*1 JOHNSON, Appellant, A. Tommie America,
UNITED STATES Appellee. Judge, No. Chief Bazelon, Before Judges. Fahy Burger, Appeals States Court United Circuit. District Columbia PER CURIAM: 2,May Filed 674, States, 356 U.S. In Ellis v. United 1060, 974, 2 L.Ed.2d 78 S.Ct. indigent held that Supreme Court representation is entitled examining acting an advocate. Court stat- counsel the
ed: convinced, after con- If counsel investigation,
scientious course, he If on that account. seek withdraw is satisfied that counsel the court investigated possible diligently grounds agrees appeal, and counsel’s evaluation 69, U.S.App.D.C. See also may be allowed leave to withdraw * F.2d 163. n * * 975; accord, 78 S.Ct. Hardy 84 S.Ct. this court Pursuant guidelines
has established some further who, making investigation,” concludes a “conscientious a case See Statement is frivolous. Appointed Handed the Clerk to Coun sel, dated December 1963. We indi cate in that “will that we if, greatly rule, ap aided as a pointed counsel remains a case.” We recognize may justifi also ably lacking feel a case to be so in merit that he desires to withdraw on that ground. withdraw, if he moves to that he— * ** supporting file a memoran citing analyzing legally, record references one is available [2] and also transcript citing any 1. This true direct After decision supra, from a criminal conviction. rare case it would transcript avail- would not be able.
845 may appeal be de upon and leave relied allowed which counsel or cases case 1 supplied.) (Emphasis arriving nied.” conclusion. at his ultimate Statement, supra. The mem- confidential Coppedge this Court has been Since support of the motion is not orandum in requests confronted with numerous public of case and in the files the who concluded that withdrawal counsel appellant upon the but is to be served granted pointless; was when we prejudice ap- the so cases, requests, did in most we as we filing pellant’s of in advance of case Appellant continue advised the he could brief, if we conclude that time se. At the same we effect, is not the memoran- frivolous. rigid adopted practice a but not our 1963 as described in declining appoint of a new after length brief, a is to be similar to its the first had withdrawn. Since the Su- course, will, depend upon and detail of preme appoint- made that had clear particu- complexity the nature and of the ed and du- the same burdens lar case. advocacy counsel, private of ties we right view withdrawal tended responsibility To fulfill our appointed equal counsel as to that under must we con private counsel. clude not that counsel has made investigation case, conscientious concluding appointed counsel’s agree but also that we with his evalua rights private are the same as duties it.3 We cannot reach such con may counsel’s háve erred in overlook- fully clusion in the absence of a docu ing inescapable certain differences mented memorandum. We therefore de categories. tween the two Under ny motion to withdraw. provisions Criminal Justice Act to com- pensate appointed counsel, may
BURGER,
Judge (concurring):
additional
now
differences.
It
problem seems clear to
into
me that
unrealistic
case
focus a
privately
developing
view
retained
has
over recent
years during
right
precisely
posture
inas
the same
which the
purposes;
expense
for all
judi-
unrealis-
review
has been
cially
now,
expanded
tic
allow
counsel to withdraw
for all
right
Appellant
ap-
purposes,
and tell
he can continue an
absolute
indigent.
peal
including writing
every
own,”
Coppedge
“on his
369 U.S.
82
own brief.
S.Ct.
8 L.
Ed.2d 21
The
frequency
applica-
of withdrawal
recognized
under
in which
tions
for an
who see
virtually all convictions would be review-
response
and our
to those motions
ed,
many
it was inevitable
consequence,
think,
is a
of some miscon-
point;
opin-
have
non-frivolous
its
ception and confusion as to
the role
ion in Ellis v. United
said,
the advocate.
Courts
often
S.Ct.
and the literature
contemplated
assigned
that if
counsel was
clear,
example,
convinced,
study,
full
may
advocate need not believe and indeed
was
he could withdraw.
belief,
such,
not assert
if
Ap-
Ellis also held
innocence
peals “agrees with counsel’s evaluation of
his cause.
to withdraw
leave
States, supra,
investiga-
Counsel should not limit his
(concurring opinion).
84 S.Ct. at
tion and evaluation to
those
raise, or
client wishes to
has raised
very
any,
few,
if indeed
We have had
pro
appeal.
in a
se notice
on this
in reliance
denials
authority.
misconceptions
highly important
popular
about
limit
none
less
lawyers
function,
in criminal cases
ed
limited and circumscrib
many
mis-
ed
from
sources
flow
themselves,
profession.
dis-
At
conduct of
ethics
.some
stage
popular
put
prosecution
media
life in
tortion
real
movies,
proof,
to
accused,
such as
and mis-
its
to test
television
*3
sentimentality
procedural
put some
to insist
which has
safeguards
put for
and to
in doubt as
their function.
be followed
to
valid,
ward
relevant
evidence
is
and
of these fallacious
result
One
helpful
and
to
his client. On
conceptions
the advocate’s
blurred
point
errors,
is to
to
if such
function
image
“crim-
is
function
be,
expound
applicable
and
lawyer”
“mouthpiece”
inal
as the servile
“put
In
is
short he
to
his client’s
'
ego
or
or one who
the alter
accused
re
best foot forward”.
does not
This
accused
does
the accused what
advancing
quire nor warrant his
absurd
legal
do for himself if he
legally
Counsel,
or
frivolous contentions.
fallacy;
This more than a
is
skills.
client,
must make the decisions
totally incompatible
du-
with
basic
present a
to
to
case.4 Indeed
how
ty
lawyer
court
as an officer
necessary
neither
nor desirable to
contrary
and
traditions and ethics
performing
contentions in
baseless
legal profession.
duty
expose
or
to
deficiencies
frailties
lawyer complying
A
with the
proceedings.
the trial
and
advocates
bar
judgment tells
Even when
trained
identify
client.
does not
with his
him
the client’s cause on
ego
“mouthpiece”
school
alter
or
nigh hopeless,
court-appointed
well
thought,
happily
frac
a minute
which is
important
performs an
legal profession, would car
tion of the
ry
reviewing
by making
court
sure
perverted
this
notion
understands all the salient facts and
identification
legal
before
the relevant
reaching
authorities
exten
with
an
Although
an
a final decision.
with a com
sion of the accused himself
must view the record
goals,
interest,
munity of
and
motivation
most
favorable
engage
chi
in falsehood and
bound
both his client
counsel serves
cane
command of the client. These
at the
bringing
by
all record
and the Court
long
rejected by
Indeed
facts to the reviewers’ notice.
legal
acceptance
profession and find no
important
performs a most
advocate
among
of the bar.2
members
honorable
analysis
function when
lawyer engaged
of an
in defense
the critical issues
recog-
prepared
should be—and should
law
accused
all the facts and
respond
questions.5
advocate
nized as—a
basic ethical
courts have stated this
those Canons
the Committee
Few
under
Professional Ethics
2.
Supreme
duty
cogently
more
than the
deal
Grievances
g.,
detail. See e.
problems
Nebraska:
with these
Court of
16, 22,
attorney
5, 15,
first
An
owes his
Canons
obligations to-
court. He assumed his
generally
Janis,
S.
Brookhart
had a client.
it before
ever
ward
His oath
Ct. 1245.
absolutely
requires him to be
though
client’s interests
even
honest
Bilis;
view not inconsistent
This
seem to
recognition
on a
rather
in
based
course.
Bilis,
briefs
was decided without
Ass’n,
Integration
State Bar
re
Neb.
argument,
or
on a confession of error
N.W.
133 Neb.
General,
the Solicitor