
in an area which
unusually
had seen before
high
officer believed he
homicides and
number of
robbery,
activity,
did not
with narcotics and
found
connection
considerable narcotics
person
give
basis
which
the officer a reasonable
third
that the fact that an unidentified
officers,”
yelled “police
to conduct a frisk.
and the
made
hand,
insufficient
motion with his
justify a search.
*27
JORDAN,
States,
Appellant,
Lewis
Robert
Robinson v. United
(1971).12 Here the
Á.2d
“some-
v.
thing
lacking.
more” was
The officer had
STATES, Appellee.
UNITED
report
activity.
no
of criminal
Cf. Davis v.
States, D.C.App.,
the likewise unorthodox approached,
officer. When appellant did questions
not refuse to answer nor was weapon bulge
there a visible nor which suspected weapon.
would be be a Cf. Lee,
Stephenson, supra; United States (1970).
D.C.App.,
found no other case in this upheld stop
which has and frisk on such
scant facts.
A frisk must be on the officer’s based apprehension pro-
reasonable of a need for Supreme
tection. The Court con-
demned its noting use to fish for evidence purpose of this limited search is not
“[t]he crime,
to discover evidence of but to allow pursue
the officer to his investigation with-
out fear of violence . . .” Adams v.
Williams,
(1972).
both Terry my opinion test. stop protection and frisk violated the Fourth Amendment unreason- intrusion,
able the gun seized as a illegal
result of the search should have been
suppressed.13 engaged po- in unlawful con- him
12. In Robinson v. United had not observed pouch lice duct. officers could not search the leather hung appellant’s from the belt where which they complaint report States, D.C.App., Gray had no of a crime 13. See v. United area, before, had never seen A.2d