*2 MacKINNON, Before WRIGHT DAVIS*, Judge, Judges, and Circuit Claims. States Court of United Judge: DAVIS, indicted, in Feb- Appellant Joslin ruary 1968, house- nine grand larceny.1 breaking and three guilty. pleaded not 1968 he March for trial on The case came guilty to At that time (chosen by the twelve counts two of the numbers 6 prosecutor). These were dwellings concerning entry into the 8 Lloyd Doyle (re- and Frank to steal. spectively) intent along the questioned the defendant F.R.Crim. Rule established lines Proc., 1959 Resolution Dis- Judges (see Everett v. trict of Columbia * housebreakings he Sitting by designation pursuant of various Title details District, 293(a). U.S.Code, in the he had done Section asking there. trial removal and 1. While in state Texas Feb in March the District returned to ruary 1907, appellant asked to talk signing removal a waiver of after agent the FBI and told the he had com hearing. a series then ensued housebreaking mitted a in the District of competency inquiring proceedings into Columbia, giving details. At about 3 and See notes to stand infra. police same time wrote the District (1964), Court) important. was satisfied with the lawyer appointed, deferred. inquiry.2 Sentence was the first area, shortly counsel left 9th, very day, Joslin next pellant’s original plea say- judge a handwritten letter wrote the March 1968. In December the at- ing, things, among that he had other *3 torney, who had been in communication housebreaking, Symington committed the with Joslin, wrote him that he would day that he shortly suppress file motions to evidence only “tired of this because he was speedy to dismiss for want of a trial. long of his failure drawn out affair” and filed, These motions wex’e never but delay release because of the to obtain pellant (prior seems to have believed prosecution.3 April he wrote in. 30th On guilty pleas) that at least a motion judge he com- another letter to the respect speedy trial in was filed stating of all menced view “[i]n rejected. March 1969 and soon indi- As hereby at this case I am facts of (note 3, cated supra), above Joslin him- standing my last’ decision .of pro se, self filed in March a habeas entering not-guilty to the cox’pus petition, alleging illegal both the charges.” seizure of speedy evidence and denial of correctly The treated why trial. The reason paper he filed this these letters as a motion to withdraw pro se is not clear. But he did state at hearing guilty pleas, and set an oral hearing 16th when the (for May 16, 1969) request. The ease came on April 8th, for trial on he “hearing” (6% nature that bx'ief had not seen year his counsel “in the or pages of the crux of transcript) forms case”, so he had and that on that our to remand The decision the case. they only talked for about half-an-hour spoke, prosecutor defendant as did the (The before the case was called. attor- appointed defense ney did not statement.) contradict this testimony in- was taken and there was In his April first letter of 9th to the pertinent sufficient factual into judge pleading guilty, appellant re- matters. For the reasons which we now my ferred “a attorney” talk with be- out, spell we are satisfied from the plea, fore the way and “Because of the transcript, prop- and the other materials being he felt about not able to win the erly appeal, available to us on this appellant agreed case” plead guilty appellant did not have the as- (as originally two proposed counts by an sistance of counsel and that mat- relevant Assistant Attorney United States brought ters should have been out and years previously); the letter also considered, but were not because of the attorney’s brushing ferred to the off the proceeding. character of the delay “just in the case as as much transcript in- shows (with fault” appel- which the letter said disputably only person who agree) attorney’s did lant and to the spoke in favor of withdrawal of the failing to mention habeas appointed himself. His at- corpus petition ground for release on the torney (not appeal) spoke, counsel on this speedy Apparently denial of a effect, against grant in motion, being informed of this communication to Attorney. the Assistant United States judge, attorney (on wx’ote Joslin connection, Joslin’s rela- April 20th) attorney tions (the that “I am his then astonished second appointed three your successive indicating in letters”, counsel contents of appeal, delay. On tliis there is no attack on the cause of On March judge’s examination, acceptance pro petition or on corpus se filed for habeas guilty pleas, (inter alleging alia) at that time. that he had been deprived speedy petition of a trial. This Beginning January 1968, appellant was not denied until 14th. Other made efforts to have his case dismissed be- efforts are mentioned infra. Hospital doctor could withdraw his and at least one beth’s housebreaking pled incompetent. if he told him he was some The attor- other count. prosecution responded these ar- ney corpus felt added the habeas guments, appointed defense and then responsibility. matter not his recounting his made a statement ease, and own connection with the end- judge Appellant’s second ing: 1969) (dated expressly asked attorney judge to dismiss the go prepared to to trial on this I was attorney an “to have allow I case on the date it was Court. Legal Regardless Aid Office. knowledge suffi- had sufficient attorney] may state to the of what [the background the facts cient myself, am sure of late I ready for trial. case to have been *4 acting my in not been best interest. go ready on that date. was to to trial only with me on time he has conferred As the I indicated to on date Mr. Joslin during year he has the the or more case guilty, he his the that entered case, just before I been on the was willing was still Government —some- peared you 1969.” before on reluctantly him to what allow enter —to lawyer’s copy a the enclosed was housebreaking. a counts of two (dis- appellant 20th they I which two counts wanted asked swpra). cussed Mr. and indicated those to Joslin and plea. he Mr. thereafter entered a Jos- it have From these materials signed lin has numerous confessions court, hear- the been clear the He and the letters are available. has ing May 16th, on that relations Joslin’s counsel, rights by of his been advised strained, best, lawyer at with his were Investigation the Federal Bureau of good that a chance and that Depart- Metropolitan Police not, not, rep- attorney would or formally He been advised ment. adequately him on the withdrawal resent I there is substantial me. feel This from the motion. was confirmed us feel I can no barrier between and I hearing. first outset of the longer represent him. why appellant and him turned to asked change pleas. His he wanted merely neutral statement “my began sponse by saying that he felt issue; in it substance on withdrawal attorney me in this kind hurried Immediately argued against af- Joslin. why thing.” gave He then reasons denied the mo- the court ter it was thought he with- he should be allowed to defense and relieved tion to withdraw pleas: in draw his had not fact com- —he stating counsel would that new offense; mitted the he was sentencing. selected long delay trying “confused” in being 16th proceeding on and in case Since time; spent integral part the “criminal much he con- had was an course, was, period part prosecution”, this Eliza- siderable St. pleading other if all “DEFENDANT I that to two JOSLIN: feel attorney dropped my charges and he that me in this said kind hurried said, thing. thirty good only He let’s I minutes like a idea. had seen him sounds right. year coming up go is all in that if that to this trial ahead said, it so confused about or so I well —I was he has had this case and we had up go preparation I came ahead. So made no He informed he let’s all. charges winning pled guilty that to two me no that stood chance here any- jury prosecutor] counsel] and [defense [the favor up thing else, tight, picked up I didn’t here. that I out themself was sewed so exactly speak; were disagreed what know kind with that. they But, anyway, said, were off and then read I was confused and I until well, suggestion that the Government what I had dawned me about made whatsoever.” earlier to Prosecutor Smith about evidence point request alter houses he had bur order on his entitled to counsel designate Sym See, g., glarized, v. he did not pleas. e. Coleman ington explanation of how Alabama, house. His 90 S.Ct. U.S. Rhay, charged Mempa with that offense he came to be police about was that he hinted to the 19 L.Ed.2d U.S. however, episode only of the not, have one card Appointed other he had seen a credit houses that assistance. name,6 lawyer Symington’s technically dur- with Senator the defense still being ing hearing, until that he learned the actual details relieved role; Symington burglary police and close, from the did not assume its merely points prosecution contrary the FBI. The an made hearing, nothing swered, support at the and said his client irrelevant a later time It is confessed Sim withdrawal “at. freely burglary.” speak mons think We [sic] was allowed that Joslin argu- circumstances, himself, these the court should not he made his own or that right concluded, position. The have investi in favor of ments gation, premised the funda- the avowal of innocence was to counsel fide, especially mala since the postulate that defendants —even mental intelligent representation quickly, articulate, stable, so ones— guilty, explain guiding at ev- after he had hand of counsel need *5 ing stage. that he ery Wain- was confused at the time Gideon v. critical See 335, 344-345, the and did not until later wright, realize 372 U.S. Here, in that one of the two selected coun- counts burglary undoubtedly volved a did not a bet- commit. have made sel could pleas, at See Gearhart v. United 106 U.S. of the ter case for withdrawal App.D.C. 270, count, Symington than 272 F.2d least as to the pellant did himself.5 subject another defect Another which should have was still There gone by hearing thoroughly, which likewise calls been into more than the below, colloquy the brief which occurred At least two issues arose remand. investigation, history appellant’s was of mental and but no called for history psychological problems, matter as that One was undertaken. guilty pleas. in have related to the He that he was was insistence large charge. spent part years nocent of the (as apprehended on appeared between the time he was to have some color avowal guilty pleas pointed these at in his first letter St. Joslin Though competent since, judge) Elizabeth’s.7 held he was released the when designated having sec stand trial he was as to tour the Northwest Disturbance, Washington “Soeiopathic Personality police in with the tion judicially disregard, moreover, appel- found com- for trial. He was 5. One cannot petent history problems as bear- but was returned to St. Elizabeth’s lant’s of mental ing on be men- his need for counsel’s aid the “because has been found to [he] on tally by hospital].” ill of [the withdrawal motion. the Staff After return to the District a short Syming- 6. Count 6 not involve Senator the Jail he was sent back to Columbia ton’s house but that of another member “expressed hospital he had suicidal Symington. family, Lloyd again tendencies and ideas.” competent by ported competent hospital so He was first found the Le- thereafter, gal Psychiatric Shortly Services. On found the Court. application again recommitted, symptoms on of his of his he was reoccurred, having him “until such time Court ordered to St. Eliza- illness finally disposed present beth’s for mental The hos- of.” examination. as his case is pital reported having “Soeiopathic him as In December was transferred 1968 he Personality Disturbance, Sexual Deviation the Jail to await competent (Masochism)”, mentally but as with, not m pleas dealt (Masochism).” have been Deviation Sexual argument, colloquy or appearance judge form of and at his following the rudimen- emphasized this of at least “the 16th, determi- tary procedural for the channels he was possibility that history questions facts.” disputed nation of incompetent he made confessions when Mainer, in the District. crimes to various as 1967). Attorney’s reply (3rd Cir. Assistant United States no time was defendant that “this ordering Appellant asks by any psychiatrist incompetent declared de- any inquiry to we further Legal Psychiatric court.” The record that termine on indeed, had, and St. Elizabeth’s Services in fail- its discretion trial court abused competent But for trial. him as certified ing to authorize withdrawal doctors that one of stated preferred this the We do consider hospital indicated doubts record, is, thin is too solution. The appears competence, and it holding of discre- of abuse warrant entry him at one did characterize medical many ; ends. loose tion also too there are going “seriously depressed,” time as hearing record will proper A and a better say would that Mr. Joslin “I think to be determination enable a sounder willing him- incriminate be much less if and, level at the District Court feeling hopeful more if he were self necessary, appeal. on a further his future.” himself and about to, enough to, and shown known reasons, we vacate For these inquiry. to call denying motion trial court’s order possible between connection guilty pleas, as well as withdraw (which the com- included illness mental sentences, judgments re masochism8) and his ponent of proper to determine mand for a probing than pleas deserved more of withdrawn, pleas should be whether *6 competence to stand Mere it received. (the respect primarily with to count 6 necessarily that not mean trial would general count).9 stand The problems psychological defendant’s (the request applied for leave ard to be original decision affected not have so having to sen withdraw come guilty plead permission to as call tence) any “for reason the is whether alter that choice. granting privilege fair and seems when, here, States, just.” ef- is that as an The rule 274 Kercheval v. United guilty plea 220, 224, 582, 583, be- fort made to withdraw a 71 L. is S.Ct. U.S. 47 entitled the defendant is fore sentence Ed. Gearhart v. United 1009 ap- 270, 273, appropriate States, U.S.App.D.C. an before the 272 106 plication 499, (1959). request factual can be denied. Where If the 502 bearing directly plea thought had matters truly controversy, defense, colloquy permission is an oral a to withdraw resolving High acceptable granted.” freely not an vehicle “should be rather instance, subjects States, U.S.App.D.C. them. v. United 110 denied, appellant’s 427, 430-431, under- mental state and his 288 F.2d cert. 366 standing 1350, at the time action 81 6 L.Ed.2d U.S. S.Ct. 383 laymen today 8. Even know that masochists mine whether to allow withdrawal of the accept guilty plea often exhibit a need to receive and to each of the counts. punishment. Appellant’s failure to innocence avow (the Doyle count) course, can, of count 8 refusing permit but After withdrawal be account on remand is taken into pleas, sentenced not conclusive in Everett v. Unit itself. States, pellant, time, 63 n. later to consecutive ed years (1964) ; Bishop prison n. terms of from five to fifteen 336 F.2d U.S.App.D.C. 243, pled on the two counts to which guilty. had v. United important It is therefore to deter- 349 F.2d guilty plea that is allowed some doubt committed the If either Symington housebreaking withdrawn, we do not but be grant decide that he did not that of- motion to commit should a Government appellant’s fense. That claim and it the indictment counts of instate the 10 fully investigated. acceptance If he did which were dismissed goes crime, not guilty pleas. commit that it saying plea that remand his to that pro- is remanded for The case count of the indictment should not stand. ceedings opinion. with this consistent by Judge opinion implies Davis ordered. So that the trial court on remand should MacKINNON, Judge (concur- psycho- Circuit consider mental and ring) logical problems : relation nature, An of such which agree forth in the with the result set essentially goes to the voluntariness Judge view, opinion by Davis. To is, course, always plea, in order in however, conveys impression to it a false it; case where facts say have appellant, entry since at the time of the representation by to the extent counsel plea, competent was found to be any implica- statement carries such trial, stand appropriate and the court tion To the counsel involved. inquiries at that time determined extent the efforts voluntarily guilty, entered his have been frustrated it was validity seems to me rapidity appel- caused standpoint adequately from that had been any- position lant reversed determined.
thing Ap- his counsel did or failed to do. pellant orally writing had and in volun- tarily confessed to certain housebreak-
ings, voluntarily requested removal Texas the District of Columbia trial, voluntarily waived a hear- ing on his removal from Texas to the
District of Columbia and had then volun- tarily entered to two MORRISON, Appellant, Charles E. counts of 12-count indictment. changed next *7 mind and America, UNITED STATES of plead wanted to withdraw Appellee. guilty. That could not No. 21998. understand such a sudden reversal of position surprising, especially Appeals, Columbia Circuit. voluntary the face of confes- sions. Faced with such situation counsel Argued Feb. 1969. made a clear statement the factual July 15, Decided situation court and stated that he Rehearing Petition Granted represent appellant did not feel he could Oct. any longer. timely, Counsel’s action was 30,1970. proper Order Oct. commendable the situa- any way tion that is not in evolved a dis-
credit him. Under such circumstances
the court should have acceded to quest appointed another counsel represent appellant. This will be cor-
rected on remand. appears very inadequate
It rec-
ord before this