259 F.2d 787 | D.C. Cir. | 1958
Lead Opinion
-tj.tj.-j j Mitchell was indicted, tried and convicted for carnal knowledge of a seven-year-old girl. He was sentenced on October 22, 1953. He was defended by counsel appointed by the District Court. On December 17, 1956, he filed a motion under Section 2255, Title 28, United States Code, to vacate his sentence, The District Court denied the motion without a hearing. It also denied leave to appeal without prepayment of costs. Petition for such an appeal was filed in this court and was allowed. Counsel was appointed. The cause is now before us upon the appeal from the denial of the Section 2255 motion.
, , . The point made by Mitchell here is that he was without the effective as-«stance of counsel at his trial; that the representation by his court-appointed counsel was inadequate. He specifies that counsel failed to move for acquittal, failed to cross-examine, failed to object to hearsay evidence, and failed to object to a patently erroneous charge to the jury. His present counsel urges that Mitchell sufficiently _ alleged a de-mal of a constitutional right. He says the Sixth Amendment guarantees the effective assistance of counsel.
It is well established that the acts of counsel specified by Mitchell do not, in and of themselves, entitle him to relief under Section 2255. A j’udgment of conviction cannot successfully be attacked collaterally on such grounds, and a motion under Section 2255 is a •collateral attack. Therefore, in order to get standing upon such a motion, Mitchell has bundled these alleged failures together and contends that, taken together and in sum total, they constitute ineffective assistance of counsel violative of the Sixth Amendment and therefore raisable under a collateral motion. Similar motions and petitions have become so numerous, and the present one was so thoroughly and brilliantly presented to us, that we take occasion to examine the problem and to state our views upon it in some detail.
We must first delimlt our inquiry, Wg are not considering a case of alle¡?ed Physical or mental disability on the Part of counsel, or of intoxication, fraud or misrepresentation, dual intenest> insufficient time for preparation, or inadequate notice. Such situations have sPecial features. We are here concerned with allegations directed solely to.the ski11- the relative competence, of trial counsel in matters as to which counsei made decisions, or would have to make decisions, in the course of the trial.
The question before us is not the bare question of the right to counsel. MitcheU had counsel; and tbig lawyer wag pregent and participating. We note that thig Iawyer wag a weI1_known, experienced) and able member of our trial bar. Mitchell says he did not have the effective assistance of counsel; the agsigtance rendered him was not effec-tjve> What ig meant by «effective as_ gigtance„ in the application of the re_ quirement of the gixth Amendment for „the Aggigtance of Counsel for his de. fence” ?
Of course, as a matter of literal semantics assistance is never effective unless it has the effect sought, that is, unless it is successful. If we were to ascribe that meaning to the term “effective assistance of counsel” in the representation of persons accused of crime, we would produce a rule which said that an alleged criminal is entitled, as a constitutional right, to counsel whose efforts are successful. We need not iabor tbe point. “Effective” assistanee of counsel obviously means something other than successful assistance,
A bit of history helps us here. The Congtitution itself says notbing about “effective” assistance; it merely says “Assistance”. The adj'ective “effective” came into the law in Powell v. State of Alabama
The Supreme Court has also discussed the matter and made rulings in respect to it in Von Moltke v. Gillies,
The federal circuit courts of appeals have written many opinions in this field, Some of those cases are cited in the margin.
We find no case in which another federal court has gone as far in granting relief upon allegations of incompetence of counsel as we went in Jones v. Huff.
We find no case in which a federal court has granted a writ upon a plea that counsel was incompetent in his method or course in presenting the de- „ T . _ „ ,, fense. Judge Denman of the Ninth ...... , „ Circuit, acting alone on a petition for a writ on allegations of incompetent and unprofessional counsel, ordered the release of the accused,
We in this court have examined the problem several times
The rule that matters open upon appeal cannot be raised collaterally rests upon ^ a solid foundation; it is not a technicality. Justice must have order; it cann°t exist in chaos. In fairness an accused is given an opportunity to present to a reviewing court his allegations of error upon his trial. But the essence of justice is the application of Iaw to duly established facts. Normal-]y> review must come while the matter js fresh, while witnesses, judges and lawyers are available, while memories are accurate. Hence the Rules of Procedure establish time limits for the tak¡ng 0f gUch a review. Those Rules have foeen adopted both by the Supreme Court and by the Congress. To permit a convjcted person to wait months, or even yearg as is frequently the case, after the actors have gone and recollections cannot be refreshed, and then to secure review consideration of alleged errors open upon the normal processes of appeal, is to damage, if not destroy, an essential element in the rule of law, the element of accurate impartiality. Of course- and we emphasize it, if an accused has not. had a and a one m the jurisprudential sense of that , ... , . word, the courts will supply a remedy. We do gQ upon oceasion_ But it ig an extraordinary remedy. Courts ought no£ — must not' — forget that our vaunted ru¡e 0[ ¡aw jg a structure of rules; it js not an amorphous jelly of judicial pleasure. The rule of law is govern
But, it is argued to us, all Mitchell now wants is a hearing on his petition and that surely he should have a hearing. There is the crux of the difficulty, What would the hearing concern? It would concern the professional competence of Mitchell’s trial counsel. Mitchell, of course, if granted such a hearing, would have a right to put on evidence; he would endeavor to demonstrate his counsel was incompetent. The lawyer involved would have a right to put on evidence; he would try to show te competence of his advocacy. The issues would be those specified by Mitchell in his petition. The proceeding would be public, of course. The judge would decide whether the lawyer’s conduct was ineffective or effective, incompetent or competent. Obviously such a proceeding, if permitted generally, would ensue upon almost every guilty verdict; almost every convicted person can think up several points in his trial where the course taken by his lawyer could have been different; and he has nothing to lose by a few extravagant claims.
Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of possibly doubtful credibility or with a criminal record; whether to risk crystallizing the view of the judge at that point by a motion for directed verdict before the defense testimony is in; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether to advise the defendant not to go to trial at all but rather to rely upon the mercy of the court. All these and more are practical questions and very real questions. Bad judgment, or even good but erroneous judgment, may result in adverse effects. These are simple facts of trial; they ara n°t justiciable issues.
Common understanding among criminals has it, so we are told, that a smart lawyer can “walk his man out”, guilty or not guilty. But such underworid romancing has no place in the serious consideration of any court. A lawyer, employed or appointed, is under obligation to defend with all his skill an(! energy, but he also has moral and ethical obligations to the court, embodied in the canons of ethics of the profession. Mere failure to achieve ac~ quittal is no part of a court’s consideration of the work of a trial lawyer. His-obligation is to achieve a fair trial, not. to see that his client is acquitted regard^ess °f the merits.
There are a number of reasons-why a hearing on a motion based upon alleged incompetence of counsel cannot, be had unless the specifications of the-motion are sufficient to indicate a lack of fair trial in the real sense of that, abused term; moreover the specifications, even if impressive upon their face,, must withstand initial checking for verity or, at the least, probability of verity.
In the first place the suggested process would disrupt the established funetion of trial judges. The trial of a. case has different parts. The part of:
If the trial judge were required, after a trial has been concluded, to judge the validity of the trial by appraising defense decisions, he would also be under an obligation to protect those rights of an accused as the trial progressed; in other words, from point to point throughout a trial the judge, under such a system, would be compelled to assure himself that the various tactical steps being taken by the defense were not “ineffective” or “incompetent”, Any such procedure is, of course, impossible.
Moreover the constitutional right of an accused to the assistance of counsel might well be destroyed if counsel’s selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known. And how absurd it would be for a trial judge to opine that such- and-such a course was ineffective or incompetent because it persuaded him (the judge) to decide thus-and-so adversely to the accused.
And this brings to attention another feature of a court proceeding which contemplated a later adjudication of the competence of the defense. Defense counsel, having made an error in judgment which rendered the defense demonstrably “ineffective”, would necessarily be afforded an opportunity to correct his own error. He would surely be entitled to protect his client on the spot by trying another route. Every time counsel concluded he had made a mistake he would be entitled to a hearing on the point, and if he had indeed made an error a mistrial would be ordered, The impossibility of any such system seems clear enough,
Furthermore a retrospective evaluation of trial tactics is, generally speak-jng; impossible. Whether a certain course was “ineffective” or “incompetent” must be judged by the result, one would suppose. But in a vast majority of instances it is impossible to say that another course would have produced a different result.
Another imperative reason against permitting the procedure sought here is that it would destroy the representation of indigent criminals by the bar. No reputable member of the bar would, nor indeed should, undertake as a pub-lie duty the defense of an accused, if the courts were to permit the client thereafter to institute, by allegations as trial tactics, a public inquiry into the professional competence of the lawyer, This would surely be the end of the lawyers duty to accept assignments by ^e courts. One of the great protections the unfortunate would be gone, destroyed not by the bar but by the courts,
We think the term “effective assistance” — the courts’ construction of the constitutional requirement for the assistance of counsel — does not relate to the quality of the service rendered by a trial lawyer or to the decisions he makes in the normal course of a criminal case; except that, if his conduct is so incompetent as to deprive his client of a trial in any real sense — render the trial a mockery and a farce is one descriptive expression, — the accused must have another trial, or rather, more accurately, is still entitled to a trial,
A convicted person cannot bring about a judicial hearing upon and de
The statute rests the right to a hearing upon an examination of the motion and the records and files of the case. A motion which shows no ground for granting it conclusively shows it will be denied; conclusively shows no relief will be granted. This conclusion rests upon a simple elementary basis. If such a movant proved all the facts he alleges, he would get no relief; the conclusion flows as readily from the face of the allegations as from their proof. The necessity for the allegation of facts was pointed out by the Supreme Court in Walker v. Johnston.
A11 of Mitchell’s allegations fajj wej] within the area of trial decigiong> He says his counsel was incompe. tent becauge the child involved did not identify him on the witness stand. But her failure to do g0 wag in hig favor; certainly be would not have gained if gbe bad identified him. Mitchell says tbe testimony of the mother and the grandmother was hearsay. But, if it was, its admission was a simple error of law and the point cannot be raised on a motion under Section 2255. As far as it bears on competence, objections to the testimony of the mother and grandmother of a seven-year-old child allegedly raped are well within the estimate of trial counsel in the atmosphere of the courtroom. This is a difficult decision; a correct answer to it one way or the other in different circumstances is of the very essence of skillful trial conduct.
What has been said about a hearing applies in this case in respect transcript. For purposes of the hearing vel non we assume that the transcript would prove what the petition recites as having occurred in the trial. Even upon that assumption no hearing was warranted. A transcript -would show no more. We find no purp0ge be serVed by furnishing free of charge a transcript. A transcript is not necessary to a decision upon the mo-yon
Thg order of the District Court ig
Affirmed.
. 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
. 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
. 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
. 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942)
. 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).
. 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 ^9441
. 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945>-
. 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945).
. United States v. Wight, 176 F.2d 376 (2 Cir., 1949), certiorari denied 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States v. Mitchell, 138 F.2d 831 (2 Cir., 1943), certiorari denied 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944); United States v. Handy, 203 F.2d 407 (3 Cir., 1953), certiorari denied 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953); United States v. Helwig, 159 F.2d 616 (3 Cir., 1947); Carvell v. United States, 173 F.2d 348 (4 Cir., 1949); Burkett v. Mayo, 173 F.2d 574 (5 Cir., 1949); Andrews v. Robertson, 145 F.2d 101 (5 Cir., 1944), certiorari denied 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427 (1945); Norman v. United States, 100 F.2d 905 (6 Cir., 1939), certiorari denied 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057 (1939); Pelley v United States, 214 F.2d 597 (7 Cir., 1954), certiorari denied 348 U.S. 915, 75 S.Ct. 296, 99 L.Ed. 718 (1955); United States v. Hack, 205 F.2d 723 (7 Cir., 1953), certiorari denied 346 U.S. 875, 74 S.Ct. 127, 98 L.Ed. 383(1953) ; United States v. Ragen, 178 F.2d 379 (7 Cir., 1949), certiorari denied 339 U.S. 905, 70 S.Ct. 515, 94 L.Ed. 1334 (1950); United States v. Ragen, 176 F.2d 579 (7 Cir., 1949), petition for certiorari dismissed 338 U.S. 809, 70 S.Ct. 49, 94 L.Ed. 489 (1949); United States v. Ragen, 166 F.2d 976 (7 Cir., 1948); Sweet v. Howard, 155 F.2d 715 (7 Cir., 1946), leave to file petition for certiorari denied 336 U.S. 950, 69 S.Ct. 877, 93 L.Ed. 1105 (1949); Achtien v. Dowd, 117 F.2d 989 (7 Cir., 1941); Maye v. Pescor, 162 F.2d 641 (8 Cir., 1947) ; Conley v. Cox, 138 F.2d 786 (8 Cir., 1943); Hagan v. United States, 9 F.2d 562 (8 Cir., 1925); Mays v. United States, 216 F.2d 186 (10 Cir., 1954); Wheatley v. United States, 198 F.2d 325 (10 Cir., 1952) ; Moss v. Hunter, 167 F.2d 683 (10 Cir., 1948), certiorari denied 334 U.S. 860, 68 S.Ct. 1519, 92 L.Ed. 1780 (1948); Willis v. Hunter, 166 F.2d 721 (10 Cir., 1948), certiorari denied 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772 (1948); Thomas v. Hunter, 153 F.2d 834 (10 Cir., 1946); McDonald v. Hudspeth, 113 F.2d 984 (10 Cir., 1940) certiorari denied 311 U.S. 683, 61 S.Ct. 64, 85 L.Ed. 441 (1940).
. 80 U.S.App.D.C. 254, 152 F.2d 14 (1954).
. McDonald v. Swope, 9 F.Supp. 30 (D.C.1948).
. Swope v. McDonald, 173 F.2d 852 (1949), certiorari denied 337 U.S. 960, 69 S.Ct. 1522, 93 L.Ed. 1759 (1949).
. E. g., Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (1945), certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945); Burton v. United States, 80 U.S.App.D.C. 208, 151 F.2d 17 (1945), certiorari denied 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479 (1946) ; Felton v. United States, 83 U.S.App.D.C. 277, 170 F.2d 133 (1948), certiorari denied 335 U.S. 831, 69 S.Ct. 18, 93 L.Ed. 385 (1948) ; Strong v. Huff, 80 U.S.App.D.C. 89, 148 F.2d 692 (1945), certiorari denied 326 U.S. 768, 66 S.Ct. 165, 90 L.Ed. 463 (1945); Johnson v. United States, 71 App.D.C. 400, 110 F.2d 562 (1940).
. Comment, 4 U.C.L.A.L.Rev. 400 (1957).
. Comment, 17 U.Chi.L.Rev. 718 (1950).
. Note, 47 Colum.L.Rev. 115 (1947).
. Potts, Right to Counsel in Criminal 0ases: Legal Aid or Public Defender, 28 Texas L.Rev. 491 (1950).
. 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941).
. 84 U.S.App.D.C. 1, 174 F.2d 226 (1948).
. Federal Communications Comm. v. WJR, The Goodwill Station, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949).
Dissenting Opinion
(dissenting),
Perhaps the clearest way of expressing the reason for my dissent is to say that the constitutional right to the effective assistance of counsel does not in my view prescribe merely a procedural requirement but, contrary to the majority opinion, prescribes also a standard of skill. None of the decisions of the Supreme Court contains the limitation the
True it is that to test by a standard of skill whether or not the right has been accorded raises problems; but should only a formal test prevail we would be faced with the even more serious problem of disposing of life and liberty in a manner inconsistent with the full content of a safeguard that has constitutional status.
We need not, I think, shape a rule on this subject through fear that inquiry in appropriate cases into counsel’s con-duet of a defense will significantly deter the acceptance by attorneys of court appointment to defend indigents:
Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision. And nowhere is this service deemed more honorable than in the case of appointment to represent an accused too poor to hire a lawyer * * *
Mr. Justice Black, for himself and Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge, in Von Moltke v. Gillies, 332 U.S. 708, 725-726, 68 S.Ct. 316, 92 L.Ed. 309.
The traditional amenities appropriate to the relationship between courts and members of the bar are not a substitute for inquiry in a particular case into the question whether a defendant has received assistance of counsel in terms of requisite skill. The bar is composed of professionals who have special responsibilities by reason of their calling. While the courts have the duty to defend them against unjust appraisal of their skill and judgment, I think the courts cannot bar inquiry into those matters when the substantial constitutional issue is raised.
Approaching the case in this manner the question is whether appellant is en-titied to a hearing in the District Court under section 2255. That section provides that he is entitled to such a hear-jng,
“unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * *
Do his section 2255 motion and the files and records conclusively show that appellant had the effective assistance of counsel? I assume that a bare allegation that he did not would not suffice to obtain a hearing. But appellant’s allegation is not bare; it is clothed as it were with certain details. He alleges that counsel failed to move for acquittal, to cross-examine, or to object to hearsay evidence.
Let us consider this last allegation. Pinkard v. United States, 99 U.S. App.D.C. 394, 240 F.2d 632, a case involvin^ a simi,lar ciame> we heJd that ?he admission without objection of damaging he£™ evidence was reversible error, The attack °n tke conviction there however, was by direct appeal, while the Present attack is collateral and requires greater length to succeed. It is not enough on collateral attack to show error; there must be shown a lack of reasonable skill in the conduct of the defense — a failure to meet in the partieular case a fair standard of the professional competence incident to the professional right to defend a person on trial for crime,
If it should be shown in this case that the conviction rests in substantial de
A course open to the District Court would be to order a transcript of the trial. It might clearly appear from the transcript that appellant’s allegations have no merit. If the matter should be left in doubt, however, the hearing and procedures envisaged by section 2255 should be accorded, and a decision made on the basis of the facts developed. Another course would be for the District Court to hold a section 2255 hearing without ordering a transcript. This might furnish a basis for a definitive decision. If not, a transcript could be ordered and findings and conclusions made on the basis of both hearing and transcript.
Embarrassment caused counsel by an unjust charge of ineffective assistance is a price that unfortunately must be paid at times for careful judicial administration. And where the charge is just the remedy is not to save counsel from embarrassment but to save his client from unjust conviction or sentence.
Whether or not the strict standard set forth in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 669 for determining the absence of effective representation should be reconsidered by this court, as appellant’s counsel urges, to the end that no longer should an accused be required to show that his trial was “a farce and a mockery of justice,” the opinion in Diggs v. Welch seems to me to stand for the proposition that the quality and not merely the fact of representation must be considered even on collateral attack by habeas corpus, though the consideration there given was under the Fifth Amendment rather than the Sixth. This was before the enactment of section 2255, under which a less rigid showing is required now to obtain a hearing. I should think that on a motion under section 2255 justice need not be mocked in order to be dispensed, at least to the extent of granting a hearing.