United States v. Willie Decoster, Jr., (Decoster Iii)

UNITED STATES of America DECOSTER, Jr., (Decoster

Willie

III), Appellant. No. 72-1283. MacKinnon, Judge, opinion filed Circuit Appeals, Court of United States result, concurring in in which Tamm and District of Circuit. Columbia Robb, Judges, joined. Circuit Oct. Robinson, III, Spottswood Circuit W. As Amended Oct. Nov. 16 and Judge, opinion concurring in result. filed 24, 1976. Bazelon, Judge, dissented and Circuit Argued May En Banc Skelly Wright, opinion filed in which J. Judgment Judge, joined. May Filed 1979.* Chief Opinions July Judge, Filed filed Skelly Wright, J. Chief Spottswood

statement in which Bazelon and Robinson, III, joined. Judges, W. Circuit * See 598 F.2d 311. ROBB,

Opinion TAMM Cir- in which MacKINNON, Cir- Judges, join filed cuit Judge. cuit filed Opinion concurring the result ROBINSON, III, W. Cir- SPOTTSWOOD Judge. cuit in which J. SKELLY Dissenting opinion joins WRIGHT, Judge, filed BA- Chief ZELON, Judge. Circuit in which BAZELON and Statement ROBINSON, III, W. Cir- SPOTTSWOOD join by filed J. Judges, cuit SKELLY WRIGHT, Judge. Chief LEVENTHAL, Judge, who is Circuit McGOWAN, joined opinion by in this WILKEY, Judges: TAMM Circuit and Davison, (ap- Washington, D. C. Calvin gives This case court en banc Court), appellant. this for pointed by its the re- opportunity present views on Silbert, Atty., Washington, U. Earl J. S. quirement effective assistance of counsel argument, with C.,D. time oral at the principal fo- prosecutions, in criminal with Rauh, Asst. Principal U. S. S. whom Carl make due duty cus on the of counsel to Greene, Executive Asst. U. Henry F. Atty., investigation We conclude prior trial. Terry Larry and C. Atty., and John A. S. showing appellant has not made Washington, D. Willey, Attys., Asst. U. S. requisite for reversal of his conviction. C., appellee. for were on brief Mark Fos- Townsend Rich and W. John A. Proof at Trial C., ter, were on the Washington, D. brief V of District for amicus curiae Division trial, soldier, Crump, a Roger At testified Bar. Columbia by he at about was accosted three men p. May 6 m. on on the sidewalk Irish, C., Washington, D. E. was on Leon N.W., Streets, parking Division IV and near the the brief for amicus curiae of 8th K Bar. the District of Columbia yoked was lot of Bar. He the Golden Gate man, with a by from behind one threatened Paul, C.,D. Washington, Robert J. was on another, by while a third rifled razor Legal for amicus curiae National the brief his wallet which contained pockets and took Aid and Defender Association. over in cash. $100 cruising in an plainclothes policemen Two WRIGHT, Judge, BA- Before Chief and progress, robbery unmarked car saw the TAMM, McGOWAN, ZELON, LEVEN- fol- chase. officer alighted gave and One MacKINNON, THAL, ROBINSON, ROBB Eley. identified as Fred lowed the man later WILKEY, Judges. Circuit and ap- followed Box testified he Officer pellant he identified Decoster —whom McGOWAN, TAMM, Opinion in which Crump’s through went the robber who WILKEY, join Judges, by Circuit filed LEVENTHAL, into the the scene to and Judge. pockets Circuit —from Hotel, standard, lobby panel

D.C. Annex found him at the adopted duties him. desk arrested He testified that owed counsel to his client derived in minutes, the chase lasted two three large guidelines part the de- sight he of appellant did lose and that fense promulgated function Ameri- Crump, following along, who been had im- Project can Bar Association on Standards mediately identified Decoster as one of the panel Justice.2 The then Criminal held was Crump identify robbers. unable to De- appellant that once the had shown a sub- coster because meanwhile his duty stantial violation owed to him accident, sight impaired had been in an but counsel, government was burden on the positive he testified that he had been of his prejudice. demonstrate lack of he identification when made it the hotel. remand, Pursuant the motion for appellant’s pockets A search did not turn new trial was filed November up any money, and the wallet was never February, 1974, Judge Joseph District Wad- recovered. dy days supplementary held three hear- Appellant testified he met had and had ings the adequacy of trial counsel. On Crump few drinks with at the Golden Gate April findings fact bar, bar, but left Crump Club had law, conclusions he entered an order de- walked back to the hotel about block nying the motion for new trial. away, key getting from the desk clerk when arrested. On the panel October of this court, Eley. (as

The defense dissenting, called He well as one member reversed the codefendant, Taylor) already the other had judgment conviction, holding appel- pleaded guilty Decoster, aat time when lant had been denied effective assist- bail, having jumped fugitive was a Essentially, panel ance of counsel. justice. Eley corroborated that Decoster opinion (referred II) as to Decoster con- Crump (a had met point bar on which cluded counsel had violated his unsure). However, Crump he also tes- duty investigation. to conduct a factual On tified seen appellant fighting had March granted the court Crump with parking lot across from government’s rehearing banc, for motion en the bar —and as to this appel- contradicted the panel vacated opinion, provided lant. supplemental argument. briefs and oral aiding

Decoster’s conviction for and abet- ting robbery, an armed which resulted in a Guiding Principies C. year sentence, appeal is on to this court. The guarantees Amendment Sixth Subsequent Proceedings B. “in prosecutions, all criminal the accused shall . Assistance of When the appeal was first before this Counsel for giving his defense.” In content court, panel, rejecting while the conten- to provision, recognized the courts have presented counsel, tions by appellate re- differing approaches depend- need for hearing for a manded on the issue of inef- ing on the the particular nature of claim of counsel, fective assistance of an issue that it denial of in each assistance case. These sua sponte raised be presented and directed percep- differences stem from the courts’ district court on for a motion new tions of the with panel The exactness which denial trial.1 ruled that a defendant is remedied, can be identified as well reasonably competent entitled as assist- attorney ance acting of an their views of diligent showing the need for a Giving conscientious prejudice. advocate. content DeCoster, Association, Project

1. United States v. 2. American Bar on Stan- Justice, Relating 487 F.2d 1197 referred to [hereafter dards for Criminal Standards 1971) (App.Draft as DeCoster /]. the Defense Function as ABA [hereafter referred to Standards]. area, guilty.”11 applied At In this the doctrine a continuum. present The cases procedur structural or stringent applicable end are cases of than that one is more prevent by the state that impediments al rights per- most denials of constitutional — receiving the benefits of accused from mitting government affirmance when the The most ob guarantee. the constitutional that the beyond shows a reasonable doubt is, course, the failure of example vious violation did not affect the conviction.12 any counsel whatever. provide the state to de- “Effective” assistance of counsel13 is that the long ago held Supreme Court that, permitting a statute while nied requires that the federal Amendment Sixth statement, to make an unsworn indigent defend provide counsel for courts having his testimo- bars the defendant from with under federal charged ants felonies through elicited direct exami- ny states, law.3 As to the the Court first nation; by a statute that restricts counsel aspect as an right defined the to counsel deciding put when to the defendant on trial,4 the eventual a fair result stand;15 by a gives statute that right to less than that was restricted deny judge non-jury power in a trial the provided in the federal courts.5 Gideon6 summation;16 closing defense counsel applicable made the Amendment Sixth directing by a trial court order a defendant into the Four by incorporation the states attorney during not to consult with his Today the Sixth teenth Amendment. pro requires overnight

Amendment that counsel recess that falls between direct felony prosecutions,7 vided not in all These and cross examination.17 state-creat- misdemean prosecutions but also in all impair enjoy- accused’s procedures ed imprisonment.8 ors that result in guarantee ment of the Sixth Amendment by disabling fully assisting his counsel from provided have counsel right representing him. Because these im- that, like the admission in so fundamental pediments direct state interfer- constitute confession,9 or trial evidence of a coerced of a fundamental ence with the exercise judge,10 an interested the violation before susceptible are right, and because mandates rever of the constitutional rules, easy by prophylactic correction a cat- particular prejudice if is shown sal “even no clearly egorical approach appropriate. and even if the defendant 22-24, 824; Zerbst, 458, Fahy v. Connecti- 3. v. 304 U.S. 58 S.Ct. 12. Id. at 87 S.Ct. Johnson cut, 229, 1019, 85, (1938). 11 L.Ed.2d 171 82 L.Ed. 1461 375 U.S. 84 S.Ct. (1963). Alabama, 45, 55, 4. Powell v. 287 U.S. 53 S.Ct. (1932). 77 L.Ed. 158 Alabama, originated 13. The term in Powell v. supra, the trial where Court held 455, 1252, Brady, 5. Betts v. 316 U.S. 62 S.Ct. 86 appoint- judge’s failure to make an “effective (1942). L.Ed. 1595 71, 55, counsel,” ment of 287 U.S. at 53 S.Ct. had resulted in the “denial of effective and 335, Wainwright, 6. Gideon v. 372 U.S. 83 S.Ct. counsel, 53, aid” of id. at substantial S.Ct. 792, (1963). 9 L.Ed.2d 799 58, thereby process depriving due defendant of of law. 7. Id. 570, 1158, Ferguson Georgia, Illinois, 367, 14. v. 365 U.S. 81 S.Ct. 8. Scott v. 440 U.S. S.Ct. 756, Hamlin, (1961). (1979); Argersinger 5 L.Ed.2d 783 59 L.Ed.2d v. 2006, 25, 407 U.S. 32 L.Ed.2d 530 92 S.Ct. (1972). 605, Tennessee, Brooks v. 406 U.S. 92 S.Ct. 15. 1891, (1972). 32 L.Ed.2d 358 Arkansas, 560, 567-68, Payne 9. v. 356 U.S. 844, (1958). S.Ct. L.Ed.2d 975 York, 853, Herring 95 S.Ct. 16. v. New 422 U.S. 2550, (1975). 45 L.Ed.2d 593 437, Ohio, Tumey 10. v. 273 U.S. 47 S.Ct. (1927). 71 L.Ed. 749 States, 425 U.S. 17. Geders v. United (1976). 47 L.Ed.2d 592 S.Ct. California, 18, 43, Chapman 11. v. 386 U.S. (Stewart, 17 L.Ed.2d 705 J., concurring). A less clearcut emerges rule from clear that determining whether counsel was multiple representation. cases on ineffective due appointment to late turned principle is categorically require stated on the facts of the case. The empha- Court —to an attorney represent co-defendants sized, disposed “we are not per to fashion a whose may interests conflict denies the se rule requiring every reversal of convic- to effective assistance of counsel.18 tion following tardy appointment of coun- No showing is necessary. sel.” However, because there is no absolute re At the other end of the continuum are quirement that every defendant have his cases, including present one, in which attorney,19 own application of the rule the issue is performance counsel’s when he requires some factual analysis to determine unimpaired”24 “untrammelled and whether divergent interests that justify state Supreme action. The Court has never separate in fact exist. The addressed this issue frontally, though it has analysis factual will not be exhaustive. As indicated—albeit in abbreviated fashion— the Supreme indicated, recently Court has that it contemplate does not simplistic or rely, courts large, must on the categorical approaches. representations of defense po counsel that exist, tential conflicts since a thorough scru The Court has twice held that reliance on tiny might require attorney to reveal the erroneous advice of counsel does not the confidences of his client.20 negate intelligent voluntary guilty “ plea, long so problem as the of late advice fell ‘within the appointment moves range competence us farther along the continuum. The demanded of attor Su- ”25 preme neys Court long recognized criminal cases.’ that suffi- The Court rec ognized cient prepare time to a defense “inherent uncertainty guilty- is a vital plea element of effective advice” rejected assistance.21 Late ap- any requirement pointment per of a counsel resembles se the state- rule invalidating guilty pleas. It created restrictions on emphasized counsel’s ability to guilty to undo a plea, the assist represent his client. Yet in its must show “serious derelictions opinion,22 Chambers the Supreme part on the of counsel.”26 In the 1976 Court categorical indicated Agurs case,27 rules were not the Court ruled that defense appropriate in this Although area. counsel’sfailure request the criminal rec Court’s treatment cursory, it made ord of a murder victim did not demonstrate Holloway Arkansas, Alabama, 98 S.Ct. supra, See Powell v. 287 U.S. at (1978); 55 L.Ed.2d 426 Glasser v. United 53 S.Ct. 55. 60, 69-76, 315 U.S. 62 S.Ct. (1942). L.Ed. 680 Maroney, Chambers 26 L.Ed.2d 419 Holloway Arkansas, supra, 19. v. 435 U.S. at 482, Indeed, joint representation S.Ct. 1173. 54, 23. Id. at 90 S.Ct. at 1982-1983. may afford economies and even enhance the presentation of a defense. See Glasser v. Unit- Holloway Arkansas, supra, 24. v. 435 U.S. at States, supra, 92, ed 315 U.S. at 62 S.Ct. at 475 1173, quoting 98 S.Ct. Glasser v. United (Frankfurter, J., dissenting) (“Joint representa- supra, 315 U.S. at 62 S.Ct. 457. insuring tion against reciprocal is a means of recrimination. gives A common defense often Henderson, 258, 264, 25. Tollett v. 411 U.S. strength against attack.”), quoted a common in 1602, 1606, (1973); S.Ct. 36 L.Ed.2d 235 Holloway Arkansas, supra, v. 435 U.S. at 482- Richardson, 759, McMann v. 397 U.S. all, many 98 S.Ct. 1173. After cases of (1970). 25 L.Ed.2d 763 multiple (even defendants where each has his counsel) may own involve situations where Richardson, supra, 26. McMann v. each would rather be 397 U.S. at tried alone. But sever- judicial ance 90 S.Ct. at is a matter 1450. of discretion under Fed.R.Crim.P. 14. Agurs, 27. United States v. Holloway Arkansas, supra, 20. v. 435 U.S. at 49 L.Ed.2d 342 484-87, 98 S.Ct. 1173. Recently, Judge Browning, writing opin The Court’s ineffective assistance.28 in Cooper the Ninth Circuit en banc significant, explication but ion is without Fitzharris,30 pointed rulings out was apparently involved a since what need show that a defendant not pursue poten defense counsel failure of involved an absolute denial of counsel a available of aid to the defense tial sources impediment to counsel’s effective structural yet inordinate effort—and without involving quali- performance. In a case possibility abruptly negatived the Court in acts or ty performance, reflected a constitutional claim. prove the accused must omissions derelictions”31 not mere errors but “serious non-categor reasons for While the prejudiced and that counsel’s errors de- developed Agurs, not in approach ical were Judge put dissent fense. Hufstedler’s The de they are not difficult to discern. “totally inept coun- a defendant consists, large attorney’s fense function “precisely” have to show sel” would also judg application professional part, of the affected,32 opinion how he was but ac- variety an of decisions in ment to infinite knowledged “prejudi- consider that courts of the development prosecution attorney in deter- impact cial behavior” any given whether case. A determination constitu- attorney mining whether by counsel amounted to action or omission recognized further tionally competent,33and be cannot divorced ineffective assistance would be many the outcome that in cases peculiar from of the facts and consideration majority dissent- under both the same counsel’s circumstances influenced ing approaches. atmosphere, judgment. this fact-laden delineating the non- The task remains categorical not appropriate. rules are applied to be categorical criteria are say Over and one be- above—or should inadequate perform- evaluating claims of Supreme opinions, low—the Court there has that the It is now clear ance counsel. emerged body of circuit and considerable completely will courts not abstain state law court issue ineffective performance. oversight some of counsel’s judges assistance. Several reflective have close to absten- At one time came this court recognized approaches differing are tion, adopting the Diggs case34 in the 1945 pertinent aspects where different Even under mockery” standard. “farce and Judge assistance counsel are involved. was on performance counsel’s that standard Circuit, Bright, writing Eighth prompt as to delinquent so occasion found noted that while the total absence of coun- correction,35 were but the occasions judicial harmful, sel but when a defend- cannot opinion,36Judge Mitchell rare. In the 1958 per- is represented by ant counsel and the approach effect defended Prettyman formance of has fallen below the attorney/client re- into the of nonintrusion standard, accepted “the of this seriousness observations still lationship. Some merit, judged today constitutional must be survive as rea- violation but judicial limiting degree terms in- particular factual circumstanc- sons for trusion, for abstention. not as brief es of that case.”29 n.5, 33. Id. at 1336-37. Id. at 102 96 S.Ct. 2392. Swenson, (8th F.2d McQueen Welch, Diggs v. remand, 1974), (8th Cir. on 560 F.2d 959 Cir. 667, (1945). F.2d 669 1977). Huff, 254, U.S.App.D.C. 80 152 35. See Jones v. 1978). (9th 30. 586 F.2d 1325 Cir. (1945). 14 F.2d 1330, Richardson, quoting v. 31. Id. at McMann States, U.S.App.D.C. v. 104 36. Mitchell United 774, supra, 1441. 397 U.S. at 90 S.Ct. 850, 57, 787, denied, 358 79 F.2d cert. U.S. 259 81, (1958). 3 L.Ed.2d 86 J., concurring (Hufstedler, 1340 32. Id. at dissenting). 204 dissented, than that

Judge Fahy ground necessary support on the that a a collateral attack. required ques- on the ultimate hearing was whether the conviction “rests in sub-

tion pause We to take note of the formula- degree” upon reflecting a course a stantial adopted by tions the other circuits. As professional skill.37 lack of it, put Justice White has the circuits are in “disarray.”43 opinion,38 Judge which Our 1967 Bruce issue, joined a prominent

Bazelon as to laid down appears One formulation recognized opinion the need for more Moore standard that the Third Circuit’s 1970 as a put competency:” was standard of “normal “the ex- judicial oversight. It “ineffec- customary knowledge ercise of the skill and tive assistance” was established where normally prevails which at the time and gross incompetence “there has been place.”44 essentially negligence This is counsel and . . this has in effect standard. Indeed the Third Circuit cited blotted out the essence of substantial the American Law Institute’s formulation departed Bruce defense.”39 thus liability of the standard for civil of an at- Mitchell, Diggs recognized as has been However, out, torney.45 points as the ALI Although this court40 and others.41 performance the mere fact that falls below departure Bruce explicitly, stated Thus, average negligence. equal does not obviously away from Fifth Amendment due question departures remains of what process concepts ap- to a Amendment Sixth potential from a “norm” are egregious so as problem proach to ineffective assist- judicial interposition. to call for beyond ance.42 And Bruce went powerful showing state that a less adopted inef- Other circuits have variations on required appeal competence,46 fectiveness direct notion of “reasonable” us- 65-66, See, U.S.App.D.C. Fitzharris, g., Cooper 37. Id. 104 at 259 F.2d at 46. e. 586 F.2d J., (Fahy, dissenting). 1325, (9th 1978) (“reasonably compe- 795-96 1330 Cir. attorney acting diligent tent as a conscientious States, U.S.App.D.C. 38. Bruce v. United 126 advocate”); Easter, United States v. 539 F.2d 336, (1967). 113 379 F.2d 663, (8th 1976) (“customary 666 Cir. skills and diligence reasonably competent attorney 339-40, U.S.App.D.C. 126 379 F.2d at perform circumstances”); would under similar 116-17. Ellis, 592, (5th MacKenna v. 280 F.2d 599 Cir. States, U.S.App.D.C. 40. Scott v. United 138 1960) (“counsel reasonably likely to render and 339, (1970); 427 F.2d 609 United States v. assistance”). rendering reasonably effective Hammonds, 166, U.S.App.D.C. 425 F.2d adopted by The MacKenna test has been States, Beasley supra, Sixth Circuit. v. United F.2d at States, g., Beasley 687, 41. E. v. United 491 F.2d (6th 1974). Cir. Three circuits continue to adhere to the See, mockery” g., “farce and standard. e. Gilli happens, pre- 42. As it the author of Bruce had 1182, (10th Rodriguez, han v. 551 F.2d viously, appointed Mitchell, denied, 845, 148, Cir.), cert. 434 U.S. 98 S.Ct. sought persuade the court to move from Warden, (1977); L.Ed.2d Rickenbacker v. analy- Fifth Amendment to Sixth Amendment denied, (2d 1976), 550 F.2d 62 Cir. cert. sis. See 104 259 F.2d (1977); 98 S.Ct. 54 L.Ed.2d 85 J., (Fahy, dissenting). Ramirez, United States v. Madrid F.2d (1st 1976). Marzullo, Cir. The First and Second Cir Maryland 435 U.S. cuits, formally adhering while to the “farce and (1978) (White, J., 98 S.Ct. 56 L.Ed.2d 394 standard, mockery” many dissenting). have in recent cases concluded that a reevaluation of that test is not necessary 44. Moore v. United 432 F.2d alleged because counsel’s deficien (3d 1970). Maryland, Cir. See also Marzullo v. cies did not amount to ineffectiveness even (4th 1977), Cir. cert. de competen under the standard of “reasonable nied, 56 L.Ed.2d See, Warden, cy.” g., e. Rickenbacker v. su (1978) (“range competence 394 attorneys demanded of 66; pra, 550 F.2d at United States v. Madrid cases”). in criminal Ramirez, supra, 535 F.2d at 129-30. (Second) 45. Restatement § Torts 299A & (1965), comment e cited in Moore v. United States, supra, 432 F.2d at 736 n.24.

205 Even an those circuits formulated the same uncer- ing that suffer from tests approach to these apparently categorical Third Seventh tainties as the Circuit’s. in have shown restraint actual problems held that a defendant entitled Circuit has specific presented. facts application to the meets a “mini- of counsel that assistance Peyton54 While in Cir- Coles v. the Fourth In the last professional mum standard.”47 counsel, laid cuit down duties defense recognize that the all the circuits analysis, including unqualified duty to investi- performance of must fall below a Cox,55 appar- v. the court gate, Jackson minimum, just not an abstract “norm.” Coles, it as a ently by distinguishing limited There must be “serious derelictions.”48 investiga- virtually complete case of lack of attempted give con- Some circuits in a case controlling tion that was not adopting, by explic- tent their standards investiga- where there were shortfalls in itly implication, specific tion, performed more than yet duties counsel had investigation. Similarly, “perfunctory” of which amounts to ineffective violation opinion56 the Third 1971Green Circuit’s panel this court that assistance. that it tempered implication Moore I some em- employed wrote DeCoster —with in- identify specific aspects of sufficed to standards for defense bellishment—the grant- District had competency. The Court Bar promulgated by function American due corpus ed habeas because of unfairness 49 panel II the re- Association Decoster and assault rape consolidation requirements these as ferred to DeCoster out unrelated arising indictments components ‘reasonably “the minimal reversing, events.57 In the Third Circuit ”50 assistance,’ although both competent defense acquiescence of stressed that opinions panel qualified these duties on was based counsel in the consolidation requiring a violation.51 “substantial” by the client information furnished Standards, however, The ABA were not between the events. suggested a connection put by the as either exclu- accepted forward ABA not outside This as course represen- range normally competent “a sively “minimum” or as set of “the standards tation,” ac- though defense counsel even per applicable post-conviction se rules knowledged he was not aware procedures.”52 Rather, they constitute signifi- the events differed police version of function, description “blend of functional his client.58 cantly from that of guidelines, guidelines ethical and recom- techniques,”53 mended a mixture of the the recent Finally, support as- we find Supreme pirational obligatory. and the 1979 of the California decision origi- Project Twomey, 47. Justice United for Criminal States ex rel. Williams v. on Standards (7th J.), Cir.) (Wyzanski, nally Standards” 640 “Minimum cert. included the term denied, designations were 96 46 L.Ed.2d S.Ct. in their titles. These dropped by 109 Dele- House of vote of ABA gates August 1969. Id. at v. Fitzharris, Cooper supra, 48. v. 586 F.2d at Richardson, quoting supra, McMann v. - U.S.App.D.C., Id. at at 203 53. of 199 397 U.S. at 1441. 624 F.2d. 332-33, U.S.App.D.C. 49. at at F.2d (4th 1968). 54. 389 F.2d 224 Cir. 1203-04. at-, U.S.App.D.C. F.2d (4th 1970).

50. 199 55. 435 F.2d 1089 Cir. U.S.App.D.C. 51. DeCoster Rundle, 452 ex rel. 56. United States Green 1204; II, F.2d at Decoster 1971). (3d F.2d 232 Cir. -, F.2d at 203. Rundle, 303 ex rel. Green 57. United States Standards, supra at 11. That ABA note reversed, F.Supp. (E.D.Pa.1969), F.2d the ABA Standards were conceived (3d 1971). Cir. highlighted the fact “minimum” standards is Special that both the Standards Committee at 235. F.2d of Justice and the the Administration Pope59 Court case. As we have Whatever the attempted formulation aof noted, already majority dissenting general terms, both standard in what is re- opinions of the Ninth Circuit’s 1978 en banc quired process in the actual of decision of Cooper decision in v. Fitzharris acknowl- claims of ineffective assistance of coun- edged sel, the determination of lack of and what our own decisions competence requires afford, an sought discerning assessment of both is a examina- materiality likely prejudice, appraisal specific with the tion and circum- opinions differing only appli- as to the rule given stances of the case to see whether cable to a “totally defendant with a inept incompetency, there has been serious in- counsel.”60 The California state court efficiency, or inattention of counsel —be- Pope also categorical disclaimed a approach. falling measurably havior of counsel be- discarding standard, the “farce or sham” might expected low that which be the court articulated “basic duties” of de- lawyer and, fallible if that ordinary — fense counsel that it characterized as “con- found, then, typically, is whether it has stitutional obligations,” using the DeCoster likely deprived the defendant of an other- I approach of the “reasonably competent available, ground wise substantial of de- attorney acting diligent, as a conscientious fence.63 However, advocate.” after establishing judicial For the first condition of that defense counsel perform had failed to intervention, speaks of in Saferian “serious standard, in accordance with that competency, inefficiency or inattention of still had the additional burden of establish- falling counsel —behavior of counsel mea ing that “counsel’s acts or omissions related surably might expected below that which be in the withdrawal of potentially meritori- ordinary lawyer.” from an fallible This ous defense.’.’61 degree This differs in but may fairly regarded be refinement not in kind from (“blott[ing] Bruce out the “gross incompetence” language essence of a defense”), substantial and re- impor Bruce. The other condition more quires a showing likely effect on out- required tant. Bruce that the accused show come. deficiency that the “blotted out the essence

This brief survey underscores that of a substantial defense.” But Saferian generalized standards requires little more only that the accused show that than a “semantic merry-go-round.”62 Our deprived counsel’s deficiency “likely” him Bruce opinion was one available, formulation and oth “of an otherwise substantial er courts have used others —but in the ground last appropriate defense.” This is an analysis they necessarily are limited efforts Overarching modification of Bruce.64 con to describe that courts will only condemn cepts justice tug on the court whenever performance egregious that is and probably seriously it is in troubled likelihood of prejudicial. put by As Kaplan Justice justice, though even there is no concrete the Massachusetts Saferian case: injustice establishment of as a fact. People Pope, Cal.Rptr. See, 59. language. g., Cal.3d e. Fernandez v. United (Feb. 1979). States, P.2d 859 (D.C.App.1977); 375 A.2d Cooper v. United 248 A.2d accompanying supra. See text notes 30-33 However, (D.C.App.1969). change requirement from a effect, that defendant show actual n.14, Cal.Rptr. 61. 23 Cal.3d at 424-25 & Bruce, required by to the “likelihood” n.14, 738-39 & 590 P.2d at 865-66 & n.14. Saferian, subject prose- test of that is in turn Fitzharris, Cooper negative prejudice cution rebuttal in fact. (9th 1977) J., (Duniway, concurring), Cir. va- As to the content of the effect that defendant cated, (1978) (en banc). see 586 F.2d 1325 likely, must show is whether it be characteriz- “blott[ing] ed as out the essence of a substan- Saferian, 63. Commonwealth v. 366 Mass. “deprivation tial defense” or of an otherwise 315 N.E.2d available, substantial defense” is a matter of Bruce, form modify more than substance. In our decision to we have taken into account that the District of Colum- Appeals bia Court of uses the Bruce standard pellate this consideration was court has

In effect latitude to exercise its Bruce, supervisory where the court noted function over the administra- identified justice court(s) subject tion of in the be to its appeal that on direct the accused would That fully review.69 latitude is not availa- showing required a lesser than that held to when challenge presented ble a on collat- for collateral attack. Bruce was in harmo eral attack.70 ny by Judge with a similar observation Fahy, dissenting general, in Mitchell65 In Collateral requires showing attack a of per

including totally matters unrelated to violation of rights constitutional —save counsel, appellate formance a federal of “exceptional circumstance” of a claim authority statutory court has to reverse that both could not have been raised on “just when convictions this is under the appeal and that a constituted “fundamental circumstances.”66 Exercise of this authori inherently defect which results in a com- ty may depend in measure some on con plete miscarriage justice.”71 may It also noted, way cern the case was It attempting any over handled. without now doc- declarations, trinal depend availability does not on a determination collateral attack is also affected concerns there has been a lack of “effective assist respect such as finality judgments ance of counsel” in the constitutional sense. judicial resources, and conservation of con- Indeed, case,67 Dyer cited in Bruce68 emerged cerns that v. Powell.72 Stone general compe the court noted counsel’s Although the distinction between direct ap- “trying tence and the difficulties of circum peal attack, and collateral in terms scope uncooperative stances” and “an client.” cognizable problems, was not made the Nonetheless, “misgivings” the court had subject of separate justifica- discussion and adequacy “in defense net Bruce, tion in it has been reaffirmed73 and reverse, result” that caused it to on direct vitality. has current appeal, without statement that the de fendant had been denied effective assist Although appeal gives direct more ance appeal of counsel. On direct the ap- court, latitude to the likely the difference is States, States, supra, 424, 428, 468, 471, 65. Mitchell v. United 104 U.S. 368 U.S. 7 82 S.Ct. 65, App.D.C. J., (Fahy, (1962) (failure at 259 F.2d at permit 795 dis L.Ed.2d 417 allocution senting). sentencing defect”); at not a “fundamental see Powell, 465, n.10, Stone v. 428 U.S. 477 96 S.Ct. (1976); 66. 28 § U.S.C. 2106 see Scott v. United 3037, 3044, (1976) (reiterating 49 L.Ed.2d 1067 States, supra, 340, U.S.App.D.C. 138 427 the “established rule” that “non-constitutional F.2d at 610. appeal, claims that could have been raised on not, may but were not be asserted collateral Dyer States, U.S.App.D.C. v. United 126 174, proceedings”); Large, Sunal v. 332 U.S. 312, (1967). 379 F.2d 89 178, 1588, (1947) (collat- 67 S.Ct. 91 L.Ed. 1982 appeal”). eral attack not “do service for an 340, 68. 126 379 F.2d at 117. See, 465, n.31, 3037, g., States, 72. 428 U.S. e. 491 96 S.Ct. 49 McNabb v. United 318 U.S. 332, 340-41, 608, (1976); L.Ed.2d 63 1067 also United States v. S.Ct. 87 L.Ed. see 819 Timmreck, 780, 2085, 2087, 441 U.S. 99 S.Ct. Boyd Henderson, 70. See v. 62 n.8 Kibbe, (1979); L.Ed.2d 634 Henderson (2d 1977). Cir. n.13, U.S. 97 S.Ct. 52 L.Ed.2d (1977); Bustamonte, Schneckloth Timmreck, 71. United States v. 441 U.S. 218, 259-63, 93 S.Ct. 36 L.Ed.2d 854 (1979) (formal 60 L.Ed.2d 634 J., (1973) (Powell, concurring). In Stone v. provides violation of Fed.R.Crim.P. no basis Powell, heightened by those concerns were for collateral attack of conviction based on special problem of federalism raised federal guilty plea); Davis v. United challenges judgments. to state court The com n.15, 345-46 & 41 L.Ed.2d bination led to denial of collateral relief even (1974) (intervening change in law of circuit for a constitutional claim. at as what constitutes lawful draft induction 2255; cognizable order under 28 § U.S.C. States, supra, U.S.App. 73. Scott v. United conviction for an act the law does not make 610; D.C. at United States v. F.2d presents “exceptional criminal one of the cir- Hammonds, supra, U.S.App.D.C. at “inherently cumstances” results a com- 425 F.2d at 600. plete miscarriage justice”); Hill v. United Bruce, Agurs, position appears from than formulation rather application

one —as as on col- This appeal, and the other cases cited. standards. On direct Saferian attack, is still concerned the court preserves lateral the freedom of limitation focused Safe- the two considerations judgments, and avoids quick to make inadequacy must be claimed rian. The frequent will be possibility that there measurably incompetency that falls serious into the information wide-ranging inquiries ordinarily expected performance below reasoning prompted counsel must lawyers. And the accused fallible problem is com- pursue given course. demonstrating a the initial burden of bear fact these decisions plicated by the inadequacy affect- counsel’s likelihood that supplied often derive from the information ap- the of the trial. Once ed the outcome by the client. showing, the made this initial pellant has encourage wide-ranging For the law to government, the and the passes to burden the inquiry, even after into conduct unless cannot survive conviction the funda- defense counsel would undercut it is not demonstrates government premises process the trial mental and that in fact by deficiency, tainted re- essential nature.76 The transform its prejudice resulted.74 no role of the trial sulting upheaval requires need for a criterion The diffi- judge, widely recognized as a serious probable to show at least effect culty,77 question any would in itself call into even has been identified on outcome assistance. broad doctrine of ineffective seeking Amend- judges to liberalize Sixth prosecution And the in a criminal case protection.75 criterion ment Such turn ask to oversee defense coun- would in perti- achieves a realistic resolution against ensure re- sel’s conduct at trial —to legal tensions. nent versal. requires judg The court’s appraisal problem would be An even more difficult categorical approach. mental rather than supervision of defense coun- posed by wary inquiry lest its and stan It must be development sel’s of the case before trial. relationship undercut the sensitive dards authority, Even if we had the would be attorney and client and tear the between upon unwise to embark a doctrine adversary system. A defense fabric of a fundamental open would the door to representation of a client encom counsel’s adversary system into a reordering of the variety an almost infinite of situa passes inquisitorial in nature. The system more profession that call for the exercise of tions all, system, warts and has worked adversary judgment. A shortfall defense coun al rights provide salutary protection for perceptible that is but is modest rather sel judicial improve Efforts egregious than is basis inter- of the accused. Swenson, States, supra, supra, g., 74. See v. 498 F.2d at E. Mitchell v. United McQueen 65-66, government’s U.S.App.D.C. nature of 795-96 220. As to the at 259 F.2d at may depending J., (ultimate question (Fahy, dissenting) be a distinction burden there appraisal showing by ac- the court’s the conviction “rests in substantial whether skill); degree” upon professional cused. If the court concludes that a constitu- lack of Coo- established, Fitzharris, per supra, has been then there tional violation at v. 586 F.2d indicating government J., dissenting); (Hufstedler, concurring doctrine that the must beyond doubt that People Pope, supra, show a reasonable there at v. 23 Cal.3d Chapman in fact. v. been no Califor- Cal.Rptr. P.2d at 866. Connecticut, nia, Fahy supra, supra. See accompanying supra. notes 11-12 If the text supra, 104 76. See Mitchell v. United showing the accused causes court seri- 793; discussed misgivings notwithstanding the absence of ous supra. accompanying note 36 at text violation, text see discussion at a constitutional 65-70, supra, accompanying dissent, pointed on’s out: claim of ineffectiveness must turn on counsel not “[T]rial own had their clients as sources of duty, appraisal abstractions as to but on an informa tion.” consequences. development of And the of the case an peculiar before trial is area of Realistically, a defense attorney de sensitivity attorney/client in the relation velops large his case in part from informa ship. supplied by tion As client. the Third investigate may failures so

Some Green,83 Circuit indicated in choices based judicial egregious as to command correction on such information pro should later McQueen Swenson,79 without more. In vide the for a basis claim of ineffectiveness adopted the defense counsel had though blanket even that basis would have been to even policy which he adhered in the face by inquiry undercut of others. Judicial in requests by of the defendant that certain require tervention to a lawyer that run persons be This beyond, around, client, interviewed. “an held or would raise dangerous policy and only absurd which can questions ticklish of intrusion into the at U.S.App.D.C. (1976). 78. 177 543 F.2d 908 hearing, would he been entitled to a and Pinkney, appellant In claimed denial of effec- hearing if evidence offered at a tended sentencing tive assistance of counsel at a hear- to establish the elements would the Govern- failed, first, ing because counsel discuss ment have been summoned to disestablish government’s him content of the allocution prejudice. and, second, .object memorandum short, Id. the defendant must show that government’s allegation in the memorandum alleged probably counsel’s deficiencies would appellant participated drug that traffic in the govern- have affected the outcome before emphasized ap- District of Columbia. We that, demonstrating ment has burden of pellant present had failed to an dis- affidavit fact, the result would not have been affected. closing portraying “evidence the movant’s materially resolutely, evincing claim (8th 1974), remand, 79. 498 F.2d 207 Cir. capability mounting challenge.” a serious (8th 1977). F.2d 959 Cir. U.S.App.D.C. (em- 543 F.2d at 916 phasis supplied). acknowledged It was Id. at 216. “once substantial violation counsel’s duties shown, the Government’s burden is to dem- Clayborne, U.S.App. States v. United lack onstrate therefrom." Id. 177 D.C. n.59, U.S.App.D.C. at 431-32 543 F.2d at 916- 917 n.59. But said: the court Id. 166 509 F.2d at 477. Only evidentiary if [appel- elements of lant’s claim that counsel’s failure to inform Rundle, deprived 83. United States ex rel. opportunity Green him him of con- (3d 1971); allegations government’s F.2d Cir. discussed at text test mem- supra. appeared appellant’s accompanying had notes 56-58 orandum] motion case,” tomey/client relationship, and should be re and circumstances a particular where an effect on served for extreme cases provided with funds when counsel makes a the outcome can be demonstrated. And so showing necessity specific subjects States,84 involving a in Matthews v. United explored likely materiali- to be and of their failing that counsel was ineffective in claim ty.86 witnesses, or call then to introduce evidence Judge focused on the fail Circuit Stevens duty on a Finally, claims based allege ure to such witnesses or evi investigate light considered in must be existed, adding: dence strength government’s case. Petitioners have not told us what was “When, . an prosecution . in their conference with counsel. said overwhelming case based on documents and know, Perhaps, they merely for all we witnesses, testimony of disinterested explained they forged had indeed there is not too much the best defense at- applications which were 35 ballot torney good can do.”87 It is all well and government placed evidence for a millionaire to retain counsel with the guilty were charged. indeed instruction “leave stone not the smallest case, Surely, if that were the counsel had goes unturned.” But too far to insist witnesses, duty expert to search for that such a general course is a constitution- otherwise, might falsely testify who al mandate. contrary.85 point Our reflections on this are E. Appellant’s Claims congruent applicable with the standard We turn general questions princi- indigent when ple approach applica- to the matter of investigative seeks funds to obtain services tion to the case hand. As focused in the to assist preparation of the defense. proceedings, appellant remand general While in assistance of makes some effective seven allegations performance counsel embraces such an allowance it is far of defective “depends automatic and on the facts Following counsel.88 three days of (7th 1975). dust, 84. 518 F.2d 1245 Cir. amount of with the inevitable risk that may client, some settle on his the defendant Id. at 1246. fails, although will blame him if the tactic in the rare event of success the client will rank (1976) 3006A(e) (contemplating 86. 18 U.S.C. § him with leaders of the bar who have used Harris, parte proceeding); ex United States v. such methods in some celebrated trials of the (7th 1976), 542 F.2d Cir. cert. past. denied, 430 U.S. 51 L.Ed.2d (1977); Arizona, 779 (9th Mason v. 504 F.2d 1345 proceedings appel- 88. Listed in order in denied, 1974), Cir. cert. case, they lant’s are: (1975); Report 43 L.Ed.2d 412 Implement the Committee to the Criminal Jus (1) dilatory seeking Counsel was in a bond Act, tice 36 F.R.D. appellant review while was incarcerated for following May almost five months his arrest on Katz, (2d 87. United States v. 29, 1970; 1970). Judge comment, Friendly’s Cir. al- (2) transcript failed Counsel to obtain though directed to the choice of tactics at appellant’s preliminary hearing and failed to general application. has more He said: employ transcript impeach prosecution Determination of the effectiveness of coun- trial; witnesses sel cannot be divorced from the factual situa- tion with which he is confronted. (3) any potential Counsel failed to interview When, trial; prior witnesses here, prosecution overwhelming has an (4) “ready” Counsel announced trial at a testimony case based on documents and the time when he did not know whether or not he witnesses, of disinterested there is not too present would alibi witnesses and before he attorney much the best defense can do. If he defense; fully developed had simply puts prosecution proof to its jury Counsel offered to waive trial and to argues jury its burden to convince the be- permit appellant to be tried before the court yond doubt, a reasonable the defendant part when the court had heard a evi- lacking aggressiveness, think him surely pleas guilty dence in connection will if conviction occurs. If he decides co-defendants; two to flail around and raise a considerable Judge Waddy appel- Appellant found that makes no claim that he advised hearings, the effective as- lant had not been denied any gener- occurrence that would counsel of affirm. While we sistance of counsel. We entry into significant issue as to his ate we performance, do not commend counsel’s the hotel. would lead misgivings have no serious justice. us to reverse in the interest of budget given unrestricted If ma probable constraints as to freed of Witness- 1. Failure To Interview Potential accountability, lawyer might teriality or es logged many hours look cheerfully We turn the claim that first a needle in a ing legal equivalent for the potential interview defense counsel failed to noted, already a millionaire haystack. As prior witnesses to trial. This is the claim leave not a might have retained counsel to vigorously pressed appeal, is most on However, unturned. a defend single stone requires its nature somewhat de to basic perfection ant is not entitled to but development. tailed world, expenditure In the real fairness.89 Admittedly, defense counsel did not at- a reason dependent of time and effort is on tempt prior to trial to interview the three materiality. In the cir able indication prosecution complainant Crump, witnesses— case, appellant cumstances of this has sin However, Box and Ehler. and Officers meaningful make demon gularly failed to preliminary hearing appellant’s counsel did probably that counsel’somission af stration he and testify hear Officer Ehler Offi- It fected the outcome of the trial. is ar together cer Box were when witnessed might have gued potential witnesses crime, appellant pursued and that Box appellant’s as he en testified to demeanor apprehended. to the hotel where he was lobby. possibility tered the This abstract further testified that within minutes Ehler only speculative but remote the ex assault, Crump ap- had identified after fairly It said to undercut treme. cannot pellant lobby point appellant in the hotel —a materially positive police testimony. has never contested. Defense counsel aware, therefore, points of the main Appellant goes challenge counsel’s likely testimony of the witnesses at trial. potential failure to seek interview out and Appellant attacks defense counsel’s fail- It witnesses the Golden Gate Club. ure to interview the clerk at the desk D.C. counsel to extravagant require would be Hotel, Annex and his failure to make an anonymous patrons seek out the of bar potential eye- effort to locate and interview testify persons that two were hav- order to might witnesses that have been in the hotel is, incidentally, ing point a drink—a appellant at the time ap- entered and was undisputed Crump and appellant far as prehended. These are abstractions without Appellant are concerned. makes no offer Appellant context. himself testified at tri- learned. as to what more could have been just lobby al that he had entered the when next of defense We turn to the failure he was arrested. Counsel was aware that counsel co-defend- appellant’s to interview be, was, there would as indeed there testi- trial, ants, Eley Taylor, prior and and his mony police officer that he had not shortly before Eley belated interview of sight appellant lost from the time of the apprehension. robbery Eley day time of his testified on the of trial. second (6) opening jury prison clothing. objec- Counsel failed to make an state- before the This ment; below, tion was not asserted and therefore is appellant’s Counsel failed to see that sen- properly before this court. executed, properly tence was in that he failed appellant given to see that was credit for time See Lutwak v. United served. (1953); United L.Ed. 593 Appellant alleges also denied the was Liddy, States effective assistance of counsel because of coun- F.2d object appearing appellant’s sel’s failure to Eley’s testimony Court found “incredible” appellant reveals that consist-

The record testimony of defense coun- attorney that his and credited the maintained to his ently Eley. as to his interview of he had not been sel was alibi90—that defense crime, rath- but present at the scene indicated, approve we do not already As directly to the hotel from er had returned co-de- the belated effort to interview the with where he had had a drink bar However, appellant has not dem- fendants. appellant’s Crump. This was the essence of onstrated a likelihood that counsel’s omis- testimony trial. eventual the outcome of trial. Counsel sion affected Eley time when Eley, did interview and at a present purposes We assume for exculpate appel- could at least be asked appellant’s lawyer should made some self-injury, this lant without fear of timely prior to trial to learn of the effort set, following was Eley’s time own fate co-defendants, beginning accounts of the during peri- plea guilty he had made their counsel. How- consultation with appellant eloped. Appellant was od had ever, subsequently counsel did interview called, Eley’s insisting Eley be At Eley and called him to the stand. hope provided glimmer interview time, noted, recently had appellant against phalanx corroborating appellant possible written to his counsel and raised prosecution witness. Neither of credible claim, altering previous self-defense was in an enviable appellant nor his counsel (that Crump bar) left in the account he had Although appellant position time. Crump to claim that outside the bar had counsel, assistance of now claims ineffective him, Eley Taylor assaulted and that is the clear-cut what this conviction reflects testify would had come to his aid evidence, weak con- prosecution appellant’s fighting Crump. off tradiction, Eley’s turnabout. appellant, Eley At the insistence of was the claim of failure As a variant on subpoenaed appear Eley, at trial.91 who ap- points to counsel’s investigate, appellant jail, brought was in to the courthouse beginning of parent confusion at the placed same bus as Decoster and had announced trial. After defense counsel the cellblock behind the courtroom with De- demand- “ready” government hearing, coster. At the remand defense witnesses. Counsel ed the names of alibi trial counsel testified that he had inter- witnesses, alibi might present that he stated Eley, Eley viewed and that had told him twenty day period sought the full but he present Decoster was not at the scene of respond to such rules to permitted local the crime. This narrative was consistent denied, defense When this was a demand. testimony, with Decoster’s trial and defense with- proceed announced he would counsel Eley as a called witness. On the witnesses. out alibi stand, however, Eley gave a different account, testifying Crump keep that he had seen The effort of defense counsel to unusual, fighting. and Decoster At options open hardly the remand but even hearing Eley theory Decoster and uncertainty both admitted if this as to indicated prior defense, that counsel had degree visited the cellblock would some confusion calling Eley as a witness. Decoster stat- unexpected appellant’s not be in view of ed that he could not recall shifting whether counsel accounts and demands. event, Eley, Eley likely

had interviewed denied that there is no indication of effect spoken he had responses to counsel. The District on outcome. Counsel’s be- came arrest, letter, appellant 90. While incarcerated after his was ever aware of the contents of this allege, Waddy protest- appellant Judge representations did ing in a letter to that him made similar prior his continued confinement and the failure to the letter to counsel mentioned motion, appellant hearing, of counsel to a above. At ad- file bond review that he the remand by defending had been mitted this was a fabri- himself from an assault latter self-defense claim Crump. This claim is with that cation. consistent attorney shortly made a letter to his before attorney trial. There is no indication that the Taylor not be located. 91. could jury trial, At impanelled. fore the b. To Failure Obtain Transcript. Eley counsel did call as a witness he under- copy Defense counsel did not obtain a support transcript would At preliminary hearing. stood defendant’s alibi de- the remand he testified hearing, fense. that it was practice prosecutor’s

his normal read the copy. practice, This and their cooperation, 2. Claims Other of Ineffective Assistance by prosecutors’ was substantiated testi claims, appellant’s As to other the Dis- mony. say We cannot prac counsel’s trict findings, Court’s while framed in re- impermissible. tice was He had not mandate, sponse the Decoster gen- are to a transcript, memory access but his own erally in accord with principles we have the preliminary hearing that he had at developed opinion. this Appellant argues tended. that Officer Ehl testimony er’s trial differed from his a. The Bond Review Ap Motion. testimony preliminary at the hearing on the pellant May was arrested on 1970. A exact role of each defendants in the judge of District of Columbia Court of robbery. These variations were not “sub $5,000. General Sessions set bond at Appel Waddy’s Judge term —insofar as stantial” — lant figure could not meet and re the alibi defense was concerned. is There mained incarcerated. On October showing impact likely the trial the Black Man’s Development Center ac result. cepted third-party custody. On November c. Offer Waive Jury To Trial. 9, 1970, counsel filed a motion for bond Appellant’s effort to condemn defense review the District Court. issue was counsel for jury the offer waive trial disputed hearing, Judge remand but frivolous. Appellant was in fact tried Waddy apparently found motion Moreover, jury. as District Court had included the of third-party condition found, appellant himself demanded that his custody. However, it until was not Decem attorney jury ap offer to waive 8,1970, ber that defense counsel filed in the pellant persisted demand in this even after (General Sessions) correct court a motion the court of his advised him constitutional for bond review explicitly reflecting the rights explained the court had third-party custody Appellant condition.92 part against heard of the evidence him. eventually January 14, released on We are moved to add word. The trial judge, Waddy, the late Joseph Honorable The District Court found counsel’s a distinguished had record at the bar as deficiencies did not affect the result of the compassionate and effective defense coun- slightest trial in the degree, did not “limit sel, and on patient, the bench as a fair and ability defendant’s to contact witnesses and judge. Appellant’s conscientious wish for inform his counsel if there them were him was neither unusual nor such defense, any; nor did it frustrate his nor to require conscientious counsel to set guilt affect his or innocence.” While lack in opposition himself to his client. diligence in obtaining a criminal defend- pretrial condoned, ant’s release cannot d. Waiver Opening Statement of a reversal conviction the appropri- is not and Failure To See Properly Sentence Exe remedy ate where itself the trial was not found, cuted. As the Court District there affected the default.93 no merit in the claims ineffectiveness on Appellant filing attacks U.S.App. counsel’s See Dillane v. United court, (1965) (ineffectiveness bond review motion in an incorrect D.C. 350 F.2d 732 Court, court, filing remedy appeal only District rather than the correct notice of warrants opportunity appeal). General Sessions. do not While we commend of to file error, some confusion was “understanda- ble,” government’s lawyer as commented at hearing. the remand with his sequently retrace his conversations statement opening waiver of ground of client, of the evolving perceptions and his appellant’s sentence failure to see that presented by possibilities problems open- of an executed. Waiver properly was assignment. There is a tactical decision. ing statement that the waiv-

was no effort to demonstrate upgrade perform- support We efforts had, a substan- had, likely to have or was er commend counsel. We ance of defense trial the sen- As to tial effect on the outcome. in clinical the last decade programs issue, had trial counsel tencing defense approve We students. for law education issue case before the from the withdrawn efforts American Bar Association’s taken, arisen, appeal had been had prosecution func- clarify the defense and appointed. And appellate counsel had been But more is be done. tions. More should justify would at most of course an omission adversary not better if undercuts sentence, reversal not a a reconsideration system. the conviction.94 concerned, is present as the case So far pellant come of this trial. As the District Court found: ous ultimately there was a total failure of sel’s done. We combination, complaints sel’s deficiencies had F. Conclusion The several While it misgivings performance to show certainly border on the frivolous. do not raise claims, that it was as to as ideal. be that defense counsel do not commend coun- both seriatim whether effect on likely Yet some of the our justice minds seri- that coun- the out- and in And ap- destines his remarks quoted expression of gal system. political statement.95 ultimately dispositive of strength not matched often in ure of Judge Bazelon’s As effect on the outcome. # Jan Deutsch has appellant the nature of a dissent to s(: In our government’s tenable standards. to demonstrate ^[*] characteristic view, aspirations for the to stand as an oft- recently sfc appeal case and ;}! eloquence a likelihood noted, eloquence present a are ^[*] fail- it is le- duty herein lax as the ABA Starting in his to conduct 1. from Stan Function,96 thorough investigation possi- Relating a factual the Defense dards ble, we a list of “duties Judge propounds find that counsel did raise Bazelon him, representing only defense available to which de- owed counsel to client” as competent putting government requirements fense was to its the “minimum proof. performance.” The ABA its stan issued “minimum” —as dropping the term dards — a governmental In the absence of a function, func description “blend of impediment to assistance coun effective guidelines and rec guidelines, tional ethical sel, the lightly court cannot vacate a convic 98 They were not techniques.” ommended appraisal tion on the basis of its own fast checklist of designed as a hard and performance of defense counsel. The door application duties for defense counsel. open, grievous but for cases of defi judgment, and for there must room ciency and where the court has serious mis context. consideration of justice been givings done. Our permits reversal in adversary system analytic will be tortured out of structure Our justice, inappro- shape contemplate if defense counsel must the interest of but without deficiency beginning judge that the will The claimed priate rigidity. sub- Bazelon, J., supra. accompanying Dissenting opinion text at-of 94. See note 93 U.S.App.D.C., F.2d. at 276 of 624 Deutsch, Metaphor: Law as A Structural Process, Analysis Legal Geo.L.J. 11; Standards, supra see text ABA note supra. accompanying notes 52-53 supra. 96. See note

215 expanded the defendant’s burden was measurably accepted below stan- must fall impact. Judge include a reference to Ba average” is not To be “below dards. clear zelon stated that made self-evidently the case enough, for that is Pinkney101 substantial,- to be it that “for a violation of shortfall is half the time. The standard is, it ‘consequential,’ must [have been] es- necessarily subjective, but cannot be way impaired must have the defense.” some showing that merely by counsel’s tablished 2 ap Judge 10 Bazelon’sdissent now from a acts or omissions deviated checklist of burden pears concept to recede from the standards. impairment on defendant to show significance all-important What is Judge Bazelon’s dissent ac defense. While been terms of context. This has understood compe knowledges ‘reasonably that “the virtually every judge that has by court and his actions to fit attorney tent’ must tailor spoken prob to the issue.99 We resolve the by a unique presented circumstances taking lem of into account without context given defendant’s nominal burden case,”103 an undue on the defense. imposing burden “substantiality” to show is structured so require We do not that defendant bear the that, realistically, deviation from the check proving prejudice.100 burden of actual case, leaving prima list makes out a facie What defendant must demonstrate is a like (or government the actual burden on In that lihood of effect on outcome. counsel) defense trial to show that the de event, government would have the bur “justifiable.” parture was “excusable” or showing den of that there was in fact no Judge Bazelon’s difficulties with the sub particular case. stantiality concept suggest that it is un analytical cutting to make sound Judge qualifies his Bazelon formulation edge. asserting “checklist” that his does not reversal, compel applies as it automatic Judge recognizes that Bazelon if the violation is “substantial.” In DeCost government always by showing can defend I, meaning er “substantial” was left beyond a reasonable doubt that the viola- ambiguous, reading opin but a fair prescribed by tion was harmless—a rule suggests ion that it to the magni referred even for established constitu- Chapman104 violation, tude of the either in terms of tional The realistic thrust violations. egregiousness frequency, or rather than to however, Judge approach, is a Bazelon’s impact likely impact. the violation’s or prej- rule structured toward conclusion Judge panel opinion Bazelon’s in Decoster udice from deviation from checklist concerning preparation, II-—-later vacated the en banc order— of what- standards II, Although Judge U.S.App.D.C. Decoster 102. Hufstedler dissented from 199 99. at----, imposition observed, prejudice requirement 624 F.2d at of a strict 308-309. He 199 Fitzharris, Cooper (9th at---, U.S.App.D.C. v. 586 F.2d 1325 Cir. 624 F.2d at 309- 1978), recognized impairment presumed she that considerations could be pertinent effect on outcome where to determin- where “acts omissions of [defense] ing whether a defendant had been denied the likely impaired are . . to have the de- 1340; effective assistance of counsel. Id. at yet consequence fense” and would be difficult accompanying supra. text see notes 32-33 - prove. These words could be viewed as California, Supreme And the while Court suggesting approach not unlike our own adopting a standard similar to that of DeCoster opinion, except likely effect is based imposed I, still on defendant the burden of context, inquiry in not on an but is established showing that had “in counsel’s failures resulted (described the nature of the violation as a potentially the withdrawal of a meritorious de- investiga- “total failure to conduct factual 412, 425, People Pope, fense.” Cal.3d tions,” -, U.S.App.D.C. 624 F.2d at Cal.Rptr. (1979); P.2d 310). accompanying supra. see text notes 59-61 Dissenting opinion Bazelon, J., at-of U.S.App.D.C., at 282 of 624 F.2d. Bazelon, J., dissenting opinion 100. See U.S.App.D.C., ---of at 288-289 Chapman California, F.2d. (1967). 17 L.Ed.2d 705 Pinkney, United States v. 543 F.2d 908 progression categorical gov ever the likely consequence. or actual toward rules Omissions of lead investigation erning to new tri- the assistance of counsel. The Su decisions, however, als the rationale that one can never be a preme Court establish certain what might happened depend had judgmental approach variable and performed counsel A new depriva better. ing on the of the claimed nature needed if exculpatory information might particular, In right. tion of the Chambers up (obviously), have been turned and if rejected also clearly, briefly, if Maroney105 investigation the fruits of the would have ap per se rules were proposition proved inculpatory, neutral or even for de- out propriate, implicitly accepted an and stronger fense counsel have been in a could requirement. come In the cases where req plead client to position guilty. to lead his rejected any of Court kind speculation This kind of renders no error easily be uirement,106 the violation could harmless. categorical of a by prohibition remedied impediment as to effective state-erected 3. The crucial difference between our cases did not intru sistance. Those involve views this case is not shortfall of pretrial sion into the sensitive area of more analysis so counsel much as the effect on Cham preparation. by are constrained We point duty outcome. The is the critical signals Agurs.107 bers and investigate. the defendant’s account Since law, requires lieutenants well “leadership as entry to his counsel of into the hotel was captains.” On an court intermediate police, close to that speculation so of the ap we have latitude to initiate some something might up have been turned proaches interpret Court Supreme and to by interviewing the hotel clerk is tanta- decisions, must con but we abide their obligation mount to an to turn over each straints. every and is even stone. This clearer for suggestion the extreme that defense coun- Judge 5. a view Bazelon animated sel inquiries, persons should have made system adversary impaired as so

unknown, at the bar where defendant and practice thorough as to reorder- warrant drinking. the victim were ing, supervision by the trial extensive judge pretrial There to en- objection through is more to the “checklist” force sure has met preliminary rested with hear- that counsel his duties ing, and did the policemen preparation, oversight not interview of the conduct of and However, notably the victim. consequence conscien- the trial. The would manifest judge tious trial increasing has found there was be into inevitable and intrusion Finally, no effect on outcome. presentation co-defend- development Eley prior ant was interviewed to trial. (out the trial judge, defense case Eley’s damaging testimony on the witness self-protection) by the prosecution. turnabout, stand was a defense trial counsel adversary system is neither sacro- submitted. When one also factors in the change. Judge sanct nor But impervious reality of the turnabout defendant’s own pointed any system Bazelon has —let counsel, statements to the notion that coun- inquisitorial system alone the of the Conti- sel’s to the shortfall contributed outcome is guarantees protection nent—that better comminuted. against injustice. We do not think he has Judge premise 4. made a of a Bazelon’s is that case for drastic overhaul system historically pro- the Sixth Amendment dictates an heightened inevitable Agurs, 427 105. 399 U.S. 90 S.Ct. L.Ed.2d 419 United States v. U.S. (1970); accompanying (1976); see text notes 22-23 su- S.Ct. 49 L.Ed.2d 342 text see pra. accompanying supra. circuit has evolved and refined Sixth injustice ward off may earthbound, be more protections against Amendment the ineffec but in our view it is salutary. more tiveness of counsel. Judge Bazelon fash important ioned an ruling advance in the Affirmed. DeCoster 1110that procedure established a MacKINNON, by Judge, Circuit with whom which the trial court could take a fresh ROBB, join, look TAMM and Judges, within the structure Circuit app of a direct resources. the criminal there is need for the allocation of additional cally his assessment before us. checklist not indifferent requiring only dissenting opinion insofar as those two opinions appraisal112 of the dissent. ceived from zelon’s concurring opinion effect on more radical eal.111 defense has in fact requirement of a showing that a substantial coster The concurring opinion subsequently re- comments addressed to 5(5 5(5 judges II dissent, are panel opinion approach This outcome. We cannot 5(C ^[*] Certainly congruent. Judge departure of this court are emphatically opinion justice notably Judge Robinson’s showing ^{[*] [*]} of DeCoster differs from Robinson is limited been “blotted out” of the there is need to cull not be covered here. The full court subse plight and reiterated in the modifies the Bruce system. Certainly outlined in the De Sfc ^[*] In of a likelihood of Judge key aspects particular of the utility 5(5 ^[*] I, Judge accept subject and basi- Bazelon’s poor of the 5(5 5* case Ba- by opinion covers a number set forth at factual of Decoster’s judge sions and reversed the conviction. United jority of 624 F.2d 196 App.D.C. aside Judge Waddy’s findings and conclu in a far reaching opinion write new law States I had been ineffective. ing. His findings and conclusions did not support and which were ed with a tion of issues that were D.C. Court to the District Court for determina concurring. United States v. dissented This case has a (Waddy, 487 F.2d 1197 Decoster, -, legal in part. sua preconceived length conviction appellate panel (1976), J.) sponte deficiencies of the reversal tortuous majority DeCoster, held an extensive hear in my apparent On F.2d [Decoster However, not raised on remand from this U.S.App.D.C. remand, fears of the ma history. dissent, points of the 159 U.S.App. in the record. [DeCoster I]. attempted that counsel panel on appeal II]. that need panel the trial 199 U.S. It start appeal were -, set out incompetent counsel or to call them to quently ordered en rehearing banc of the account. Responses are primarily required case. Now the court en banc affirms the from the bodies that can supply resources— conviction. legislature and the Judge bar. Bazel- single-valued on’s bold but approach Judge would plurality opinion, Leventhal’s tolerate disruption of the administration of prepared which was my origi- after earlier States, App.D.C. 109. Bruce v. (1967), United 379 F.2d 89 that relief (1967). may justified F.2d 113 showing a lesser on direct appeal than on collateral attack. See text ac- DeCoster, U.S.App. 110. United States v. companying supra. notes 65-73 D.C. 487 F.2d 1197 Robinson, J., at-n.44, Opinion of of 199 flexibility appeal 111. This in remedies on direct U.S.App.D.C., F.2d. at 250 n.44 of 624 recognition, building found its roots in Bruce’s Dyer on the case of v. United draft, earlier have the Assistance Counsel many raised nal issues right to a majority are now subordinated defence.” In addition to the panel for his law, and the general of more actually discussion denied the “Assistance of to not be case, which specific factual issues of long recognized been that a Counsel” and the effec- support finding guilt as- has a to the effective counsel, less attention. I tiveness of receive counsel, for courts have under- sistance of opinions by result as the reach the same that a be so ineffective stood defense Robinson, but on sev- Judges Leventhal and as to constitute a constructive denial not make as opinions eral issues those do Obviously, the two of counsel. assistance against the complete and conclusive a case composed radically types of cases are analysis theories and of the dissent as case different essential elements. This and, respects, supports, record in some showing turns on the nature However, analysis. since differ from their in order to reverse a convic- must be made relegated such theories now to a dissent are alleged represen- ineffective tion because of opinion from an en banc the need for an I a defendant who tation. believe that opinion completely to refute them is dimin- alleges counsel was ineffective that his Thus, repetition, ished. I have to avoid that to his must show substantial portion my original of large withdrawn alleged from the violation defense resulted opinion and instead will make a few obser- my I duty of owed him counsel.2 base respect beyond vations with to the dissent (1) prece- conclusion on four considerations: Judge opinion, those and dis- of Leventhal’s Circuit; (2) Supreme dent in this surrounding cuss the the burden of issues approach analogous Fifth Court’s proof which I believe should be set forth area; (3) Amendment traditional common greater clarity precision. with I and stand law principles governing the burden of by my earlier statements which are accu- proof; adversary respect for the rately quoted I in the dissent. vote to system. affirm conviction. I. THE BURDEN OF PROOF IN SIXTH A. Precedent

AMENDMENT RIGHT TO 1. Before DeCoster COUNSEL CASES provides early The Amendment The cases in this held that Sixth that Circuit “[i]n prosecutions, all criminal the accused shall Sixth Amendment established a See, Alabama, 45, g., guarantees Rights e. Powell v. 287 U.S. 53 Bill The of are the 55, (1932); protecting against S.Ct. 77 L.Ed. 158 Johnson v. ar- bulwarks the reach of Zerbst, 458, 1019, bitrary power. 304 U.S. Among guarantees S.Ct. L.Ed. those is 455, (1938); Brady, right granted by Betts v. 316 U.S. Amendment the Sixth (1942); S.Ct. L.Ed. 1595 Gideon v. proceeding in a criminal in a accused Wainwright, 372 U.S. 83 S.Ct. federal court “to have the Assistance of Hamlin, (1963); Argersinger L.Ed.2d 799 Counsel for his defense.” “This is one of the (1972); * * * U.S. 92 S.Ct. 32 L.Ed.2d 530 safeguards necessary deemed California, 806, 807, Faretta v. 422 U.S. 95 S.Ct. rights insure fundamental human of life importance 45 L.Ed.2d liberty,” and a federal court cannot constitu- operation of counsel’s function to the effective accused, tionally deprive an life whose adversary system unquestioned. of our is stake, liberty is of the assistance of coun- Supreme Court stated in v. United Geders Zerbst, 458, 462, sel. Johnson 304 U.S. States, 80, 88, 1330, 1335, 96 S.Ct. [(1938)]. 82 L.Ed. 1461 (1976): L.Ed.2d 592 applies every recognize 2. This rule in almost case. Ex- Our cases that the role of counsel important precisely ordinary] ceptions may perhaps in in the few because be order [the ill-equipped prosecutor to understand and cases which the somehow process lawyer’s deal with the trial without a relevant easier access than the defendant guidance. I.C., information. See infra. 69-70, Glasser v. United (1942), 86 L.Ed. 680 is to the same effect: compe- of counsel right appointment of assistance is derived from the defendant’s Subsequent negligence of Amendment as well from the tent counsel. Sixth Fifth.4 implicate counsel the Sixth did However, the Fifth Amend- Amendment. applying In the Sixth Amend- addition process guarantees clause ment’s due of adequate ment to the assistance counsel cases early accused a fair I cases established area, pre-DeCoster recognized performance of counsel First, they principles. two delineated a might inept have been the defend- so which constitutional standard the ade- Thus, ini- ant did not receive fair trial. can quacy attorney representation tially, con- adequacy counsel was Second, clearly tested. allocated the ques- Fifth sidered involve a Amendment proof adequacy representa- burden of tion.3 tion cases. Amendment, however, guaran- The Sixth (a) The Standard. In earliest deci- our appointment compe- more than the tees subject, sions on we stated a de- terms, right By tent counsel. its one has a adequate fendant’s constitutional to “Assistance of his defence.” Counsel representation is when violated counsel is begins appointment Assistance inept shown be so the trial is a counsel, end some it does not there. “farce a mockery justice.”5 Later be so performance cases cases stated that the and mockery “farce that, effect, inadequate assistance justice” example test meant as an of a cases, provided. Clearly, counsel is in such violation; constitutional it was not intended right the defendant’s Sixth Amendment to to restrict applica- Sixth Amendment’s “have Assistance of Counsel” is denied. tion those cases in which the trial States, Thus, in Scott v. United 138 U.S. “farce.” See Mitchell v. called a could be States, 339, 609, App.D.C. 340, (1970) United 57, 63, 427 F.2d 610 U.S.App.D.C. 104 259 recognized right adequate 787, (1958).6 we that F.2d 793 See, Welch, 5, g., Diggs 540, U.S.App.D.C. Maryland, (4th e. v. 80 In v. Marzullo 561 F.2d 543 6-7, 667, (1945); 1977), denied, 1011, 148 F.2d v. Jones Cir. cert. 435 U.S. 98 S.Ct. Huff, 254, 255, 14, U.S.App.D.C. 1885, (1978) 80 15 152 F.2d 56 L.Ed.2d 394 Fourth Circuit (1945). rejected expressly mockery and farce test adopted competence a normal standard: panel composed Judge representation 4. The Ba- Chief “Was the defense counsel’s Judge per range zelon and competence Leventhal and cu- issued within the demanded of riam. attorneys in criminal The Fifth cases?” Circuit adopted following has standard: whether supra. attorney likely “reasonably 5. See cases cited 3 at note to render [rendering] reasonably effective [assist 881, circuit, Gray, In United 565 F.2d addition to seven cir- States v. ance.]” this other Third, Fourth, Fifth, Seventh, Balcom, Sixth, (5th 1978); cuits —the Eighth, Cir. 887 717, Mason 531 F.2d v. rejected (5th Caldwell, 1976); and Ninth —have the farce and 724 Cir. Burston v. mockery (5th denied, Cir.), test as a standard that met in must be 24 506 F.2d cert. 421 U.S. determining inadequate 1995, 990, assistance of counsel. 95 44 480 S.Ct. L.Ed.2d States, 730, adopted In Moore v. United (3d 432 736 F.2d Sixth Circuit has the same standard as 1970), Cir. the Third Circuit Toney, stated: the Fifth Circuit. United v. States 527 716, (6th denied, 1975), 720 cert. F.2d Cir. 429 |T]he adequacy legal standard of serv- 838, 107, (1976); U.S. 97 S.Ct. 104 50 L.Ed.2d professions ices as in other is the exercise Buchkoe, 265, (6th Maglaya v. customary 515 F.2d 269 Cir. knowledge skill and States, 1975); Beasley 687, v. United 491 F.2d normally prevails which the time 1974). Sielaff, (6th place. 696 Cir. States v. United 377, (7th 1976), 542 F.2d 379 Cir. cert. denied This standard in States was reaffirmed United 876, Williams, Johnson, 169, (3d 1976), Sielaff v. 423 sub nom. 96 v. 531 F.2d 174 Cir. 46 L.Ed.2d Seventh Circuit where the court added: stated: is clear from our decisions it is the [I]t that asserting particular petitioner each deter- In this Circuit a lack facts of case which attorney question in a crimi- mine whether the provided of effective assistance of counsel constitutionally required prove per- ef- nal case must that his counsel’s fective of counsel. did not “a minimum assistance formance meet stan-

220 113, 116-17, ambiguity surrounding (1967) (emphasis

Once the F.2d add- ed) mockery justice” Judge “farce test was Leventhal wrote for the Court: up, consistently court cleared held In earlier cases it was said that a claim of counsel defendant’s to assistance incompetence based on counsel’s cannot attorney’s ineptness violated when prevail unless the trial has been rendered prejudiced ability substantially defendant’s are mockery and a farce. These words In United States to receive a fair trial. literally, not to be taken but rather as a Hammonds, 166, 169, U.S.App.D.C. description principle vivid “ showing (1970) F.2d we heavy accused has a burden stated ‘[t]he * * * requisite unfairness. question is whether Although the cases [counsel’s] representation Ap- extraordinary, appears was so ineffective that are rare and ” pellant Similarly, was denied a fair trial’ an accused obtain relief under States, if he there Scott v. United shows U.S.App.D.C. U.S.C. § gross incompetence has been 427 F.2d the court and that this has in effect out the blotted “appropriate held that for in- standard essence either in of a substantial defense effective assistance of counsel ... appeal. the District Court or on gross incompetence whether blotted out the essence of a substantial defense.” pre-DeCoster Burden oí Proof.

(b) A claim of ineffective assistance of coun- cases also established that the burden might rests sel if the wishes made out on the defendant to show appellant that he did not by clearly were fact diverted In Bruce v. United receive a fair trial. legal erroneous advice and he was sub- 336, 339-40, stantially prejudiced thereby. professional representation.” adopting dard of [ci- While we have considered a more requiring “reasonably tations omitted]. lenient competent standard counsel”, This standard was reaffirmed in United States assistance of [cita- denied, Brugger, (7th Cir.), omitted], appellant’s 549 F.2d cert. tions . . con- approach 431 U.S. 53 L.Ed.2d 231 Krohn, tentions do not a violation of (1977), and in United States v. either standard. denied, (7th Cir.), Thus, open possibili- cert. the First Circuit leaves 275, (1977). Eight ty adopting 98 S.Ct. 54 L.Ed.2d 185 a different standard. See also Malone, Vinzant, 1974). Circuit (1st in United States v. 558 F.2d Dunker v. 505 F.2d 503 Cir. 435, (8th 1977), 438 Cir. articulated its standard The Second Circuit has been more certain its way: support mockery this of the farce and test. Yanishefsky, 1327, It is established in this Circuit that a de- United States v. 500 F.2d (2d 1974), fendant is denied effective assistance of 1333 Cir. the court stated: counsel if his trial counsel “does not exer- The current standard of ineffective assist- customary diligence cise the skills and ance of this circuit is that reasonably competent attorney would order be of constitutional dimensions the perform representation “woefully under similar circumstances.” be so inad- [must] Easter, 663, equate United v. States 539 F.2d 666 ‘as to shock the conscience of the (8th 1976); Cauthron, proceedings Cir. Pinnell v. 540 Court and make the a farce ” 938, (8th 1976). mockery justice.’ F.2d 939 Cir. omit- [citations adopted “reasonably The Ninth Circuit has ted]. competent representation” explicitly adopt any and effective stan- The court other declined to approved dard Similarly, similar to that in the Fifth and standard. 500 F.2d at 1333 n. Fitzharris, Cooper Sixth posi Circuits. 586 F.2d Second Circuit declined to reconsider its 1325, (9th 1978) (en banc). Warden, 1328 Cir. tion in Rickenbacker v. Auburn Cor Thus, majority rejected 62, Facility, (2d of the circuits have rectional 550 F.2d 66 Cir. mockery 1976), denied, 826, 103, the farce and test as a minimal stan- cert. 434 U.S. 98 S.Ct. (1977), directly dard. 54 L.Ed.2d 85 and it reaffirmed First, Second, mockery Three circuits —the the farce and missioner, test in LiPuma v. Com mockery Corrections, Department Tenth —have retained the farce and 560 F.2d Ramirez, 84, (2d denied, 861, Cir.), test. In United States v. 90-91 cert. 434 U.S. 125, (1st 1976), 189, (1977). Cir. the First Circuit 54 L.Ed.2d 135 The Tenth apply stated: also Circuit mockery continues to the farce and Larsen, Ineffective counsel in this means circuit test. United States v. 525 representation 444, mockery, (10th denied, 1975), such as to make a F.2d 449 cert. Cir. 423 1075, (1976). sham or a farce of the trial. 96 47 S.Ct. L.Ed.2d 85 counsel, seeking I The defendant in Bruce was habeas then think the ineffectiveness has to corpus release. Since constitutional be measured in terms of whether attorney collateral attack on his claim was made as a has in effect blotted out the conviction, defense, Judge acknowledged Leventhal substance of a Bruce v. United States, powerful” showing 336, 340, that a “more factual 126 U.S.App.D.C. necessary (1967). than would have been re- F.2d quired seeking were defendant a new trial U.S.App.D.C. at at F.2d appeal.7 on direct But the fact that Bruce excerpt expresses This the basic difference was a collateral attack case deni- does not between those cases in which the defendant grate the holding relevance of its actually denied counsel and those in showing bears burden which it is asserted that his counsel was

prejudice.8 in the types ineffective: ineffectiveness prejudice proving claims burden of rests

Judge concurring opinion Leventhal in a on the defendant. petition filed on rehearing in Matthews States,

v. United 145 U.S.App.D.C. Judge Fahy’s majority opinion in Mat- F.2d 985 reiterated that the defend- thews, joined by Judge Wright, rested ex- prejudice. ant must show He wrote: Hammonds, plicitly on United States I outlining have taken the U.S.App.D.C. trouble 425 F.2d 597 prejudice occurred, Hammonds, appeal, think because I which involved a direct view, suggested am no means of the law in this cir- reaffirmed earlier case Rehearing, required Petition for in cuit that the defendant to show these possibility prejudice. U.S.App.D.C. cases no at need be shown. Where defendant has F.2d 600. Hammonds was decided in counsel, provided been that fact favor of the defendant. But this was be- in and of itself “[ajppellant establishes need for cause sustained his bur- ha[d] regard pos- reversal without other establishing den of his claim that he was sibility prejudice. Glasser v. deprived United of his constitutional to effec- U.S.App. tive assistance of counsel.” 138 (1942), L.Ed. 680 but when the claim is (emphasis D.C. at 425 F.2d at 604 add- posed ed).9 in terms of ineffective assistance of Judge Leventhal stated: on lesser-included offenses. In addition to alleged powerful counsel’s deficiencies in the trial it- showing inadequacy more [A] self, appellant necessary failure to refers to counsel’s to sustain a collateral attack motions, any pretrial including make than to warrant a mo- order for new trial pretrial release, declining either the District Court or tion and his court appeal. speak question on direct the court’s invitation speak appel- 379 F.2d at 117. of bond after conviction or to sentencing. lant’s behalf at the challenge

8. The context in which the is raised appellant suggests Counsel for in this court showing required affect the factual that is closing argument trial counsel in his satisfy standard. presump- should at least have mentioned the requirement tion of and the innocence quality 9. The of the defense in Hammonds all essential elements of the offenses be presents interesting repre- contrast to the doubt; proved beyond a reasonable that he Hammonds, sentation involved here. pointed jury should have out to the the evi- grossly efforts of defense counsel were inade- dence which could lead to a conclusion that quate. array The court delineated an of fail- appellant requisite lacked the intent and also ures: establishing the absence of evidence that a appellant specifies trial counsel’s failure to person present in the house at the time (1) (2) appear arraignment, at the conduct appellant’s entry. Appellant’s any jury, (3) voir dire examination of suggests admitting further that while any jury, (4) opening make statement to the appellant provide jury could not with a cross-examine two of the four Government complete explanation presence witnesses, only slight cross-examination house, trial counsel could have offered one or (a of the other two witnesses total of five hypotheses might hap- more of what questions) (5) request jury instruc- pened tions, including particular an instruction

Hammonds relied heavily Judge recapitulate, then To both the Fifth and the (now Justice) Burger’s Chief opinion for the implicated Sixth Amendments are in cases States, court in Harried v. United 128 U.S. involving alleged ineffectiveness of counsel. App.D.C. (1967). 389 F.2d 281 Though The Fifth Amendment is violated if coun- Harried involved a direct appeal, the court performance inadequate sel’s is so that de- Bruce, Mitchell, supra, supra, relied on fendant is denied a fair trial. The Sixth explicitly stated that Amendment is perform- violated when the burden Appellant on the to establish his that, ance of counsel is inadequate so claim of ineffective assistance of counsel effect, the required “Assistance of Counsel” heavy. is question ... is in his behalf has not been afforded. Under representation whether his was so inef- pre-DeCoster Amendment, either I fective appellant was denied a fair the defendant cases indicate that trial. burden of showing prejudiced that he was U.S.App.D.C. 333-34, 389 F.2d at by his inadequacy. counsel’s The DeCoster (citations omitted) (emphasis added). I opinion subsequent cases this Cir- in Scott v. United Finally, cuit they provide do not abandon —nor do U.S.App.D.C. 339, 340, basis for abandoning decisions in this —the (1970) the court held that the District of Circuit as proof.10 to the burden of Columbia Appeals Court of properly applied ” the “standard in Bruce appeal in a direct 2. DeCoster I Scott case. significant both because it is DeCoster I stated that under the Sixth a direct appeal case and because it was the attorney duty Amendment an has a to his first case acknowledge inadequate client to be a diligent and conscientious assistance of counsel claims have Sixth provide reasonably advocate and to compe- Amendment underpinnings. By relying on Bruce, tent Scott court held that in assistance. This standard of conduct the Sixth context, Amendment almost self gave as well as evident. The court under the Amendment, Fifth burden is on the general duty specific more content list- defendant prejudice to show ing from the acts some of responsibilities counsel’s toward or omissions of his counsel. his client.11 U.S.App.D.C. Wade, 425 F.2d at 603. 388 U.S. 87 S.Ct. Here, hand, major on the other counsel’s short- Denno, L.Ed.2d 1149 with Stovall v. coming supposedly his failure to investi- 18 L.Ed.2d 1199 gate good alibis and defenses that he had rea- appropriate standard for ineffec- son to believe were untrue. counsel, Bruce, tive assistance of set forth in supra, gross incompetence is whether blotted heavily I,

10. The dissent relies on DeCoster out the essence of a substantial defense. acknowledges which it “shifted the focus of 427 F.2d at 610. judicial inquiry away from the . . and toward the task of guidelines 11. The DeCoster were as follows: articulating basic duties counsel owes his guided by In General —Counsel should be U.S.App.D.C., client.” Dissent--of American Bar Association Standards for the conceding prece- of 624 F.2d. While that the They represent legal Defense Function. question” dential value of DeCoster I is “in profession’s guidelines own articulation of (dissent 62), n. the dissent contends that it is for the defense of criminal cases. pre-DeCoster more relevant than the I case Specifically (1) Counsel should confer with grounded because those cases are — in the Fifth delay his client without essary and as often as nec- rather than the Sixth Amendment. Dissent n. defense, to elicit matters of or to as- 121. The dissent’s distinction is erroneous. - Scott, potential supra U.S.App.D.C., certain that at of 199 defenses are unavaila- at fully F.2d, potential ble. Counsel should explicitly discuss 222 of 624 decided under strategies and tactical the Sixth rather than choices with his the Fifth client. Amendment. promptly The court Counsel should stated: advise his client rights necessary of his preserve and take all actions to What is involved here is the Sixth Amend- Many rights pro- them. can be overlap- ment. The Sixth Amendment has by prompt legal Supreme ping tected stringent action. The but more standards than the has, example, recognized Court ney’s for Fifth Amendment as is the attor- clear from other con- Compare, protecting example, privilege role in texts. for United client’s States duties, general adequate of how- borderline between the No itemization assistance ever, Constitution) list (required by can a check-off of abso- and inade- serve as lute, quate vary greatly such may fast rules that assistance hard and will constitute a consti- factual of each case.14 In slightest deviation circumstances wrong this, Bar recognition would be to con- of the American Asso- tutional error.12 It establishing Function, rigid I as such ciation for the Defense strue DeCoster Standards incorporate guidelines duties listed DeCoster I which DeCoster I guidelines. The reference, provide and most phrased generally,13 explicitly they of them were judicial not criteria for require judg- exercise of considerable are intended “as ment, of of counsel adjustment to the evaluation the effectiveness to discretion a conviction.”15 widely validity criminal cases. The determine of varying facts of pri- against rests Miranda v. Arizo- its fair and administration self-incrimination. effective na, marily judges. 16 L.Ed.2d 384 U.S. S.Ct. on the . [86 district line-up, (1966), rights discretion, United exercising 694] In its court Wade, States v. 388 U.S. may [87 refer to sources to determine other 18 L.Ed.2d Counsel 1149] competency Among normal of the bar. these with the should right be concerned accused’s also courts, precedent are from state and federal custody pending released from to be canons, state bar the American Bar Associa- prepared, appropriate, psychiatric and be where to Relating tion to the Defense Standards Func- pre-trial make amination or for the (3) for a ex- motions [App. 1971], tion Draft and in some instanc- suppression of evidence. es, expert testimony particular on the con- sup- appropriate must conduct inves- Counsel These, course, duct at issue. do not of tigations, legal, factual and to determine both plant prescribed, the test that we have but developed. what can be matters of defense they objectively ascertaining can aid in Supreme Court has noted the adver- normally range competency expected of of sary system requires “all available de- attorneys practicing criminal law. government fenses put so that the are raised” 561 F.2d at 544-45. proof. its This means in most attorney, agent, cases a defense or should stated, alia, example, 13. For inter DeCoster only his own witnesses interview not but also appropriate that vestigations, in- must conduct “[c]ounsel call, government those that the intends to legal, both factual and to deter- they investigation when are accessible. The mine what can be matters of defense devel- always should include efforts to secure infor- oped.” U.S.App.D.C. 487 F.2d at possession prosecution mation in the “appropriate Obviously, what is an in- And, and course, enforcement authorities. law vestigation” particular varies with each case. duty investigate requires also range responsibility determine adequate legal research. investigation necessary great- what varies 332-33, 487 F.2d at 1203- ly case; duty from case but whatever be, might general it be a reflection of the must Maryland, (4th 12. In F.2d Marzullo v. duty reasonably competent render assist- —to denied, 1977), Cir. cert. acting diligent, ance when as a conscientious (1978), 56 L.Ed.2d 394 the Fourth Circuit applied particular advocate—as case. recently came to the same conclusion. Coles v. Peyton, 1968), (4th 389 F.2d 224 Cir. had im Thus, guilt when the accused admits posed specific requirements prep for counsel’s attorney, lawyer his other evidence overwhelming, or knows from when adopting aration of his client’s defense. guilt that the evidence competency” approach, “normal see note 6 su telling that his client is or pra, the court stated: story, investigation untruthful a more limited competency While the normal standard does sufficient, case whereas another purport things not or should ing competence to list the counsel should would not. do, preclude it does not resort- ascertaining specifics “range guides 15. These standards are intended attorneys in crimi- demanded of lawyers conduct of the basis for and as disci- nal adhere to cases.” . . We list [the action, judicial plinary not as criteria for definitive, objec- it is a duties in Coles for ] of counsel evaluation determine the the effectiveness description competency normally tive conviction; validity of a aspects demanded of counsel in certain may may judicial in such not be relevant their service. counsel, evaluation of competency the effectiveness The normal standard is neces- depending upon sarily signed ail the circumstances. broad and flexible because it is de- many Project encompass American Bar on Stan- different factual Association Justice, Consequently, Relating situations and circumstances. dards for Criminal Standards a defendant establishes a breach general certain Once Thus, has while counsel counsel, I, still supra, DeCoster duty by his client, nature of the exact to his duties demonstrate the defendant requires case, and coun- varies with the these duties “substantial constitutes this breach exercised in the judgment competent sel’s violation.” client should be afford- best interests of his the trial weight, as should that of great

ed viola- a substantial If a defendant shows knowledge of the judge hand he has any requirements with his first these tion of short, has whether counsel un- proceedings. representation effective been denied is cast the upon the facts in “on which duty depends government, breached his less the of these once a violation proof burden of each case. reality apparency of con- instead of the and the Defense “an to the Prosecution Function Draft, 1971), 1.1(f). (Approved call for “coun- § Function 11 test and trial.” Some cases danger using guidelines reasonably likely as As to the and render- to render sel mandatory applied to be in determin- ing reasonably standards Still effective assistance.” convictions, validity ing note of criminal at- speak “the of situations where others opinion the chambers of Justice Blackmun torney out the sub- has in effect blotted Stuart, Nebraska Press Assn. v. But whatever stance of a defense.” (1975), 46 L.Ed.2d 237 where the attempted of a standard formulation Justice commented on the Nebraska terms, required general actu- what is adoption court’s of the Nebraska Bar-Press process of claims of ineffec- al of decision Reporting of In- Guidelines for Disclosure and counsel, and what our tive assistance of Relating Pending formation to Imminent or afford, sought is a own decisions Litigation: Criminal appraisal discerning examination and rehearsing description Without of those given specific of the circumstances my prior opinion, it Guidelines set forth in has been serious case to see whether there “voluntary is evident that constitute inefficiency, incompetency, inattention or be man- code” which was not intended to datory. falling of counsel of counsel —behavior measurably Indeed, “guidelines” it- the word might be ex- that which below merely They sugges- self so indicates. are lawyer— ordinary pected an fallible and, accordingly, necessarily tive are found, then, and, typically, wheth- if that is vague. likely deprived the defendant of it has er 432 U.S. at 96 S.Ct. at 254. The ABA available, ground of substantial otherwise defence, Standards contain the same caveat. [emphasis added.] Judge Consider also the statement of Harold my failure to view that This well states Circuit, Medina of the which was made Second duty comply be a “substantial must with on November 1976 and concerned the use ” noted, gross incom- or as DeCoster violation judges some of the American Bar Associa- prejudice petence as set forth with substantial guidelines press: tion’s on fair trial and free Thus, Amendment Scott. in Sixth in Bruce and “Judge judge after and court after court took cases, produce must evidence the defendant voluntary guidelines these and turned them preju- showing direct inference of substantial Times, piece into a of concrete.” New York right of the accused the constitutional dice to 21, 1976, p. lawyers Nov. c. 3. Courts and counsel, prejudice or such the assistance respect should not make that error with Amendment be shown Sixth to his indirectly by American Bar Association Standards for the that he was denied the evidence Defense Function referred to in I. DeCoster e., prejudice fair i. actual or of a essence guidelines Mere failure to adhere to such does showing Thus the mere of some in- inherent. not amount to a constitutional violation. duties, complying adequacy i. list of Kaplan Supreme Justice Judicial Court I, e., necessarily stated DeCoster does not point quite of Massachusetts made this well in requirement satisfy show oft-quoted opinion in Commonwealth v. thereby proceeding. shift the burden of Saferian, 366 Mass. 315 N.E.2d must, by “gross inadequacy proof of of counsel (1974): (Bruce Scott) per- incompetence” in his try express approx- The decided cases result, impact formance or substantial on the varying general imate in forms of words a viola- be shown to constitute “substantial determining standard for “assist- whether required See I. What is is a provided tion.” DeCoster an ac- ance of counsel” has been itself, showing that the violation or the viola- person meaning cused within the consequences, when added to the was so tion prejudicial It been Sixth Amendment. said right, inadequacy to defendant’s constitutional the standard is not met where effectively deny proceedings him the assistance as to of counsel has turned the into mockery,” requires. counsel that the constitution “a farce and a or has created

225 shown, can establish lack of The vehicle precepts raising inadequate an [for Peyton, claim], assistance of counsel we prejudice thereby.” Coles v. said 389 [in DeCoster I], was a motion for a new (4th 1968). F.2d 226 Cir. trial, obviously one presenting new evi- U.S.App.D.C. 487 F.2d at 1204 159 dence in the sense of evidence outside the added). (emphasis The deficiencies this words, record —in other a new-trial mo- plurality formulation are set out tion newly based on discovered evidence. addition, opinion. In what was meant An essential characteristic of such a mo- clearly “substantial violation” is not articu- portraying tion is a disclosure of evidence lated in DeCoster I. United States v. Pink- materially the movant’s claim and reso- ney, U.S.App.D.C. 543 F.2d 908 capability a lutely, evincing (1976), subsequently, decided indicates that challenge. By the mounting a serious contemplates “substantial violation” a charging a motion ineffec- token, same showing duty that counsel’s to the defend- tive assistance of counsel must set forth substantially ant was breached which the elements of a upon evidence prejudiced the defendant. performance constitutionally deficient might be found. Pinkney, appellant alleged inadequate properly In rejected assistance of counsel. court 543 F.2d at claim, DeCoster Pinkney’s holding that a added). (emphasis omitted] [footnote motion is one for a new trial in which the cases, then cited several each of court which obligation the same defendant bears unambiguously states a defendant prejudice show to his cause as in other prejudice must show to sustain his new trial Pinkney, therefore, According motion.16 new trial motion: Pinkney Having trial, Judge cit course to take. Robinson’s footnote 58 had a full Smyth, clearly 261 F.2d ed four cases: Newsome v. is not entitled to a retrial denied, (4th 1958), 359 U.S. upon Cir. cert. unsupported the basis of an state- (1959); United 79 S.Ct. 3 L.Ed.2d 837 ment he would like additional time to Frame, (9th Cir.), F.2d 1136 cert. States v. denied, produce pos- unidentified witnesses whose 1794, 32 L.Ed.2d 406 U.S. 92 S.Ct. testimony sible was not disclosed. Norman, (1972); United States v. (emphasis added). 261 F.2d at 454 denied, (9th Cir.), 73 949, cert. flatly Frame states: (1970); Dansby L.Ed.2d merits, Turning to the we hold that (S.D.N.Y.1968). F.Supp. United properly motion for new trial was denied. part While Newsome based in showing possible preju- No was made of test, application mockery of the farce and alleged dice from the confíict. See David- reject expression we as other than an which Cupp, (9th 1971), son 446 F.2d 642 Cir. prejudice substantial unfair must be and cases cited. shown, clearly that decision reflects the view (emphasis added). 454 F.2d at 1138 expected that the defendant is to demonstrate alleged Norman states that the facts there prejudice: some sort of a new trial were insufficient because “that fact sufficiency attacks the of his [Petitioner] would not have undermined the Government’s counsel, personally selected who conducted case in the least.” 402 F.2d at other original principally his defense in the words, the defendant failed to sustain his bur- pris- because his counsel failed to have the demonstrating prejudice. den of oner take the witness stand and did not Dansby perhaps explicit the most of all specify grounds of his motion to set these cases its statement: aside the verdict. He also contends that he time, granted Motions for new trial are not favored and should have been additional verdict, produce granted great after the in which to addi- should be caution. behalf, proving necessity tional witnesses in his he did but The burden of for a identify prospective petitioner. witnesses or new trial is on the He must suggest testimony the nature of the satisfy jury might the court that the hoped Clearly to obtain. these contentions reached different result without the chal- Obviously, are without merit. . it testimony, lenged or that had the subse- cannot be said that counsel’s determination quent testimony presented been at the trial tactics, put as a matter of trial not to “probably” produced it would have a dif- stand, upon client the witness under these ferent result. circumstances, converts the trial into a F.Supp. at 794. Indeed, mockery justice. or a farce may wise, only prudent, be the or even the necessary showing ele- to make this squarely to the accused is falls on the defendant.18 “constitutionally defi- ment of a claim of Analysis B. Fifth Amendment by counsel.17 performance”

cient adequate assist- A defendant’s I and our under DeCoster summary, In is derived from both the ance of counsel decisions, the defendant lacks a sub- prior There- Fifth and the Amendments. Sixth prima claim unless he makes out a stantial fore, treatment Supreme Court’s (1) that counsel’s consti- facie showing case violations of the involving purported cases him was breached and duty toward tutional In is relevant. such Fifth Amendment prejudice he suffered unfair as a that defend- required that cases Court prejudice.19 prove ants proof result of that breach. The burden of 916; 431, well It is established that in order to 17. 177 543 F.2d show quoted supra ground at 17. a basis for relief on the of ineffec- appellant assistance of tive While all the circuits have addressed the lawyer must show actions of his which duty question of the standard for the owed would constitute such conscious conduct defendant, the criminal see note 6 counsel to pretextual attorney’s legal as to render obligation ques- supra, fewer circuits have addressed the fairly represent appellant proper procedure determining tion and circumstances which demonstrate that occurs, a violation cf. note 24 infra. Yet when lawyer’s which amounts to a deliberate ab- that bur- the circuits seem to be accord client, duty dication of his ethical to his inadequacy upon show of counsel rests den to [emphasis added.] the defendant. Swenson, 207, (8th v. 498 F.2d 216 McQueen Circuit, example, opin- the Seventh in an For 1974) agreed Cir. in different terms: Stevens, by then-Judge in Matthews v. ion recognize We that there is and should be a 1245, (7th United 518 F.2d 1246 Cir. presumption competent, that counsel 1975) stated: petitioner which must be overcome Whenever we are asked to consider a in order for an ineffective assistance of charge discharge that counsel has failed to [emphasis counsel claim to lie. added]. responsibilities, professional we start Circuit, The Second still follows a farce and presumption with a that he was conscious mockery clearly places heavy standard and of his duties to his clients that he upon appellant. burden United States v. conscientiously sought discharge those 1327, Yanishefsky, (2d 500 F.2d 1334 Cir. demonstrating duties. The burden of 1974): clients, contrary [empha- is on his former Upon careful examination of the record re- sis added.] flecting pro- the character of the “resultant Accord, Sielaff, 377, United States v. 542 F.2d ceedings,” appellant’s . . . and of (7th 1976) (“a petitioner Cir. ” specific allegations, we find that taken indi- added; prove (emphasis must 6 su- see note vidually collectively, . . pra )). “stringent fail to meet the standards The Third Circuit stated in United States v. inadequacy Johnson, 169, met to show of counsel” . (3d 1976): 531 F.2d Cir. petitioner The burden is on to demonstrate Caldwell, The Fifth stated in Burston representation provided Circuit v. him 24, (5th 1975), quoting Tyler constitutionally inadequate. 506 F.2d v. Cir. counsel was Beto, denied, (5th Hines, 225, 1973), 391 F.2d 993 Cir. cert. United States v. 470 F.2d 1030, 642, 574, (3d 1972); Varga, Cir. 393 U.S. 89 S.Ct. 21 L.Ed.2d United States v. (3d petitioner “heavy 1971). F.2d Cir. has a burden” to The Tenth Circuit still establish ineffective assistance of counsel. The follows the farce and test, mockery places appears and that Circuit the bur- Ninth Circuit also to be in accord decisions, Fitzharris, den Cooper on the defendant as well. In United States 586 F.2d these Baca, (10th 1971), (9th (en banc), 1978) 451 F.2d Cir. see Cir. the court stated: n. infra. appellant The approach burden on an appears to establish a is consist- Thus our claim of ineffective predominant assistance of counsel is ent with the view in the other one; heavy he must show that due to his circuits. lawyer’s ineptness farce, the trial was a sham, Texas, mockery justice, [emphasis or a 19. See Estes v. State of 1628, 1632-1633, 14 added.] L.Ed.2d 543 Eighth (1965) (“in involving Circuit stated in Brown most of due v. Swen- cases claims son, (8th 1973) process deprivations require showing we Cir. accused.”) follows: identifiable Supreme Florida, 95 cates that Court would be Murphy v. U.S. (1975), exam- the existence of a presume 44 L.Ed.2d reluctant rights were claimed that his ple, petitioner constitutional violation from the mere fail- jury heard when members of violated single guideline with a where comply ure to his case. The Su- accounts about news guilt.” “there is no reasonable doubt about violation of his con- found no preme Court it was con- Agurs court indicated right: stitutional “justice finding cerned with the Petitioner has failed to show guilt.” 427 96 S.Ct. at 2401.20 inherently preju- setting of the trial was had been logic If the of the dissent here jury-selection process that the dicial or Agurs, followed in once it was shown that permits an inference complains which he government had not the vic- the disclosed prejudice. of actual record, government tim’s criminal the 803, (emphasis at 421 U.S. at 95 S.Ct. 2038 required to the bur- would have been bear added). The court thus refers to the two to the proving prejudice den of lack of types prejudice of that must be shown —in- Supreme defendant. The Court refused to prejudice. Murphy, herent and actual impose completely impractical such a bur- presume refused to that the trial the Court den. required was unfair. The defendant was to which, There will be a few cases be- showing preju- bear the initial burden of counsel, inadequacy exculpa- cause of the of dice; only proof such would the after light But in of Fifth tory evidence is lost. of required be to show the lack government Agurs, Murphy Amendment cases like prejudice or harmless error. wary declaring should of certain courts be Agurs, Similarly, in United States counsel, proof of without acts omissions (1976), 49 L.Ed.2d 342 U.S. 96 S.Ct. prejudice, per of to be se constitutional court, which emanated from this in the absence of refutation violations that rights by claimed that her were violated criminal negate are sufficient to convic- her prosecutor’s failure to inform her of is relied tion. Where the Sixth Amendment Supreme victim’s criminal record. The always must show upon, the defendant rejected argument though even Court evidence the com- direct or indirect she had not been so informed: were plained of acts or omissions prosecutor will not have violated [T]he legal equivalent of the denial of his un- duty his constitutional of disclosure the Assistance of right “to have Counsel signifi- less his omission is of sufficient his defence.” That is what Sixth cance to result in the denial of the de- all Amendment is about. to a fair trial. . fendant’s about If there is no reasonable doubt Principles Law C. Common evi- guilt whether or not additional considered, justifica- is there is no argues dence that once a The dissent violation tion for a new trial. demonstrated, any duty though even shown, government has prejudice 112-13, 96 S.Ct. at U.S. showing the burden of the defendant added). (emphasis Since the victim’s prejudiced. shifting criminal activities did not cast doubt on the was not This verdict, up- the defendant’s conviction was proponent burden from the to the proof obviously because of the defendant’s with common Government is inconsistent held — failure to prove prejudice. principles.21 Allegheny law In Nader v. Airlines, Inc., 350, 361, U.S.App.D.C. Agurs explicitly does not deal with While issue, proof strongly (1975), indi- rev’d on other the burden 512 F.2d 465, 490, Powell, Wigmore 20. Accord: Stone v. IX on Evidence at 274- § 21. Cf. (3d 1940): (1976) ed. 49 L.Ed.2d 1067 (“the question guilt upon or innocence ultimate It is often said that the burden is having allega- party in a . . . should be the central concern in form the affirmative proceeding.”). criminal tion. But this is not an invariable test. D. grounds, Attorney-Client Relationship System we delineated two crite- Adversary L.Ed.2d ria for ries the burden of element special prove is that the burden of ant on some circumstances [ 1 ] knowledge” material Although allocating an the burden will be shifted where circumstance element “lies his cause part necessary may persuasion the burden of plaintiff generally car of the claim. the defendant. lead persuasion on each commonly particularly action, special court prove persuasion. accepted to ^[2] defend or dis within shift One consequences privileged counsel and to make its ceived effective assistance of counsel — produce proof entirely from Government would be forced the Government suming prejudice from then determining shifting formula discussions —would when the normal burden suggested a defendant has not re- adversary disprove have of the accused and his scanty showing long very the dissent to attempt system. evidence and detrimental existence acts and proof after pre- when memories have faded —as Thus, normally creating the burden should lie In addition to an here.23 claim;22 sustaining person pressing exception impenetrable almost obstacle cases, many requirement made other has sole convictions in such party when the highly objectional lead access would intrusions facts. adversary system into the most cases. case, pri- In the instant the Decoster has Shifting the burden to the Government facts; mary access to the relevant the a get would force it to very involved government is highly ability restricted in its stay it out relationship that should of. attorney- to discover them of because the privilege client Fifth and the Amendment If required the to Government were against privilege self-incrimination. More- prove adversary that its counsel defense over, normally adequate, strongly it is the defendant who rais- would was it be motivat- inadequate es the assistance of counsel and during ed well advised a criminal (here it by appellate claim order protect prospect guilty raised to of Therefore, sponte). verdicts, court pol- sua the twin the major oversee decisions and placing proof icies of the burden of on the activities of defense counsel and the ac- person pressing placing the claim and that Performing cused affect the trial. on the person would, matter, burden with access to the practical function as a re- by holding facts are both satisfied that De- quire prosecution probe what has prima eoster bears the a proving burden heretofore been a sacrosanct area —the facie. violation which in- highly relationship Sixth Amendment confidential between a showing cludes a prejudice. lawyer. criminal defendant and his Some upon place proving is It sometimes said that it is on a defendant the burden of a party to separate whose case the fact is essential that claim from elements of the Greene, charged. crime United States proving other U.S.App.D.C. 31-32, the burden of a [In cases] 1155- put party pre- fact is said to on who be (1973), denied, cert. 419 U.S. 95 S.Ct. sumably peculiar knowledge means of 42 L.Ed.2d 190 As Justice Holmes enabling prove falsity him to its is false. if it Casey remarked in v. United 413, 418, (1928): 72 L.Ed. 632 The truth is that there is not and cannot It is consistent with all the constitutional general It one solvent for all cases. protections of accused throw men to on them merely question policy a fairness proving peculiarly the burden of facts within experience on based situa- different knowledge discovery their from hidden tions. by the Government. merely specific specific There are rules for cases, resting classes of ultimate for their complicated by 23. Access to the facts was de- upon experience basis broad reasons of lay 1971, yet since Decoster was tried in fairness. hearing adequacy on assistance February not held until case, but, appeal is a Decoster criminal held, process we it is not denial of due unavoidably judge. tension in this area exists when The accused is entitled to the prima showing judgment counsel, makes a facie trial defendant tactical prejudicial constituting opinions judge. Surely conduct a consti- judge violation, should not share the tutional and the confidences Government shared client and counsel. An accused showing. Presuming seeks to rebut bound to approved tactical decisions prejudice certain minimal facts judge get process would not the due prima a full case and do not constitute facie law we have heretofore known. And switching the proof then burden of how judge absurd would be for a trial (which Government has limited access to opine that such-and-such a course was information) prove the defendant’s incompetent per- or ineffective because it prejudice heighten resulted would (the judge) suaded him to decide thus- inexorably. tension adversely and-so to the accused. To prosecutor during the extent that the 259 F.2d at 793. implore might judge the trial to cor- These can be by leaving difficulties avoided rect or direct decisions or acts of de- proof the burden of in most cases counsel, accused, prevent or fense to show substantial unfair preju- presumptive which would redound dice from the acts or omissions of counsel. against (though the Government it in no showing Such would fa- prima constitute a way participated such conduct deci- violation, cie case Sixth of a Amendment sions), the result judicial could well be su- proceeding and the burden of would then be pervision many of the deci- tactical trial cast on disprove the Government sions of defense counsel. The hazards of prima facie ac- failing case creating such rule were described prevail.24 cused would Judge Prettyman in Mitchell United E. Sixth Amendment Framework States, supra: right constitutional of an accused to summarize, [T]he To Sixth Amendment might the assistance of counsel well be “assistance counsel” of cases can be divided if destroyed counsel’s selections tac- upon into two categories: those in the which problems supervised by tical were actually accused is denied the of assistance cases,” Richardson, 24. Our refusal to relieve from the defendant McMann v. U.S. [397 proving prejudice, through [, 759], burden of device the at 771 90 S.Ct. 1441 at 25 it, presuming supported by 763], of is v. Hen- Tollett L.Ed.2d derson, 411 L.Ed.2d (emphasis U.S. at S.Ct. at 1608 (1973), strong a case with Sixth Amend- added). Murphy Agurs Unlike which are Tollett, ment In overtones. the an- Court cases, specifical- Fifth Amendment McMann is nounced standard to determine when a crimi- ly rights. with Sixth concerned Amendment pleads guilty nal who on the advice competence The Court that stated the demand- of is entitled to counsel federal collateral relief attorneys ed of devolves from the Sixth proof independent an of constitutional de- Amendment: prior (there, proceedings fect in the the method plea guilty unintelligent of Whether is selecting indicting grand jury): the and therefore vulnerable when motivated erroneously In order to obtain his thought release on federal a confession admis- circumstances, respon- depends under habeas these sible in evidence as an mat- initial ter, dent must not establish the unconsti- not on whether a court would retro- spectively tutional discrimination in selection consider counsel’s advice to be jurors, grand right wrong, he must also that establish but on whether that advice attorney’s plead guilty range competence advice to with- was within the de- having inquiry composi- attorneys out made into the manded of in criminal On cases. grand jury hand, uncertainty tion of the rendered that advice the one in is inherent “range competence decisions; the predicting outside demand- court but on the oth- attorneys facing charges ed of in felony criminal cases.” er hand defendants (empha- U.S. at S.Ct. at 1608-1609 are entitled to the effective assistance of added). competent Beyond sis The Court also stated: counsel. this we think pleads matter, prisoner guilty If part, on the advice of for the most should left counsel, good he must demonstrate that the ad- to the sense and discretion range compe- right vice not “within the courts with the admonition that if the attorneys guaranteed by tence demanded of in criminal to counsel the Constitution counsel, (2) those in which his constitu- tation that counsel rendered. The classic right tional assistance counsel involving to the is case the actual denial of is counsel represen- denied virtue ineffective Wainwright:25 Gideon defense coun- purpose, appears opinion very is to its cannot serve defendants incompetent to be of that a limited investigation be left to the mercies of coun- would constitute a constitutional sel, judges violation, and that to main- should strive determining and that the existence of proper performance by tain attorneys standards of prejudice determining was in effect whether representing are who defendants under constitutional error harmless in criminal cases in their courts. Chapman. Id. It our view is that the constitu- 770-71, (em- 397 U.S. at 90 S.Ct. at 1448-1449 tional violation made is not out until de- phasis added). The reference to McMann in burden; complete fendant carried Supreme Tollett makes that clear Court in cases, point inadequate that in assistance alleged involving some circumstances Sixth analysis is over and the harmless error doctrine approves placing Amendment violations apply. Applying Chapman does test to incompetence burden to demonstrate the counsel on the defendant. There is no indica- inadequate requires an assistance case adequate deem the court denial of assistance tion in Tollett that the defendant should be “nonsubstantial,” Chapman since harmless by presuming incompe- relieved of this burden doctrine, by terms, apply error own its does not except tence of in certain situations to “constitutional errors that ‘affect substantial prejudice those obvious instances where unfair rights’ party.” of a 386 U.S. at 87 S.Ct. at right directly to his constitutional can be in- Thus, sug- ferred from the evidence. Tollett however, important recognize, It is gests presumptions merely approach similarities our between and that from the acts of conduct of the defense should not be omissions of counsel adopted by Eighth Judge Bright’s Circuit. indulged. McQueen conclusion in summarizes that cir- procedure While the advocated here is con- procedure cuit’s as follows: Supreme decisions, sistent with the Court’s that, saying here, peti- What we are tioner must is respects adopted differs in certain other circuits. For from that shoulder initial burden of example, McQueen showing the existence of admissible evi- Swenson, dismissed, (8th 1974), F.2d writ Cir. dence which could have been uncovered F.Supp. (E.D.Mo.1976), investigation reasonable would remanded, which (8th rev’d and 560 F.2d 959 Cir. proved helpful to the defendant either 1977), precepts the court discussed the on cross-examination or in govern his case-in-chief procedure determining viola- original showing at the trial. Once this is adequate tions of the assistance of made, a new is Eighth trial warranted unless counsel in the Circuit. case court Judge is able to declare Bright a belief that the stated that the burden on the omission of such evidence inadequate was harmless defendant to substantiate a claim of beyond a proposition agree: reasonable doubt. assistance—a we which saying F.2d recognize at 220. we We presumption What are that there is and should be a that, competent, case unless the violation and substantial counsel is prejudice apparent petitioner unfair which is must be overcome the court the the record, appellants in order for an must shoulder the bur- ineffective assistance of initial prima showing and counsel claim to lie. den elements of the make a facie of all the opinion 498 F.2d at further stated burden we have above. outlined corpus petition proceeding that of a Then the evaluation habeas burden of shifts to the alleging inadequate showing. assistance of counsel is a this Government rebut these After first, two-step process: determining showings, a whether new trial is not unless warranted duty there has been the violation of a owed court the it determines on the record whole attorney client; second, appears a defense to his and that the defendant has bur- met his determining prejudiced whether that failure den. agree defense. equate at 218. We that inad- 335, 792, analysis 372 compo- 25. U.S. 83 S.Ct. 9 799 assistance L.Ed.2d several defendant, charged non-capital nents: the Gideon was with a unless the violation and felony. prejudice request appointed the substantial unfair His for court coun- to his constitu- right apparent only per- tional was are sel denied because Florida law on the face of the record, (1) appointment indigents must demonstrate mitted capital the existence of a of counsel for in duty counsel, (2) Supreme owed him his a cases. and sub- Court reversed duty conviction, holding stantial violation of that which results Gideon’s that his constitu- prejudice right in substantial unfair case to his and tional to the had assistance of counsel However, right. Judge Bright thence to his denied. been

231 lawyer in which the was inef- examples in Cases defense appointed. Other sel was category: into actually was fective fall second the assistance of counsel which v. United States26 though actually repre- was include Geders the defendant denied sented, Herring York.27 In both of lawyer’s was so v. New performance his a ineffective tantamount did not was those cases defendant stage right. of his constitutional lawyer of a at critical denial assistance his trial. If a is the actual assist- defendant denied counsel, is may right his category, which be ance constitutional

The second counsel, A any showing. violated denial of in- without further termed constructive showing prejudice such is all cases which defense counsel was denial cludes so he is present requires, when participate every and able to Constitution “presence reason and assistance” aspect of the but one or denied the phase viewed counsel a critical of his trial presented the defense is as at another exactly prove the constitu- need not further equivalent of a denial of But where right “assistance of counsel.” how was harmed.28 cases tional 1330, 1337, statement) opening be ure to an must 425 U.S. 96 S.Ct. make (1976) (“an peti- preventing which defend- order treated the same as cases in L.Ed.2d consulting any- lawyer lawyer his 'about have a or the tioner from thing’ ant did not prevented during overnight assisting recess a 17-hour be- from his client in material ways cross-examining (e. g. prevented im- tween his direct- cross-examination upon statement). pinged right making opening his assistance coun- witnesses or an Amendment”). guaranteed by disagree. the Sixth sel Id. cases There is an obvious difference between 45 L.Ed.2d 593 27. 422 U.S. present able in which counsel is to exercise permit (1975). The trial court’s refusal to final non, judgment to use a certain tactic vel non-jury argument in a case held to be a witness, cases such as to cross-examine a Amendment. violation the Sixth lawyer right to exer- which the is denied judgment professional cise that which is basic Burger Justice wrote for the Court in 28. Chief representation. to his The Sixth Amendment 475, 489, Arkansas, Holloway v. 435 U.S. pri- right is to have the assistance of counsel (1978): 55 L.Ed.2d 426 S.Ct. marily right to a law- have the benefit of [Tjhis Court has concluded that assist- yer’s judgment stages at all of a trial. criminal among ance of counsel is those “constitu- Mitchell, supra U.S.App. Cf. at---of rights tional so basic to a fair trial that D.C., right If F.2d. at can treated their infraction never be denied, required without then reversal is California, Chapman harmless error.” v. showing prejudice. independent further U.S., supra, 386 S.Ct. [87 Supreme Holloway, supra. In addition Accordingly, when a defendant 827]. deprived applied judicial gloss Sixth on the Court has presence and assistance of Amendment, holding one’s prose- attorney, throughout either held to be denied assistance of counsel in, least, during stage a critical cution when McMann defense counsel is ineffective. offense, prosecution capital of a rever- Richardson, supra, 771 n. Wainwright, sal is automatic. Gideon v. S.Ct. 1441. The dissent contends that because , U.S. L.Ed.2d 372 (1963); S.Ct. [83 799] prejudice be shown in cases additional need not Alabama, Hamilton v. counsel, it where is an denial of there actual (1961); S.Ct. 7 L.Ed.2d White [82 114] follows that is not element Maryland, 373 U.S. 59 [83 the dis- ineffectiveness cases either. Therefore L.Ed.2d 193] argues only question “whether sent that the is U.S.App. Matthews United See v. a dili- defense counsel acted in the manner of (Leven- (1971) 449 F.2d D.C. attorney gent competent . . Dis- and thal, J., concurring). U.S.App.D.C., 287 of 624 F.2d. -of sent dissent distinction be- asserts the determining counsel has been But whether “actual” and denials of tween “constructive” ” questions than an raises different “effective is the assistance of counsel a “verbal formalism inquiry into whether the assistance of counsel simply reality correspond to the does not [that] actually language of the Dissent, denied. While the n. 129. It of ineffective assistance.” on whether an ac- right Sixth Amendment focuses an has a contends since accused all, effective, actual, “the Assistance of Counsel” cused had the as well as assistance the judicial gloss counsel, whether involving allegedly is concerned with the an inade- of cases (e. And performance by g. was “effective” or “ineffective.” quate counsel defense counsel witnesses; questions may degree. It is involve of fail- failure to cross-examine certain was present assisting, counsel substantial of duty violation him by owed his counsel. which involve allegations that a defendant’s counsel, To suppose illustrate: defense constitutional right to assistance of counsel cases, frequently in happens criminal does was constructively as a denied result call any allegation not witnesses.30 an Such lawyer’s ineffectiveness, defense are differ- would have were no force unless it shown In question ent. these the cases is: was the that witnesses to beneficial material facts attorney’s performance so deficient as to lawyer’s produce exist and the failure to constitute the equivalent of a denial of the testimony their worked substantial some right? accused’s constitutional in And case prejudice to unfair defendant’s cause. If after case an involving alleged constructive prima the the requisite defendant makes denial of the assistance of it counsel has showing facie a substantial violation of of duty the lawyer’s been held that constitutional owed him counsel ineffectiveness is prejudice that resulted in substantial unfair tantamount to denial of the constitu- defense, his the burden proceeding right tional to the assistance of counsel shifts Then the Government.31 the can unless defendant show that show, right Government has exam- prejudiced.29 in Therefore order estab- ple, that alleged the not exist witnesses did lawyer’s lish ineffectiveness located, or could not be or that counsel was violation, Amendment amounted to a Sixth no given indication that such witnesses did a defendant unfair must show substantial exist, or that testimony the of the witnesses prejudice to resulting his defense a was irrelevant or otherwise deficient.32 If Craven, plain glance any dictionary Judge Peyton, dissenting from a that when in Coles v. (1968), Court the used the term “ineffective” it was 389 F.2d nub of hit the the impact problem squarely: concerned with leged al- that counsel’s failure on “Ineffec- have the trial. I think the correct rule is the burden of means, producing tive” “not the desired ef- showing prejudice on state lack falls Dictionary fect.” World Webster’s New when, when, only petitioner but Edition, 1968). Language (College American If prej- shown a set facts that demonstrate Supreme had intended the one-di- Court defense, inherently udice to his or other- inquiry proposed mensional the dissent it wise. solely competence have could performance. focused (Emphasis original). Thus, Judge in Craven Its use term “ineffective” expressed agreement with view that the adopted by is consistent with the view this and prejudice show falls initial burden to on the plurality opinion is an ele- defendant, nothing and the Government has ment claim accused’s constitutional certainly proceed— rebut —and burden Thus, ineffectiveness. the distinction that is until the significant fulfills this burden. It is involving here drawn between cases “actual” Fourth that the Circuit Jackson v. and “constructive” denials of the assistance of Cox, 435 F.2d declined to valid—it rests on the be- difference Coles, presumed apply the rule in which had right explicitly granted tween in the Consti- prejudice, existence to a case with facts tution the different formulation of the very similar to the instant case. by judicial gloss created provision. on the Constitutional analysis This is consistent with United States Pinkney, U.S.App.D.C. 423, 431-32 n. (1976), Judge F.2d 916-17 n. 59 where supra 29. See cases cited at-to- of 199 Robinson stated: U.S.App.D.C. at 219 to 226 of 624 F.2d. See Only evidentiary if the of that elements Fitzharris, Cooper also the recent decision inadequate claim appeared assistance [of counsel] banc), (9th 1978) (en Cir. appellant’s would he motion which court stated: only hearing, been entitled to a if When claim of ineffective assistance of hearing evidence at a tended to offered specific upon counsel rests acts and omis- establish the elements would Govern- sions counsel at relief will ment have been summoned prejudice. disestablish granted only appears if defend- that the prejudiced by ant was counsel’s conduct. great cases, best, many ques- if Where of trial counsel is criminal the conduct defense, tioned, merely standing putting professional not government is direct- since his involved, proof ly partici- attempting permitted to and to con- to its he should be jury charge pate party proceeding vince the proved beyond not been as on an that the has a third that equal a reasonable doubt. basis with the Government. investigate de- non-fabricated obligation to to rebut effort despite the Government’s defendant, overwhelmingly fenses, facts here but the by the presented evidence the the finding Judge Waddy’s his bur- eventually support carries was to vi- Decoster that a substantial for only possible defense demonstrates den —he re- proof. him counsel From duty to its put owed the Government olation of to his my unfair that Decoster’s record, it is view in substantial sulted entire has violation guilty a constitutional was after: that he lawyer defense —then concluded hear- preliminary occurred.33 (1) in the participating with (2) appellant;35 interviews six ing; case, instant Applying this test file, to which government’s studying the Amendment Sixth Decoster’s clear access;36 (4) reviewing grand he had First, Decoster infringed. not right was transcript (5) reading the testimony;37 jury demonstrating great difficulty (6) re- hearing;38 and preliminary duty by breach a substantial there was in which he from Decoster ceiving letter findings Waddy’s lawyer. Judge his with the fighting that he was clearly admitted to be shown contrary not been have robbery.39 In at the time of an victim counsel is under agree that I erroneous. States, (6th 200. 19th st. S.E. Beasley F.2d 687 v. United 33. Wash., 1974). United D.C. See Glasser Cir. 457, 75-76, 60, L.Ed. 680 Dear Sir: before, you As I to call tried but couldn’t contact, again. make I decided to Its write you, you lawyer important my I see as are knowledge his 34. Trial counsel attributed ways my fighting I have don’t case prosecu- he had conferences with fact that you. get point, To I want without preliminary and that he conducted the tors hearing my charges against file assault accuse [sic] Tr., 6, all Feb. for three defendants. right victim. has, I think I have as much as he 1974, 34-35; 11, 1974, Tr., at at Feb. 12-14. at least I’m entitle If [sic] it. can charge robbery fighting, me with I while Conclusions, 6, 10. Findings at 35. him, I think have as much and can Elley Taylor my As for do same. &[sic] Tr., 11, 1974, at 11-14. 36. Feb. testify partners they accuse can their [sic] Elley my role. came to aide when [sic] [sic] ' 11, 1974, Tr., pocket his 12-14. the victim stuck Taylor hand at & Feb. 37. just standing on sidewalk. I you hope something can do about this as 11, 1974, Tr., 34; at Tr., 6, 1974, Feb. at Feb. 38. you get soon as let this letter. Please me 12-13. something. If can know he can be free so I. Willie Decoster Tr., Appellant pre- Feb. 24-25. Dorm D.C.D.C. 162743 counsel, pared a handwritten letter which clearly participa- This letter admits Decoster’s by him counsel testified was received either robbery “accusejdj part- tion with his of, day before, day days one or two before justification ample ners.” The letter for 15-16, on id. which was held November not for counsel to look alibi witnesses. Decoster wrote the let- testified Appellant sent also a handwritten note to during September ter three weeks Judge Waddy, which him was received (Tr. jail at the when he was confined Feb. November 1970 and filed on November 1974, 59-60). testimony changed his Later he Tr., 1970. See Feb. This letter and stated that he wrote the letter between May (emphasis added): follows without corrections (id. 60-61). Thus, and November 1970 Judge Waddy, Honorable appellant precise date cannot be fixed and both I am an Inmate D.C. Jail who has been passage and counsel of time since the charge five incarcerated for month on a remembering event a valid excuse robbery change has been from to arm rob- precise date. If the letter was written be- bery. request The motive for this letter is to November, 1970, May tween as Decoster lawyer court another I’ve because testified, his had this admission of misrepresented my five been present month very early at a involvement date. view lawyer Also . . I would like that the letter sent at this time is corrobo- protect myself family which consist of rated the fact made a similar that Decoster am, younger nine than I which are more Waddy Judge in a statement letter to dated barely supported my being because father is November 1970. Decoster’s letter to his trying capable the get something one. The rest is counsel, Government Exhibit was as fol- # Being miss. Education. lows: addition, counsel, officers page who acted for all defend- “found” Decoster. Dissent - hearing,40 at the knew preliminary U.S.App.D.C., page ants of 624 who at that both men were Decoster F.2d.) spot Decoster was on the identified robbery pleaded guilty the time of the had by the victim and one of Decoster’s confed- charge on 1971. Under to that June erates when he contradicted Decoster’s alibi circumstances, investiga- such an extensive present testified that Decoster was at the tion was not warranted. robbery. this scene of the With factual not, be, background, it is and cannot con- important, More there is not a shred of tended that Decoster was innocent. Even in the record De- suggesting evidence that the any investigation most extensive could not prejudiced way coster was in know, facts, conduct of now on have exculpatory his counsel. We discovered for there basis Decoster’s admission at sentenc- any were none to find. on Since failure ing guilty, on March that he was part investigate of defense counsel to was is aby and this corroborated letter he wrote Decoster, prejudicial Decoster’s Sixth Judge which court referred at Amendment to have the assistance of sentencing and which Decoster then ac- counsel was not violated. knowledged.41 Even Decoster’s ad- without missions, imagine be hard to a case would II. THE DISSENT’S POSITION ON proof guilt with more certain and with THE BURDEN OF PROOF contrary less room for creditable evidence. wholly Since Decoster has been unable policemen actually Two observed Decoster he prejudiced show that was as a result of committing robbery daylight; in broad his lawyer’s alleged inadequacies, one of them losing chased him and without dis- sight him, (The arrested him. sent is argue dissent forced to that the burden of by stating police shades facts proof government is on the to show that only remand, individual of limited education its natu- also testified on in contradiction his protect my ral for me to testimony, Eley innocence and with he had never seen transcript my hearing I can- which (Id. 65), before arrested at and he illegal counseling. not obtain because of I Eley’s testimony claimed that at trial was fabri- prove only guilty I can am of assault (Id. 71). cated at says self But defence. the court I must wait my my prove until Jan. 1971 at trial to represented Taylor, 40. He Decoster innocence I which think is unconstitutional Eley’s questions. counsel asked no because there or evidence witness of robbery. accepted by I was Blackman Devel- Tr., (sentencing), Mar. at 3-4: opment my lawyer Center on Oct. but THE COURT: . the Court has re- hadn’t file a motion for bond So review. long Defendant, ceived a letter from the him- promise there was another one of his of what self, stating that he has learned the error of his he would So Your do. Honor it would be a ways he has found that he out pleasure speak you if I could in behave fooling wrong crowd, with the and that he had way this case and its been handled for drugs using been and he now explain knows that the the last five It month. could not be drugs writing jail, use of opportunity could lead death I ask in lawyer so for a justice. happy acceptable neither one of which is I would be to if to him. DeCoster, you possi- you something you would consider this letter soon Mr. as do say your ble. want to on own behalf? completely Both of just these written notes con- I DEFENDANT: wanted the Court testimony gave tradict Decoster on the writing know I in I that was sincere this letter. (Tr., 30-34). stand Nov. at The state- well, feel like I can I know I can be rehabi- be— prove participation in ments the letter my part having litated I which have did on constituting robbery the events and the like, just you come to face the It facts. seems falsity testimony claim of alibi. His well, really, I left I home when was know— testimony court also contradicted early age an and I didn’t have that much confi- witnesses, including accomplice all Eley. just up wrong places I dence and hooked remand, hearing In the Decoster reit- wrong ways. and in the But I now believe that testimony erated his trial of November given opportunity I can—I know that (Tr., that he was not at the scene Feb. my help family myself. can well as So I ask 65-68). doing, But in so he stated his letter upon sentencing this Court me to consider this. 71). (Id. to his counsel awas fabrication He

235 In fendants the court that his clients prejudiced.42 was not addition informed Decoster interests, dissenting opinion conflicting but the trial court 143 had DeCoster and Fitzharris, joint representation. insisted on Su- (9th F.2d 1325 Cooper v. 586 the defendants’ con- preme Court reversed obviously are 1978) (en banc),44 which Cir. victions, a trial holding “that whenever controlling, dissenting colleagues my not joint improperly requires representa- court Geders v. on three cases: rely primarily objection auto- timely tion over reversal is States,45 Holloway v. Arkansas46 United matic.” They Chapman v. con California47 decisions, clude, basis these that on the Holloway superficial have facts in a “[rjecent Supreme decisions affirm Court involved In both similarity to those here. showing prejudice is un that a distinct actually repre- were cases defendants necessary Amendment establish Sixth throughout trials. sented their counsel That is unwarrant violation.”48 conclusion Nevertheless, why two reasons the Su- context claim based inef ed in the of a preme presumed prej- there was Court assistance of counsel. fective Holloway, dispensed with the udice it, are requirement defendant show A. Geders United States here. plainly inapplicable easily distinguished is from this Geders First, Supreme Court noted that a was not on ineffectiveness. case. It based statement his clients defense counsel’s permit- that case the was not In extremely conflicting interests attorney during to consult with his ted joint strong representation evidence his direct- and overnight recess between by preventing will their them prevented This the ac- cross-examination. being fully represent counsel from able having from the actual assistance of cused stages one of them all of the trial. Chief during stage of his trial. counsel critical wrote: Burger Justice person actually denied counsel at When a [Mjost attorney’s held that courts have an trial, his important point in his constitu- an request appointment separate right is violated without further tional counsel, representations as based on case, showing prejudice. This which in- regarding a con- officer of the court alleged volves an constructive denial of interests, flict of granted. should lawyer’s because of the defense in- representing An “attorney two defend- effectiveness, involves different considera- ants in a criminal matter is in the best Accordingly, Geders is not control- tions.49 position professionally ethically to ling here. determine when a conflict interest ex- develop course probably ists will Holloway v. B. Arkansas 29, v. Davis Ariz. trial.” State [110 31, 1025, Second, Holloway, (1973)]. three defendants were 514 P.2d rape charged attorneys obligation, in connection with and rob- defense have the interests, to public upon discovering defender who a conflict of bery incident. The problem. all advise at once of the appointed represent three de- the court 824, position, Judge 47. 42. Robinson takes this but 87 S.Ct. also L.Ed.2d my (1967). dissenting colleagues, he unlike concludes has met its burden of Government - proof. U.S.App.D.C., 289 of 48. Dissent of 199 F.2d. 10, supra. See n. - page U.S.App.D.C., page 49. See of 199 n. 143.

44. Dissent F.2d, supra. of 624 45. 425 U.S. L.Ed.2d 590 98 S.Ct. U.S. at (1976). 1891, 32

46. 435 U.S. L.Ed.2d 358 Valle-Valdez, Finally, attorneys are officers Ibid. (CA9 F.2d 914-917 “ court, 1977). joint ‘when address the But in a representa case of solemnly upon conflicting before the tion of judge a matter interests evil —it repeating bears court, virtually are in what the their declarations advocate —is ” compelled finds himself to refrain oath.’ v. Brazile made under State [226 doing, (1954)]. trial but also La. So.2d possible pretrial negotiations plea persuasive. these We find considerations sentencing process. It may possi be 485-86, at at 1179-1180 U.S. S.Ct. ble in some cases identify from the effect, (footnotes omitted). In the Court prejudice resulting record the from an was able to determine from counsel’s state- attorney’s failure to undertake certain ment the accused been denied that had full tasks, trial but even with a record of the representation his counsel because of the sentencing hearing it available would lawyer’s conflicting loyalties. Since the to judge intelligently difficult impact presumption a of conflict of interest creates of a attorney’s representa conflict on the showing prejudice a of prejudice, further tion of a client. And to assess the impact required.51 was not of a conflict of on the attorney’s interests addition, In Supreme recog- Court tactics, options, plea and decisions in ne it virtually impossible nized that would be gotiations virtually impossible. would be prejudice for an accused to show Thus, inquiry an into a claim of harmless joint representation context. error here require, would unlike most requiring rule a show [A] cases, unguided speculation. that a conflict interests —which he and 490-91, U.S. S.Ct. by timely his counsel tried to objec- avoid These two reasons support pre- do not a joint tions to the representation preju-— sumption prejudice that, in cases like this in some specific diced him fashion would one, allegations involve that defense coun- susceptible not be intelligent, even sel joint was ineffective. Unlike the repre- application. handed In the normal case cases, sentation there showing is no a that where a harmless rule applied, error lawyer’s defense usually mistakes cause occurs at error trial and its scope prejudice to an good accused. This case is a readily Accordingly, identifiable. the re- example in which a defendant was not even viewing court can undertake with some slightly harmed as a result of his counsel’s its relatively confidence narrow task of alleged errors. assessing the likelihood that the error ma- terially affected the deliberations of the Perhaps important, more in cases involv- jury. Compare California, Chapman v. ing alleged inadequacy representation, it supra, at 24-26 S.Ct. at will [386 U.S.] [87 not be as difficult for the defendant 828-829], Hamling v. United prove prejudice. example, (as For if asserts) 41 dissent attorney [94 an fails to under- (1974), L.Ed.2d and United thorough States take investigation, a 590] defend- example this, my experi- 51. An setting original fully own aside the convictions was Attorney, justified ence as United States is a case that is because the defendants in that case unreported (except possibly in its pos- disbarment were denied assistance of counsel who aspect) lawyer representing fidelity which involved required lawyers. a sessed the of all guilty pleas fidelity several Complete lawyer defendants who entered of a his client is subsequently appeared his It advice. that essential element of the existence of the rela- lawyer against tionship. had drawn a false indictment The defendants were thus denied the more affluent brother of one the defendants assistance such as the Constitution improve attorney’s requires. in an effort fee The harm to the defendants resulted “taking Upon charge. care” of that this show- from the demonstrated lack that fundamen- ing fidelity lawyer, good required of his lack of as a tal moral character of all law- more, yers. judg- prejudice directly without the court aside set This went to their con- pleas. guilty ments necessity of conviction on the There- stitutional and there prove prejudice after any the defendants particular were tried and convicted or harm lawyer view, my might disbarred. In defense that have had. been commit- prejudicial that a error had simply readily prove prejudice ant could would have Black wrote: showing the evidence that ted. Mr. Justice Unlike the exculpatory. found was been error, error, constitutional Certainly cases, the defendant representation joint evi- admitting highly prejudicial illegally “unguided engage would be forced comments, someone oth- casts on dence speculation.” by it a person prejudiced than the er was harmless. to show short, (the burden Holloway the facts in while warning that ignored court counsel’s (emphasis at 828 interests) estab- conflicting clients had therefore, only supports added). Chapman, “a distinct lish inherent so if assumes that position the dissent’s one showing unnecessary,”53 of prejudice [was] duty alone con- alleged counsel’s breach precedent ruling not constitute does violation. Since stitutes constitutional prejudice from defendant’s presuming case, in this question is the at issue provided inef- his counsel allegations that obviously inappropri- is assumption such an representation. fective ate. Chapman Maroney C. v. California D. Chambers v. dissent, Chapman v. Cal- Geders, According Holloway, neither nor While 824,17

ifornia, 18, 386 87 L.Ed.2d U.S. S.Ct. view precedent adopted is for the Chapman (1967) “the burden in 705 establishes that dissent, Supreme by the another Court government squarely case on the each rests 42, opinion, Maroney, v. 399 Chambers U.S. a doubt that prove beyond reasonable 1975, (1970), is 90 26 L.Ed.2d 419 S.Ct. I no error was harmless.”54 have [the] strong authority for the rule that bur- Chap- quarrel interpretation with that of on the ac- proving prejudice rests den proven error is man : once a constitutional Chambers, In as- cused.55 the defendant proceeding does shift to the burden of not the effec- serted that “was afforded the error is harm- government prove assistance counsel” because his new tive begs question But the dis- less. it at his second trial56 did not confer Chapman here because rely sent before the “with until a few minutes [him] Chapman who has the does address 53, 90 began.” 399 second U.S. a proof respect burden whether The defendant contended S.Ct. 1982. constitutional error has been committed. lawyer “unprepared,” that because his was effort “to adequate he failed make an proof Before the burden of shifts to guns and ammunition exclud- have Chapman, whatever government under [certain] 54, 90 from evidence.” 399 S.Ct. ed U.S. constitutional error involves rejected peti- at 1982. The district court by the must first be established claimant. hearing a Thus, itself, claim without and Chapman the Government tioner’s affirmed, noting appeals was court of that “the required was not to show that error guns from the harmless until the defendants had shown and other materials seized Fitzharris, 1325, 465, 3037, Powell, Cooper S.Ct. 49 52. See v. Stone v. 428 U.S. 96 (9th 1978) (en 20, banc). (n. (1976) supra); 1332 Cir. L.Ed.2d 1067 Tollett Henderson, 1602, 411 U.S. - U.S.App.D.C., 53. Dissent of 199 289 of Richardson, (1973) and McMann v. L.Ed.2d 624 F.2d. U.S. S.Ct. 25 L.Ed.2d 763 (1970) (n. ). supra page U.S.App.D.C., page Id. 199 of 624 F.2d. trial, repre- In his first the defendant already Supreme have discussed Court lawyer Legal Society a Aid sented opinions with the dissent’s that are inconsistent Allegheny County, appointed as which was Agurs, position. g. United E. States repre- his counsel. In his second he was (1976), S.Ct. L.Ed.2d 342 lawyer Legal another from the Aid sented Florida, Murphy v. ^Society. - (See page (1975) 44 L.Ed.2d 589 F.2d, supra); U.S.App.D.C., page 226-227 car opinion were admissible evidence.” Id. ignores many of these and light of the inability partially defendant’s show deals with others. Lest silence be prejudiced, Supreme interpreted that he was recognizing validity Court as their (7-1) affirmed the conviction.' Mr. replied Justice few are to. hereinafter White wrote for the Court: Adequacy Investigation A. Unquestionably, the court should make

every early appointments effort to effect principal contention the dissent is of counsel in all cases. But we are not investigation inadequate counsel’s disposed per requiring to fashion a se rule or possible because certain witnesses wit- every following reversal of conviction supposed nesses were not interviewed. appointment tardy of counsel or to hold categories: (1) witnesses fit into five wit- that, corpus petition whenever habeas Bar, (2) nesses at the Golden Gate witnesses alleges appointment, belated Annex, eviden- (3) who were the D.C. the two tiary hearing must be held to (4) victim, determine policemen, the co-de- whether the defendant been denied fendants. constitutional to counsel. 1. Golden Gate Bar. is There no contro-

399 U.S. at 90 S.Ct. at 1982-1983. From bar; versy happened to what foregoing obvious that a mere proffer as to what witnesses in bar duty breach of to an accused not consti- said; could and Decoster told his coun- tutional violation unless sel, testified, “nobody so that there was proves prejudiced. that he was the prin- If testify who could bar] [in [he was] ciples advocated in the dissent had been there.”58 Chambers, applied in then the failure of dispute 2. D.C. Annex. is There no counsel to confer with the accused before transpired hotel, to what at the and there (a trial Bar violation of the American Asso- has never exculpa- been indication that guidelines) ciation would have been suffi- tory evidence could have been obtained error, cient to establish a constitutional from witnesses in the Annex. thereby forcing the prosecution prove 3. Policemen. Counsel examined officer beyond a reasonable doubt that the defend- Ehler at preliminary hearing.59 In ad- Thus, prejudiced. ant was not Chambers dition, the Attorney United States fur- contrary to the basic contention of the dis- lawyer nished Decoster’s with all Jencks sent.57 jury Act and grand testimony material in this, advance of the trial. From he knew III. THE OF PHILOSOPHY the testimony of all three THE DISSENT Government’s substantially witnesses was great many There are a assertions in the same, very prejudicial to defend- dissent supported by that are not the record ant’s case. factually, and which are legally unsound logically. These are set forth in con- incident, 4. Victim. After Crump my siderable detail the panel away dissent to Washington moved from the area. opinion II, (1976), U.S.App. There is no Decoster indication that he was available -, D.C. plurality 624 F.2d 196. The to be interviewed defense counsel. In Similarly, (Feb. 1974) 57. it conflicts with the thesis 58. Tr. Judge concurring opinion. Robinson’s attempts garner Officer Ehler testified: “Mr. Decoster and sup- The dissent hidden Ely Chambers, subject, complain- port Mr. had hold of the nothing from but therein can yoking him, approval ant. One them was I didn’t be construed as “tacit of [a] time, presumption-of-prejudice know which one it was at the but —and . . rule Dis- 53-54, something removing pock- were sent n. cf. from his 90 S.Ct. 1975. Tr., Preliminary Hearing (June specifically rejects arbitrary per 1970) Chambers also ets.” (emphasis added). se and automatic rules reversal to which the - Dissent, page dissent leans. of 199 U.S. App.D.C., page n. 149. 624 F.2d and counsel knew addition, pre- speculation. consent to Decoster’s need not witness counsel, to him that interviews defense the information available trial Crump would knowledge there is assurance his was This was guilty.62 client seriously was Finally, Crump so. have done the trial when Decoster confirmed after accident, his automobile injured an Thus, speculat- guilt. without admitted at the trial the incident ability to recollect all, investiga- said that no ing at can be testimony hampered. His exhaustive, tion, have discov- however could at the scene was as to his identification helped De- evidence that would have ered nature light of the limited of the crime. attorney When as here defense coster. interrogation of testimony, lengthy of his wholeheartedly guilty, knows client Crump would have been useless. (now Justice) agree Judge with then Ste- 5. Co-defendants. Decoster’s no duty that “counsel vens’ statement ha[s] versions of the was familiar with their witnesses, otherwise, expert or search represented had two events because he testify might falsely contrary.” who hearing. preliminary at the the defendants Matthews United probing cross-examination Counsel’s 1975). (7th Cir. This statement con- proves his government’s witnesses familiari- claim that counsel was tradicts dissent’s with the of the case. ty facts Dis- for alibi witnesses. required search now, appellant do Even the dissent and nn.107, sent any exculpatory point not and cannot found if De- that could been evidence Investigate Duty Accused’s Contra- B. lawyer had conducted unneces- coster’s dictory Statements investigation that sarily thorough the dis- that defense counsel The dissent contends Judge Bazelon concedes sent demands. investigate contradictory obligated are “[m]y colleagues be correct that accused. Dissent n.110. no material information could elicited statements an investigation.”60 here, His from such an whole To accused like apply that law argument rests on the assertion that “it is attorney initially who told his Decoster

possible” exculpatory evi- robbery, present at the scene dence could From have been found. this that later himself said but contradicted investigation concludes an that enormous thereby force his present, he was not would should have been conducted so that we investi- independent an counsel conduct hoc, “speculate, post not would have to as to might support that ei- gation for evidence 61 what the witnesses have said.” would which version ther statement to determine as This record, presented be a defense63 only this it is it should

On clear that is grossly is It over- my dissenting colleagues suggestion who are incredible. engaging prove inquiry fruitless.” 60. Dissent that further would n. 107. - page page U.S.App.D.C., Dissent of 199 Id. However, believing was 624 it F.2d. in letters that he was Decoster’s statements his pages---of U.S.App.D.C., 62. See Crump present self in defense assaulted F.2d, pages supra. of 624 an the need for extensive that would reduce page-of U.S.App.D.C., page Dissent (Decoster’s investigation. in his let- statement 286 of 624 F.2d. November, judge that he was ter to the The dissent overstates the conflict between robbery present on the dis- casts doubt police testimony officer’s and Decoster’s claimed he was assertion “that Decoster sent’s - story, U.S.App.D.C., page Dissent co-defendants],” cf. Dissent them not with [his page 283 of 624 F.2d. let- Given Decoster’s testimony 110). police officer and n. attorney any judge his with ters to conflict pleas guilty co-defendants of Decoster’s testimony police was minimal —whether Thus, case result. also led the same accomplices pled guilty who he assaulted his compared to the case referred to cannot be Crump him. either in self defense or rob the dissent n. 105. predicates of its The dissent some criticism ground that he of defense counsel thought “disbelieved his client and therefore required states Defense counsel duty investigate symp- and is are to close tomatic of the unreasonable that the duties eyes to the and search for their obvious attempting dissent is to foist on defense for alibis defendants who would like assist lawyers. any investigation, Without defense, in the fabrication of a ance contradictory defendant’s are statements would be a violation of the ethical that one proof conclusive of them is false profession. legal standards of the As Chief duty and defense counsel owes no to a Burger wrote for the Justice Court: there prevaricating straighten accused to out an important is “an limitation on a defendant’s obviously story. nn.22, crooked See Dissent assistance counsel: counsel page-of U.S.App.D.C., page ethically cannot his client present assist 272 of 624 F.2d. ing attorney what reason to believe testimony.” Gray is false United States v. C. Duty Investigate Guilty for a Client son, L.Ed.2d The dissent states: suggestion “[T]he Thus, added). (emphasis lawyer that a client whose believes him to attorney when dissent states that an be guilty pretrial deserves less investigation guided by “his own perception cannot is simply wrong. An attorney’s duty to innocence,”65 guilt or his client’s it contra investigate per- is not relieved own Supreme dicts Court. ception of guilt his client’s or innocence.”64 pronouncement This lawyer’s is foreign to basic obligation profes- the court Review D. Bond When, here, sion. as defense counsel has The dissent contends defense coun- grounds reasonable for believing his client delay in bond seeking sel’s review is

guilty, perception must influence his clear, example of his ineffectiveness. It is representation of the My dissenting client. however, delay was entirely such irrel- colleagues that a recognize lawyer’s obliga- case, evant to the outcome of the for when tion to make inquiries “reasonable” (dissent bond review was n.112), motion filed it they ignore but then requirement assuming reasonableness Even and dissent be- denied. that counsel had cause investigate of counsel’s failure to unreasonably filing re- delayed for bond support of a Dissent fabricated defense. view, any prejudiced Decoster was not - pages -, -, -, U.S.App. of 199 way. C., 285, 286, 292, D. pages addition, on the of this case it is facts F.2d. The dissent would “brand ineffec- unnecessary de- apparent falling tive conduct below the minimum all. bond review at to file for fense competent standards of lawyering, without Counsel, however, be blamed for fil- cannot regard to the guilt client’s or innocence.” motion as this court ing frivolous such Dissent n.131. While quality the of coun- responsible because of the ever partially performance may sel’s depend not on the increasing list of unreasonable burdens guilt client, or innocence of his that does on opinions place of our defense coun- some not principle contradict the deter- of the decision sel. On the facts the merit mining a whether counsel has a breached deny ques- bond cannot reduction duty, guilt the his innocence of client When was on tioned. Decoster arrested may affect what he required was to do to charge, (1) satisfy already being the he requirement reasonably sought of a was competent lawyer. fugitive on warrant as a a bench issued page--of reasons, Id. U.S.App.D.C., page own counsel. As to the these most likely (Dissent, page- of 624 F.2d. fact lie in the admitted F.2d) U.S.App.D.C., page 287 of 624 of 199 speculates The dissent about reasons for guilty most defendants are and are inadequate what it of in- considers number best witnesses relevant events. counsel, vestigations by appointed n. defense reflecting without on the of investi- number - page U.S.App.D.C., page 65. See of 199 gations in cases where hire their defendants F.2d, supra. of 624 their on address, guilty June case; pleaded had fixed (2) trial] he no [at another ties, employment and no community whatsoever; was an admitted narcot- (3) he delayed was also because one The trial user; been arrest- (4) previously had ics he witnesses, Mr. primary prosecution dangerous weapon and carrying ed a injured seriously in an automo- Crump, was bond; a while under jumped $600 had bail month delay, seventeen bile accident. The a juvenile he had been involved in as a therefore, any by caused fault on was not Receiving sent robbery and was the Government. part (6) the escaped;66 he Home from which and Avoiding Retrials F. Futile release, Agency did recommend Bail even on conditions. states: The dissent prejudice re- Although question wisdom of the decision continue inquiry, it is the court’s part of mains incarceration was borne out Decoster’s the determination wheth- from distinct postponed. his trial was As a result when has received effective er the delay, of this Decoster was released to the Rather, is con- prejudice Development Man’s Center. As assistance. Black defendants, spare his in order might expected history have been from sidered truly the courts alike a escapes, appellant promptly became a and prosecutors from these fugitive justice. repetition pretrial Under circum- and trial futile stances, all of were known to Decost- which process.67 counsel, folly suggest er’s it is that a clear, guilty was on uncon- found Decoster motion for release should have been filed or his letters evidence. Prior to trial tradicted from resulted trial coun- participation in the admitted his effect immediately moving sel not Decoster’s thereafter, sentencing, he robbery complete judicial It waste of release. was If guilt. this case practically admitted this, all of panel, knowing effort for the my dissenting example of how good hearing on this frivo- remand case for rule, apply their then it colleagues would lous point. would what take imagine hard to would be them that a retrial futile. convince Fugitive from E. Decoster as a Justice present- problem part illustrates This critically The dissent comments about agree can here. Courts ed the issues period seventeen month between the date but for standards for counsel language appellant’s offense trial. fails It dissent, give judges, as in some recognize eight that over months of this construc- such an unreasonable standards delay jumping was caused bail Decoster actual standard becomes tion fugitive. The remaining facts are meaningless. Supplemen- delineated the Government’s Participation in the Events G. Decoster’s Brief 3: tal Robbery January appellant On absconded about what doubt There is considerable Black Man’s Development Center when telling story Decoster Bail then Agency never returned. [The] dissent states: “Decost- first arrested. reported appellant had further vio- co-de- er was not that he claimed [his of his release re- lated conditions n.110. Yet in let- Dissent being once since released. porting only fendants].” Judge Waddy filed November the on ter to When case called trial prove wrote: “I can that appear, Decoster February appellant did not and guilty by of assault self defence." Appellant only a bench warrant issued. am And his letter his September until af- n.22. not rearrested See dissent counsel, had which Decoster testified he mailed his codefendants case ter 3, 1972) Tr., (March page-of U.S.App.D.C., page Sentencing 2-3. Dissent 66. 67. of 624 F.2d. evidence, November, 1970, May inating between and he ad- evaluating seeks avoid participation by his precise mitted events “the effect” of omissions defense robbery. page-of Dissent U.S.App. counsel, grossly exaggerates dissent D.C., page 624 F.2d. might These letters fa- probative effect of evidence obviously contradict defendant, statements impeachment vor the claims on dissent at if variances, n.110 because Decoster were dissent the basis of immaterial “guilty by of assault self defence” he would n.106, great in a deal of unwar- indulges had in Crump’s presence to be when grossly my po- misstates speculation, ranted he assaulted him in “self defence.” So to sition, n.102, unwarranted re- places dissent the extent dissent relies any on prior its dissenting opinions liance on and claim Decoster that he was not with the case, record, opinion goes in this outside the questionable co-defendants it is of validity. issues, n.38, raises new dissent recognize refuses to was at- that Decoster H. Sentencing force assert a tempting to his counsel to defense, perjured states and Department dissent relies immaterial evidence, rigidly apply Corrections “clarified irrelevant would Decoster’s sen- and tence” allegedly legal arbitrary per because it was erroneous and properly theories rules, executed.68 This se and confuses role trial “automatic reversal” dissent - appellate and U.S.App.D.C., what page page and is referred F.2d, to as nothing Thus, “clarification” is more than of 624 n.149. no reversible computation routine error has of a been shown. legally ad- judged sentence. J. Changing Judges’ Duties

The dissent also implies that “counsel’s argues dissent any “adversary failure to offer allocution” caused “the shreds,”71 judge’s system is . .in sug- decision to sentence Decoster prison gests that trial judges greatly to a should ex- years term of 2-8 while his pand their intervention in the trial of only co-defendants received crimi- probation.”69 cases, allegedly nal protect The lesser co-defendants, sentences for defendants. however, This justified judge’s overlooks rule obli- (1) were guilty their gation justice pleas, and to see that is done —to all because they (2) did not use parties. narcotics, (3) ignore The dissent would jump bail, have a rights public. record, substantial criminal as Decoster did.70

K. Extraneous Considerations I. Reversible Error Most extraordinarily, dissent sees

The trial court found after an extensive requiring merit in a “rule rever- automatic complete hearing that “provide Decoster’s coun- sal” in order deterrent ef- (cid:127) sel, putting the Government proof, necessary to its fect to insure that all defend- presented had Decoster’s defense and ants —innocent or guilty the effec- —receive that Decoster had failed to according demonstrate tive assistance counsel” counsel’s conduct extreme standards It ar- dissent. defense. The dissent has failed to gues: “Reversing demon- convictions [automatical- strate wherein the trial court’s findings and ly] likely significant prophylac- to have a clearly conclusions are erroneous. In mate- tic effect for several reasons respects, rial dissent [among understates incrim- . frequent . reversals them] Id. n. Suggestion Rehearing ment on en banc MacKinnon, J.), Tr., Sentencing (March page U.S.App.D.C., Id. -of page 1972) 3-4. of 624 F.2d. - U.S.App.D.C., page 71. Dissent of 199 Roberts, U.S.App. 70. See United States v. F.2d. -, (D.C.Cir. (State 1979) D.C. 600 F.2d 815 changed in story trial 1972 Decoster his likely attract the attention to are the likelihood may enhance claimed that he was not at scene of the public and page-of Dissent legislative facts, robbery. these had On counsel no reform[s].” F.2d U.S.App.D.C., page 293 of 624 ready to announce for choice but trial. However, added). it (Emphasis n.145. What else could he have done: ask for a administration proper is fundamental he and tell the court that continuance need- should justice that criminal convictions chang- ed extra time because his client was and never only legal be reversed for error ing story? his Of course not. The trial cannot effect”. “prophylactic for long date had been set after Decoster’s agree outrageous suggestion attempt change to fugitivity Decoster’s freeing appropri- is an convicted criminals reset was story on the eve of a trial no his securing way legislation go ate to about Judge No justification for continuance. to Congress that conforms the desires grant a continuance would or should under judges. of individual short, circumstances. In counsel’s dif- such by Decoster’s eleventh ficulties were caused Trial Ready L. for an attempt to fabricate alibi. Counsel hour with Decoster’s The dissent finds fault to do as well as he could with simply had lawyer because The dissent in this bad situation.73 com- appellant’s letter receiving even after in unsuccessfully bar- plaint thus scratches only guilty of assault [stating that he was ground to find some basis to criticize ren go ready was to counsel self-defense] counsel. con- having attempted to to without their ver- tact to learn the co-defendants Representation Indigents M. night on the sion the events plays the theme from Griffin The dissent robbery.72 12, 19, Illinois, 351 U.S. S.Ct. Defense preposterous. criticism is This (1956), can be 100 L.Ed. 891 “[t]here Decoster since acting been counsel had justice where the kind of trial a man equal ready go to trial May and was money gets depends on the amount of November, is 1971: while the record not nothing is has.” But there the record to clear, de- my analysis it that counsel’s poverty Decoster’s caused him indicate that fighting was fense was that Decoster robbery prevented him from to commit testimony The robbing, not victim. receiving a fair trial.74 Increased billions pled guilty who had would accomplices two spent years in recent to alleviate obviously day The before have been helpful. not be - picture presents page when U.S.App.D.C., a false page dissent Id. felony indigent implies cases 267 of 624 defendants F.2d. unrepresented went in most courts until recent- my alleged ly. many years In view one error of counsel For in most courts in the na- dissent, opening tion, lawyers gave legal his representation decision waive free statement, strategy. good light counsel, of De- felons who could not afford accused story, inability single to a coster’s adhere lawyers completely uncompensat- and the were story what not be sure client counsel could consuming Such ed such time duties. ser- at trial. Under these would choose assert indigent was considered to vice defendants circumstances, making opening an statement Many jurisdic- obligation lawyers. be an of all have caused serious harm to defendant’s could public provided paid tions also defenders. The instance, counsel stated that case. For had required have counsel cases that held that alibi, testimony testify Eley’s Eley would major dealt with isolated courts criminal cases present at the scene that Decoster general prac- follow that did not national robbery greater even dam- would caused Alabama, g., Powell v. tice. E. actually age appellant’s than occurred. case (1930); v. Wain- 77 L.Ed. 158 Gideon story, Therefore, changing his with the accused wright, U.S. 83 S.Ct. 9 L.Ed.2d (as position taken the district Hamlin, (1963); Argersinger good found) judgment. was an exercise court (1972). May- See 32 L.Ed.2d 530 opening state- waive his decision to Counsel’s er, Lawyers 163 certainly did constitute a breach of ment duty to Decoster. poverty, during period but Bailey, provided all forms of had her with ineffective have crime soared. And under the Criminal assistance.76 Justice Act most defendants in this court hardly exaggeration say It is an well, if not represented are better than dissent, arguments under the Thus, the Government. the dissent’s refer- principle appeal issue a criminal is poverty injudicial appeal ence is an poor, whether the accused is rather than sympathy. guilt whether his properly determined Those of us who have been familiar Thankfully, in a fair trial. this Circuit has through years with massive efforts definitively rejected now approach. represent members of the bar to poor Neither a rich man nor a man a indigent defendants, most times without right to perjured testimony use in his de- fee, deny categorically by the assertion poor a rich a fense. Neither nor the dissent that criminal defendants are right compel has a counsel to investi- Dissent, poorly by 2, 6, n.3, served the bar. defendant, gate perjured alibis. And be n.80, n.89. specifically We resent infer- poor, rich has a ence that appointed scrimp counsel on re- lawyer conviction set aside because his did

questing investigative expense because of investigate not witnesses obtain who alleged an fear that their own fees would support phony would defense. thereby be lessened. Dissent n.80. And the claim that some reports writers and IV. CONCLUSION support position, its when it is based on purporting While to explore standards for partial statements, is. unseemly. For in- representation defense their stance, Tague, The Attempt Improve To defendants, criminal Decoster I was in fact Criminal Representation, Defense 15 Am. attempt proof bold shift the burden 109, (1977) cited, Crim.L.Rev. Dissent to the Government. The intolerable results n.80. But the statement is ignored that that inevitably follow from such a shift are “The relationship that attorney has with well the position illustrated taken his client and with the court can further panel below and the dissent here. strained if the attorney must be ordered to investigate.” Id. at 133. We now repudiate misguided at- this. tempt to change law and reaffirm the purports dissent to be concerned with well established rule in this Circuit that the “equal justice” for poor. its myopic But proving prejudice burden of from defense justice view of justice overlooks for the counsel’s rests on the ac- ineffectiveness public, and for that larger far number of cused. Counsel this Circuit need not poor Americans who are the victims of search for non-existent witnesses who crime. It has also been a boon to some might support conjured perjured up alibis defendants who poor are not but by defendants on the eve of trial. are extremely wealthy. dealers, drug Illicit many wealth, are rolling whom in illegal Thus fails attempt my dissenting equal are poor.75 beneficiaries colleagues to create a standard of law that ease with which a post trial claim of inef- obviously would result in a for an retrial fective defendant, assistance of counsel can be made guilty supposedly because his evidenced the reported claim of Patty lawyer’s investigation of crime was not Hearst, not normally thought as poor, thorough enough, despite the defendant’s counsel, her defense the famed F. produce single Lee failure to witness who g., Davis, 2403, E. U.S.App. (1975); United States 44 L.Ed.2d 670 United 162, 681, 175, (1977); Moore, U.S.App.D.C. D.C. 562 F.2d United States v. Moore, U.S.App.D.C. banc), denied, States v. (en 486 F.2d cert. (1974), F.2d 426 rev’d 423 U.S. 96 S.Ct. 38 L.Ed.2d 224 (1975); 46 L.Ed.2d 333 United States v. Lee, 50, 64-69, Star, Washington August denied, (1974), cert. believe, widely, princi- single exculpato- truthful from established testify would guilty by ples pertinent jurisprudence. found of ry fact. Decoster was twice in jury. judge The trial concurred opin- These considerations summon in The accused effect ad- judgment. that ion, course it general and dictate the will the robbery in participation mitted his take. I first in brief fashion the summarize guilt to this court did not appeal and on of the I set forth position my court.2 Next had his counsel been ineffec- contend that understanding imposed by of the test by claim was initiated the other tive. That measuring the suffi- Sixth Amendment for It original panel. would be members of the ciency service rendered this court reverse such unthinkable for my for an I elucidate accused.3 then stand defense counsel failed to conviction because of in proof prejudice on burden of ineffec- possible fabricated de- investigate every Lastly, explain tive-assistance I cases.4 fense. why performance I conclude that counsel’s this case constitutionally ineffective ROBINSON, III, W. Cir- SPOTTSWOOD but error.5 nevertheless was harmless concurring in the result: Judge, cuit I. THE POSITION agree majority my of COURT’S I brethren with in this case be that conviction should The critical convened to issue we are re- unable, however, sub- I am affirmed. is the appropriately solve standard to be reasoning chain of scribe link in the to one that evaluating utilized claims defense reaching this I they forge in result. While performance constitutionally counsel’s applaud action the full the collective Early infirm. cases in this circuit shunned assuring court to those accused of in now source of Sixth Amendment as a en- legal crime a level of assistance commensu- a member titlement effective aid rate Amend- with the demands Sixth Relying upon Fifth, the bar.6 instead ment, allocation to the deplore the court’s adequacy those decisions measured counsel’s demonstrating accused of that a burden impact any deficiency jeopardized by trial;7 he was established derelic- resultantly, fairness there duty part tion on the his counsel. was concern if execution of the de- Judges MacKinnon, my Leventhal and that fense function was so abominable it them, colleagues concurring mockery make rendered the and a trial “a farce likely justice.”8 Bruce v. to the harm in As late as United defense — 1967, injury one actual maintained instance and oth- States9 this court indispensable prerequisite er —an while not to be taken words “[t]hese [were] finding assistance, literally,” they “a assign of ineffective nevertheless were vivid description of proof principle the onus of on that score to the accused holding they heavy showing requisite rather stray defendant.1 In so burden in Welch, 6, Opinion (Op.), Diggs supra U.S.App.D.C. 199 80 See v. note U.S. 1. Leventhal -, 199; 669; 7, Huff, App.D.C. at v. Op., 624 F.2d at 148 F.2d at Jones MacKinnon 199 at-, 255, 14, U.S.App.D.C. 254, U.S.App.D.C. 624 F.2d 80 152 F.2d 1 5 (1945). 2. See Part I infra. 6, Diggs Welch, supra U.S.App. 80 v. note 7, 148 D.C. at Hammonds, at 669. See United States v. 3. See F.2d Part II infra. 166, 169-170, U.S.App.D.C. 138 597, (1970); 425 F.2d Harried v. 600-601 Unit 4. See Part III infra. 333-334, States, 330, U.S.App.D.C. 128 ed (1967); F.2d Mitchell United 5. See Part IV infra. U.S.App.D.C. 259 F.2d denied, cert. ago 6. This three trend commenced decades Huff, (1958); supra note L.Ed.2d Jones v. 6-7, Diggs Welch, U.S.App.D.C. 5, at 15. denied, 667, 668-669, F.2d cert. (1945). other L.Ed. For U.S.App.D.C. 336, 9. 126 379 F.2d 113 bent, cases see note 8 of similar infra. though upon proof

unfairness.”10 And is now said sists incompetency, of “serious implicitly inefficiency Bruce took Amend- a Sixth or inattention of counsel—be- approach problem,11 ment Bruce falling measurably havior of counsel below court acknowledged might no more than that in that expected which from an ordi- “rare extraordinary” “an nary lawyer.”15 Judges instances ac- fallible Bazelon cused may obtain relief . if . and MacKinnon would defend- require the gross demonstrate, shows both that there has been incom- ant to merely a violation petence duties, of counsel and this has in particular but a “substantial” vio- effect blotted out the essence of a I myself substan- lation.16 believe the defend- tial point defense either the District Court or ant must to some substantial devia- appeal.”12 That was then the tion a compe- court’s from norm of reasonable concept due, of the accused’s Despite constitutional tence.17 terminological differ- question presented at least where showing made, ences in the heft of the to be by upon collateral attack a emphasizes conviction.13 each formulation that counsel’s serious, breach must be and that the de- As Judge survey judicial- Leventhal’s of fendant bears the onus making out. ly-enunciated formulae for gauging ineffec- discloses, every tive-assistance claims importantly, test Perhaps more the court is developed circuits, thus far agreed in this other incompetence” the “gross stan- words, expressed imposed dead, however has my dard of Bruce is that in view an initial burden on defendant to estab- is how it nearly should be. For four dec- lish that performance his counsel’s at trial ades guaranty competent representa- abnormally deficient.14 Every opinion tion in proceedings federal criminal has had espouses today announced a standard incor- Sixth18 as well as Fifth Amendment19 un- porating that centrally thesis as a derpinnings, verity hurdle long calling for a thor- that the defendant Judge ough must first clear. reexamination of this circuit’s criteria Leventhal, court, for plurality proving in- and assessing viola- asserted 339, Holloway Arkansas, 475, Id. at 379 F.2d at 116. 10. v. 435 U.S. 481- 18. 484, 490, 1173, 1177-1179, 1182, 98 S.Ct. 55 Op., U.S.App.D.C. -, Leventhal 199 426, 433-434, at (1978) (appointment L.Ed.2d 438 624 F.2d single defendants, counsel for three without investigation representations of counsel’s Bruce, 9, supra 12. United States v. note 126 existed, a conflict of interest Sixth violates 339-340, U.S.App.D.C. at F.2d 379 at 116-117 right assistance); Amendment to effective (footnote omitted). Richardson, 759, 770-771, v. McMann 397 1441, 1448-1449, 763, 90 S.Ct. 25 L.Ed.2d 773 us, 13. Unlike the case before Bruce was an (1970) (“defendants facing felony charges are appeal pursuant from denial of a motion to 28 competent entitled to effective assistance of (1976). U.S.C. 2255 § The Bruce court ob- right counsel. . [I]f to counsel powerful showing served that “a more inade- guaranteed by the is Constitution to serve its quacy necessary is to sustain a collateral attack purpose, defendants cannot be left to the mer by than to warrant an order for new trial either incompetent counsel,” citing cies of Gideon v. the District Court or this court on direct 335, 792, Wainwright, 372 U.S. 83 S.Ct. 9 appeal,” but felt that would not “[i]t be fruitful (1963)); States, L.Ed.2d 799 Glasser United attempt applicable further delineation of the 60, 76, 680, 315 U.S. 62 S.Ct. 86 L.Ed. generalities standard reference . .” (defendant (1942) right 702 to “effective 340, (footnotes omitted). Id. at 379 F.2d at 117 counsel, guaranteed by assistance the Sixth Amendment”); Hurt, United States 177 U.S. at-, Op., U.S.App^D.C. 14. See Leventhal App.D.C. (1976); 624 F.2d at 203-206. U.S.App.D.C. Scott v. United F.2d at-, Op., U.S.App.D.C. 15. Leventhal F.2d at 206-207. Alabama, 68-72, g„ 19. E. Powell v. at-, Op., 55, 63-65, 16. Bazelon 77 L.Ed. 264; U.S.App. Op., F.2d (right MacKinnon to effective assistance state of counsel in at-, D.C. guaranteed F.2d trials the Due Process Clause of Amendment). the Fourteenth 17. Part III infra. So, help must show in substance as well as form. In Pow- while a defendant tions. Supreme in his counsel’s ell v. Alabama22 dereliction some substantial that, relief, simply a matter of due qualify Court held in order performance required enough it was not that counsel for representation process, level of the prosecution is capital than it once was. a defendant in a state considerably higher now hand, at such a time or under such majority my “assign[ed] col- On the other preclude giving circumstances as to form the other as- retain in some leagues preparation effective aid in the and trial of defendant’s burden pect of Bruce—the during nearly half- the case.”23 And resulting prejudice proof vis-a-vis —as decided, since Powell was it has adjudication century element in constitutional increasingly clear that plural- contests. A become Sixth of ineffective-assistance entitlement to “assistance of required showing as Amendment the court sets the ity of counsel,” process coun- harm; says it no less than its due Judge MacKinnon likely terpart, fully I am to effective assist- harm.20 unable should be actual for sad- ance of counsel.24 justification sound perceive with the additional ob- dling the defendant Supreme has never undertaken Court establishing that a demonstrated ligation of to delineate the content of the “effective right to effective aid transgression of his compre- spoke, aid” of which Powell actually influ- probably or lawyer either hensively define the standard counsel-aid case. of his enced the outcome constitutionally might demanded. That be good believing taken as reason for that the TEST II. THE CONSTITUTIONAL expression is to have its natural and ordi- event, solemnly pro- nary meaning; any its connotation Amendment The Sixth Counsel, to be prosecutions, hardly can be mistaken. all criminal claims that “[i]n sure, case, win the but required . is not enjoy right the accused shall contemplates that certainly for his “effective aid” the Assistance of Counsel to have pursue a course injunc- an counsel will endeavor to plain potent and defence.” So reasonably calculated to achieve for the ac- great deal more obviously tion demands advantageous pres- cused the most resolution appointment physical than mere Indeed, possible the circumstances. the case under legal representative. ence of a that an accused is due recognized Equally that one accused certain it is long been afforded, performance apart lawyer even from more than a whose of crime must be mandate, lawyer’s barely escapes “grossly incompe- the label Amendment the Sixth Richardson, at-, recess); Op., U.S.App.D.C. overnight su- 20. McMann v. Leventhal 206; Op., U.S.App.D.C. 770-771, pra F.2d at MacKinnon note 397 U.S. at 90 S.Ct. at at-, 1448-1449, (defendants have 624 F.2d at 213. 25 L.Ed.2d at 773 competent right to effective assistance Const, 21. United States amend. VI. States, counsel); supra note Glasser v. United 75-76, 467^68, 18, 315 U.S. at at Supra 22. note 19. Amendment, (under L.Ed. at 702 Sixth defend- “the benefit of the undivided ant is entitled to 65, 77 23. 287 U.S. at 53 S.Ct. at L.Ed. . choice. . assistance of counsel of own interest, Irrespective the addi- conflict of party representing tional burden of another Arkansas, Holloway supra note conceivably impair effective- counsel’s 55 L.Ed.2d at 438 98 S.Ct. Alabama, ness”). Avery 308 U.S. See also attorney (“[t]he presence physical of an mere 444, 446, 321, 322, L.Ed. 60 S.Ct. guarantee Amendment does not fulfill the Sixth (1940) (state appointment “convert cannot conflicting obligations when the advocate’s nothing more than a of counsel into a sham and effectively lips mat- sealed his on crucial have compliance re- ters”); formal with the Constitution’s v. United Geders given 88-91, 1330, 1335-1337, quirement the assist- that an accused be 47 L.Ed.2d guaranty (1976) (Sixth Amendment confers ance of counsel. Constitution’s counsel; right guidance satisfied to assistance assistance of counsel cannot be constitutionally prevented appointment”). be defendant cannot mere formal attorney during consulting an with his espoused tent” —the standard in Bruce.25 to decide whether put when to view, my “effective” assistance is a call client on the witness stand.31 He must be reasonably competent for permitted present a closing summation.32 assistance,26 anything less “effective” robs of far too He must be allowed to confer with his client meaning. much of its evident during overnight It would be recess.33 Supreme That Court intends “effec- incongruous protect the Court so signify competence tive aid” to reasonable scrupulously to effective assist- is evident from a number of its decisions. ance endangered by when it is outside tam- In McMann v. Richardson27 the Court de- pering contemporaneously ignore but all clared that “defendants . . are enti- gross incompetence but substantially when competent tled to effective assistance of directly deficient service is traced to short- and that counsel’s advice must counsel,”28 falls in ability counsel’s or effort. range competence “within the de- The farce-and-mockery test of effective attorneys manded of in criminal cases.”29 assistance, gross-incompetence to which the Moreover, the Court has utilized term cousin, test definitely is first on the zealously “effective” guard from outside majority wane.34 A of the federal circuits designed interference activities of counsel now representation adopted to maintain version of at a whole- some reasona- some level.30 Defense counsel must be free agree, ble With that I competence.35 supra expressly overruling See text at note 12. fence standard without farce-and-mockery language. earlier See Unit g., (DeCoster 26. E. United States v. DeCoster Wright, supra, ed States v. 573 F.2d at 684 I), (even higher “reasonably under standard of ef assistance,” provid fective defendant’s counsel assistance); ed effective United States v. Wil Supra 27. note 18. liams, 388, (2d denied, Cir.), 575 F.2d 393 cert. 842, 134, 439 U.S. 99 S.Ct. 58 L.Ed.2d 141 771, 1449, 28. 397 U.S. at 90 S.Ct. at 25 L.Ed.2d (1978) (performance of counsel did not make at 773. proceedings mockery, farce or nor did it fall Id. reasonably competent below standard of attor ney acting diligent, advocate); as conscientious 30. See cases cited infra notes 31-33. Tolliver, 724, (2d United States v. 569 F.2d 731 1978) (defense easily Cir. counsel’s conduct Tennessee, 605, 31. Brooks v. 406 U.S. 92 S.Ct. met even the more liberal standard that defend 1891, (1972); Ferguson 32 L.Ed.2d 358 v. Geor- reasonably ant is entitled to effective assist 570, gia, 756, 365 U.S. 81 S.Ct. 5 L.Ed.2d 783 attorney acting diligent, ance of conscien (1961). advocate). tious York, Herring 853, v. New 422 U.S. 95 S.Ct. 2550, 45 730, L.Ed.2d 593 35. See Moore v. United 432 F.2d (3d 1970) (defendant 736 Cir. entitled to coun States, supra 33. Geders v. United note 24. exercising knowledge sel level of skill and cus tomary place representa to the time and of Only three circuits continue to utilize the tion); Maryland, 540, Marzullo v. 561 F.2d farce-and-mockery test. United States v. (4th denied, 1977), 543-544 Cir. cert. 435 U.S. Wright, 681, (1st Cir.), 573 F.2d cert. 1011, 1885, (1978) (rep 98 S.Ct. 56 L.Ed.2d 394 denied, 949, 2857, 436 U.S. 98 S.Ct. 56 L.Ed.2d range resentation must be “within the of com (1978) (ineffective 792 assistance of counsel petence attorneys demanded of in criminal presentation mockery, means that makes a cases”); Carter, 1265, United States v. 566 F.2d trial); Bubar, sham or farce of United States v. (5th denied, 956, Cir.), 1272 cert. 436 U.S. 98 192, (2d Cir.), denied, 567 F.2d 202 cert. 434 3069, (1978) (standard 57 S.Ct. L.Ed.2d 1121 872, 217, (1977) U.S. 54 L.Ed.2d 171 evaluating defense counsel is whether de (assistance purported not ineffective unless “reasonably fendant received ance”); effective assist representation by counsel made farce and Yelardy, United States v. 567 F.2d mockery justice); Riebold, of United States v. (6th Cir.), denied, 866 cert. 99 (10th denied, Cir.), 557 F.2d cert. (1978) (assistance S.Ct. 58 L.Ed.2d 140 of L.Ed.2d 133 counsel not ineffective when advice is (representation “within competent perfunctory, unless range competence attorney faith, sham, demanded of pretense). in bad or Both the First cases”); Benson, have, however, in criminal Monteer v. and the ly Second Circuits recent (8th 1978) (defendant F.2d higher reasonable-compe- Cir. adverted to the entitled activities, polic- I volvement defense some on the DeCoster formula- improve cannot ing necessary rendition is both entitled to the reason- counsel’s “a is tion: Supreme As the Court attorney ably competent assistance appropriate.39 admonished, acting diligent conscientious advo- as his standard-of-perform- by guaranteed All of if the to counsel cate.”36 opinions today’s purpose, seems ance rhetoric Constitution is to serve its de- essentially this ultimately come fendants left to the down cannot be mercies incompetent [JJudges of defense coun- . . . . yardstick for measurement proper performance. should strive to maintain stan- sel’s performance by attorneys dards who perceive consideration suffi- policy I representing are defendants criminal ciently persuade me that utiliza- forceful cases their courts.40 ill for tion of either this standard bodes plu- Nor do I with the any quarrel attorney-client relationship the adver- rality’s position criterion for mea- sary system. competence is the Reasonable suring effectiveness of the assistance must concept universally em- traditionally quick make preserve counsel’s “to freedom civil ployed lawyer’s as the measure of “shortfall and that a de- liability, apparent untoward ef- without judgment,”41 perceptible fense counsel but is mod- that is it could fect.37 cannot see how take on judicial . est is no basis for inter- merely propensity destructive because A reasonableness standard object a conviction rather is reversal position.”42 concerns, eminently consistent with these damages.38 And than an assessment for it is when counsel’s breached con- assuming even resort the familiar substantially from an duct deviates so ac- upon judicial doctrine reasonableness the label ceptable norm as to merit “unrea- performance counsel’s evaluation of defense “quick neither Plainly, judg- sonable.” modicum of trial-court in- lead to a care, customary dispatch); skill Transamerica Ins. “exercise skills [of] Keown, (D.N.J. diligence reasonably competent attorney F.Supp. v. that a Co. circumstances”); 1978) perform (attorney’s would under similar “standard of care measured Cooper Fitzharris, (9th ordinarily possessed knowledge and skill 1978) (defendant reasonably profession”); Cir. competent entitled to and exercised others in the representation). Corp., F.Supp. Al- and effective Davis Associated Indem. 541, though employ (M.D.Pa.1944) (attorney give the Seventh Circuit does “must test, farce-and-mockery duties, a stan- subscribes to such attention and to the interests to his appears client, demands, ordinary prudence dard that to fall somewhere between his of mockery reasonably farce usually bestow”). and and effective profession of members Rooney Prosser, Torts, United States ex v. generally assistance. See rel. 32 at 161— § See W. 516, (7th Housewright, (4th 568 F.2d Cir. 1971). 165 ed. 1977) (attorney a minimum “exhibit[] must degree competency”). professional of counterpart I cite the 38. civil of ineffective litigation simply assistance in claim criminal I, supra U.S.App.D.C. 36. note 159 DeCoster point civil make the in text. In a action stated at 487 F.2d at 1202. course, upon damages, the burden is prove plaintiff injury flowing from the law- See, Ward, g., 37. Bank v. 100 e. National Sav. Prosser, yer’s duty, generally breach W. see 195, 198, (1880) (attor U.S. L.Ed. 622 25 Torts, 1971), (4th and 328A 149 ed. § at ney proper degree is bound to act with “a analogy point. III is See Part infra. lost at this skill, care and best and with reasonable Plummer, knowledge”); of his Wilcox 29 -, Op., U.S.App.D.C. 39. Bazelon at 624 199 (4 Pet.) 7 L.Ed. 824 F.2d at 297. (attorney impliedly diligently bound “to is act skillfully” and in the conduct of his client’s Richardson, supra 40. McMann note case); Relles, (7th Dorf v. at U.S. at 25 L.Ed.2d 773. 1966) (attorney “good Cir. owes to client faith diligence prose and in reasonable skill at-, U.S.App.D.C. Op., Nissen, Leventhal case”); cution Palmer v. at 208. F.2d F.Supp. (D.Me.1966) (attorney is profession in his bound to execute business degree Id. entrusted to his care with reasonable shortfalls,” merely by majority point is the ments” nor “modest which we come to character, sufficiently reason their are upon consider whether was incumbent the hand of the off mark to beckon discharge the client to a burden of demon- courts.43 strating more.

Lastly, query there on the caliber is case, performance of counsel’s in the instant III. THE BURDEN OF PROOF myself enough give a short and for it is ON PREJUDICE range of answer. Whatever the full proving The burden of unconstitutionali- client,44 duty it is clear constitutional to his ty upon is him who it.48 “That asserts obligated to conduct a counsel was burden,” said, produc- we have “extends to investigation suitable into the facts of the tion of the essential to a determina- facts plot strategy case and to ac- the defensive claim.”49 respecting tion constitutional cordingly.45 subsequently ap- For reasons Resultantly, the defendant who would pearing, prop- I am satisfied that he did not “must,” representation ineffective charge erly discharge responsibility,46 and on added, upon we have “set this at least seven members of the court forth evidence part company concur.47 Where I with the constitutionally which the elements of a retrospective lawyer’s temporary thought competent per 43. “A examination of a what on representation offer, plurality’s to determine whether it was free formance should I share the any higher respecting error would exact a measure difficulties their use for much more. competency prevailing Op., U.S.App.D.C. at-, than the standard. Leventhal See hardly certainly Perfection is attainable and is competence, F.2d at 223. 624 think, Reasonable I rule, general especially professional not the flexibility degree must retain the char judgments spontane- work where intuitive Judges acteristic of most constitutional undoubtedly tests. required varying ous decisions are often cir- enough say of a feel to artistry cumstances. The advocate particular confidence that activities must enter judge retrospectively difficult to because the quality per at a reasonable level of into influencing judgment usually elements cannot that, Beyond formance to be deemed effective. captured kaleidoscopic be range on the record. The view, my precise content of effective limitless, possibilities often seems steadily counsel-assistance must through evolve proverbial emerge isit that the finest ideas on ongoing process the traditional and way back from the courthouse. The advo- interpretation given constitutional concrete work, therefore, readily capable cate’s is not any event, perceive contexts. no need to course, bookkeeper’s. later audit like a Of not us, beyond venture the case before and for me activity highly all the subjective quality. of the advocate has this duty investigate outcome is decisive. possible It is to examine infra, Part IV See and note 159. sufficiency preparation of his and the ade- quacy knowledge of his of the relevant law. 45. See Part III infra. Review disclose failures at the trial. All judg- these are matters which will inform the Part IV 46. See infra. retrospective inquiry ment on a whether coun- adequately performed duty. sel But since Op., U.S.App.D.C. See Leventhal required exceptional what is representation, normal -, 212; Op., 199 U.S. 624 F.2d at Bazelon there is room for the realization -, App.D.C. at 624 F.2d at 279. But see that it would be difficult to find a case where at-, Op., MacKinnon experienced even the ablest and most trial law- at 232. F.2d yer completely would be satisfied after a searching re-examination of his conduct of a See, g., Usery Mining 48. e. v. Turner Elkhorn 35, supra case.” Moore v. United note Op., Co., 1, 15, 2882, 2892, 428 U.S. 96 49 S.Ct. 432 F.2d at 736-737. also Bazelon 199 See 752, (1976); L.Ed.2d 766 Lehnhausen v. Lake at-, U.S.App.D.C. 624 F.2d at 276. Co., 356, 364, Shore Auto Parts 410 U.S. 93 1001, 1006, 351, (1973); 35 Judge “attempted give L.Ed.2d 358 44. Bazelon sub 590, Hempstead, v. Goldblatt Town of 369 U.S. stantive content to the Sixth Amendment’s 596, 987, 991, 130, 82 S.Ct. 8 L.Ed.2d 135 setting mandate forth minimum re [the] 603, 617, Nestor, (1962); Flemming v. quirements competent performance” [a] 1367, 1376, 1435, 4 1448 80 S.Ct. (1960). L.Ed.2d the form of “duties . . derived from the American Bar Association’s Standards for the Op., U.S.App. Defense Function.” Bazelon 199 at-, Canty, U.S.App.D.C. D.C. 624 F.2d at While I would 49. States v. 152 275. United 103, 110, (1972). look to these standards as indications of con 469 F.2d 121 the Federal can ever be properly be tion of Constitution might performance deficient however, divided, on We remain innocuous. The Court’s re found.” considered in- whether the demonstration question essence, was that the answer sponse, in includes upon the defendant cumbent nature of the constitu depends upon the subpar allegedly counsel’s showing that his stake. The Court de tional entitlement at affected actually potentially or rendition are some constitutional clared that “there of the case. the outcome to a fair trial their rights so basic considers detri- majority of the court A never be treated as harmless infraction can interests an indis- ment to defendant’s refused, however, “to The Court error.” his constitutional ingredient of pensable errors, federal constitutional hold that all prove. him to claim, a factor for and thus circumstances, the facts and regardless ad- them, must establish the defendant For Rath always be deemed must harmful.”56 conduct, the deficient versity resulting from er, Court, may “there be some said the the consti- infringement of else there is no setting errors which in the constitutional Judge For Leventhal and right. tutional unimportant and case are so particular the crucial item is opinion, subscribers to they may, consistent insignificant Judge MacKinnon and likely prejudice,51 Constitution, harm be deemed the Federal him, join it is actual those who prejudice.52 less, automatic reversal of requiring insist goes so far as to Judge MacKinnon of prej Thus an absence the conviction.”57 guilt evidence of re- overwhelming judicial may not be a valid duty to con- udice or defense counsel of lieves investigation any more than minimal duct constitutional trans concern when a federal client’s behalf.53 on his investigation. gression is under with either of these for- agree I cannot the allocation Chapman also addressed review of the caselaw mulations. Careful where instances proof burden of those burden-of-proof allo- me that the convinces to some role. “Cer- harmlessness is entitled cation direct is an unwarranted distor- error, error, illegally tainly constitutional prejudice ordinarily tion of the role that prejudicial evidence admitting highly plays in constitutional determinations and example, an comments,” cited as the Court expansion of the limited impermissible person than the other “casts on someone view, my In function of harmless error. that it to show prejudiced by it a burden a constitutional the defendant establishes reason,” harmless”; is for that [i]t violation when he makes out a substantial noted, original common- “that the Court counsel, it duty by breach of and is then put rule burden law harmless-error up to the to demonstrate lack Government prove either to the error beneficiary ensuing if can. injury or to suffer there was no Prejudice A. The Role of in Con- General judg- erroneously obtained of his reversal Adjudications stitutional only is the burden thus And not ment.” California,54 but, when the asserted error assigned Chapman Supreme dimension, it is a burden whether a viola is of constitutional Court asked decide 827-828, Pinkney, U.S.App.D.C. 17 L.Ed.2d at at 87 S.Ct. at 50. United States v. 55. Id. omitted). 423, 431, (1976). (footnote Harrington v. See also California, 395 U.S. 89 S.Ct. 23 L.Ed.2d at-, Op., U.S.App.D.C. Leventhal F.2d California, Chapman supra note 17 L.Ed.2d at 709. at--, Op., 52. MacKinnon 199 F.2d at 624 232. 22, 827, at 17 L.Ed.2d at 709. 57. Id. at 87 S.Ct. at-, 624 F.2d at 233. Id. 53. 828, 24, at 710. Id. at 17 L.Ed.2d 58. 87 S.Ct. 824, 18, 54. 386 U.S. 87 S.Ct. 17 L.Ed.2d 705 Id., (3d 1940). (1967). citing Wigmore, 21 ed. § 59. 1 J. 252 peculiar weight. appropriate, legitimate

of rule consideration in the assessment declared, “requir[es] the Court the benefi- of a charge of ineffective assistance of ciary of prove a constitutional error to be- so, counsel? upon If whom rests the burden yond a reasonable doubt that the error com- proof? Stating the question second plained of did not contribute to the verdict differently, somewhat showing that, it obtained.”60 So for cases threatened or consummated harm from a all,61 wherein harmlessness is a factor at proven breach of counsel’s duties an essen- “[Bjefore bottom line was drawn: a federal claim, tial element of the defendant’s or is a harmless, constitutional error can be held demonstration of actual harmlessness a the court must be able to declare a belief matter for the Government to undertake? beyond that it was harmless a reasonable 62 Many constitutional errors in criminal tri- doubt.” per als invoke a se rule. The constitutional not, course, Chapman did speak to the violation triggers spontaneous reversal of precise question dividing today us —whether ensuing conviction without explora- prove prejudice defendant must as an tion into its probable real or effect upon the element of his constitutional ineffective-as- trial. Just when that will be the case is a indubitably sistance claim. implicit But question only upon answerable careful anal- Chapman is the central theme that for a ysis of the nature right invaded and great many constitutional violations—and capacity its to withstand the inherent falli- perhaps majority the decided de- —the bility of an investigation prejudice. into harm, fendant need not demonstrate either From a host of diverse considerations that potential, actual or in order to obtain relief. may deserve attention in the analysis, sev- Rather, may permissible, be but eral come immediately to the fore. instances, some for the Government to at- tempt prejudice, to show lack of and even constitutional, One is the statutory ju- or proof then the must it beyond establish a dicial recognition right has been accord- reasonable doubt. ed,64as well as purpose right sub-

Chapman serves.65 remains Another precedent degree the seminal is the prejudi- today,63 obviously it demands cial propensity two vital trespass upon the inquiries in the case at prejudice bar. Is right.66 Still another is the feasibility of an Chapman California, 54, supra v. courtroom); Kiff, note 386 sion in the Peters v. 407 U.S. 24, 828, 493, 501-503, U.S. at 2163, 2168, 87 S.Ct. at 17 L.Ed.2d at 710. 92 S.Ct. 33 L.Ed.2d support 83, For this the (1972) Court found in its (adverting long history earlier 93-94 Fahy Connecticut, 85, decision in protection v. actually 375 U.S. po- constitutional 86-87, 229, 230, 171, 84 tentially Zerbst, S.Ct. tribunal); 11 L.Ed.2d 173 biased Johnson v. (1963). 458, 467-468, 1019, 1024, 304 U.S. 58 S.Ct. 82 1461, (1938) (citing explicit guaran- L.Ed. 1468 supra 61. See text at note 55. ty right Amendment). Sixth Chapman California, 54, supra v. note 386 514, 519-521, Wingo, 65. See Barker v. 407 U.S. 24, 828, U.S. at 87 S.Ct. at 17 L.Ed.2d at 710- 2182, 2186-2187, 101, 92 S.Ct. 33 L.Ed.2d 110- Harrington California, 711. See supra also v. (1972); Dougherty, 111 United States v. 154 55, 251, 1727, note 395 U.S. at 89 S.Ct. at 76, 91, 1113, L.Ed.2d at 286. Holloway Arkansas, supra 18, See note Williams, 64, supra 490, 66. See Estelle v. note 1182, 435 U.S. at S.Ct. 55 L.Ed.2d at 504, 1693, U.S. at (citing S.Ct. 48 L.Ed.2d at Chapman California, 438 54). supra note (trial prison inherently of defendant attire prejudicial; shown); actual harm need not be Williams, 501, 504, 64. See Estelle v. Wingo, supra 425 U.S. Barker v. note 405 U.S. at 1691, 1693, (1976) 521, 532, S.Ct. (citing L.Ed.2d 92 S.Ct. at 33 L.Ed.2d at judicial overwhelming recognition (violation of ac- right speedy 111— compelled go cused’s not to inherently prejudicial; be to trial injury actual must prison clothing); Texas, in 532, 544, shown); Alabama, Estes v. 381 U.S. Hamilton v. 1628, 1633-1634, 14 L.Ed.2d 7 L.Ed.2d (1965) (noting (absence that 48 states and entry guilty of counsel on proscribed Federal plea Rules have inherently prejudicial; the use of televi- actual

253 what way to determine and “there is impact effort to measure the of consti- under a con- selected jury would have been upon tutional violation outcome or how system, selection uncompro- stitutionally an valid trial.67 Not least the case.”71 decided jury would have mising policy deterring repetition of of per- massively and Inflammatory publicity same unconstitutional conduct fu- it with- a trial vitiates vasively surrounding A sampling Supreme modest ture.68 consequent harm showing of any special interplay Court decisions will illustrate the out indi- circumstances” totality of of these and other factors. when “the Televising cates inherent prejudice.72 by judge having personally Conviction case in a criminal proceedings courtroom direct in convicting and substantial interest even process of due held violative has been necessitates matter what reversal “[n]o innately it is injury because proof absent evidence was against” the accused because too subtle effects are its adverse harmful,73 right impartial “he had the to have an met wide- practice has and the to prove74 69 judge” stemming long-standing ju- spread condemnation.75 dicial realization that a biased tribunal vio- evidence of lates into Similarly, fundamental due Convic- admission process.70 as the reversal jury requires tion through selected use of dis- coerced confession police ac offensive criminatory responsive techniques demands same sanction guilt result of evidence tivity, irrespective because is in the nature of “[i]t [that the admission harm, proof dooming any argument of actual or lack of evil] Committing the harm, adduce,” actually prejudicial.76 is virtually impossible to Court, holding Texas, (1975), shown); supra need not be 64, v. L.Ed.2d 690 Estes note 1632-1636, impartial 542-550, guaranty 381 of an U.S. at 85 S.Ct. at Amendment Sixth (use jury jury encompasses drawn 14 L.Ed.2d at television in to a 550-554 inherently prejudicial; preju- populations, courtroom actual female the male and from both Louisiana, shown); dice need not be Turner v. unconsti- an conviction reached reversed a 466, 473-474, 546, 550, discussing 379 U.S. jury 85 S.Ct. 13 tutionally even without drawn 424, (1965) (no 526-538, L.Ed.2d 429-430 need to con- 95 prejudice. Id. at relevance of 695-703; sider actual effects 695-702, of close contact between id. see at 42 L.Ed.2d S.Ct. at jurors prosecution 702-704, witnesses because asso- 538-543, at 42 L.Ed.2d S.Ct. at at 95 inherently prejudicial); ciation Rideau v. Loui- (dissenting opinion). 703-705 siana, 723, 726-727, 1417, 373 U.S. 83 S.Ct. 1419-1420, 663, (tel- 10 L.Ed.2d 333, Maxwell, 351- Sheppard 384 U.S. v. 72. evising confessing in act of crime 1516-1517, 1522, 1507, 353, 363, 16 86 S.Ct. inherently prejudicial; prejudice need actual 600, 614, (1966). L.Ed.2d Kaiser, shown); not be Williams v. 323 U.S. 471, 475-476, 363, 366, 398, 65 S.Ct. 89 L.Ed. 64, Texas, supra U.S. at note Estes v. 73. (1945) (absence attorney entry at 1632-1636, 542-550, L.Ed.2d at at 85 S.Ct. guilty plea inherently prejudicial; preju- actual 550-554. shown). dice need not be 1633, 544, at 14 L.Ed.2d S.Ct. at 74. Id. at Kiff, 64, supra 67. See Peters v. note 407 U.S. at 551. 503-504, 2169, at 33 L.Ed.2d at 94-95 S.Ct. (proof of harm from verdict of unconstitution- ally adduce); jury impossible 75. Id. selected Estes Texas, 64, 544-545, supra v. at note 381 U.S. 1633-1634, (harmful 199, Alabama, at S.Ct. at 14 L.Ed.2d 206- 361 U.S. Blackburn v. prove). 242, 279-280, 274, effects from televised trial too subtle to 4 L.Ed.2d 80 S.Ct. involuntary involving (1960) (“in confes- cases accompanying text. 68. See note 76 infra and sions, strongly felt Court enforces [the] society important human attitude of our Ohio, Tumey 47 S.Ct. 273 U.S. agency sacrificed when values are 71 L.Ed. securing government, a convic- in the course tion, wrings out of an accused a confession 441-444, 522-531, 71 L.Ed. Id. complex val- against [A] his will. ... at 754-758. against the stricture use underlies ues which, by way of conve- Kiff, of confessions supra state 407 U.S. at 71. Peters v. note involuntary shorthand, Tay- terms nient Court [the] 33 L.Ed.2d at 94-95. 92 S.Ct. omitted); Spano .”) (citations Louisiana, v. New . . lor 254

jury by autonomy those custody deputy to continuous sher of whose circumstances or principal prosecution involuntarily iffs who also were the activities have thrust them process witnesses denies due “even if it into the criminal process.”80 deputies assumed could be that the never however, clear, As Chapman made directly did with any discuss case mem every magnitude of mistake constitutional jury,” blinking bers of the for “it would be inexorably in a criminal leads rever- reality recognize preju not to the extreme majority sal. opinion careful to dice inherent continual association [the] point may out “that there be some constitu- incorporation . .”77 And of an un setting par- tional which in the of a errors into presumption constitutional the court’s ticular are so and unimportant insig- case jury instructions to the invalidates the ver nificant they may that ... be though amply dict even sustained deemed . . harmless . con- ,”81 apart evidence from presumption; curring opinion similarly noted that “consti- reason is that place view “[i]n goods,” rights fungible tutional are not importance by jury that trial has in our Bill differing which they rep- values “[t]he Rights, supposed it is not to be resent protect make harmless-er- Congress intended to substitute belief appropriate type ror rule one consti- appellate judges guilt of an ac tutional and not In- error for another.”82 cused, engendered however justifiably by deed, dealt particular violation with in record, the dead for ascertainment guilt invoke, not per was held to Chapman83 jury under appropriate judicial guid reversal, spe- se rule of but the automatic ance, however process cumbersome that cial federal harmless-error rule fashioned may be.”78 And we ourselves have held infringements that case of those consti- that denial of the accused’s fundamental might tutional tolerate it.84 It rights statutory, quasi-constitutional right ap however, repeating, bears that when harm- pear pro se is not redeemed “the subse all, any sway at permitted lessness is quent practical conclusion that position [his] higher-than-normal much standard for af- for the right [was not] firmance obtains: federal con- disadvantaged,”79 “[B]efore designed “is to safeguard the dignity harmless, and stitutional can error be held York, 315, 320-321, 1202, Louisiana, 66, supra 360 U.S. 79 S.Ct. 77. Turner 379 v. note 1205-1206, 1265, 473, (1959) 550, (“[t]he 3 L.Ed.2d 1270 85 S.Ct. at L.Ed.2d at 13 429. society involuntary abhorrence use 607, confessions does not turn 78. alone on their v. United 326 U.S. inher- Bollenbach 615, 350, 402, 406, (1946). ent untrustworthiness. also 66 356 It turns S.Ct. 90 L.Ed. on the deep-rooted feeling police obey must 65, law; supra enforcing Dougherty, 79. law while United States v. note that in the end 91, liberty life 473 F.2d at 1128. endangered can be as much illegal from methods used to convict those thought 80. Id. criminals as from the actual themselves”); California, criminals Rochin v. 54, California, Chapman supra 165, 173, 205, 81. v. note 210, 342 U.S. 72 S.Ct. 96 L.Ed. 22, 827, 183, U.S. at S.Ct. at L.Ed.2d at (“[u]se involuntary ver- bal confessions State criminal trials is consti- Id. S.Ct. at 17 L.Ed.2d at 722. tutionally obnoxious not because of their unreliability. . . Coerced confessions of- 83. Prosecutorial comment the defendants’ community’s play fend the of fair sense testify failures to and an instruction authoriz- decency”). despite Reversal is automatic ing jury to draw adverse inferences presence leaving of other evidence little doubt failures, practices those condemned Griffin g., of the truth of what was confessed. E. California, v. 380 U.S. S.Ct. Haynes Washington, v. 373 U.S. L.Ed.2d 106 1336, 1345, (1963); 10 L.Ed.2d Lynumn Illinois, 528, 537, California, Chapman supra note (1963); 9 L.Ed.2d Rochin v. 22-26, 827-829, U.S. at 87 S.Ct. at 17 L.Ed.2d California, supra. at 707-711. evident, however, It is there are out- a belief that it court be able to declare must beyond entirely a reasonable doubt.”85 in which it was harmless of-court contexts accused feasible to ascertain whether Chapman’s day, holding decisions Since been assuredly almost would have convicted are errors harmless constitutional legion.86 even absent the cited error.90 One such Usually, transgressions have involved “the clearly rather is when case occasion presence instances in court,87 so against is] [the of the harm can be made which assessment overwhelming that court conclude [the can] Supreme As the with relative safety.88 harmless violation . . . was remarked, recently [the] Court . beyond a reasonable doubt ..”91 where a normal case harmless [ i ]n applied, error rule is error occurs at Prejudice Right-to- B. Role of scope readily trial and its identifiable. Counsel Cases Accordingly, reviewing court can un on the function Supreme Court decisions dertake some confidence its relative right-to-counsel eases reflect ly assessing narrow task of the likelihood perti- materially essentially the error affected the de the same considerations liberations of the nent in of constitutional other areas jury.89 error.92 24, 828, denied, 428, (1974), 85. Id. at 87 S.Ct. at 17 L.Ed.2d at 509 F.2d 444-445 cert. 420 911, 833, (1975) 710-711. U.S. 95 S.Ct. 42 L.Ed.2d 842 (admission of evidence that accused retained States, 223, 86. See Brown v. United 411 U.S. attorney permitting and instruction adverse in 230-232, 1565, 1570, 208, 93 S.Ct. 36 L.Ed.2d ference Sixth to be drawn therefrom “raises (1973) (statement 215 submitted into evidence Griffin,” problems supra Amendment under in contravention of Bruton v. United 83; assuming note tion, even viola constitutional 123, 1620, 391 U.S. 88 20 S.Ct. L.Ed.2d 476 Chapman); error was under harmless (1968); harmless); error deemed Schneble v. Lindsay, U.S.App.D.C. United States v. 165 Florida, 427, 430-432, 1056, 405 U.S. 92 S.Ct. 105, 113, 166, (1974) (admission of 506 F.2d 174 1059-1060, 340, (1972) 31 L.Ed.2d 344-345 unconstitutionally un seized evidence assessed (Bruton error); Harrington violation harmless test). Chapman der harmless-error California, 55, supra v. note 395 U.S. at 251- 254, 1727, (Bruton 89 S.Ct. at 23 L.Ed.2d at 286 commonly 87. The harmless error test is most error); Bumper violation harmless v. North applied Carolina, 543, 550, in cases in which the asserted constitu- 1788, 1792, 391 U.S. 88 S.Ct. receipt 797, (1968) (admission takes the form of tional violation 20 L.Ed.2d 803 of evi- evidence, jury transgression instruc- dence seized in inadmissible erroneous of Fourth Amend- Chapman improper prosecutor. ment evaluated under comments harmless-error tions or test); California, 593, 596, supra Fontaine v. 390 U.S. See cases cited note 86. 1229, 1231, 154, (1968) 88 S.Ct. 20 L.Ed.2d 157 (comments on defendant’s failure to take the specific consisting trial occur- 88. Error infringement witness stand —an of his constitu- readily pervasive rence differs error in the privilege against self-incrimination, tional see tribunal, prejudicial publicity form a biased supra Chapman note 83 under harm- —viewed complete Compare lack of counsel. cases test); Alston, less-error U.S.App.D.C. United States v. 179 supra supra cited note 86 with text at notes 315, (1976) 551 F.2d 316 64-80. (erroneous burden-of-proof instruction dealt Chapman test); with under harmless-error 18, Arkansas, Holloway supra v. note 435 Pinkney, U.S.App.D.C. United States v. 490, 1182, at 438. U.S. at at 55 L.Ed.2d S.Ct. 282, 285-286, 1241, 551 F.2d 1244-1245 (erroneous burden-of-proof instruction ad- accompanying 90. See 103-113 infra and plane approach inevitability, of or automatic reversal of his conviction is usu- acceptable judicial appraisal may thereof ally in order.97 That result follows also when counsel Examples became available too late for not be out of reach.102 of resort 837, 336-338, 345, 793, 797, (concurring opinion); 17 L.Ed.2d at 721 U.S. at 83 S.Ct. at 9 Alabama, 66, 800, supra 806; Alabama, Hamilton v. note 368 U.S. 116-117; L.Ed.2d at Hamilton v. su- 55, 159, 66, 55, 159, pra at 82 S.Ct. at 7 L.Ed.2d at note 368 U.S. at 82 S.Ct. at 7 States, 18, supra 116-117; Kaiser, supra Glasser v. United note 315 L.Ed.2d at Williams v. 75-76, 467, 66, 475-476, 366, U.S. at 62 S.Ct. at 86 L.Ed. at 706. note 323 U.S. at 65 S.Ct. at 89 402; 59, Maryland, L.Ed. at 60, White v. 373 U.S. 21; supra 93. See text at note Johnson v. 1050, 1051, 193, 83 S.Ct. 10 L.Ed.2d 194 Zerbst, 64, 467-468, supra note 304 U.S. at 58 1024, at S.Ct. 82 L.Ed. at 1468. Alabama, 19, supra 98. Powell v. note 287 U.S. supra accompanying 94. See notes 21-36 71-72, 65, 53 S.Ct. at 77 L.Ed. at 171-172. text. Arkansas, Holloway 18, supra v. note 435 Chapman California, 54, supra v. note 386 481-484, 490, 1177-1179, 98 S.Ct. at 43, 837, U.S. at (concurring opinion); 87 S.Ct. at 17 L.Ed.2d at 721 1182, 433-434, 438; 55 L.Ed.2d at v. Glasser Alabama, Hamilton v. States, 18, 76, supra United note 315 U.S. at 62 66, supra 55, 159, note 368 U.S. at 82 S.Ct. at 7 468, S.Ct. at 86 L.Ed. at 702. (“[o]nly presence L.Ed.2d at 116-117 counsel could have enabled accused to [the] supra. 100. See note 95 know all the defenses available to him and to plead intelligently”); Kaiser, supra Williams v. supra. 101. See note 96 66, 475-476, 366, note 323 U.S. at 65 S.Ct. at (“[a] layman usually L.Ed. at 402 no match 371, Wainwright, 102. See Milton v. 407 U.S. prosecutor for the skilled whom he confronts 377-378, 1, 2174, 2178, 92 S.Ct. 33 L.Ed.2d the courtroom. He needs the aid of counsel (1972) (alleged Fifth in and Sixth Amendment lest he prosecu- be the victim of overzealous error, any, fractions not reached because if tors, complexity, of the law’s or of his own Alabama, 1, harmless); Coleman v. 399 U.S. ignorance bewilderment”). 11, 1999, 2004, 387, 90 S.Ct. 26 L.Ed.2d 397- (1970) (case remanded to determine wheth Alabama, 66, supra 96. Hamilton v. note right preliminary er denial of to counsel at 55, 159, U.S. at 82 S.Ct. at 7 L.Ed.2d at 116-117 error); hearing was harmless United States v. (“the degree prejudice absence of [from Wade, 218, 242, 1926, 1940, 388 U.S. arraignment] known”); counsel at can never be 1149, (1967) (case 18 L.Ed.2d remanded to Kaiser, 66, supra Williams v. note 323 U.S. at impact lineup). ascertain of lack of counsel at 475, 366, (“we 65 S.Ct. at 89 L.Ed. at 402 States, See also Anderson v. United 122 U.S. degree prejudice cannot know the which the 945, App.D.C. 352 F.2d caused”); denial of counsel Giasser United (absence arraignment of counsel at harmless supra 75-76, note 315 U.S. at “affirmatively because record prejudice 955, shows that no (“[t]o S.Ct. 86 L.Ed. at 702 determine DiBella, resulted”); In re 518 F.2d precise degree sustained (2d 1975) (exclusion Cir. of counsel [appointed as a [the defendant] result of coun- reading grand jury during minutes con sel’s conflict of is at once difficult and interest] tempt proceedings harmless where client was unnecessary”). repeat allowed substance to counsel See, California, g., Chapman supra possibly important); phraseology e. note exact was not Crowley, atU.S. 87 S.Ct. at 17 L.Ed.2d at United States v. 1070- 721; denied, Wainwright, supra (3d Cir.), Gideon v. note cert. harmless-error rule are to found Want be of counsel at some other pretrial pro consequence when the sole of the violation ceedings preliminary arraignm hearing,109 — is the admission of evidence tainted entry of a not-guilty plea111 ent,110 —or acquisi absence counsel at the time of its even during periods short its tion. An identification of an unrepresented may be found to be harmless. elf112 suspect pretrial at a lineup legally inadm situation, each by reason of the nature of as is an in-court identification issible,103 the proceeding or brevity of counsel’s attributable but lineup,104 absence, range possible negative con use of such an identification does not neces sequences is possibly amena limited113 sitate reversal if the proves Government its ble to evaluation.' beyond harmlessness a reasonable doubt.105 Impairment to effective as- The admission into evidence voluntary of a sistance of counsel shares the characteris- confession taken from an uncounselled ar right-to-counsel tics of other violations restee without constitutionally-required Prejudice treatable as harmless error. or out presence of coun warnings,106 invariably not be a concomitant of counsel’s sel after his may similarly appointment,107 delinquency, presence or the extent of instances, be in both if the error is cured,108 injury may susceptible acceptable discrete to an and its adverse effects measurable. (1976) (denial incriminating 48 L.Ed.2d 820 defendant’s statements inadmis- hearing counsel at on motion to withdraw sible under Miranda harmless error because guilty circumstances). plea merely cumulative). harmless under the evidence was California, 263, 269-273, 103. v. Gilbert 388 U.S. Alabama, 102, supra 109. See Coleman v. note 1951, 1178, 1954-1957, 87 S.Ct. 18 L.Ed.2d 10-11, 2003-2004, 399 U.S. at 90 S.Ct. at 26 Illinois, (1967). 1184-1187 See also Moore v. Mary- L.Ed.2d at 397-398. But see White v. 220, 458, 434 U.S. 98 54 L.Ed.2d 424 S.Ct. land, supra note 97. (1977). States, supra 110. See Anderson v. United 102, note Wade, supra 104. United States v. note 388 Alabama, supra 102. But see 223-242, 1930-1940, Hamilton v. note U.S. at 87 S.Ct. at 18 L.Ed.2d at 1155-1166. Illinois, 103, supra v. Moore note 434 U.S. Crowley, supra 111. See United States v. note 232, 466, (case at 98 S.Ct. at 54 L.Ed.2d at 263 102; States, McGill v. United 121 remanded for determination of whether admis- 179, 180-182, 791, (1965). 348 F.2d 792-794 unrepre- sion of evidence of identification of preliminary hearing sented accused at DiBella, 102; supra 112. See In re note United error); California, supra harmless Gilbert v. Calabro, 973, States v. 467 F.2d 988-989 103, 274, 1957, note 388 U.S. at 87 at 18 S.Ct. (1972), denied, 926, 1358, cert. 410 U.S. 93 S.Ct. (case inquiry L.Ed.2d at 1187 remanded for into (1973) (counsel’s 35 L.Ed.2d 587 absence be degree of harm from introduction of evidence during jury cause of illness deliberations and pretrial unrepresented identification sus- harmless). return of verdict Wade, pect lineup); supra at United States v. 102, 242, 1940, note 388 U.S. at 87 18 S.Ct. context, Supreme 113. In another Court has (case L.Ed.2d at 1166 remanded for ascertain- “ prelimi observed that ‘lack of counsel at a impact ment of on in-court identification of nary hearing danger integ involves less to “the prior unrepresented suspect identification of rity truth-determining process at trial” pretrial lineup). than the omission of counsel the trial itself Arizona, 436, 106. See Miranda v. 384 U.S. 86 appeal. danger ordinarily or on Such is not 1602, (1966). S.Ct. 16 L.Ed.2d 694 consider, greater, preliminary hearing we at a unrepresented at which the accused is than at a 201, 107. See Massiah v. United 377 U.S. pretrial line-up interrogation or at an conduct 1199, (1964). 84 12 L.Ed.2d 246 ” presence attorney.’ ed without of an Adams Illinois, 278, 283, 916, 919, v. U.S. 405 92 S.Ct. 102, Wainwright, supra 108. Milton v. note 407 202, (1972), quoting People 31 L.Ed.2d Adams, v. 375-378, 2177-2178, U.S. at 92 S.Ct. at 490, 46 Ill.2d 263 N.E.2d (merits alleged L.Ed.2d at 5-7 Massiah viola- (1970), Denno, quoting in turn Stovall v. error, any, tion not reached because if harm- 293, 298, 1967, 1970, U.S. 87 S.Ct. 18 L.Ed.2d less); Cheung Ping, United States v. Kin (2d (use 1977) F.2d Cir. a substantial defendant must demonstrate It measurement.114 of accurate degree important noting discharge in this connection failure counsel to worth showing inadequate meeting his burden I think the claim when he does so duty, but enough that it is not representation, may mistake although counsel’s is sustained protest that his merely may not incur thus inconsequential be —and must stake out incompetent; matters turn out reversal —because as complains.115 This which he shortfalls of the end result. influence doubtless did not turn, supplies particularization, sort of that facili- of reference specific points Proof on of the Burden of C. Allocation In Chambers inquiry prejudice. tate the Prejudice example, upon charge Maroney,116 for v. harm is not potential of actual or Proof he was inadequate because that counsel was showing prereq- normally an element of permit prepa- appointed too close to trial to right of a establishing a violation uisite to ration, Supreme Court examined in the Constitu- enumerated specifically in each cited and found deficiencies sure, blunder, noninjuri- prejudice be is a factor any, was tion.118 To if instance to a de- though indispensable ous.117 relevant observance of respecting termination conclude, then, right to effec- trial;119 speedy Amendment Sixth amenable to the of counsel is tive assistance too, involving “in most cases certainly, say, This is not rule. harmless-error deprivations process of due claims accused, however, ei- prejudice prejudice to the showing of identifiable consummated, a sine ther threatened or prejudice is required.120 But accused” is claim. The qua non of the constitutional Massachusetts, Snyder requirement); Ma- United States ex rel. Chambers v. See 330, 336, aff’d, roney, (3d 1969), 78 L.Ed. 54 S.Ct. 408 F.2d Cir. (1934) (some privileges or Maroney, “constitutional Chambers v. explicitly Peyton, as to (1970); conferred so immunities 26 L.Ed.2d 419 Twiford v. inquiry (4th 1967); whether no room for an F.2d Martin leave Cir. wrought through Virginia, their 551- has been Commonwealth of to a defendant denial”). supra (4th 1966). at notes 54-64. also text 552 See Cir. Pinkney, supra 115. See United States v. note 65, supra Wingo, U.S. at note 407 119. Barker v. 50, 430-432, U.S.App.D.C. 177 at 543 F.2d at 2193, 2187, 521, 532, at 33 L.Ed.2d 92 S.Ct. at 915-917. Extraordinary is accorded treatment 111-112. generically speedy right it “is trial because Supra 116. note 114. any rights enshrined other different from of the protection for the Constitution 53-54, 1982-1983, 117. 399 U.S. at 90 S.Ct. at 2186, 519, 33 at Id. at 92 S.Ct. accused.” 26 L.Ed.2d at 429-430. First, inter- is a societal at 110. “there L.Ed.2d providing speedy trial which exists in a See, Florida, 30, est Dickey g., 118. e. v. 398 U.S. to, from, opposition separate and at times 54, 1564, 1577, 26, 90 S.Ct. 26 L.Ed.2d 41-42 519, Id. at 92 of the accused.” the interests (1970) (“[w]ithin context of Sixth Amend- Second, 2186, at 110-111. at 33 L.Ed.2d S.Ct. rights, generally ment the defendant does not “deprivation right the ac- work to prejudiced by have to show that was 521, advantage.” at Id. at 92 S.Ct. counsel, confrontation, trial, cused’s public denial of Third, 2187, right to L.Ed.2d at 111. “the 33 jury, impartial knowledge charges and against speedy vague concept trial is a more than other him, in the district where the 521, 2187, procedural rights.” Id. at 92 S.Ct. at committed, compulsory proc- crime ess”); Finally, many unlike other 54, 33 L.Ed.2d at 112. California, supra Chapman v. note through protections safeguarded that can be 42-44, 836-837, 17 386 U.S. at 87 S.Ct. at tainted evidence or reversal for exclusion of (concurring opinion) (citing at 720-721 L.Ed.2d only remedy speedy-trial for a new requiring automatic reversal numerous cases 522, charge. Id. at violation is dismissal of the of Fifth and Sixth Amendment for violations 2188, at 33 L.Ed.2d at 112. 92 S.Ct. Ohio, 643, rights); Mapp v. 367 U.S. 81 S.Ct. 1684, (1961) (defendant L.Ed.2d 1081 claim- 6 Texas, 64, supra rights note 381 U.S. at ing 120. Estes v. of Fourth Amendment violations 1632-1633, 542, 14 at 550. 85 at L.Ed.2d that evidence has been seized S.Ct. show need 97, Agurs, properly-issued v. 427 U.S. warrant and without See also United States without 342, 2392, 2400, 108, exception L.Ed.2d 352 96 S.Ct. 49 justification to the warrant

259 presumed many process perceive due sistance of counsel.126 I no reason denials,121 trespasses is generally why right, majority and so too it like the vast right explicit, the Sixth Amendment to counsel.122 others that the Constitution makes Sometimes, seen, upon not be presump- fully as has been should honored usual proof tion is conclusive the sense that presumption, distinguished injury- effort absence of from its demonstrate an denial. totally

in-fact And even foreclosed.123 right articu- we deal with first when presumption fully preclu- is not nearly a Supreme lated Court half- sive, it permits attempted than an more century ago.127 enjoyed full It has stature showing by adversary that the accused’s It has Court ever been since.128 constitutional transgression was harmless regularity every federal proclaimed beyond a reasonable doubt.124 Though attributed to sometimes circuit.129 terms, In no positive guaran- exigencies process, uncertain of due its Sixth ty long of assistance of been origin recog- enshrined in Amendment is, reiterate, though Sixth Amendment.125 It nar- originally construed nized;130 unmistakably pledge years the effective as- it has in recent received in- rowly,131 (1976); Florida, 794, See, Murphy 803, Hurt, g., 421 v. U.S. e. v. 177 United States 2031, 589, 2038, 162, App.D.C. (1976); 95 S.Ct. (1975). L.Ed.2d 44 596-597 543 F.2d 165 Welch, 6, Diggs supra v. note 80 6-7, 668-669; at in, 148 F.2d at Leventhal v. Gav Williams, 64, supra 121. See Estelle v. note 425 270, (1st Cir.), 421 F.2d 272-273 cert. de 503-506, 1692-1694, U.S. at 96 S.Ct. 48 nied, 941, 1857, 398 U.S. 26 90 S.Ct. L.Ed.2d 130-131; Kiff, supra L.Ed.2d at 64, v. Peters note Bubar, (1970); supra v. United States note 501-502, 2168-2169, 407 U.S. at 92 S.Ct. at 34, 201-202; 567 F.2d at United States v. 93-95; Texas, supra 33 L.Ed.2d at 64, Estes v. note 376, Wight, (2d 1949), 176 F.2d 379-380 Cir. 542-550, 1636-1638, 381 U.S. S.Ct. at denied, 950, 478, cert. 338 U.S. 70 S.Ct. 550-554; Louisiana, 14 L.Ed.2d at Turner v. (1950); L.Ed. 586 ex United States rel. Johnson 66, 473-474, supra note 379 U.S. at 85 S.Ct. at Johnson, 169, (3d Cir.), v. 531 F.2d cert. 550, 429-430; 13 L.Ed.2d at Rideau v. Louisi- denied, 2214, 997, 425 U.S. 96 S.Ct. 48 L.Ed.2d ana, 66, 726-727, supra note 373 U.S. at Zahradnick, 980, (1976); Wood v. 578 F.2d 1419-1420, 665-666; 10 L.Ed.2d at (4th 1978); Cunningham, Cir. v. Jones Murchison, 133, 136-139, re 349 U.S. 75 S.Ct. 851, 1962); (4th F.2d United 854-855 Cir. 623, 625-627, 942, (1955); 99 L.Ed. 946-948 Alvarez, 1251, States v. 580 F.2d Ohio, 69, Turney 532, supra v. note 273 U.S. at (5th 1978); Mayo, Collingsworth Cir. 47 S.Ct. at 71 L.Ed. at Cowan, (5th 1949); F.2d Wilson v. Cir. Although for some violations of the Sixth (6th 1978); 578 F.2d United States Cir. Amendment to counsel the Government is Cannon, Healey ex rel. permitted defensively preju- to show a lack of (7th Cir.), denied, cert. dice, supra accompany- see notes 102^113 (1977); 54 L.Ed.2d 153 United States ex text, ing the defendant nevertheless is not re- 976, Feeley (7th Ragen, rel. v. 980-981 166 F.2d quired showing prej- to make an affirmative States, 1948); Cir. 324, 580 Beran v. United F.2d udice in order to establish his constitutional (8th denied, 1978), 326 440 U.S. Cir. cert. Florida, Dickey supra claim. See v. note 118. 946, 1422, (1979); Tay 99 S.Ct. 634 59 L.Ed.2d States, 16, (8th lor v. United 20 282 F.2d Cir. 55, 63-80, supra 123. See notes 92-102 and ac- 1339, 1960); Farrow v. United 580 F.2d companying text. Dickson, (9th 1978); Cir. v. 310 Brubaker supra 124. See text at 30, note denied, (9th 1962), F.2d cert. Cir. 978, 1110, (1963); 83 S.Ct. L.Ed.2d 143 supra 125. See text at note 21. 34, Riebold, supra United States v. note 702-703; Cox, F.2d at 350 F.2d Williams supra accompany- 126. See notes 21-36 (10th 1965). ing Cir. text. Alabama, supra 127. Powell v. note supra See 6-19. text at notes 68-72, 63-65, at 53 S.Ct. at 77 L.Ed. at 170- supra accompanying 131. See notes 6-13 text. supra. 128. See notes For a recent in- stance, Arkansas, Holloway supra see note 481-484, 1177-1179, U.S. at S.Ct. at 55 L.Ed.2d at 433-434. judicial right wholly innocu- protection.132 might creased attention and been Indeed, ous.133 ineffective assistance is not implication is that once is realized assistance, right effective assistance of far removed from total lack of for automatic rever- grounded express frequently is on the com- which calls the harmless-error rule is as well as sal.134 And while mand of Sixth Amendment vogue though when there was encompassed generality in the due counsel — Supreme Court concept, justification requir- inadequate counsel135—the process a burden ap- yet levy on the defendant ing prove the defendant is incompetence parent. showing that demonstrated wrought damage to his threatened Ineffective assistance of counsel has a Nothing cause.136 in the nature of potential built-in for harm to the client. right suggests fundamental constitutional to effective assistance thus shares imposi- me that we should make such an guaranties with most other constitutional today.137 tion normally characteristic which obviates sum, theory that proof prejudice, accept need for and sometimes I cannot arguments potential even harm to the proof forecloses consideration of actual or particular in the a denial of is an element of an ineffective-as- situation accused 53-54, supra accompanying 132. See notes 34-35 and which it affirmed. See 399 U.S. at 1982-1983, text. 26 L.Ed.2d at 429^30. 63-80, supra 133. See notes and accom- imposition persuaded that this 137. Nor am I panying text. necessary ground becomes bearing vitally on the that evidence impact inad- of counsel’s supra 134. See text at notes 92-101. usually solely equate performance in the de- - possession. Op., See Leventhal fendant’s supra 135. See text at notes 116-117. 208; -, Mac- F.2d at at-, Op.,-U.S.App.D.C. Maroney, supra Kinnon 136. In Chambers v. note argument the distinc- overlooks Supreme This at 228. the the assistance furnished Court addressed a contention that substantially establishing defi- between counsel for the ac tion attorney identifying representation, cused at his second trial—an different the effect cient representative deficiency from his at the first trial —was the case. It on the outcome of owing appoint ineffective ment of second-trial 54, to tardiness in the indeed the defendant’s lot to delineate departure counsel. 399 U.S. at 53- the constitutional counsel’s 1982-1983, 90 S.Ct. at 26 L.Ed.2d at 429- supra at notes 41-43. In so norm. See text doing, Appeals 430. The Court of for the Third Cir just may have to show the defendant cuit had found that the accused had not been differently what have done his counsel should prejudiced, United States ex rel. Chambers v. them from the de- on the facts as he derived Maroney, supra Supreme note and the him, only to fendant and other sources known agreed, stating preju Court that “the claim of true that the and to this extent it well be dice from the substitution of counsel was with exclusively But that evidence is in his hands. out substantial basis.” 399 U.S. at concern, is the defendant’s not Govern- (footnote omitted). 26 L.Ed.2d at 430 all; ment’s at and once counsel’s deficiencies support That statement cannot be taken as documented, an issue have been resolution of proposition that the defendant bears the injury to the defendant’s interests does proving prejudice. Ap onus of The Court of require peculiar con- reference to evidence peals legal subscribed to the thesis “that the accomplished trolled the defendant. That is appointment inherently belated prejudicial of counsel is by viewing proven instead shortfalls prima and makes out a facie case of at trial. context of events as Sometimes it will necessitate an unfolded counsel, denial of effective proving with the burden of investigation prejudice absence of shifted to the neglected by into leads or defense witnesses authorities,” prosecuting 408 F.2d at 1189— proper counsel in what a order to ascertain 1190,and the court’s sole concern was whether investigation might up have turned and what had that burden been met. Id. at 1188-1196. any thereby might effect unearthed evidence Appeals The Court of concluded that the record have had at trial. There is no suming for as- reason “ ‘adequate proof affirmative contained to re respect that with to these activities prima presumption but the facie any accused is ment, better situated than the Govern- appointment the belated Id. from at of counsel.” believing ample and there is basis for Peyton, quoting Fields relatively position be that ofttimes his will (footnote omitted). (4th 1967) It was Cir. worse. Supreme spoke, holding that Court to I thereon, sistanee claim. think the claim is estab- fore sentencing the Government lished showing a suitable an filed “allocution memorandum” contain- obligation defaulted an owed ac- ing purporting information Pinkney to link any inju- and that lack of asserted with trafficking advocating narcotics and cused,138 ry just to be therefrom is treated here as it penalty. imposition the maximum After normally any is in other instance curable sentences, though less severe stiff Pinkney means, constitutional This of moved the District Court error.139 to reconsider course, upon the burden rests them, insisting that his counsel had not prove Government to absence of harm to discussed the Government’s memorandum accused, prove beyond to and it a rea- him reminding that counsel had sonable doubt.140 disputed not its sentencing. contents at The approach, Leventhal-MacKinnon appeal The motion was denied and on we submit, confuses two independent questions upset declined to We ac- ruling.143 commonly arising in ineffective-assistance knowledged implications the constitutional litigation. is whether One defense counsel of the asserted breach of but duty144 up measured to constitutional standard deemed it unimportant because rec- “[t]he competent reasonably representation. . . ord not support the conten- [did] scrutiny This quality entails of the alleged tion that counsel’s derelictions frus- service rendered. other whether present trated to [Pinkney’s] opportunity proven deficiency performance in counsel’s pointed his side of the We controversy.”145 clearly impact. adverse lacked task Pinkney’s obligation juncture at this here is whether simply determine “set forth upon evidence which the ele- error could have contributed in materi- ments of a constitutionally per- deficient al way to result in the reached case. properly formance might be found,”146 second; point Harm is the focal Pinkney’s we found that did motion not has no bearing whatever on the first. And requirement survive this for two reasons. serving only harmlessness is a doctrine place, verify first he did not where, avoid owing needless retrials to the Beyond that, deficiency complained of.147 violation, innocuousness of the the outcome allegation learning after central likely would same.141 memorandum, the allocution he did uti- The critical distinction between the de- convey open opportunities lize fendant’s burden show a constitutional sentencing anything might judge transgression and the Government’s burden wished to say.148 lack ensuing prejudice demonstrate becomes These are apparent very when we omissions different from a look back three years Pinkney to our failure to issue of Following carry burden on an decision.142 charges two drug conviction on and be- prejudice from an established violation.149 supra accompanying 138. See notes 41-43 145. Id. text. (footnotes 146. Id. at 543 F.2d at 916 omit- supra accompany- 139. See notes 118-124 ted). ing text. 147. Id. at 543 F.2d at 917. supra 140. See text at notes 54-62. 429-430, 148. Id. at 543 F.2d at 914-915. California, Chapman supra 141. See note 386 U.S. at 87 S.Ct. at 17 L.Ed.2d at opinion 149. The statement “mo- evidence, gave tion any, by if no indication as to the [Pinkney] which would undertake supra Pinkney,

142. United States v. note 50. solely effort at refutation” was directed Pinkney’s upon opportu- a further “insist[ence] 428-432, 143. 177 543 F.2d at nity dispute drug-involvement allega- 913-917. tions of the Government’s memorandum . . ..” Id. at 543 F.2d at 917. 144. Id. at F.2d at 914. Although, question showing. we not reach the I majority did believe the err in approach their Pinkney,150 pains in we denude constitution- prejudice took al to effective assistance of counsel of explain the distinction: great deal of the value it was intended to way . . in no im- Our conclusion have. pinges upon the rule . . . that once a substantial of counsel’s duties violation IV. THE CASE PRESENT shown, is to Government’s burden Turning arguments now to Decoster’s demonstrate lack of therefrom. the assistance furnished his trial us, . In the case before we deal ineffective, constitutionally counsel was only procedural prerequisite with a to a inescapable find the conclusion that counsel hearing appellant’s assertion that the miserably responding failed in obliga- to his representation sentencing afforded at fell reasonably competent tion to conduct a in- below constitutional norm. The es- vestigation into the facts of the case. Prior appellant’s sence of contention is that trial, Judge studiously Bazelon re- sentencing deprived him the counts,152counsel no real tap made effort to opportunity allegations to combat likely information, known or sources of Government’s allocution memorandum which included codefendants as well as failing to inform him of the memoran- prosecution duty witnesses. The to investi- Only dum. . . if the evidentiary vital, gate is obviously and its violation is elements of appeared that claim had fraught danger to the interests of the appellant’s motion would he have been client.153 Here investigative responsi- entitled a hearing, only if evidence unmet, bility wholly was almost and I can- hearing offered at a tended to establish not view the appall- dereliction as less than the elements would the Government have ing. been prejudice. summoned to disestablish convinced, however, equally I am that the if, hand, But on the other appellant had firmly record establishes the violation as preconditions, met these the Government police harmless. Two officers witnessed would then have encountered the burden robbery progress. One chased De- proving that counsel’s dereliction did spot coster from the the short distance to not harm appellant example, be- —for lobby ap- the hotel wherein he was cause the allocution memorandum actual- prehended, losing sight never of him for so ly had no effective role in the sentencing much as a moment. Within minutes the process.151 victim, robbery of both offi- presence major This is the point of deviation be- cers, cul- identified Decoster as one of the position tween the of majority prits, as the officers themselves were later court’s members my view, and mine. In aside, testimony to do. Decoster’s own claimant before us needed to show that impeaching basis for these witnesses on his counsel fell substantially short of the points these vital surfaces on the record standard of competence; reasonable hearing either of the preliminary theirs, threatened or injury consummated contrast, alibi, sharp trial.154 In Decoster’s therefrom is an additional required part feeble, initially met disaster after he called Contrary suggestions opinions, Pinkney, supra in other 151. United States v. note - n.75, Op., U.S.App.D.C. U.S.App.D.C. Leventhal at 431-432 n. 543 F.2d at n.75; Op., (citation omitted). 624 F.2d at 208 MacKinnon 916-917 n. 59 -, U.S.App.D.C. at 624 F.2d at 225. Pink- Op., at-, U.S.App.D.C. Bazelon ney stage preju- never arrived at the at which F.2d at 279. might subject inquiry. dice have become a Pinkney Since did not surmount the hurdle of Judge 153. See Bazelon’s excellent discussion suitably alleging violation, there was no occa- point. Op., on this Bazelon sion to consider whether harmful at-, 624 F.2d at 278. sentencing. outcome on I am mindful the victim could not identify Decoster at but that was be- hypothesize any appreciable probability the stand one of his codefendants jury’s Decoster in that would have differed testify hear him that he saw verdict testify the scene able to fight with the victim at had counsel found someone every that victim say prose- togeth- This is not to that Decoster and the drank crime. at presentation shortly robbery a bar oc- cutorial which evidence er before curred, lopsided or who had seen Decoster may fairly is so be characterized as someone appearance shortly after lobby for that enter the hotel rob- overwhelming,155 attributable, part, bery at No witness in one or the least in counsel’s transpired.157 considering place But here have established possibly other could deficiencies. proof, direct positive Government’s and the Decoster’s absence from scene of the perpetrated. of Government it was number offense the instant witnesses,156 consistency testimony, clear, course, is point their and the im- It that at that probability misinterpretation of the crim- time Decoster was somewhere between the activity question inal or misidentification of Decoster and the but is lobby, bar I see for was participant, suppos- as a no reason whether that somewhere the site of the ing pretrial that interviews these wit- can be said crime. most that is that up anything weakly nesses would have turned but have tended might such witness circumstantially ominous news for the defense. to corroborate Decost- er’s claim that he not there. But for alibi wit- Counsel’s omission to hunt seriously reality suggest would blink was similarly nesses unhurtful. Aside from that, pow- face of the Government’s duty lobby on the clerk in the hotel when case, eyewitness erful so little would have custody, was taken there Decoster into is carried day.158 prospect little to indicate that of locat- think, then, ing any such was better I the area pretrial witnesses than that highly importantly, investigation performance remote. More I cannot counsel’s robbery before cause—after trial —the -,---, 624 F.2d at 294-295. impairing had victim sustained an accident am agree. unable to possible While it is vision. speculate failed to con sult improperly or advised his client on California, supra Chapman v. note 155. See pleading guilty, Decoster has never advanced 827, 17 U.S. at L.Ed.2d at contention nor there founda (“[t]he California [harmless constitutional tion in the record for it. Aside from the perhaps empha- rule . . . over error] difficulty point properly before . . . view of ‘over- the court’s sizes] us, ” it encounters a far also more formidable whelming . evidence’. . question barrier. A harm to the accused victim, Transcript (Tr.) (Nov. 15, 156. The Trial from ineffective of his assistance counsel is not 32, 41, 43, 1972) officer, arresting and the Tr. reached unless and until the accused has estab (Nov. 1972) 39-41, arresting as well as the substantiality lished both the fact and the partner, (Nov. 1972) 12, officer’s Tr. all counsel’s asserted violation. This means that the accused must delineate all essential circum identified Decoster as one of the robbers. support stances in of his claim when it it is 157. Decoster testified that he met the victim at readily power within his to do so. United bar, him, had a drink with then left and Pinkney, supra States v. U.S.App. note directly (Nov. 16, returned to his hotel. Tr. 430-432, 915-917; D.C. at 543 F.2d at text 1972) 29-35. supra Moreover, at notes 142-151. in the con incompetent Note, text of omitted or Representation advice on a See Ineffective as a guilty plea, required Principles demonstration on Basis Relief from sub Conviction: stantiality Review, Appellate at the necessitates threshold a show J. of L. Colum. & Soc. ing (1977) (“a that the Prob. accused was at least amenable to failure interview one plea. government phenomenon such a of several It can is a known witnesses be shown been some harmless when witness’ defendants in criminal sub cases disdain the sequent testimony very significant”). thought pleading guilty, was not and in this Judge urges Bazelon completely in dissent instance counsel’s we are left in the dark as inadequate pretrial investigation deprived willingly De to whether Decoster would have en guidance coster of informed on whether seriously tertained plea, considered a guilty, plead example as an advances this whether upon instead he would have insisted prejudice. Op., Bazelon to a trial. gets

substantially depends deficient and therefore consti- money the amount of believe, too, tutionally ineffective. But I has.” The Constitution forbids it. Morali- that in the circumstances counsel’s inade- ty condemns it. I dissent.

quacies beyond were harmless a reasonable ground,

doubt.159 On I concur in af- I. firmance of the conviction. right evolution of the to the Assist- of growing ance Counsel reflects a aware- BAZELON, Judge, Circuit with whom J. ness of the by indigent barriers faced the WRIGHT, Judge, joins, SKELLY Chief dis- seeking a fair and of the senting: challenge pose these obstacles our ideal Willie Decoster was denied the effective justice regard By without to wealth. guaranteed assistance of by counsel the any reckoning, the barriers are formidable. Amendment Sixth because he could not af- The “street crime” clogs our courts is ford to hire a competent and conscientious by poverty bred and discrimination. It is attorney. plight His is an indictment of our by committed the dispossessed, the disad- system justice, promises criminal which vantaged and the society— alienated of our “Equal Law,” Justice Under but delivers those who most need the advice of a trained only “Justice for Those Who Can Afford advocate. In the words of Justice Suther- Though It.” purporting to address the land: problem assistance, of ineffective the ma- Even intelligent the layman educated jority’s ignores decision reality sordid has small and sometimes no skill in the that the slovenly, kind of repre- indifferent science of law. ... He requires the sentation provided Willie Decoster is guiding hand every step of counsel at uniquely the fate poor. allotted to the Un- the proceedings against him. derlying the majority’s antiseptic verbal If that be intelligence, true of men of disturbing formulations is a tolerance for a how much more true ignorant is it of the justice system criminal that consistently illiterate, or those of feeble intellect.2 provides protection less and less dignity for indigent. I cannot accept system course, that And the irony, cruel is that conditions a right defendant’s indigent to a fair trial are the very people who are least on ability to pay for it. Like Justice able competent to obtain representation. Black, I “[tjhere believe that can be part, no For the most “you get what you pay equal justice where the kind of trial a man legal representation.3 for” in cally I see “indigent” no need to address provided Decoster’s remain- and are ing complaints of scrape together ineffective assistance since the court. Those who can also, reasons, attorney identical would succumb few dollars to hire their own can re- attorney who, fee, doctrine of harmless error. tain an for a modest will generally provide plea “modest” ne- services — Illinois, 12, 19, 1. Griffin v. 351 U.S. 76 S.Ct. gotiations pro representation forma with 585, 591, (1956). 100 L.Ed. 891 investigation, preparation little or concern for defendants, indigent their client’s cause. Most Alabama, 45, 69, 2. Powell v. course, accept must whomever the court 77 L.Ed. 158 appoints represent although them. And Despite expressions competence recent court-appoint- of concern over commitment and lawyer incompetence, infra, improved markedly see note 169 ed counsel has over recent problem simply years, particularly is not development there are too few good attorneys, competent legal public systems, repre- but that defender its effectiveness grossly handicapped by caseloads, unmanageable sentation in the United States is still maldis- services, support competent inexperience tributed. There is no insufficient dearth of society. practice, independence counsel for the rich in criminal our But no one lack of say judiciary appoint- indigent. can from the that controls the same is true for the inadequate compensation, representation inadequate ments and fixes received funding poor universally recognized levels of and fee schedules. and is well docu- subject mented indigent representation, numerous studies and commen- On the see tary problem cited generally below. Nor is Project of ineffec- American Bar Association Justice, tive assistance limited to those who are techni- Minimum Standards Pro- Criminal Only recently recognized have we even not be realized “if the poor man charged inevitably the lack effective counsel with crime has to face his accusers without right to a fair trial. deprives poor lawyer Only to assist him.”6 then did the great many years, the shameful truth For right Court extend the to counsel to all counsel, only was that the rich could obtain felony prosecutions. state And not until pay the rich could afford to coun- since in Argersinger v. Hamlin,7 did forty-one years sel. One hundred and after Court affirm the to counsel in all adoption Rights, Bill of Su- prosecutions resulting criminal depri- held, in Powell v. Ala- preme Court first liberty. vation of the accused’s process requires bama4 that due ap- Supreme The Court’s effort to-eliminate indigent pointment of counsel for an de- justice poor second-class for the has not Gideon capital fendant in a case. until Not providing been confined to counsel for the v. Wainwright,5 thirty years more than la- ter, indigent.8 But the acknowledge to counsel is most did Court equal justice “noble ideal” of and fair could assuring equal justice,9 essential fair and 1968); 45, 55, viding (App. (1932). Defense Services Draft 4. 287 U.S. 53 S.Ct. 77 L.Ed. 158 Standing American Bar Association Committee Defendants, Legal Indigent on Aid and 335, 792, 5. 372 U.S. 83 S.Ct. 9 L.Ed.2d 799 A Center for Defense Services: Draft Discus- (1963). Proposal sion for the Establishment of a Non- profit Corporation Strengthen Indigent to De- 344, Id. at 83 S.Ct. 796-797. (Feb. Draft) fense Services 1978 [hereinafter Services]; cited as The Center for Defense Bos- 25, 2006, 7. 407 U.S. 92 S.Ct. 32 L.Ed.2d 530 University Justice, ton Center for Criminal (1972). Illinois, 367, See Scott v. U.S. 440 99 Right to Counsel in Criminal Cases: The Man- 1158, (1979). S.Ct. 59 L.Ed.2d 383 (S. Argersinger date of v. Hamlin Krantz ed. Downie, 1976); (1971); L. Justice Denied Na- See, 189, g., Mayer Chicago, e. Ass’n, v. 404 U.S. Legal tional Aid & Defender The Other 198, (1971) (1973); Alschuler, 92 S.Ct. 30 L.Ed.2d 372 Face of Justice The Defense Attorney’s (indigent only Bargaining, punishable convicted Role in Plea of offense 84 Yale L.J. 1179(1975); Bazelon, The Defective Assistance fine “cannot be denied a ‘record of sufficient Counsel, Bazelon, (1973); completeness’ permit of 42 U.Cinn.L.Rev. 1 proper consideration Argersinger, The Realities of claims”); Short, 395, Gideon 64 of his Tate v. 401 91 U.S. (1976); Suwak, 811 Geo.L.J. Wice & 668, Current (1971) (indigent S.Ct. 28 L.Ed.2d 130 un- Programs: Realities of Public Defender A Na- pay able to fine cannot be incarcerated satis- Survey Analysis, tional Crim.L.Bull. fy punishable only by fine); offense Williams v. Note, (1974); Providing Counsel for the Indi- Illinois, 235, 2018, 399 U.S. 90 S.Ct. 26 L.Ed.2d gent Accused: The Criminal Justice Act 12 (1970) (incarceration indigent of unable to Am.Crim.L.Rev. 789 pay statutory pe- fine cannot exceed maximum specific With reference to the District of Co- riod); 40, LaVallee, Roberts v. 389 U.S. 88 S.Ct. lumbia, Subin, generally see H. Jus- Criminal 194, curiam) (per (right 19 L.Ed.2d 41 Comm, (1966); Metropolitan in a tice Court transcript preliminary hearing); Long free Representation Bar D.C. on Effective Iowa, 362, District of 385 U.S. S.Ct. Cases, Indigents Report Ap- in Criminal on the (1966) (per curiam) (right L.Ed.2d 290 to free pointed Program Counsel in the District of Co- transcript appeal); Draper on collateral Comm, (Dec. 1973); lumbia Courts Joint Washington, 372 U.S. S.Ct. Judicial Conf. of the Cir. and the Bar D.C. D.C. (1963) (right transcript L.Ed.2d 899 to free on (Unified), Report on Criminal Defense Services Bennet, appeal); direct Smith v. 365 U.S. (Austern-Rezneck in the District of Columbia (1961) (waiver 81 S.Ct. 6 L.Ed.2d 39 Comm, 1975); Report) (April Report of the on filing post-conviction proceed- fees for state Complaints of Ineffective Assistance of Coun- Ohio, ings); Burns v. (Wolf Report) (June 1977); sel Committee (1959) (state 3 L.Ed.2d 1209 cannot re- Washington Program, Report Pretrial Justice quire indigent pay filing permit- fee before Disposition Complaints Against on Attor- Illinois, ting appeal); Griffin v. neys Appointed Under the Criminal Justice Act (1956) (right L.Ed. 891 to free Superior (Feb. 1977). in D.C. Court transcript appeal indigents). again These studies document time and primarily indigent poor it is and the who requirement “The constitutional incompetent of substan- suffer at the hands of counsel. equality process single opinion tial and fair be at- am can unaware decision or reality acknowledges underlying tained where in the role of an this basic counsel acts problem of ineffective assistance. active advocate in behalf of his client. .” counsel, their deci- ineffective assistance of know- the conscientious and for without nothing advocate, defendants indigent leaves legal sion ledgeable advice of a trained promise place empty safe- none of the more than an accused can secure ade- commitment process intended to Amendment’s guards of the criminal Sixth defendants, [right representation “The for all quate all defendants. protect to] best, ap- very majority’s requisite poor. At is often rich and rectify the extent a few cases of might help trial.” To proach existence of fair receives inade- their standards do indigent injustice. But blatant markedly repre- inferior quate representation, help quality raise the nothing to af- any- who can poor that available to a defendant to a level provided the sentation counsel,” “competent and conscientious ford that of the more afflu- approaching where justice endures. system a dual con- contrary, my colleagues ent. On the callous, representa- back-of-the-hand done Inevitably disparities there will be of com- dismissing the basic duties tion lawyers are quality representation; some “aspirational.” petent lawyering or more conscientious simply more able provides no incentive majority thus the Constitu- than others. What offends caliber of defense improve structure however, are tion, merely that there is not focusing exclusively on advocacy. By representation, quality in the of variations dereliction, their consequences of counsel’s less effective advo- but that the burden of encourages attorney who be- approach an exclusively single on a cacy falls almost “cut cor- guilty his client is lieves that In construct- society poor. subclass —the ners,” he will be held with little risk that assessing the ineffective ing standards for inadequacies rep- of his accountable for the counsel, we must therefore assistance of majority opinions may resentation. what measures are neces- only consider not this,” or “we don’t say “we don’t commend in the case of sary a fair trial to assure that,” line is their bottom approve of but We also must struc- defendant. particular “Affirmed.’’ gross eliminate the approach ture our that make a disparities representation majority turns its back holding, In its equal jus-

mockery of our commitment circuit of the stan- on the evolution in this must institutionalize and enforce tice. We evaluating claims of ineffective dard for competence designed attorney standards of cases, ap- earliest we assistance.11 In the for a11 adequate representation to assure problem solely from a due proached defendants. re- viewpoint, fairness process-fundamental to show majority quiring seeking a relief my colleagues Because were a “farce and proceedings the economic analysis divorce their v. mockery justice.” In Bruce United underlying problem reality and social prison- California, 738, 744, in the context of a 87 S.Ct. ineffective assistance Anders v. 386 U.S. 1396, 1400, the voluntariness of 18 L.Ed.2d 493 er’s collateral attack on Richardson, guilty plea. v. McMann Hamlin, 31, Argersinger supra, 10. v. 407 U.S. at 759, 1441, (1970), 25 L.Ed.2d 763 90 S.Ct. Accord, Oregon, Lakeside v. 92 S.Ct. at 2009. petitioner example, that a the Court stated 333, 341, 1091, 1096, 55 435 U.S. 98 S.Ct. seeking ground demonstrate relief on that must (“In adversary system (1978) L.Ed.2d 319 “within the of counsel was not that range advice justice, right there is no more essential criminal attorneys competence demanded of counsel.”). assistance of than the to the 1449, 771, cases.” Id. at 90 S.Ct. criminal Henderson, accord, Tollett v. 411 U.S. opportunities, Despite the Su numerous (1973). But the 36 L.Ed.2d 235 93 S.Ct. directly preme confronted the Court has never yet stan- to determine the minimum Court has question proper fundamental standards attorney competence required dard of procedures evaluating challenges guarantee as- of effective Sixth Amendment’s Maryland counsel. See v. Mar effectiveness of sistance of counsel. zullo, 435 U.S. 56 L.Ed.2d J., (White, J., Rehnquist, 394 senting dis Welch, Diggs certiorari). The Court from denial of denied, cert. F.2d addressing has come closest the issue States,13 reconsidered we that standard. Thus the court only way concluded that the explained mockery” We that the “farce and every to assure that defendant receives a requirement literally, was not to be taken promulgate fair trial is to and enforce stan- only but meant to demonstrate that in adequate representation apply dards of order to obtain relief the accused bears I, Underlying across-the-board. DeCoster heavy showing burden of that “there has therefore, was a commitment to the basic gross incompetence been of counsel and principle every defendant —rich or that this has in effect blotted out the es- poor, innocent guilty entitled to the —is sence . substantial defense . .” reasonably competent assistance of an at- Bruce, Shortly however, after we explicitly torney acting diligent as his conscientious recognized that requirement of effec- advocate. tive assistance of counsel derives not Clause, from the Due Process but from the II. Consequently, Sixth Amendment itself.15 Appellant Willie Decoster and two code- case, original opinion in our in this United fendants, Douglas Eley and Earl Taylor, (DeCoster I),16 States DeCoster this court were robbery arrested for the of Roger adopted appeals á standard for direct con- Crump on the evening May sistent with the Sixth Amendment’s “more police Two plainclothes patrol officers on stringent requirements”:17 “a defendant is observed three men accosting Crump in the reasonably competent entitled to the assist- parking lot of the Bar. Golden Gate When attorney acting ance of an diligent as his car, jumped officers from their the rob- conscientious advocate.”18 pursued bers fled and were police. represented major DeCoster I advance Officer Box victim found Decoster recognition this court’s of the realities of lobby hotel, of a nearby the D.C. case, ineffective assistance. In that Annex, where immediately he was arrested judicial court shifted the focus of inquiry by and identified Crump.19 away from the any particular case and toward the 15, 1971, task At his trial on November appel- articulating basic duties counsel owes his lant testified evening that on the client. approach, time, This for the first crime he drinking had been with Crump at gave content to what previously had been the Golden Gate Bar.20 Decoster claimed empty verbal formulations. Even more im- that he Crump left at the bar and walked portantly, recognized very directly hotel, where, lack to his while standing of effective trial might preclude counsel by a waiting desk to obtain his room key, defendant from establishing prejudice. later he was appellant’s arrested. One of alleged 1576, see, (1945); “Decoster,” g„ 89 L.Ed. 2002 e. rather than “DeCoster.” Ref- Huff, 254, U.S.App.D.C. I,

Jones v. (1945). opinion however, 152 F.2d 14 erences in this to DeCoster spelling opinion. will retain the in that used 336, U.S.App.D.C. (1962). 13. 126 379 F.2d 113 States, 17. See Moore v. United 432 F.2d (3rd 1970) (en banc). Cir. 339-340, Id at 379 F.2d at 116-17. Bruce, the claim of ineffective assistance arose I, U.S.App.D.C. 18. DeCoster on collateral attack. We noted that “a more (emphasis original). F.2d at 1202 powerful showing inadequacy necessary to sustain a collateral attack than to warrant ap- by 19. Decoster’s an order codefendants also were for a new trial either the District prehended by appeal.” near Court this court on the scene of the crime and direct Id at subsequently police were 379 F.2d at 117. identified at the sta- tion. U.S.App.D.C. 15. Scott v. United 339, 340, (1970) (per curiam). Crump having admitted had a drink with just robbery someone in the bar occurred, before the U.S.App.D.C. 16. 159 487 F.2d 1197 specifically but could not remember subsequent opinions In the of this court the whether he had met Decoster. spelling appellant’s name has been corrected charged Decoster quate representation.22 was also called Douglas Eley, accomplices, accepted for although he had been testimony con- witness but his as a defense Devel- the Black Man’s custody by respects. pretrial Decoster’s in several tradicted 12, defense coun- opment Center on October examination importantly, on direct Most bond to file for Crump kept promise not his sel had appellant to have seen claimed copy Appellant requested also review.23 parking lot outside bar fighting in the hearing, preliminary transcript of his alleged robbery. Follow- at the time of the through he had been unable to obtain of which ing appellant was convicted years.21 attorney.24 robbery sentenced to armed finally filed Although Decoster’s counsel by troubled appeal, this court was

On on No- review motion requested Decoster’s bond actions taken number of 9,25 mention which, he not failed to taken to- vember court-appointed counsel arranged, been third-party custody had Decoster gether, suggested that wrong the motion in the but he also filed the effective assistance have received court November the district that on Nov. court.26 On The record showed counsel. continued counsel of his error and appellant’s after ar- advised several months proper to await review rest, a letter from the motion judge the trial received court, Again, law.27 how- required new counsel requested Decoster in which he ever, until De- delayed filing; not attorney providing ade- because his was not pleasure speak you if I could in behave 21. Decoster was also convicted of assault dangerous weapon way and received a sentence this case and the its been handled robbery explain when his armed sentence. concurrent the last five month. It could not be legality challenge writing opportunity Trial counsel failed to so I ask this for a original ap- happy this concurrent sentence. On lawyer justice. if would be to case, peal in this the assault conviction you possi- would consider this letter soon as of armed vacated as lesser included offense ble. robbery arising or transac- from the same act truly, Yours I, tion. DeCoster Decoster, Willie Jr. F.2d at 1199 n. 2. The district court took no action on Decoster’s apparently inquiry into the letter and made no letter, 22. The which was filed in the district attorney. charges against substance on November reads as follows: court See note 38 infra. Judge Waddy, Honorable been I am an Inmate of D.C. Jail who has Appellant because he had been incarcerated 23. charge for five month on a incarcerated $5,000 meet the bond set for was unable to him, change robbery to arm rob- has been from pose a and not he was deemed to because bery. request The motive for this letter is to danger community. Compare 18 U.S.C. lawyer because I’ve from the court another 3146 with 18 U.S.C. 3148. § § my misrepresented with been present for five month lawyer . .. Also I would like copy never did obtain a 24. Defense counsel protect myself family which consist of hearing. preliminary pp.---of See am, younger I which are nine more than U.S.App.D.C., pp. 271-272 of 624 F.2d barely my being supported because father infra. only trying capable one. The rest is miss, Being get something I Education. exasperation Apparently with his law- 25. out of only natu- individual of limited education its inaction, Decoster, coincidentally, prepar- yer’s protect by ral for me to innocence and with pro bond review that ed his own se motion for my hearing transcript which I can- from day. Appellant’s same motion was filed with counseling. illegal I not obtain because of the district court on November 1970. by prove guilty can that I am of assault says self defence. But the court I must wait in U.S. 26. Defense counsel filed the motion my my prove until Jan. 1971 at trial to District It should have been filed Court. Innocence which I think is unconstitutional Sessions, which had D.C. Court of General is no or witness of because there robbery. evidence originally set bail. accepted Devel- I was Blackman my lawyer opment Center on Oct. but 3147; 3146(d) & Grimes §§ 27. See 18 U.S.C. hadn’t file a motion for bond review. So promise United of what there was another one of his he would do. So Your Honor It would be court records.32 The thereupon cember did he file a motion for bond court or- defense counsel proper review in the court.28 dered to “take care of the situation.”33 begin- events at the We also noted that later, Moments after defense

ning questions about of trial raised serious again ready announced he was for adequacy pretrial prepara- of counsel’s trial, prosecutor informed the court that tion and communication with his client. As Government had not received re- start, the trial was about to and after coun- sponse to its alibi-notice demand. Defense prepared sel had that he asserted was replied although he might rely Counsel proceed, appellant stepped himself forward defense, response on an alibi was needed subpoena and asked if the court would given had because Government codefendants,29 two explaining twenty days’ required by notice the local “didn’t have a chance” to discuss the matter judge rules. The trial ordered the defense lawyer. with his Defense counsel then told provide any- the names of alibi witnesses the court possi- that he had considered the way, whereupon defense counsel relented bility issuing subpoenas, “except for the stated, proceed “We will without that we fact have no address for the other alibi witnesses.”34 prosecutor defendants.”30 immediate- ly Eley volunteered that codefendant Defense counsel then informed the court Decoster;31 jail Tay- jury an address for his client wished to waive trial. lor was subsequently provided from the When if he was aware that the trial asked motion, day this bond review indi- counsel did nas were not issued until after the first Development two-day cate that the Black Man’s Center trial. receptive third-party custody. That statement, however, only change was the following colloquy 34. The occurred: originally the motion filed in the District Court There was notice [U.S. ATTORNEY]: a month earlier. The motion was denied Rules, filed under Rule 87 of the Local Your Court of General Sessions on December but Honor, demand, an alibi notice to which the granted the District Court the motion and re- government yet response has not received a appellant Develop- leased to the Black Man’s I so take it from that that there is no alibi days ment Center on Jan. after a two defense in this case. granted appellant’s continuance was trial at If court [DEFENSE COUNSEL]: prosecution’s request. please, ... feel this motion at time should be denied because we have not 29. Decoster’s codefendants had been five tried comply had the time under the statute to They pleaded guilty months earlier. both with the demand as made the rules. the middle of their trial to one count of rob- you rely THE intend to COURT: Well do bery, suspended received sentences of 18 on alibi? years, placed 5-years months to 5 probation. and were may. We [DEFENSE COUNSEL]: (Tr. I) Transcript of Nov. at 5. you THE COURT: Well did announce ready [counsel], you going and if are Eley was committed to the D.C. Jail on No- rely you on an must alibi then know 3, 1971, pursuant vember to a bench warrant you going witnesses that are to use as alibi probation violation issued on October ready. witnesses. You announced 1971. If the [DEFENSE Court COUNSEL]: please— Taylor’s personal address was found from a Look, forgiving THE COURT: I am not [the recognizance release form filed with the court Attorney] filing U.S. for not his motion under proved 11 months earlier. This address to be timely, Rule 87 but it seems to nevertheless date, however, out of and the belated effort to you your ready that if me have witnesses for locate him was unsuccessful. why you trial there seems to be no reason give shouldn’t be able him to the names of directive, Despite the trial counsel court’s people you the intend to call as alibi witness- initially willing until “later in to wait es this time. day” prepare subpoenas. Only to when the proceed will judge pointed We subpoenas [DEFENSE COUNSEL]: trial out processed during preliminar- without the alibi witnesses. We will con- could be the trial prepared. sider we don’t did have alibi witnesses. ies counsel move to have them then, however, subpoe- Tr. I at Tr. I at 9-10. Even 6-8. that I getting sentation should be and judge already had heard evidence concern- too presiding case while over ing Decoster’s I I think should have an accurate state- codefendants, responded counsel trial of his of what here when happened ment attempting he was not.35 After unsuc- in court.36 other two defendants was judge who cessfully to find another could counsel to requested Defense then with- date, hear the case a late trial such apparently draw from case “because I judge ruled that he not hear case could have caused some to de- dissatisfaction preside would over himself but instead .”37 judge, fendant. The district Appellant’s thereupon pro- jury trial. case however, did not the basis inquire into jury. to trial ceeded before Instead, complaints. the defendant’s after confusion, the midst of all this Decost- receiving counsel’s that he had assurances complained the court about again er to go prepared ready the case to to and was attorney’s efforts on his behalf. trial, for a request the court denied Honor, Your THE DEFENDANT: appoint new continuance and to refused feel this case should be continued is, get proper repre- because this I can’t counsel.38 pleaded preparation); States

35. Tr. I at 13. Decoster’s codefendants claim lack of United v. prosecution 1973) (re guilty presented (5th Young, after the had its 482 F.2d Cir. only presided judge judge case. The district not over to conduct versible error thorough inquiry trial proba- the codefendant’s tion office but also read the source and factual basis into reports prior on the codefendants to complaint; error held harmless of defendant’s sentencing September, them in 1971. Tr. I at later shown be because defendant’s claim Johnson, insubstantial); v. F.2d Sawicki curiam) (thorough (6th 1973)(per Cir. 36. Tr. I at 15. allegations investigation of quired); United re defendant’s Morrissey, 461 F.2d States v. urging appointment I at 16. In 37. Tr. (2d 1972) (perfunctory & n.6 669-70 Cir. counsel, explained: new defense counsel inquiry scope truth defendant’s alle into If [DEFENSE court COUNSEL]: more, gations, without constitutes reversible please, position prior counsel has been in this error; defendant’s held harmless because to this time defendant has where the become cured subse claims were either invalid or quent unhappy many years with counsel. Over attorney judge); United actions of practice of the this situation comes law before this court I know Seale, (7th Cir. 461 F.2d States up, but I do think this is 1972) (failure inquire basis of defend into perhaps an unusual dissatisfaction with is abuse of ant’s dissatisfaction with counsel discretion); counsel would .... I feel if Your Honor Craven, Brown v. permit appoint me to withdraw (9th 1970) (trial obligated to Cir. court another in the case for whom the necessary inquiry ease defendant’s greater regard conduct have a or with “dissatisfaction, distrust, concern” for ade rapport, would whom he be to his best interests in the appellate procedures. have more it would court-appointed representa quacy long counsel’s run in the States, tion); 389 A.2d 811 Monroe United (Sixth imposes (D.C.App.1978) Tr. I at 19. Amendment af duty inquiry conduct trial court to firmative 38. THE COURT: But I haven’t found pretrial allegations of coun defendant’s into grounds relieving you your assignment, inquiry ability preparedness; sel’s lack you prepared You tell me [counsel]. findings must on record and of fact must be the case. permit meaningful appellate re sufficient Right. ready I am [DEFENSECOUNSEL]: view). In Brown v. United go forward. banc), (en App.D.C. cert. de F.2d 363 ready go THE COURT: You are for- nied, 3 L.Ed.2d ward. (1959), scope this court considered Although appellant challenged has not Id. judge’s obligation inquire basis, into the firmly conviction on it is established objection In his defendant’s currence, to counsel. con pretrial when the defendant makes a that lenge tion, chal- (then Judge) Burger Chief adequacy representa- Justice of counsel’s grounds agreement obligated inquire summarized the of common the trial court into majority dissenting opinions: allegations. between the and the substance the defendant’s time, Woods, [W]hen, See, e.g., for an the first accused United States v. 487 F.2d way 1218, (5th 1973) (trial makes known to the court in some n.2 court Cir. counsel, complaint responsibility inquiry he has a that the court must about his make of defendant and concerning appointed the matter. If defendant’s rule on the foregoing, original police the in our either of the He In view of also ad- officers.41 supplementary we remanded for attempt mitted that he had made no opinion39 adequacy of trial counsel’s hearings on the or, contact or interview the hotel desk clerk granted appel- leave for representation and matter, anyone for that else at the either new At to move for a trial. late counsel D.C. Annex hotel or the Golden Gate bar.42 the district court hearings on the remand,40 codefendants, As for the counsel conceded about further information elicited that he had not interviewed but explanations and his preparation counsel’s Taylor,43 Eley claimed that he had talked with admitted that he his actions. Counsel robbery victim or the interviewed the cellblock behind courtroom on had not court, representation known to the cies in the of counsel before the reasons are made may judicial system more. If no rea- rule without resources of the have been in- court stated, duty has a the court then sons are vested in a full-blown trial. inquire basis for the client’s into the I, 326, U.S.App.D.C. 487 F.2d objection 39. Decoster should withhold a to counsel and ruling known. reasons are made until 83, Id., at 369 264 F.2d J., concurring). (Burger, See also United Hearings appellant’s on motion for a new Thomas, 526 F.2d States ex rel. Martinez Judge Waddy were held before on Febru- trial ary 1975); (2d v. Catab United States Cir. ro, (2d 1972), cert. de Cir. nied, 35 L.Ed.2d 410 U.S. 93 S.Ct. (R.Tr. I) Transcript, 41. Remand Feb. (1973); 391 A.2d Farrell v. United 42; Findings District Court of Fact and Conclu- (D.C.App.1978). Remand, (Find- April sions of Law on inquiry de- Trial court into the basis of the ings) at 8-9. The two officers and the com- is, course, objections fendant’s consistent prosecution’s only plainant were witnesses Supreme admonition Court’s victim, Crump, that three at trial. testified “judges proper should strive to maintain stan- night robbery; him on the of the men accosted performance by attorneys dards of who are behind, yoked him another one assailant rummaged through representing defendants in criminal cases pockets and removed Richardson, ..” McMann v. $110, containing his wallet and the third stood 1441, 1449, 25 L.Ed.2d 763 holding a few feet in front of him a knife. (1970). Moreover, investigation an into the prosecutor, Crump When shown a knife complaint substance of the defendant’s at the it, identify could not but said that it looked like time it is first of the tendered obviates several Crump’s robbery. the one used in the eyesight Because appellate may difficulties later courts encoun- memory damaged had in an been undertaking inquiry. Only ter when such robbery, shortly automobile accident after the evidentiary trial court can conduct a full hear- identify at trial or he unable Decoster ing explore substantiality of the defend- remember, provide further details. He did allegations. charges ant’s When the defendant however, night robbery that on the of the unprepared that counsel is counsel’s had identified all three of the men who had investigative be ascertained and efforts can been arrested. subsequent evaluated without de- reference velopments later-acquired knowledge. At trial Box Decoster as Un- Officer identified review, postconviction going through Crump’s pock- appellate like man seen this in- he had quiry appellant possibility ets that he is not clouded that the and testified had chased Annex, sight losing defendant’s been motivated of him. claim into the D.C. never simply by pretrial trial. And conviction at Box also stated that he had not observed scrutiny charges robbery. weapon being during of the defendant’s used officer, Ehler, postconviction police inef- also reduces the likelihood of a second Officer identi- rummaging through fective assistance claim. It also creates a rec- fied Decoster as the man chased, rely upon reviewing Crump’s pockets. had ord that courts can when He said that he lookout, Taylor, appeal. claim is raised on and searched Earl ineffectiveness arrested importantly, thorough inquiry straight pocket. More at this razor in his and had found a weap- stage having proceedings the trial court no mention of seen allows Ehler made crime, preventive during Ehler also testi- to take action in those cases where however. although objections prove to be all three men were searched the defendant’s well- fied that arrest, advocacy alleged can the items founded. Ineffective defense at the time of the outset, thereby preventing were never recovered. deterred at the Sixth have been stolen maintaining deprivations Amendment integrity 42. R.Tr. at system. Finally, adversary pretrial inquiry judicial interests of serves economy by helping I at 37. to eliminate deficien- 43. R.Tr. actions, attempting to also defend his coun- day second of the trial.44 Counsel ad- transcript sel testified that he had not interviewed mitted that he never obtained because, shortly until before hearing, any but stated that witnesses preliminary of the trial, any mentioned appellant most of the had never since he had conducted cross-ex- explained saw no alibi witnesses. Counsel hearing, possible amination at that he need recollection, Moreover, that, Decoster transcript.45 counsel to the best of his for the tes- that he continuously had Attorney’s tified that the U.S. Office usual- had maintained bar, Crump for had ly copy transcript joined makes a available a drink there, discovery. spe- just not returned his during Although he did left him and had 48 Then, on cifically he was remember Decoster’s case hotel when arrested trial,49 a letter government’s copy said he assumed that eve of counsel received story, alleged changed available it.47 his appellant had been and that he had read which testified, however, jump “in and out” of the 44. Counsel that he had was to no afternoons informally Eley. prosecutors’ speak notes of his conference with R.Tr. I at offices hearings produced discovery. regarding 39. And the remand flicting testimony con- Id. at 13. This them Eley on whether had prosecutor been files also that his showed confirmed Decoster, Eley interviewed. hearing transcript who were preliminary to- that Decoster’s gether at the counsel claimed to time id. at been ordered had on October Eley, interviewed having both remembered counsel practice show the tran- and that it was script appellant visited the But cellblock. did attorney it whenever was to a defense Eley interviewed, that not recall had been at id. requested. Id. at 64-65, Eley having spoken denied ever hearings held Since the remand were over trial, Transcript, to counsel before Remand trial, years after it is not sur- two Decoster’s (R.Tr. Ill) Feb. court, 82-84. district attorneys prising that none involved of the elaborating, Eley’s without found testi- memory any could recall from whether dis- mony “incredible” that of and credited trial surprising, covery was What is if conducted. Findings counsel. at 14. participants shocking, is that none of the any any discovery had notation in their files of witness, Only 45. R.Tr. I at 34. one Officer made; indeed, partici- having none of the been Ehler, preliminary hearing, testified at the held pants appear records of to have maintained 17 months before testified trial. Counsel exchanges pretrial discussions and infor- discrepancy he noticed between Ehler’s tes- appellant’s If as a matter mation case. timony preliminary hearing, at trial and at the good officekeeping, should defense counsel significant R.Tr. I at 41. At least one con- exactly what saw have recorded when and exist, tradiction did See note however. certainly prosecutor’s isit not files. And infra. prosecutor expect to note unreasonable to having 46. Counsel remembered conferences own records information in his that certain government prosecutors with one of the han- But available to counsel. be- made defense dling case, Toomey, sug- Decoster’s Daniel party, kept cause no records only either were gested Toomey might have shown him a discovery efforts evidence counsel’s copy preliminary transcript. R.Tr. at 40. But the vague and tentative consists of testimony recollections transcript hearing was not even practice” attorneys’ “usual about the Attorney’s ordered the U.S. Office until after attorneys in may involved such cases. When Toomey had handed the case over another handling up cases in a 300 different prosecutor. Transcript, Remand Feb. year, infra, on such testi- see note 89 reliance (R.Tr. II) at mony discovery support finding full par- any specific case seems conducted that, similarly following 47. Counsel assumed ticularly inappropriate. practice, appellant’s his usual he had obtained police department, arrest record though al- appellant’s 48. This was the testi- substance again definitely he could not state trial, mony well. appellant’s he had done so in case. Counsel copy not find a could of the arrest record 49. The exact date which counsel received on files, however. R.Tr. I at 46-47. subject Decoster’s letter is the dispute. of considerable Attorneys The two U.S. had who handled to have received the Counsel claimed Décoster’s case also called as were witnesses. two, day, letter before or “either on Although any particu- neither could remember the date of R.Tr. I [November 1971].” ap- about lar conference with defense counsel dated, Although at 24. the letter was not case, pellant’s frequently testify both did had that it indicates was sent from D.C. Jail discussed counsel’s cases him. dormitory, in had been which Decoster con- prosecutor II at R.Tr. further that 17-18. One stated November, 1970, from June to fined then many practice counsel’s usual did not Counsel also asked remand Crump but fought he had that explain underlying the reasons hearing to him, that his codefendants and asserted rob “tactical decisions” he had made. certain this version of the support would offense.50 why He could not recall the motion for De- why had not interviewed Explaining he court, wrong in the bond review was filed receiving even after coster’s codefendants why appellant’s he failed to mention or letter, my “it was counsel stated that this Develop- acceptance by the Black Man’s testimony that feeling any at that time that original motion. With ment Center in the given by be either of these defend- might trial, jury the waiver of counsel respect to might contradictory be to what had ants idea, although opposed he he said that the Defendant.”51 already heard from a bench trial at his client’s requested had Eley claimed that he did interview Counsel Finally, stated that he counsel insistence.54 appellant insisted at trial that his after he because had gave opening statement Eley subpoenaed, codefendants be and he unnecessary, and not because felt it to be him that Decoster was not at the scene time the trial theory told at the had no defense However, not recall counsel could started. Eley would Believing of the crime.52 opening why he had concluded court, say put decided to him counsel statement was unnecessary.55 stand, Eley instead testified that on the but fighting remand, out- Crump saw findings he Decoster on district In its particular acts or isolated seven56 court side the bar.53 September, Ap- from again counsel never obtained assurances 1971. at Eley for three weeks in testimony, negli- writing that counsel pellant as to his letters did not remember impeach Eley’s damaging dormitory, gently testi- during period failed to his second mony might at trial. thought letter some- have written the he November, May Id at 58- 1970. time from hearings, At the remand counsel said that 54. testimony Despite ad- and the Decoster’s appellant of the conse- believed he had advised letter, apparently district court on the dress by quences requesting judge the same of when he had counsel’s recollection credited against had heard evidence who codefend- Findings See at 12. received it. R.Tr. I at 37. ants. version is consistent 50. This “self-defense” judge appellant’s the district with November, 1970, letter to 55. R.Tr. I at 45-46. supra, note 22 and with see account, Eley’s testimony at trial. The letter’s Appellant’s presses brief one additional however, appellant’s own testimo- differs object failure to to the defend claim: counsel’s ny contra- at trial. When confronted with this jury jail appearance ant’s before the clothes. hearings, reaf- at the remand Decoster diction cannot, firmly It is established that an accused testimony his trial and claimed that the firmed objection, compelled go over his to trial in was a fabrication. R.Tr. I at 70-71. letter See, Williams, prison clothing. e.g., Estelle v. 425 U.S. 48 L.Ed.2d 126 51. R.Tr. I at 29. (1976); Brierley, (3rd Gaito 485 F.2d 86 Cir. Crist, 1973); Bentley (9th 469 F.2d 854 Cir. unaccompanied when he inter- 52. Counsel was Beto, 1972); (5th Hernandez v. 443 F.2d 634 Eley no written viewed and counsel obtained denied, Cir.), cert. fact, Eley. In testified statement from counsel (1971); Texas, L.Ed.2d 174 Brooks v. of the confer- that he did not even take notes Carter, (5th 1967); Cir. cf. United States v. Thus, only conflicting testi- ence. we have 522 F.2d 666 See counsel, mony Eley, Decoster as of defense Project also American Bar Association on Mini supra. what occurred. See note 44 Justice, mum Standards Jury Criminal Trial Ironically, noted at the remand 4.1(b) 1968). Forcing (Approved Draft § “[ijt’s hearing rule with defense a cardinal appear jail the accused to clothes not they put a witness unless counsel that never on process right presump violates his due going say innocence, and I equal know what a witness is implicates tion of protection but also put Eley unless I knew guarantee oper would never have generally because it say.” going I at 40. post what he was R.Tr. only against bail ates prior those who cannot Williams, supra, bring to trial. See Estelle v. no effort to At counsel made 503-06, apparent Because the conflict be- 425 U.S. at 96 S.Ct. 1691. the court’s attention the testimony. Supreme Eley’s proposed failure to has held that “the and actual Court tween that, being contrary objection suggests as to tried make an to the court either This failure clothes, reason, hearing, whatever is suffi- R.Tr. I in such claim in the remand counsel’s moving omissions defense counsel that were al for bond review failure to deprived appellant transcript leged preliminary to have obtain hear rejected ing effective assistance of counsel.57 With re because the court found —were spect allegations appellant prejudiced to three of the had not been —counsel’s statement, opening attempt waiver of the violations.60 On allega the final two jury waive and his failure to see that tions —counsel’s failure to interview wit given Decoster was credit for time premature served nesses and his announcement by sentencing judge ready as ordered 58—the that he was trial —the district district court found no ineffective assista can interpreted court’s conclusions be delay other holding nce.59 Two claims —the in either that there was no constitu negate presence compulsion dent to nec- 59. The district court labeled the waiver of violation,” essary opening argument judg- to establish a constitutional “an tactical informed 512-13, part id. at Findings 96 S.Ct. at 1697 the need for ment on the of defense counsel.” by safeguard rights counsel to his client’s voic- at 17. The court also found that it was the ing objection imperative. Appellate by at trial is defendant who demanded to be tried counsel, however, despite did not raise this issue be- court counsel’s “inclinations” to have a fore the in for a jury Curiously, my district court his motion new colleagues trial. Id. at 15. Consequently, trial. what the record is barren of appellant’s ground find claim on this to be considerations, any, underlay if trial by “frivolous” because he was in fact tried object. Although counsel’s “decision” not to we cannot to jury. point But the is that Decoster did not speculate why trial counsel failed jury prior want a trial. Had counsel known object, certainly his inaction on this matter morning judge of trial that the district general performance reflects the tenor of his this case. in himself, disqualify would be forced to success- arrangements might ful have been made to by have Decoster’s case heard a different judge pointed 57. The district to these seven judge jury, without a as Decoster had —and allegations (as majority here) does the and requested. essentially treated them as if each was asserted majority upon great relies our admira- independent constituting to be an event ineffec- respect Judge Waddy— tion and for the late tive assistance in and of itself. This is not the by which is shared all the members of this appellant’s By isolating spe- nature of cific ness, claim. speculate appellant court—to that the wanted examples alleged of counsel’s ineffective- Judge Waddy to hear the case with or without dismissing and then each of these breach- jury, notwithstanding participation his in the inconsequential, es as either excusable or appellant’s earlier trial of But codefendants. judge my colleagues totally trial ignore and appellant the record shows that asked to aggregate quality their effect on the of coun- jury, be tried without a and indica- there performance. sel’s present This case does not particularly tion whatsoever that he wanted by a series of isolated omissions and failures fact, Judge Waddy. trial to be before even counsel; picture pervasive it is a indifference requested Judge Waddy after counsel dis- incompetent representation only some of — qualify himself, the defense reasserted its de- which is visible in the record and in manifested jury, indicating sire to be tried without a thus specific allegations brought by appellate jury primary, that a trial without a was its if counsel. only, concern. Tr. I at 13-14. hearings, appellant 58. At alleged the remand although 60. The district court concluded that that trial counsel had been deficient in not “dilatory” filing counsel was in the motion and ensuring properly that Decoster’s sentence was court, filing wrong “erred” it in the (Appellant given executed. had not been credit not, slightest degree, “did actions limit spent custody prior the time he to trial. ability defendant’s to contact witnesses and As a result of a motion filed on June 1972in any; inform his counsel of them if there were by appellate appoint- district court counsel defense, nor did it frustrate his nor affect his court, Department ed this of Corrections guilt or innocence.” Id. 6. The district clarified Decoster’s sentence and credited him court also found that counsel knew what the previously served.) April with the time On transcript representation contained from his announcing Findings, its the district Further, preliminary hearing. Decoster rejected sentencing-failure court the this claim on any the court did not find substantial variation ground representation that counsel’s testimony hearing between Ehler’s at the completed defendant had been at the time this at trial. Id. at 7-8. But see note 106 infra. Findings issue arose. at 17. See Local Rule 2-3(a)(2), United States District Court for the District of Columbia. poor, proscribe then it must second-class that no simply tional violation counsel, whatever the con- performances by appellant was shown.61 Moreover,

sequences particular in a case. by focusing quality representation on the III. cases for providing incentives in all guided analysis of this case should exceed stan- meet or minimum in DeCoster J.62 principles established dards, approach reduces the likelihood showing a upon substan- We there held any particular preju- defendant will be specified tial counsel’s violation shortcomings. In this diced counsel’s duties, a defendant establishes safeguard way, courts can the defendant’s representation been denied effective constitutionally rights adequate to a government the burden shifts inherently without engaging difficult not prej- the violation did demonstrate speculating precise task of about the effect Thus, I pre- DeCoster udice the defendant. attorney. each of error or omission an three-step determining for inquiry scribed a Although prejudice of remains question assistance of whether a claim of ineffective part inquiry, of it is distinct the court’s reversing a conviction: counsel warrants from the of whether the de- determination of the articu- 1) Did counsel violate one fendant assistance. has received effective lated duties? Rather, only in order prejudice is considered ? 2) the violation “substantial” Was defendants, spare prosecutors to and the 3) government Has the established that truly repetition courts futile alike a resulted? pretrial process. and in approach defining The heart of this lies of the quali- ineffective assistance in terms A. Articulated Duties Violation of ty performance, rather than of counsel’s I, attempted this court to looking to the effect of counsel’s actions on DeCoster give If content to the Sixth outcome of case. substantive Sixth by setting forth is to a central role in Amendment’s mandate Amendment serve per- eliminating justice requirements competent for the minimum second-class concluded: while it was less than a defense was proof. raise the this ings, have been attitude duties owed herein was lax thorough new trial. fective lice officers announcing “Ready”, cate,” trial and interviewed the prudent course for [T]his With 2. While l particular Further, ^[*] this Court cannot ^[*] Court respect And assistance substantially during the supported might appear ^[*] weight a factual possible, ^{[*] [*]} it to his and finds putting defense available considering light case “diligent complaining in these the co-defendants sfe that while client. of counsel on the of Decoster’s course does we find be that investigation [counsel] violated his failure that defense counsel allegations, government’s duty ^[*] conscientious advo- not add government hearing the record say of these defense witness, to conduct as any ^[*] warranting was to have that defense posture to do counsel did him, proper up on remand one as proceed- prior counsel ^[*] case at which might to its court so inef- toto, and po- in p. ysis Where 23 Cal.3d reasonably competent continue to believe that the Although I is in explicitly decision proach in I in acting Regardless MacKinnon, Id. See under sonably prejudiced convinces 222 of precedent Statement of question, majority opinion: counsel’s violation 19-20. as today’s (adopting DeCoster the circumstances. places this the division competent reaffirms consequences this J. at thereby opinion F.2d & n.11. within this and other ineffectiveness the future diligent a defendant decision our Court p. - of Cal.Rptr. Wright, previous ruling assistance of and not assistance of should of this conscientious that Decoster was departs of a vitality standard Circuit, of the court principles Cf. C. is entitled to duty F.2d 1197 are denied the court govern U.S.App.D.C., I People J.; from formulation). an held to flow in however, adopted Opinion DeCoster in his client. attorney” advocate. DeCoster DeCoster P.2d 859 attorney our today’s claims. today Pope, “rea- anal ap in I I crucial practicing sensus of the Bar on the obligations were described formance.63 The client,”64 advocacy in our adver by counsel elements of defense as “duties owed merely “aspira- were not offered as these standards though thus Even sary system. attorneys which should guidelines to tional” their drafters to serve were not intended in De- Indeed, announced strive. the duties of effect judicial evaluation “as criteria compe- represent the rudiments Coster “they noted that iveness[,]”67 this court by the lawyering guaranteed tent Sixth guideposts certainly are relevant every in a crimi- Amendment Naturally, giv uncharted area.”68 largely proceeding.65 nal each case and the complexities en the discretion, professional constant call for I were set forth in DeCoster The duties misguided engrave endeavor would be a Bar Associa from the American derived attorney performa in stone rules for the Defense Function.66 tion’s Standards for Nonetheless, flexibility preserving the con nce.69 These ABA summarize Standards developed, following mine if matters of defense can be I articulated the duties 63. DeCoster enough owed counsel to a client: and to allow himself time for reflec- preparation guided by tion trial. In General—Counsel should be American Bar Association Standards for Project on Stan- 66. American Bar Association the Defense Function. Justice, dards for Criminal The Prosecution Specifically (1) confer with Counsel should — (App. Draft Function and the Defense Function delay and as often as his client without 1971) hereinafter Function Standards [Defense defense, necessary to elicit matters of or to Standards], cited as ABA The ABA House potential ascertain that defenses are una- Delegates approved the second edition of the fully po- vailable. tential should discuss Counsel 12, February Defense Function standards on strategies and tactical choices with 1979. The new edition reflects the work of his client. ABA, consultants, representatives and its (2) promptly advise his client Counsel should fifty approximately groups interest- nationwide necessary rights of his to and take all actions improvement ed in the of American criminal preserve them. . justice. See Foreword to American Bar Associ- appropriate Counsel must conduct inves- Relating ation Standards to the Administration tigations, legal, both factual and to deter- Justice, and of Criminal Function mentary Prosecution Defense matters can be devel- mine what of defense ed., (2d approved draft without com- oped. attorney, only . . . most cases a defense [I]n 1979). By adopting the second edition agent, or his should interview not standards, only Defense of the one deletion from the first Function with but also those that his own witnesses edition, both the call, government intends to when Standing ABA Committee on Association Stan- investigation should are accessible. The dards for Criminal Justice and the ABA House of always include efforts to secure informa- Delegates have reaffirmed the continued va- possession prosecution tion of the lidity of these standards as a “national norm” And, and law enforcement authorities. measuring the effectiveness of counsel. course, duty investigate requires to also Hodson, Revising See Standards, the Criminal Justice adequate legal research. (1978). 64 A.B.A.J. 987 332-33, U.S.App.D.C. 159 at 487 F.2d at 1203- (footnotes omitted.) 04 1.1(f) (2d 67. ABA at 4-1.- § § Standards ed. I, U.S.App.D.C. (cited I, 1(f)) 64. DeCoster DeCoster n.25). F.2d at 1203. 487 F.2d at 1203 I 65. The duties set forth in DeCoster are similar the Fourth Circuit in I, U.S.App.D.C. at 68. DeCoster promulgated by those to F.2d at 1203n.25. Peyton, (4th Cir.), F.2d Coles denied, cert. 393 U.S. performance attorney, 69. The courtroom (1968): L.Ed.2d 120 ordinarily many example, for and involves tactical judgments subject indigent strategic to Counsel for an defendant should be that are not categorical appointed promptly. prescriptions. Wil- Counsel should af- See Estelle v. be liams, opportunity prepare forded a reasonable to to 48 L.Ed.2d dire, juror must confer Tasks such as voir wit- defend an accused. Counsel selection, delay evidentiary objections, direct with his client without undue and as ness and gument, may cross-examination, necessary, rights opening closing him of his and ar- often as to advise jury preparation instructions and elicit matters of defense or to as- and to potential differently; defenses are unavaila- often be handled what is rea- certain that ble. Counsel must conduct vestigations, appropriate questionable in- sonable in one case setting. legal, factual both factual and to deter- different competent dispute reasonably law- establishing mini incompatible is not assistance, good effective would or components yer, mum absent should do cause,73 give helpful guid and ABA Standards proceed repre- less. Counsel should aims.70 pursuing ance in both guidance sentation his client under duties, departing these minimal when this court sensitive In DeCoster I particular compel needs of his client attempt did not these concerns and so different course of action. attorney standards of prescribe categorical Instead, pains we took performance. Prominent the duties defense among were articulated duties note is the “conduct obligation appro- point for court to starting “meant as a investigations, legal, factual and priate both basis, develop, by case clearer on a case to determine what matter of defense can be lawyers and for as to guidelines for courts Commentary theAs developed.”74 assistance.” We meaning of effective stresses, “[I]nvestigation ABA Standards however, recognized, that there were cer- keys to preparation are the effective tasks, the ones we enumerated tain such as impossible representation . . . It is decision, ignored: that can never be in our overemphasize importance appro- conferring delay client with the without investigation the effective priate and fair fully necessary; discussing and as as often administration of criminal justice.”75 choices; and tactical potential strategies Investigation crucial for several rea- advising rights taking the client of First, functioning proper sons. of our them; preserve necessary all actions both adversary system demands that sides conducting legal factual and in- appropriate prepare that no their case advance organize I submit one can vestigations72 Judge correctly recognized properly notes that the court order to MacKinnon “[i]n Advisory energies responsibilities, that authored ABA Committee fulfill counsel’s propose fully Standards did not them "as a set of and resources should be directed post-conviction per applicable pro- se rules dispositional phase proceedings as to cedures.” ABA Standards at 11. As the Com- pretrial preparation advocacy.” and courtroom explained, mittee standards have been “[t]he Accordingly, by setting we extended DeCoster primary impact on drawn with their the con- repre forth minimum standards for effective prosecutors in duct and defense counsel Specifically, sentencing. sentation we im larger mind. considerations involved in a duty posed upon counsel the to familiarize him determination of whether the conduct of a sentencing reports self with all in advance of prosecutor lawyer was that a or defense such sentencing hearing, duty well as the as to beyond conviction overturned are should be presentence during with confer his client scope of the Committee’s work.” Id. The fully period keep in order the client informed to however, suggest, its rec- provid- Committee did dispositional and to ascertain his views of the might prove useful ommendations ing “in implications. Id., alternatives and their 179 yardstick for the evaluation the effec- 290-91, U.S.App.D.C. at 551 F.2d at 1249-50. lawyer’s tiveness of a conduct when it is called Martin, U.S.App.D.C. See United 154 States v. question by validity into an attack on the of a 359, 370-72, 943, (1973) (Ba 475 F.2d performance.” conviction because of Id. at zelon, J., dissenting); C. ABA Standards 8.1§ 10. (2d 4-8.1) (Sentencing). also §ed. See Gads Moreover, stressed that its Committee States, 627, (1955) den v. United 630 223 F.2d nothing proposals would contribute to the ad- (“The right to effective assistance counsel at justice paper if viewed as ministration of “mere sentencing stage proceeding guar is Noting judiciary standards.” that the Bar and Constitution.”), denied, long woefully adequately anteed cert. had lax in been en- 949, States, forcing professional appropriate Hines v. United 350 U.S. 76 S.Ct. standards conduct, 324, (1956). the Committee warned 100 ethical L.Ed. 827 “departures profession- authoritative longer al should no standards” tolerated. IIIB, 73. See Part infra. regard, significant In Id. this it is that the ABA proposals characterized its as “standards” I, 333, U.S.App.D.C. at 74. DeCoster 159 487 “guidelines.” rather than F.2d at 1204. n.23, 159 at 333 487 F.2d 1203 n.23. ABA See ABA Standards Standards at 225. (2d 4-4.1) (Duty Investigate). 4.1 § § ed. Pinkney, U.S.App. States v. 179 United 282, 1241, 290, (1976), D.C. F.2d 1249 551 justice preparation study legal where one and careful of trial. There can be points precede which the trial.”78 effort party to the battle has made no pertinent facts and arm itself with Moreover, necessity for exhaustive sense, Second, very practical in a not limited to its value in investigation is law.76 Proper investi- cases are won on the facts. preparation leading for trial. As a manual gation only turning up is not in lawyers emphasizes: critical for defense leads and witnesses favorable to the de- important “The facts are counsel’s most fense, allowing counsel to take full but arguing jury asset not before a advantage every per- of trial tactics such as cross-ex- function counsel but other seeking advantageous forms: terms of impeachment amination and of adverse wit- bail, urging prosecutor drop course, adequate legal nesses. And of in- charges, negotiating reduce with him vestigation necessary is to ensure that all plea, urging a favorable sentence about available defenses are raised and that probation officer or recommendation on government put to its is “[I]t proof.77 sentencing disposition on a judge.”79 lawyers among judges axiomatic trial in the courtroom minimum, cases are not won but duty investigate At a (or long investigation requires hours of laborious investigator)80 (“In system attorney engage 76. See ABA at 224 our would for a Standards such services justice inquiry expose independent having a trial is not an client financial means facts.”). previously Bass, pay unknown for them.” United States v. 723, (9th Accord, 1973). F.2d United Cir. Ash, 300, 77. See United States v. 413 U.S. 316- Theriault, 713, (5th States 440 F.2d Cir. 17, 2568, (1973), quot 93 S.Ct. 37 L.Ed.2d 619 J., 1971) (Wisdom, concurring), appeal after Bennett, (2d ing United States v. 409 F.2d 888 remand, curiam), (per 474 F.2d 359 cert. de States; Cir.), denied, [Haywood cert. v. United nied, 411 U.S. 93 S.Ct. 36 L.Ed.2d Jessey States], United 396 U.S. (1973). See also Mason v. State of Arizo 24 L.Ed.2d 101 na, (9th 1974), 504 F.2d Cir. cert. denied, 43 L.Ed.2d 78. ABA Standards at 224. See Moore v. Unit- (“a probably state court view should (3d 1970) (en ed 432 F.2d Cir. liberality with considerable a motion for such banc) (“[R]epresentation involves more than assistance”); Tate, pre-trial United States v. the courtroom conduct of the advocate. The (6th 1969) (“Congres during Cir. exercise of the skill utmost purpose adopting enough neglected sional this statute was if counsel has the neces- place indigent sary investigation nearly preparation seek to defendants as of the case equality nonindigent or failed to interview essential witnesses or to arrange be on a level of attendance.”). cases”); for their defendants in the defense of criminal Pye, Justice, The Administration of Criminal Amsterdam, Miller, Segal 79. A. B. & M. Trial (1966) (describing Colum.L.Rev. Manual for the Defense of Criminal Cases 106 § investigative provisions of the CJA as one of (3d 1976) added). (emphasis ed. purposes). the Act’s chief Despite availability of CJA funds both for Congress recognized impor- 80. the critical hiring independent investigators and for com- adequate pretrial investigation through tance of pensating perform counsel who such services adoption Justice Act. That Criminal themselves, court-appointed few counsel make provides Act that: support investigations use of the Act to person financially for a who is Counsel year behalf of their clients. In fiscal for investigative, expert, unable to obtain or oth- example, Superior the D.C. Court issued CJA necessary adequate er may request services defense 12,130 appointing orders counsel in adult cases parte application. them in an ex (felonies 5,167 juvenile misdemeanors) and Upon finding, appropriate inquiry after in an payments investiga- Yet cases. were made to parte proceeding, ex the services are only juvenile in 109 adult tors and 13 cases. necessary person financially and that the Service, (The Public Defender a full- them, court, which has unable to obtain or the Unit- staff, investigative time handled an additional magistrate ed States if the services are re- investigations court-appointed counsel.) quired in connection with a matter over 13,- figures comparable: jurisdiction, In were which he has shall authorize 5,337 cases, juvenile investiga- 536 adult and counsel to obtain the services. cases, 3006A(e)(l) (1976). payments tive in § U.S.C. The statute were made 386 and 255 interpreted payments respectively (with has been to authorize Service Public Defender cases). providing those circumstances “in which a reasonable aid an additional 156 persons government he has or should have nesses whom the intends to contact whom reason to believe were witnesses particularly arresting and investi- call,83 question, events to seek witnesses no gating defense counsel made officers,84 where he has should have reason places these witnesses attempt any to interview occurred, to believe the events and to con- trial. Nor did he any prior time to investigations these duct interviews and as request transcript prelim- or obtain promptly possible, before memories fade witnesses testi- inary hearing where these or witnesses disappear.81 even fied.85 Defense counsel did not con- case, present attorney In the Decoster’s codefendants, tact and interview Decoster’s things. Although did none of these the Eley Taylor, before trial. Nor did he witness, particular failure interview a any seek or talk to witnesses at the hotel or itself, may not rise the level of inade- fact, bar. made abso- defense counsel assistance, quate defense counsel’s investi- discover, contact, lutely no effort or in- gation preparation for this case was so single prior terview a witness to trial.86 clearly perfunctory violated his Apparently, willing go he was to trial prosecution duties to his client82 any having without made real effort Roger called three witnesses trial — by way determine what could be elicited Crump and Officers Box and Ehler. De- strengths defense or to evaluate the spite proper the cardinal rule that investi- gation begins with interviews of those wit- weaknesses of his client’s case.87 explanation infrequency Despite transcript One for the value of a obvious appellant’s preliminary court-appointed request hearing which counsel investi- for use in witnesses, see, fear, impeaching prosecution’s gative expenses e. is their often reinforced g., ignored money judges, id. his client’s §§ comments from trial requests simple step and did spent eventually not even take the on such services will be sub- obtaining copy. pp.---of See attorneys tracted from the remuneration the U.S.App.D.C., pp. F.2d, 271-272 of 624 su- themselves would otherwise receive. See Ta- Yet, pra. acquiring ability impeach gue, Attempt Improve Criminal Defense government particularly witnesses is crucial Representation, Am.Crim.L.Rev. when, observed, as the district court here “the (1977); Report, supra Austern-Rezneck note only putting defense available . Moreover, at 45. Justice Act it- Criminal government proof.” Findings to its at 19. self, by compensating attorneys $30 at rates of See note 106 infra. per expended hour for time in court and time, per provides $20 hour for out-of-court Judge that there was MacKinnon notes perform disincentive for counsel their own prosecution assurance witnesses investigatory work. See 18 U.S.C. would have consented to interviews defense 3006A(d)(l) (1976). § MacKinnon, J., Opinion counsel. at-of U.S.App.D.C., at 238 of 624 F.2d. Unfor- Shadoan, generally 81. See G. Law and Tactics tunately, due to counsel’s failure even to at- tempt to obtain (1964); Young in Federal Criminal Cases interviews, we will never know Section, Ass’n, Lawyers D.C. Bar 11th Annual permission granted. whether would have been Criminal Practice Institute —Trial Manual course, (Of particularly police offi- witnesses — 2.1, 2.12 §§ property prosecu- cers—are the of neither the defense, tion nor the and as citizens majority properly While notes that the moral, legal, obligation if not to talk to de- Constitution contains no mandate that counsel prevent fense counsel in order to an unfair unturned,” Opin “leave not the smallest stone Gregory trial. Cf. App.D.C. v. United - Leventhal, J., U.S.App. ion of of 199 (1966) (prosecutor’s 369 F.2d 185 D.C., F.2d, attorney at 210 of 624 Decoster’s anyone advice to witnesses not to talk to unless largest did not turn over even the boulder. present unprofessional he was and denied trial)). defendant a us fair But the issue before attorney, agent, 83. defense or his should “[A] spo- is not whether these witnesses would have interview not his own witnesses but also upon request, ken to counsel but whether coun- call, government those that the intends to when who makes no sel effort to interview critical I, U.S.App. are accessible.” DeCoster 159 prosecution be considered to witnesses should D.C. at 487 F.2d at 1204. providing his client. be effective assistance to Amsterdam, Miller, Segal 84. See A. B. M.& support 87. the inference that coun- Further for supra note § sel had formulated a coherent defense not even 280 fense, potential or

Moreover, defense violations of to ascertain that defens- counsel’s Surely, many to not limit- unavailable.”88 the duties owed his client were es are just investigate. problems developed prior ed at and egregious to an failure to There counsel trial could have been eliminated had counsel are several indications that fully prepared with ... and discussed did not “confer his client as more himself addition, necessary often as to elicit matters of de- with his client.89 coun- case every strategy working day. occurred than one is found events that at more case for total, course, any the outset of trial: the confusion over whether This does include crim- presented, attorney an would the belat- alibi defense and civil Decoster’s inal cases that subpoena appellant’s ed efforts to codefend- may have handled on a retained basis. Com- trial, ants, jury and the 1.2(d)(2d 4-1.2(d)) offer waive pare ABA Standards ed. § § best, opening failure an At to make statement. (“A lawyer accept employ- should not more episodes attempts these defense reflect the futile of a discharge than ment he can within attorney cope with an unfortunate capacity give limits of his each client predicament brought quate preparation. own about his inade- representation.”). effective worst, they represent At Unfortunately, many court-appointed counsel tip iceberg of an visible of inexcusable caseloads, unmanageable part maintain be- attorney oversights. failures and high-volume required business is cause compensate for low fee schedules under the I, at DeCoster See, g., e. ex CJA. United States rel. Green v. duty F.2d at Counsel’s to confer his Rundle, (3d 1970) Cir. obligation client also includes the to “discuss (court-appointed attorneys carrying were from fully potential strategies and tactical choices per year, to 800 cases and often handled 40 (2d . .” Id. See ABA § Standards 3.8 day); Smith, cases a (Duty to 50 F.Supp. Colson v. 4-3.8) Keep Informed). §ed. Client aff’d, (N.D.Ga.1970), 438 F.2d 1075 inquiry Although the on remand focused on 1971) (5th (petitioner’s court-appointed Cir. efforts, investigative particular counsel’s two 5,000 approximately handling counsel criminal cases a port, revelations indicate that communications be- year); Austern-Rezneck Re- appellant tween counsel and were minimal. supra (eleven attorneys First, trial, note at 11 D.C. requested at the outset of Decoster frequently incompetent codefendants, subpoena mentioned as either the court to his ex- plaining uninterested and overloaded with cases were he “didn’t have a chance” to talk felonies, lawyer appointed misdemeanors, to his to a total about this crucial matter of of 657 serious expected witnesses that the and serious misdemean- defense call. 60 less -p. p. year; U.S.App.D.C., See one ors in one 113 felonies and handled 5.2(b) supra. misdemeanors; 624 (2d § F.2d Cf. ABA Standards 86 serious another had 136 fel- 4-5.2(b)) (“The on misdemeanors); Report ed. decisions what § and onies 50 serious Appointed call . . the exclu- Program Courts, witnesses to are on Counsel in D.C. province lawyer sive after consultation many felonies, supra (in note at 15-17 less client") added). (emphasis with his case; expended than attorneys hours is on entire some Further, the letter that sent Decoster his at- handling per are over felonies torney opened sometime before trial with the year). following before, you sentences: “As I to call tried problems impair Similar caseload often contact, but couldn’t make I decided to ability public organizations pro- defender again. important you, you write Its see are generally vide effective assistance. See my lawyer ways fighting I don’t have Services, supra for Defense Center note at my you.” Supplementary case without Brief 21-23; 4 National Institute of Law Enforce- Appendices Appellee, 48. At (LEAA), ment al Criminal Justice The Nation- hearings, remand no appellant indicated he had Manpower Survey of the Criminal Justice specific recollection of when he last saw System: NLADA, (1978); Courts 22-24 trial, suggested before but that he Face of Other Justice 29 In the District “might had contact within with him Columbia, of attempted the Public Defender Service has before, days week Appellant gave ten before.” R.Tr. I at 44. quality rep- to ensure that the of its testimony no issue. does not resentation loaded calendars suffer because of over- by adopting investigate limits on the 89. Counsel’s failure to and confer any attorney may carry. frequently may number of cases that with his client more have re- Report, supra inability See Austern-Rezneck note sulted to devote sufficient (setting open per 99-100 attorney of 30 time to each of his cases. maximum cases The records of the time, posture, 20 in active Administrative Office of the United States attorney expecting year will close Courts reveal coster that De- more attorney pay- annually); 120 criminal id. at 122- went to received than cases totalling (recommending ments $51,098.47 under Criminal Justice Act similar maximum caseload handling counsel). 284 different cases— for all standards CJA Cf. Wallace v.

281 to his rights and an obvious indifference duty “promptly to was derelict in his sel rights and take all his client of his advise client’s fate. them.”90 For preserve necessary

actions time elapsed from the example, days 50 Violations B. “Substantial” third-party accepted for cus- appellant was majori- Contrary the intimations attorney proper a bond until his filed tody slightest repre- ty, we contend that Finally, counsel’s do not review motion.91 sentencing at sentation of his client from a checklist counsel’s departure anything diligent and con- hearing was but and re- duties establishes ineffectiveness critical need for Despite scientious. quires Since counsel’s decisions reversal.94 “may advocacy at what well be effective adapted complexities a must be pro- important part of the entire the most case, an given proper performance of ceeding,”92 counsel’s total contribution at attorney’s obligations necessarily entails appellant’s hearing consisted of the follow- Moreover, the hu- considerable discretion. ing “allocution”: task of man animal is too fallible and the please, Counsel is aware If the Court complex expect defense too counsel fully comprehen- Your has a Honor every attorney will action taken probation report, detailed sive [sic] prove hindsight. We have re- correct on would report Counsel is aware peatedly court cautioned that does “[t]his report.93 submit based on said strategic tactical guess not sit to second sum, violated each of the choices made counsel.”95 The [defense] pre- duties enunciated DeCoster that counsel’s Sixth Amendment demands competent per- reasonably requisites of conscientious, reasonable, and conduct be court-appointed Appellant’s at- formance. investigation by adequate informed repre- torney provided shoddy the kind of preparation; it does not demand that coun- tolerate for sentation that none of us would performance be flawless. sel’s job, slovenly, slipshod almost ourselves —a Thus, majority, recognize we like the lacking characterized totally preparation, be conduct must evaluated by repeated protect failures to his client’s counsel’s Pinkney, 72, Kern, (Le supra 834, (E.D.N.Y.) F.Supp. note 179 92. United States 392 290, Society’s high gal U.S.App.D.C. at 1249. See Aid caseload too allow for at 551 F.2d counsel; Legal Project generally, Aid en effective assistance of Bar Association American Justice, joined accepting from additional cases until av for Criminal Sen- Minimum Standards attorney 40), erage (App. caseload falls below vacat tencing and Procedures Alternatives jurisdictional grounds, (2d 481 621 1968). ed on F.2d Draft 1135, denied, 1973), 94 Cir. cert. 414 U.S. 879, (1974); Wagner, 38 L.Ed.2d 761 Colorado 1972, Transcript, Sentencing March Caseload, Fight 6 Nat’l Defenders Excessive Washington Legal Aid & Defender Ass’n Memo Indeed, position finding of our is that a inef- (October 1977) (Colorado public 1 defenders automatically re- fective assistance need appointments case further because of refused overload; appellant’s quire of an the reversal conviction. judge agreed assign pri cases See notes 121 & infra. managea vate counsel until caseload becomes ble). I, U.S.App.D.C. 95. DeCoster See, g., F.2d at 1201. e. United States I, U.S.App.D.C. at 90. DeCoster Moore, F.2d 355 rights can F.2d 1203. One of the be Brown, (1976); U.S.App. States v. United protected only by prompt legal action is “the (1973) (per 476 F.2d custody D.C. curiam); Campbell accused’s pending released v. United trial.” Id. App.D.C. 377 F.2d prop- token, By to see that Decoster 91. Counsel’s failure also the same we have stressed erly days he had received credit for be “when counsel’s choices are uninformed prior the in- to his trial on inadequate preparation, been incarcerated cause of noteworthy because stant offense is also assistance of counsel.” denied effective —not duty specific I, constituted a violation of U.S.App.D.C. at DeCoster appellant, but because it illustrates the owed at 1201. rights. of counsel to his client’s indifference 282 case; particular presented by given a a particular

context of case and that not some every even perfect, may justify deviation from or even situations mandate average out a performance makes claim of transgresses gen- course action that the of Instead, duties, ineffective assistance. counsel’s eral of necessity list list that of violations must be substantial to offend the designed govern was defense counsel’s Amendment to effective assist- Sixth typical conduct in the criminal case. of ance counsel.96 The duties articulated in case, frequency pervasive- In this the I, DeCoster like the ABA and the Standards ness defense omissions and fail- counsel’s obligations prescribed by the Fourth Circuit certainly ures any belie notion that these Peyton,97 in Coles v. describe the minimum actions were isolated and excusable events. components competent performance of a The simply violation in this case was not provide an objective court with that counsel failed to interview certain repre- assessing adequacy basis for named witnesses. The record reveals that sentation. A demonstration counsel investigation counsel almost no conducted compels has violated one of these duties preceding whatsoever in 17 the months tri- inquiry further into counsel’s conduct al. Consequently, began he trial unaware whether, specific case, in determine prosecution of what witnesses would departure prescribed counsel’s from the say as a result was unable refute “justi- standards either “excusable” or stories, ignorant possible their inquiries recog- fiable.” The first of these might defenses and witnesses present, diligent nizes that even the most con- and was even unsure own client’s may attorney occasionally scientious falter version of the events. fulfilling responsibility; in one minor Nor per- special justify error do an otherwise commendable circumstances automatically obligations. formance does not counsel’s breach of his In some render the representation inadequate.98 prudential judgments cases or tactical con- second inquiry necessary may because “reason- siderations involved counsel’s de- ably competent” attorney must tailor his cision about to interview.99 In whom case, actions fit unique however, circumstances present simply there is no showing rectify attorney 96. Even absent a of substantial viola- dress and errors that arise dur- Amendment, proc- tion under the ing Sixth the due proceedings, particu- the course of the trial guarantees ess clause the Fifth Amendment larly omissions such the failure move protection against prejudicial defendants errors suppression of inadmissible Un- evidence. by their counsel. See note infra. 121 (1976), appellate der 28 U.S.C. 2106 federal § empowered any remedy courts are to fashion 224, (4th denied, Cir.), 389 F.2d cert. “just that Dyer under the circumstances.” Cf. (1968). U.S. 21 L.Ed.2d 120 States, v. United supra. See note duties enumerated (1967) (reversing 379 F.2d 89 conviction recently Coles have been reaffirmed “misgivings” perform- basis of about counsel’s definitive, objective Fourth Circuit as “a de finding any ance without viola- constitutional scription competency normally demand tion). function, supervisory And in our we aspects ed certain ser their responsibility orderly preserve have the functioning Maryland, vice.” Marzullo v. F.2d obliga- (4th 1977), denied, courts and the Cir. cert. protect rights tion to (1978). of the accused. See S.Ct. 56 L.Ed.2d 394 McNabb United 318 U.S. mean, course, This does not de- Thus, L.Ed. least attorney fendant has no recourse for minor appeal, provide ample on direct these doctrines amounting errors not to ineffective assistance. authority remedy those coun- errors of trial But where counsel’s error amounts to no more sel that not rise to the level of constitu- misstep than an isolated in an rea- otherwise tional violations. sonably competent performance, there are non- constitutional doctrines other than ineffective Clayborne, 99. See United States v. protect assistance that are better suited to App.D.C. (1974) (failure 509 F.2d 473 example, interests defendant. a re- For justified interview witness because client had viewing authority “[pjlain court’s to notice er- frequent witness). been in contact with affecting rights,” rors or defects substantial 52(b), permits Fed.R.Crim.P. this court to ad- latter, preliminary client. near-total As to justification for counsel’s possible trial, hearing before occurred months investigation preparation. and lack of consisted en- lasted all of 20 minutes and investigate failure to counsel’s Defense Ehler, tirely of Officer testimony of the he justified the basis that felt be on cannot arresting even officer. who was not the facts enough with the of he was familiar Thus, knowledge counsel’s total of defense his client himself that judge this case to entirely of two the case in fact consisted with, assertion begin the guilty. was To versions of events —one conflicting knowl- had sufficient that defense counsel police other his from a officer and the from investigation would reveal of what an edge own client.101 all From that manifestly unsupportable. is record, from this lim- Perhaps defense counsel concluded affirmatively appears events ited that his client had no alibi knowledge in information entire of counsel’s guilty, and that therefore question solely from two sources: defense and was derived conducting with his counsel was excused from may have had conversations he investigation.102 suggestion But the that a the defend- representation and his of client be lawyer As to the client whose believes him to preliminary hearing. ant at appel- pretrial less is former, only guilty investigation deserves the record reveals simply duty An inves- attorney appeared wrong. attorney’s in court to and his lant occasions;100 tigate perception is relieved his own counsel not together on six his guilt on on the of client’s or innocence.103 can presented no evidence remand nothing with his think of more destructive of of communications extent his guilt attorney, Judge Findings refers a defendant admits to his at 10. MacKinnon 100. duty attorney the defendant and to these contacts between has no to search a witness “interviews,” - attorney Opinion of testify falsely. his Kinnon, as Mac- might at who Id. of 199 J., p.-of U.S.App.D.C., p. at Opin- at U.S.App.D.C., F.2d. See at 239 of 624 F.2d, J., Leventhal, 233 of only but the court found district of at---of ion appellant appeared had with App.D.C., counsel (citing 209-210 of F.2d prior to trial. When in court six occasions passage full). in inadequate appellant accused counsel of at representation, attorney’s present duty per- But not to an he asserted that had counsel jured testimony abjure mandate not a to regularly his As client. noted conferred previously, client, investigation appears on behalf of his however, sever- the record contains sys- happened adversary to In our here. that communications between al appellant indications attorney’s prejudge it to tem is not the guilt role and were minimal best. And, client. or innocence his even supra. See note guilt a to those cases where defendant admits conscientiously attorney, attorney his must suggests Judge that counsel 101. MacKinnon gather protect to information the defendant’s knowledge acquired the case from further stages process. all interests at criminal jury government’s grand and testi- the mony. file U.S.App. pp.---of and See note 103 J., MacKinnon, Opinion at-of D.C., pp. infra. of 624 F.2d Although U.S.App.D.C., of 624 F.2d. at 233 not established that counsel ever availed Indeed, lawyer’s complete, independent a opportunity of the to examine these himself materials, component investigation effec- is so vital government even full access to the representation the defendant’s tive that even personal file is no substitute for interview and guilt does affect confidential admission of investigation. Surely, one cannot believe that duty obligation scope to of counsel’s prosecutor record the an- will ask—and explicitly investigate. The Standards ABA questions most swers to—all or even duty investigate re- state that gardless to exists “[t]he answered in that defense counsel would want admissions or state- of the accused’s preparing the defense. lawyer constituting guilt ments to the of facts guilty.” plead desire ABA stated go Judge apparently would one MacKinnon 4.1). (2d Whether the Standards 4.1 ed. attorney § § step require further and an refrain 4— plead guilty go or to client decides investigation investigation if he from guilty. believes client fulfilling J., the law- MacKinnon, essential Opinion at--- raising yer’s mitigating factors and ob- role of U.S.App.D.C., at 239-240 of 199 taining disposition for the Judge points the most favorable to the ethical F.2d. MacKinnon release, pretrial prohibit legal profession defendant charging contexts standards plea argument negotiations, attorney assisting who wishes client jury, sentencing. testimony. See ABA Standards present also cites Jus- false He (then Judge) that when tice Stevens’ statement case, adversary system however, than inadequate court-appointed to excuse investigation grounds on the prose- defense counsel failed to interview even ally witnesses, counsel —the accused’s in the en- ostensibly cution because proceedings tire his client already points “aware” of the main of their —disbelieved thought inquiry likely testimony. By therefore further virtue of his attend- prove preliminary hearing perhaps would fruitless.104 The Constitution ance at good entitles criminal defendant a trial counsel obtained a indication Offi- jury peers likely testimony court of his to a trial cer Ehler’s at trial.106 But —not by his court-appointed justification defense counsel.105 there can be no for counsel’s lying. 104. Such can attitudes exacerbate what Saunders was The most critical derelic- already problem tion, however, lawyer’s pur- a serious of defendant mis- was the to failure See, court-appointed g., trust of Casper, J. through counsel. e. sue either in redirect examination or post-trial investigation, American Criminal Justice: The De- assertion Saunders’ (1972); Perspective fendant’s ABA during cross-examination that he had been 197-98; Suwak, supra Standards at Wice & working Employment for the D.C. Service on note at 171. day robbery “they the the and that will verify that date.” Id. at 91. excusing dangers 105. The that can result from surprisingly, Not Saunders was convicted inadequate representation counsel’s on the years. Fortunately, and sentenced to 2-6 this ground “guilt that his client’s is obvious” are appointed attorney court a conscientious to vividly by a illustrated series of events occur- represent appeal. lawyer, Saunders on This ring shortly appellant’s involving after trial the reading trial, transcript after the of the attorney performance same whose is chal- protestations disturbed cence, Saunders’ of inno- lenged present case. In December secretary and she had her call the U.S. lawyer appointed represent Decoster’s Employment Service. The labor office checked defendant, indigent another ders, Samuel A. Saun- robbery their records for the date of the and purse snatching. who was accused of indisputable documentary proof found (D.D.C., victim, 2004-71). Cr. No. an el- working Washington Saunders had been on a derly woman who owned a restaurant near delivery day Star truck on that and was no- residence, Saunders’ saw Saunders some five where near the scene the crime. Defend- robbery, and a half after weeks called the Supporting ant’s Motion for New Trial with police, Although and had him arrested. Affidavits and Memorandum of and Points Au- Agency Bail party custody, $5,000. recommended release with third- Support thorities Thereof. The court district bond was set for Saunders at granted a motion new lawyer for a trial on the based Decoster’s no filed motion for newly-discovered review; result, charges evidence and the bond reduction or as a Saunders against through Saunders remained appellate stages. were In the incarcerated the trial dismissed. meantime, spent year jail Memorandum of Saunders had for Points and Support Authorities in he crime had not Defendant’s Motion committed. Pending Saunders, course, prej- Release New Trial at United could demonstrate (D.D.C. udice, 2004-71). States v. Saunders No. majority’s proposed Cr. even under the Saunders, analyses. spent undoubtedly years But there are who over countless an insti- defendants, indigent mentally other self, tution for the like him- retarded is half- Decoster blind, id., represented maintained that he who are was innocent and the same callous working day by court-appointed counsel, that he had been on the indifference robbery. Transcript Trial of March enough and who are not fortunate to have (Tr.), lawyer evidently evidence, indisputable 92. Decoster’s preserved did the in documenta- him; case, present form, not believe as in ry attesting prejudice they have lawyer apparently investigation conducted no many Even suffered. if of these defendants are trial, whatsoever. At consisted of his own fered no Saunders’ entire defense “probably guilty,” they deserve effective testimony. Counsel of- lawyer of a services advocate who is a “conscientious opening statement. direct On exami- their behalf.” And we can achieve nation, he elicited a statement Saunders only by assuring this end that counsel fulfills purse. that he had stolen not Id. at 81. obligations competent the minimum of a attor- lawyer attempt develop Decoster’s made no ney regard subjective without to his—or our— beyond single the defense cross-examination, this denial. On guilt. beliefs about defendant’s silently counsel sat as Saun- increasingly excuse, however, ders became confused about 106. There can be no similar question Attorney transcript whether each referred to the his arrest. for counsel’s failure obtain day robbery day testimony preliminary hearing. or the Ehler’s at the so, might did Id. at 84-90. Nor counsel at- Had counsel done been able tempt redirect, clarify despite testimony appellant’s matters on to turn the officer’s prosecutor’s imply advantage, discrepancies noting use of this confusion be- testi- witnesses’ of the content of the tions complainant either to interview failure be, not to Box, critical witnesses it is inexcusable Crump mony might or Officer arrest surrounding the the circumstances on key witnesses potential such interview of appellant.107 their feels ground that counsel the de- what might contradict Taylor Eley, testimony codefendants for the As that, reasoned told him. Counsel’s district court concluded fendant has “[a]s had of the information the result a witness’ tes- judgment that informed prior knowledge of the given him and justi- defense timony not aid the would co-defendants, pleas ‘guilty’ [counsel] testify, but it calling that witness fy might be testimony their considered interview even to the failure excuse cannot contradictory to that of the defendant.”108 him.109 that this apparently believe My colleagues de- complicated appellant It true inter- failure to finding counsel’s justifies when, before sometime task fense counsel’s spec- counsel’s But the codefendants. view suggesting a letter counsel a he sent substitutes beliefs are no ulations and day happened version what new an at- experienced matter how facts. No however, Again, his predic- is, astute his torney no matter how arrest.110 might provided testi- useful testimony at hotel or bar mony have and the at Ehler’s tween Although speculative the hearing. but remote preliminary the district “is not - J., Leventhal, p. “any Opinion variation” in at find did not substantial extreme.” court testimony, glaring p. incon- U.S.App.D.C., one F.2d. there was 211 of 624 Ehler’s of 199 trial, sistency. Decoster as Ehler identified My colleagues At material that no be correct pock- through Crump’s who assailant went the an in- from such information could be elicited vestigation. (Tr. II), Transcript, hand, Nov. possi- Trial ets. it is also On the other preliminary hearing almost a Yet at the post 12. away his desk ble that the clerk was earlier, year that he did half Ehler stated and a lobby. appellant Simi- enter the and had seen holding was which the attackers not know appellant’s larly, might he have confirmed that through rummaging Crump his and which was clearly had not that he demeanor indicated Hearing Transcript, Preliminary pockets. June running any length time before for been identity Although (P.T.), at the 8. conjectures differing entering hotel. the These Crump’s responsible seizing the assailant simply point: should prove the main Counsel immaterial, legally the obvious wallet potential investigated interviewed have testimony unexplainable discrepancy in Ehler’s offer, they to what had witnesses to determine impeaching been valuable could be com- we—would so neither he—nor that credibility. officer’s hoc, post pelled speculate, to what the as preliminary also at the Officer Ehler testified would have said. witnesses Taylor acting as hearing a he had seen Earl that robbery; mention did not Findings Ehler lookout at 19. 108. weapon. Taylor Yet counsel had a that seeming attempt explore the incon- (4th no made sistency Peyton, 437 F.2d Cf. Stokes events version of the between Ehler’s justi- 1970) (failure be cannot Cir. to interview who, despite having Crump, lost his and that of testimony attorney’s would that fied belief accident, memory stated that in an automobile help). not Taylor I at 30. In him. Tr. had held a knife on significant might regard, been also have opinions majority court and 110. The district pleaded guilty appellant’s codefendants that letter, appellant prior emphasize that robbery, robbery, and re- rather than armed might suggested that his codefendants had not significantly lighter sentences than De- ceived true, It is witnesses. be valuable defense course, coster. rely often must that defense counsel primary informa- upon source of Also, investigated as a scene of his client had counsel alleged tion, particularly defense crime, might if an alibi to discover have been able he else- to have been possible, as Officer Box and the defendant claims it was fact whether duty is to con- testified, pursuing could have But defense counsel’s officer where. that investigation; cannot parking independent he and into sight lot duct Decoster from an followed interviewing only lobby losing whom those without ever limit himself the hotel affirmatively requests be con- him. Decoster’s knew that Defense counsel tacted. majority failure would excuse counsel’s allegedly participated in the rob- codefendants possible as well. witnesses other to interview bery not possibility” that Decoster claimed It is said that “abstract certainly have alerted should This possible at the them. witnesses clerk or other desk end, In bearing majority’s investi- on counsel’s failure conclusion that account, gate.111 By his own counsel did appellant was not the effective as- denied theory until learn of self-defense perception sistance of counsel on their rests day day trial. before overwhelming the record evi- contains therefore, stories, Appellant’s conflicting of appellant’s guilt.113 [Ultimately, dence obviously cannot excuse counsel’s inaction “there a total appellant failure of during the months. If previous seventeen it was defi- likely show counsel’s anything, appellant’s differing accounts any ciencies had effect on the outcome emphasized the should have need logic position trial.” of their [the] independent investigation to determine If the seems to be follows: accused was which, either, if version was accurate and probably nothing guilty, helpful then could Yet, presented could be as a defense.112 through have been properly found even letter, receiving appellant’s even after Thus, any investigation. conducted viola- ready go counsel was to trial without duty egre- tion of that matter how having attempted to contact codefend- —no gious inconsequential ex- and hence ants to learn their version of the events on —was night robbery. cusable.115 lawyer obligation counsel to the need to contact them. Further- more, does have an to make rea appellant inquiry even told after let- sonable into defenses whether valid support ter that his would Cunningham, codefendants do exist. See Jones v. events, denied, (4th Cir.), version of the counsel made effort to cert. It Moreover, contact them. was Decoster himself who L.Ed.2d subpoenaed insisted at trial that testimony counsel can discover whether the interviewed. only by client or is truthful witness con ducting complete, independent investigation. cases, many courts have found ineffec inquiring tive assistance without even into the In addition to the evidence in the rec- 113. communications between counsel and client. ord, Judge suggests MacKinnon there is evi- lawyer’s exculpatory A failure to uncover evi prior sentencing, dence that to his Decoster in found, dence that should have been or more guilt effect admitted his in a the trial letter to generally, thorough his failure to amake inves judge. MacKinnon, J., Opinion of at-of 199 tigation, has been found to constitute ineffec U.S.App.D.C., Although at 234 of 624 F.2d. See, g., tive e. assistance. v. Swen McQueen we do know not what DeCoster said that son, (8th 1974); 498 207 F.2d v. Cir. Garton letter, place it would be a mistake to too much Swenson, (8th 1974); 497 F.2d 1137 Cir. Johns significance appellant’s representations at Perini, denied, (6th Cir.), v. 462 F.2d 1308 cert. sentencing. Even those who defendants are 1049, 519, 93 409 S.Ct. 34 L.Ed.2d 501 convinced of their innocence are reluctant Beto, (1972); Pennington (5th v. 437 F.2d 1281 press their contentions before the court at that 1971); States, Cir. Andrews v. United 403 F.2d they lengthi- time out of fear that will a receive (9th 1968); Peyton, 341 Cir. Coles v. accept responsibility er if sentence do not (4th denied, 849, Cir.), 224 cert. 393 U.S. 89 and show remorse for their conduct. See Ta- 80, (1968); S.Ct. 21 L.Ed.2d 120 Brooks v. Tex 80, gue, supra note at 123 n.82. Cf. United as, (5th 1967); 381 F.2d 619 Cir. Brubaker v. Grayson, States v. 438 U.S. 98 S.Ct. Dickson, (9th 1962), 310 F.2d 30 Cir. de cert. (1978) (defendant’s appar- 57 L.Ed.2d 582 nied, 372 U.S. 10 L.Ed.2d testifying ent truthfulness while on his own (1963); McLaughlin Royster, 143 346 probative behalf is society his of attitudes towards F.Supp. Green, (E.D.Va.1972); Kott v. prospects and for rehabilitation and F.Supp. (N.D.Ohio 1968); Goodwin sentencing). hence relevant Swenson, F.Supp. (W.D.Mo.1968); Beto, (N.D. F.Supp. Smotherman v. - Leventhal, J., Opinion of of 199 1967). Tex. U.S.App.D.C., Accord, at 214 of 624 F.2d. Opinion MacKinnon, J., Contrary at-&-of to the assertion other mem- U.S.App.D.C., at 234 242 of 624 & F.2d. imposing duty bers this that court to inves- tigate equivalent in this case would be to re- quiring discussing scope proper In counsel to assist the accused in fabri- of a investi- defense, cating gation, investigation example, Judge is refers critical Leventhal very requirement prevent lawyers alleged reason that it will from that information unwittingly testimony, presenting perjured have been overlooked must be material to the apparently at-,- Leventhal, J., Opinion occurred in this case. is of Counsel defense. defenses, duty U.S.App.D.C., course under no to fabricate but of 199 of 624 F.2d. recognized plea bargaining will terms, is that reasoning such its own Even on of the ad component “an essential of inves remain the value that faulty. It assumes justice” country until in this ministration only by information tigation measured is greatly expande resources are the courts’ the defendant. yields that will exonerate cases, therefore, many perhaps not a Yet, produces investigation even if an d.119 that defense most valuable function de favorable scintilla of evidence is advise the defend perform can unlikely hypothesis appellant fense —an — investiga thorough candidly that ant investigation. a full still will benefit representative own tion —conducted responsibilities One of the essential exonerating seeking glimmer of indepen an is conduct attorney defense empty. Only then up turned evidence —has facts so the law and dent examination posi truly evaluate his can the evaluation professional that he can offer wheth informed decision and make an tion strength of the defendant’s case.116 continue to or whether to plead guilty er to a plea investigation reveals If full this his innocence assert interests, trial.120 best in the defendant’s guilty is his client so advise attorney should then majority’s position importantly, More initiating plea possibility of explore the showing burden confuses the defendant’s It with the discussions was “substantial” that counsel’s violation prosecutor.117 majority pros of criminal proving secret burden government’s with the not guilty, is in fact “prejudicial.” ecutions the accused was not the violation protestations in withstanding any forward-looking initial in- former entails It also no secret vast acted in nocence. whether defense counsel quiry into competent culminat majority prosecutions diligent of criminal the manner of a whether, through at the time the plea attorney; are settled it asks ing conviction occurred, violations Indeed, defense counsel’s Supreme Court events bargaining.118 (2d 6.1(b) agree, 4-6.- (With genera] proposition §ed. I al- 117. See ABA Standards § can my 1(b)) (Duty Explore Disposition suspect application, Without Tri- though inter- al). pretation is material would of what information assessing majority’s.) Yet in differ from the failed to conduct Brady Decoster’s claim that counsel 118. See v. United investigation, Judge adequate re- n.10, Leventhal L.Ed.2d 747 requires appellant peatedly to show (reporting estimates that between 90% material, but that certain information was by pleas of are of convictions all criminal 95% likely outcome. would have affected the guilty). Leventhal, J., E.g., Opinion at---of of U.S.App.D.C., at 212-213 624 F.2d. of York, 404 U.S. v. New 119. Santobello Thus, lawyer appellant guilty, his need if (1971) (Burger, C. 92 S.Ct. L.Ed.2d investigation. have conducted no J.). inquiry Although out- into the effect on an broadly term is defined— come—however may importance present highlights the case question of the a relevant factor in be conducting prompt thorough a investi- of reversal, the it should not bear on effectiveness Although inquiry gation. on re- no was made attorney's performance. See note of the role, advising any, if mand into counsel’s infra. seeking plea bargain, appellant the record a possibility plea a of reveal the does rely to to an accused is entitled 116. “Prior during proceedings. at time the raised some independent upon ex- an his counsel make I, 15-16, light the utter lack 18. In of R.Tr. circumstances, facts, plead- of amination the counsel, investigation conducted defense of ings his involved and then to offer and laws unfamiliarity apparent with of counsel and the plea opinion be to what should informed as and the back- of the offense the circumstances Gillies, Von Moltke v. entered.” 721, client, ground there must be serious See 92 L.Ed. offered his client doubt that he could have 4-5.1(b)) 5.1(a) (2d ed. § § ABA Standards (“After informing acceptance regarding competent advice fully on the facts and himself possible plea bargain. There must be serious law, lawyer advise the accused should well, doubt, counsel could have whether concerning aspects complete with candor all prosecution capably negotiated on his with the case, including his candid estimate client’s behalf. outcome.”). probable justifi- were ultimately duties owed his client were affecting harmful Quite outcome of his trial.121 contrast, simply, inquiry “preju- able. into inquiry adequacy is into of counsel dis- requires dice” an after-the-fact determina- tinct from the into inquiry guilt or inno- tion of whether a violation that was admit- every cence. The Constitution entitles de- “substantial,” tedly nevertheless did not fendant to counsel who is “an active advo- produce consequences adverse for the de- cate in behalf his client.”122 Where such fendant. absent, advocacy is the accused has been All that the accused must show to estab- assistance, regardless denied effective of his lish a is Sixth Amendment violation guilt majority opinions or innocence. The counsel’s acts or omissions were substantial appellant nevertheless force the to shoulder enough deprived him the effec- proving the burden of that counsel’s acts or tive assistance of counsel in his defense. actually likely omissions affected the prove He need not that counsel’s violations outcome of the trial.123 To thus condition Separating inquiry adequacy ings’ into the outcome. The case does not so hold. In performance fact, prejudice Judge counsel’s opinion Pinkney from that of Robinson’s care- fully the defendant distinguished reflects the distinction appellant’s between between the bur- right the Sixth showing Amendment to the effective den of a substantial violation government’s assistance of counsel and the Fifth Amendment preju- proving lack burden right Although demonstrating to a fair trial. Pinkney simply dice to the outcome. held that prejudice may required likelihood of procedural evidentiary prerequisite as a an process out make Amendment, a due claim id., under the Fifth hearing on a motion for new it should be clear that n.59, U.S.App.D.C. at 543 F.2d at 916 not an element that must be shown in estab- appellant upon “must set forth evidence which lishing a violation of the Sixth Amendment. constitutionally per- elements deficient See, g., e. Moore v. United Id., might properly formance be found.” (3rd (en 1970) banc) (“[Tjhe Cir. ultimate Further, U.S.App.D.C. at 543 F.2d at 916. preju- issue is not whether a defendant was “only hearing if evidence offered at a tended to omission, diced his counsel’s act or but establish the elements would the Government performance whether counsel’s was at the level preju- have been summoned to disestablish Indeed, competency.”). of normal this distinc- Id., dice.” Ill F.2d at tion between the Fifth and Sixth Amendment case, appellant present 916 n.59. In the sources of the to effective assistance was established the elements of a Constitutional rejection the basis for this circuit’s of the due unjustifiable demonstrating violation vio- process mockery” “farce and test favor of duty investigate. lation of counsel’s In Pink- “reasonably competent assistance” stan- ney, inadequate where there was claim of pp. U.S.App.D.C., dard. See —---of investigation, counsel’s failure to refute the supra. pp. 266-267 of 624 F.2d government’s sentencing could have allocution Judge MacKinnon’s reliance on the line of amounted if to ineffective assistance coun- support Fifth Amendment cases to his view allegations sel had failed to discuss the prove preju- that the defendant must “unfair client ifor counsel had known of information misplaced. Opinion dice” innon, thus See of MacK- contradicting government’s allegations but U.S.App.D.C., J. at---of bring had failed to information Similarly inapposite of 624 F.2d. petitioner court’s attention. The was denied pre-DeCoster are those I cases in our circuit— relief because the record no contained evidence Mitchell, Bruce, g., Hammonds, Matthews, e. support hypothesis, either not because the Harried, which, Scott —in consistent with the petitioner prejudice. had failed to show Amendment, Fifth the defendant bore the bur- Indeed, only Pinkney prej- the in reference demonstrating den of that he had been denied a udice to the outcome is contained footnote process rights fair trial. The defendant’s due explicitly where the court stated: simply under the Fifth Amendment are not regard way Our conclusion in no right coextensive with the Sixth Amendment rule, impinges upon readily the which we the effective assistance of counsel. reaffirm, that once a substantial violation shown, California, of counsel’s duties is the 738, 744, Govern- 122. Anders v. ment’s burden to demonstrate lack of (1967). S.Ct. 18 L.Ed.2d 493 prejudice therefrom. . [I]f majority opinions e„ appellant preconditions The read United States v. had met these [i. Pinkney, (1976), requiring tending the had offered evidence to establish only defendant not to show a substantial that of counsel had failed inform him the breach of memorandum], counsel’s duties but also to demon- Government’s allocution proceed- strate that the violation affected the the Government would then have encoun- Arkan- Holloway recently, More of counsel assistance the to effective right to demonstrate the ability the found a of on the defendant’s Court violation sas,127 that the is to his assure innocence fail- in the trial court’s Amendment Sixth innocent will be rights of the constitutional appoint in the face separate ure to justice system of criminal vindicated. Our attorney’s assertions of the defense rest on such a foundation. does not conflicting might prevent him interests affirm Supreme Court decisions for each providing Recent effective assistance is un- showing prejudice of that a distinct Holloway, three as in of codefendants. establish a Amendment necessary to Sixth Geders, appeal had petitioners’ below the v. United States,124 In Geders for violation. rejected the record ground on the been had been ordered example, the defendant interest demonstrated no actual conflict of attorney during the not to consult with his Again, prejudice to the defendants. or recess between his direct and overnight however, inquire Supreme the Court did Appeals cross-examination. The Court preju- were into whether the defendants grounds on the affirmed conviction whether counsel’s or even into diced any prejudice the defendant failed to claim conflicting interests was possible claim inability from his to confer counsel.125 failed, in the trial court valid. Because the Court, however, found that Supreme objections, ap- either face of counsel’s deprived had petitioner been separate counsel or to ascertain point Amendment and made no in- right Sixth of interests whether the risk of conflict prejudiced quiry into whether he had been appointment, such require too remote to order. That any way trial court’s deprived of their defendants were deprived had been Upon of counsel.128 the effective assistance the consti- assistance counsel established violation, finding a Court constitutional violation; showing tutional of its proceeded, separate part in a then was necessary.126 York, Herring proving the burden that counsel’s see v. New tered appellant (1975), did ex- because dereliction ample, not harm L.Ed.2d 593 or —for foregoes parking because allocution memoran- ticket? in order to avoid a it actually Benn, dum had no effective role in the See United States sentencing process. (1973). 476 F.2d 1127 Id. Moreover, perceive a rational is difficult partitioning of ineffec- basis the continuum 124. 425 U.S. 47 L.Ed.2d 592 govern- tive cases on the basis of assistance procedural impedi- mental “structural 85-86, Id. at S.Ct. 1330. permeates ments.” State action the entire process. that formu- criminal lates and It is state Judge apparently seeks to distin- Leventhal charges against prosecutes guish ground that counsel’s ef- Geders on provides accused. It is the state that the forum impeded had been “direct state fectiveness for the govern rules that defendant’s trial and sets the interference,” case, the instant whereas in proceedings. It is the state those performance is “untrammelled and counsel’s wrong- punishes the convicted offender for Opinion unimpaired” by See state action. — - And, indigent doing. critically J., Leventhal, most U.S.App. of 199 & defendant, provides issue, the as- D.C., however, it is the state 201 & 202 of 624 F.2d. indispensable the fair sistance of counsel so state is is not whether the to be actions, system adversary of our for counsel’s but whether the administration criminal prived blamed justice. rights has de- were violated. If counsel’s conduct defendant’s constitutional The Sixth Amendment entitles the accused to defendant of his constitutional rights, responsibility, counsel. From the the effective assistance of it is the state’s then perspective, courts, through rights. difficult defendant’s it is to see those to vindicate the cause of derelictions could how counsel’s relationship prejudicial 426 any 127. 435 55 L.Ed.2d U.S. 98 to the effect bear possible Of what on the defendant’s interests. significance whether is it to a defendant present closing argument to be- counsel fails 1173. Id. at 98 S.Ct. 128. opportunity, cause the court denies him 290

opinion, substantial,130 to determine whether reversal of and that appellant conse- petitioners’ required.129 the convictions was quently was denied the effective assistance counsel, of we now must consider whether Prejudi- the C. Was Substantial Violation violation of Sixth Amendment cial? Having in mandates reversing determined this case that coun- appellant’s convic- duty sel’s violation of his to his client was tion.131 Our inquiry governed is by Chap- Judge attempts (9th MacKinnon to (en account for 1978) banc) (Huf- F.2d stedler, J., Cir. these and other cases in which Ely JJ., the defendant is Hug, concurring with & and see, required prejudice, dissenting) (“It not to demonstrate e. distinguish makes little sense to York, g., Herring supra, by v. New characteriz- between where cases is counsel denied and ing them as cases in which the accused has incompetent cases where counsel is because “actually” been of denied assistance coun- representation by incompetent counsel - MacKinnon, J., Opinion sel. of at of 199 representation or little all.”). not better than no at Geders, U.S.App.D.C., at 229 of 624 F.2d. case, In either the defendant has been which, example, interpreted is as a case in counsel; denied the effective of assistance and recess, period overnight the defend- in neither case does Sixth Amendment vio- ant denied of was the “actual” assistance coun- hinge showing prejudice. lation on a of sel; Holloway is described as a case which petitioners representa- were denied “full majority A members of this court situations, Judge tion” counsel. In these today agree performance that counsel’s was at explains, MacKinnon the denial of the “actual subject question, least if not to serious Opinion condem- apparent is assistance counsel” on the face Robinson, J., nation. See at-of prejudice of quired. record and further is not re- U.S.App.D.C., F.2d; at 262 Opinion of 624 In those cases which counsel has Leventhal, J., U.S.App.D.C., at-of at provided assistance, merely inadequate how- judge of 624 F.2d. And the trial on re- ever, prove the defendant must that counsel’s misgiv- mand also indicated that he ings serious had assistance so ineffective as to constitute performance. Findings about counsel’s at equivalent counsel. non-assistance of Judge The distinction MacKin- contained simply non’s verbal formalism not corre- does clearly approach separates ques- 131. This spond reality to of ineffective assistance. appellant’s tion of whether Sixth Amend- Judge explains why MacKinnon nowhere a de- rights question ment were violated from the fendant whose counsel cannot consult with him prejudice. supra. note See This distinc- overnight has been denied the “actual” assist- recognizes tion is critical because it that even counsel, counsel, ance of while Decoster’s who required where a is in those cases new trial all, to declined consult with Decoster at prejudiced, because the defendant was not providing Judge “actual assistance.” Nor does performance may counsel’s still have been inef- explain representation” MacKinnon when “full identify allows fective. It thus courts to denied, has been much less when such denial is any falling brand as ineffective below conduct apparent. competent lawyer- the minimum standards of anytime I submit record reveals ing, regard guilt without client’s inno- substantially has counsel violated the duties help cence. This determination should deter client, owed “active” the denial of the violating duties defense counsel from owed apparent. assistance of counsel is Sixth The placing Robinson, J., Opinion their Cf. clients. at Amendment more demands than U.S.App.D.C., --of at of 624 F.2d. body degree warm with a law next to the de- early mockery” This test Circuit’s “farce and long recognized “It fendant. been that the blotting “gross incompetence right Bruce's out a to counsel effective recognize substantial defense” test failed assistance counsel.” McMann v. Richard- son, 771, n.14, this distinction between ineffective- counsel’s supra, 397 at U.S. at 90 S.Ct. Indeed, prejudice ness the defendant. physical presence “The of an n.14. mere I, recognize oversight DeCoster attorney now does not fulfill the Sixth Amendment questions when it guarantee Arkansas, which coalesced these stated Holloway . . . .” v. that if “a defendant shows a viola- substantial 1182. A defendant ... he has been effective present tion denied is no but less harmed when counsel is representation government perform unless the fails to client the duties owed to his ” prejudice thereby.’ altogether. ‘can establish than when counsel absent I fail lack damaged (empha- to by see how a defendant is F.2d at 1204 more Instead, opportunity added). analysis the failure to have an consult sis of ineffective during overnight recognize question in a one recess assistance should that the ten-day attorney trial than of his performance the near-total failure is distinct from the attorney investigate with him consult issue of to the defendant. Cf. Fitzharris, prior Cooper Swenson, trial. See (8th McQueen

291 the on Supreme require burden the defendant would in which man California,132 to establish the likelihood of his may be some him inno- that “there concluded Court presumption setting of cence. The of innocence135 which in the errors constitutional stripped the accused cannot be unimportant so cloaks case are particular a something a less by ... be conviction obtained they may insignificant constitutionally adequate a trial. these than . .”133 For harmless deemed errors, stages to earlier a return satisfy establishing To its lack burden of merely be exer- would an process criminal prejudice, enough it is not for futility proceed- because the second cise in point government simply evidence be certain reach the same ings would guilt at no matter how adduced as the first. result overwhelming evidence such In be.136 prejudice may well Chapman place, “proof in each case the first

Under burden precisely because government prove on be absent from the record squarely rests 137 When, that an error counsel has been ineffective.” as beyond a reasonable doubt case, upon is in this ineffectiveness founded was harmless before defendant’s convic- spe- than counsel rather place gross can allowed to stand.134 To omissions of tion be alleg- guilty go Winship, 1974) (evaluation petition man free.” re of habeas let Cir. two-step 372, (Harlan, ing process: supra, is U.S. 90 at 1077 ineffective assistance 397 at S.Ct. first, Underwood, determining J., concurring). has been fail- whether there See The Thumb duty perform defense some owed ure on the Scales of Justice: Burdens of Persuasion second, and, determining Cases, 1299, to his client in Criminal 86 Yale L.J. prejudiced the constitutional error whether the defense); (1977). When we know that an error has been States, supra note Moore v. United adversary adjudicative introduced into 17, (“This normal [of 432 at standard F.2d 737 counsel, through process the ineffectiveness of competency] ulti- also makes clear that the justification tilting toward the scales whether a defendant was mate issue is not stronger the likeli- defendant is even than when omission, prejudiced his counsel’s acts merely speculative. hood of error is See Unit- performance at the but whether counsel’s Burton, ed States v. 189 competency.”). level normal 485, (Robinson, J., 513 n.91 18, 824, dissenting). 17 L.Ed.2d 705 386 87 S.Ct. 132. U.S. (1967). 432, U.S. 135. See Coffin v. United 22, Chap- Id. at 827. Prior to 133. S.Ct. 453, (1895) (pre- 39 L.Ed. 481 15 S.Ct. man, Supreme indicated that Court had “axiomatic,” sumption of innocence “elementa- never harm- constitutional violations could ry,” “foundation” administration of J., 42^45, (Stewart, less. See id. at 87 S.Ct. 824 law). criminal concurring). by focusing Determining on harmlessness 23-24, 824; Fahy v. Id. S.Ct. Connect- supported by jury’s over- whether the verdict is 86-87, icut, U.S. 84 S.Ct. apart whelming questionable quite evidence (1963). principle is This consistent L.Ed.2d 171 special problems application its from the mandate with the constitutional government First, ap- prove guilt an of- the ineffectiveness context. such must of a criminal great- beyond proach usurps jury’s Mulla- to far doubt. See function fense reasonable Wilbur, ney appellate degree than that focuses the er one Winship, (1975); In re inquiry L.Ed.2d an examination of the nature court’s (1970). Second, 25 L.Ed.2d 368 Just and effect of the error. lower courts’ beyond guilt find a rea- as a trier-of-fact must findings an of harmlessness under overwhelm- doubt, appellate be no court must sonable subject ing to consistent evidence test are less did less certain that a constitutional violation Finally, appellate and even-handed overwhelming review. proceedings not affect the below. contrary evidence test by the doubt rule is animated protection reasonable principle is due constitutional maintaining bal- citizens, twin concerns an accurate guilty all as well the innocent. prosecutor and defendant ance between compensating Field, Assessing the of Fed- See Harmlessness systematic flaws in a deci- eral Error —A Process in Need of Constitutional acknowledged sion-making process be im- Rationale, 125 U.Pa.L.Rev. introducing perfect, imba- a deliberate process funda- lance consistent “a into I, U.S.App.D.C. at 137. DeCoster society that mental determination of our value F.2d man than it is far worse to convict an innocent 292 errors, permeate affected,139

cific ceedings counsel’s violations so were resulting and the prejudice the trial that cast will necessarily “incapable doubt on be of sort of 140 adjudicative the entire process.138 Even measurement.” As the Supreme Court “ the consequences emphasized, where of counsel’s omis- has ‘The to have the pervasive, generally sions are less it will be assistance of is counsel too fundamental impossible precisely pro- to know how the indulge and absolute to allow courts to in Arkansas, Holloway supra, (1968). presumption 138. In v. the Su- Such a often is created preme explained joint appointed Court in of a the context counsel when is not until the eve of representation why See, Cox, g., case a determination of the trial. (4th Cir.), e. v. 472 Garland F.2d 875 prejudice resulting denied, Garland, from counsel’s omissions Slayton cert. v. 414 upon nothing could be founded more than im- (1973); 94 U.S. 38 146 L.Ed.2d permissible speculation: Peyton, (4th 1967). v. Fields 375 F.2d 624 Cir. In the normal case where a harmless error Rundle, v. United States ex rel. Mathis 394 applied, is rule the error occurs at trial and (3d 1968), F.2d 748 Cir. the Third Circuit estab- scope readily According- its ly, is identifiable. appointment the rule lished that belated of reviewing the court can undertake with inherently prejudicial counsel and makes relatively some confidence its narrow task assistance, prima out a of facie case ineffective assessing of the likelihood that the error shifting proving of burden the absence of materially affected the deliberations of the prejudice prosecuting authorities. This jury. joint repre- . But in . a case of applied subsequently United rule was States conflicting sentation of interests the evil Maroney, (3d F.2d ex rel. Chambers v. repeating —it bears in what the advo- —is 1969). rejected Cir. There the court a habeas compelled cate finds himself to refrain petitioner’s claim be- of ineffective assistance doing, from at trial but also as to adequate cause the record contained affirma- possible pretrial plea negotiations and in proof prejudice. tive there On process. sentencing may possible It appeal, Supreme appellant’s Court affirmed identify in some cases from the record conviction, noting disposed that it was “not prejudice resulting attorney’s an from per every requiring fashion a se rule reversal of tasks, failure to undertake certain trial but tardy following appointment conviction of sentencing even with a record of the hear- Maroney, . . Chambers v. ing judge available it would be difficult to 1975, 1982, 90 S.Ct. 26 L.Ed.2d 419 intelligently impact of a conflict on the (1970). Although jetti- Third Circuit later attorney’s representation aof client. And presumption-of-prejudice soned its rule be- impact to assess the of a conflict of inter- longer it was no cause prompt needed effectuate attorney’s options, ests on the tactics and appointments circuit, within the Moore plea negotiations decisions in would be vir- significant supra v. United is note tually Thus, impossible. inquiry an into a Supreme rule Court left the undis- claim require, of harmless error here would Cox, turbed See v. Chambers. Garland su- cases, unguided speculation. unlike most pra, (maintaining presumption F.2d at 878 490-91, (citations U.S. at 98 S.Ct. at 1182 prejudice way omitted) of “our best to serve notions (emphasis added). justice play”). of and fair dangers attempting 139. One of the to assess opinion Judge heavily MacKinnon’s draws the looking harmlessness of constitutional error upon Supreme language in Cham- Court’s guilt to the evidence of at trial is that support bers to his view that “a mere breach of may counsel’s ineffectiveness have so distorted duty accused not a is constitutional viola- the record that record is an unreliable indic- [requiring tion unless the defendant reversal] And, guilt. ator of the defendant’s as noted in proves prejudiced.” Opinion that he was Rundle, United States ex rel. Green v. 434 F.2d MacKinnon, J., at-of-U.S.App.D.C., (3rd 1970), changes Cir. in circum- (emphasis added). F.2d But Cham- stances since the time of trial also make it merely appointment bers held that late vel non presence difficult for the court determine the require opinion did not reversal. The Court’s prejudice. or absence of silent on the issue who bears the burden of Hurt, demonstrating prej- the existence or 140. United absence States v. Indeed, approval udice. its tacit lower likelihood rule, impaired presumption-of-prejudice that counsel’s omissions will court’s Cham- defense, difficulty plainly prov approach combined with bers consistent with the fact, ing prescribed opinion: have led several other circuits once the defendant presume existence in certain shown substantial violation of counsel’s See, g., duties, situations. government e. United States ex pre- rel. must rebut Rundle, 1115; supra, Green 434 F.2d at sumption prejudice by Coles proving that the error Peyton, (4th Cir.), denied, 389 F.2d 224 cert. was harmless. 21 L.Ed.2d 120 the defendant from the denial of effective preju- as to the amount calculations nice ” its denial.’ resulting great, of counsel is so dice assistance prove the can government likelihood that defendant Moreover, to the “prejudice” small, prejudice reversal lack of so likelihood of many forms. The may take only touchstone a substantial required is the should be whenever acquittal at trial not consequence of counsel’s against the which shown. In- violation of counsel’s duties is of an The duties is to be measured. failures deed, Supreme frequently the has Court neces- many not attorney extend areas emphasized of counsel that “the assistance of trial. As affecting the outcome sarily rights among is those ‘constitutional so ba- in- inadequate highlights, the case present fair their can sic to a infraction may prejudice vestigation preparation ”144 never be treated as harmless error.’ only at trial but before the not defendant may only requiring a And it be rule in- to offer inability trial —in counsel’s provide the automatic reversal can deter- formed, whether competent advice on necessary rent to insure that all de- effect jury to demand a plead guilty and whether guilty or the fendants —innocent —receive as after trial —in providing trial —as well assistance of counsel.145 effective at representation ineffective sentencing.142 Nevertheless, may there be cases —how- fact, suggest might principles, These in reviewing ever few —in which the court can in all cases per appropriate rule is that a se per- specific isolate deficiencies in counsel’s representation fails to in which counsel’s accurately the con- gauge formance and can Amend- meet the standards of the Sixth sequences of counsel’s acts or omissions.146 prejudice to may be that It ment.143 Fitzharris, Arkansas, 475, 488, Cooper supra, 586 at Holloway v. F.2d U.S. five.” 141. v. (1978), 1173, 1181, Particularly significant regard is 55 L.Ed.2d 426 1340. in this 98 S.Ct. States, quoting U.S. Glasser v. United her observation: “Some courts have confused attorney inquiry 62 S.Ct. L.Ed. 680 into whether errors were enough significant to constitute ineffective investigation inadequate counsel’s 142. Where question of counsel with the whether ineffec- advising prevented properly his him from of counsel affected the outcome of tiveness matters, pretrial on the defendant should client Id. 1340 n.18. case.” oppor- a new trial but also an receive tunity engage plea after dis- discussions Arkansas, 475, 489, Holloway 144. v. informed, fully compe- cussing the matter (1978), 55 L.Ed.2d contrast, appropriate rem- counsel. tent California, quoting Chapman supra, v. only sentencing edy for violations that affect 23, 87 824. resentencing rather than new to remand for Pinkney, supra See United States v. note trial. likely Reversing have convictions n.49, U.S.App.D.C. at 289 551 F.2d at significant prophylactic rea- effect several 1248 n.49. First, judges to the that trial sons. extent prevent prosecutors Fitzharris, from See, can ineffectiveness Cooper supra g., note e. conviction, they tainting plea J., or will be en- (Hufstedler, 586 F.2d Second, couraged to as Beasley do so. insofar ineffec- dissenting); United incompetent 1974). results from indifferent or (6th Judge tiveness Cir. Hufstedler’s likely ap- lawyers, be recog- will less receive dissenting opinion Cooper does not Third, jurisdictions pointments. where nize, implies, in those Judge Leventhal that effect largely ineffectiveness results from unman- determining pertinent outcome should be ageable appointed counsel and caseloads of effec- has been denied the whether defenders, discouraged public judges will be Opinion Lev- tive assistance counsel. See overburdening Finally, frequent at-, re- J., enthal, them. U.S.App.D.C., -of likely Rather, are to attract the attention of versals Judge Huf- 624 F.2d. legis- public may enhance the likelihood of merely acknowledges the obvious: stedler potential prejudicial impact IV, See infra. lative reform. Part alleged attor- anof assessing may ney be error relevant present case, may example, representation simply be adequacy In the because likely possible greater impact, to determine the effect counsel’s more it is that prelimi- obligations. himself with But as failure nary hearing familiarize deviated from counsel Judge testimony. government clearly If the “This does not Hufstedler states: significant prove dis- prejudice that there were no shown to demon- could mean that must be testimony constitutionally crepancies between Officer Ehler’s ineffec- that counsel was strate example, For alleges required when a defendant in- defendant’s conviction not be rectifying counsel’s errors could not effectiveness because his counsel has failed because possibly benefit the defendant.149 object of arguably introduction evidence, consequences inadmissible the present On the record before us in may readily counsel’s be meas- violation case, government I would conclude that There, government may ured. able discharge proving has failed to its burden of prove showing harmlessness either consequences that no adverse resulted from suppression that a motion would not have gross duties to his counsel’s violations (and the succeeded evidence would important questions client. Several on the anyway),147 been proving admitted unanswered, matter remain that possibility there was no “reasonable any the in absence of evidence on these that the complained might evidence issues, critical I am to that unable find contributed to the conviction.”148 Similar- unimportant counsel’s violations were “so ly, where counsel violates his duties fail- insignificant”150 appel reversing that witness, ing particular to interview a the lant’s be conviction would a futile exercise. government may carry be able to its burden No for inquiry example, was made on the by proving, through proffer of the witness’ relationship between counsel’s failure to in testimony, the nothing that witness had vestigate go and Decoster’s to to decision relevant to offer even if he had been inter- possibly accept rather than to seek and demonstrate, examples viewed. As these in plea bargain comparable a that to of his appropriate circumstances, reversing the exploration codefendants.151 Nor was there preliminary Fahy Connecticut, hearing, supra, at trial and at the but see 148. v. 375 U.S. at supra, 86-87, position note 106 then a it would be in at In United States v. Pinkney, show supra that counsel’s failure tran- to obtain the note the court indicated script prejudiced could not have Decoster. appellant if the had been able establish duties, a substantial violation of counsel’s then Fitzharris, Cooper supra government given In note the would have been the example, opportunity the defendant’s claim of ineffective to demonstrate that the violation primarily assistance was based on counsel’s by proving could not have affected the outcome suppress failure to move certain actually evidence. that the allocution memorandum had prejudiced The defendant in that case was not sentencing process. in effective role the omission, counsel’s since the evidence was 431-32, U.S.App.D.C. at 543 F.2d at 916-17 legally in fact admissible under the standards in n.59. id., effect at the time trial. See F.2d Thus, Cooper 1333-34. as the court ex- experience 149. If should later teach it is plained, impact “ap- of counsel’s errors impact too difficult to assess the of counsel’s pear[ed] on the face of the Their trial record. judicial economy violations or that interests of prejudicial can effect be evaluated from that against searching militate for harmlessness certainty. record with reasonable In such a found, rarely per that can requiring be then se rule case there is no reason to reverse conviction adopt- automatic reversal should be appears preju- if it that the defense was not ed. alleged inadequacies diced performance.” of counsel’s Id. at 1332. Chapman California, supra, 386 U.S. at Cooper Because was limited to the situation 22, 87 S.Ct. 824. in which “the claim of is ineffective assistance upon specific founded acts and omissions of supra. 151. See note 120 Decoster’s codefend- trial,” defense counsel at id. court pleaded robbery guilty ants to one count and reasonably inquired any prejudice into whether suspended 5-years pro- received sentences and alleged could have flowed from the errors. But bation. Decoster was convicted of armed rob- place court seemed the burden of demon- bery years. and was sentenced to 2-8 A seri- strating prejudice the absence of on the defend- possibility leaps ous out of this record ant, at least where that determination can be some measure of Decoster’s sentence resulted made from the record with certain- reasonable shoddy legal representation especially from light — Moreover, ty. opinion Cooper ambigu- pervasive of the indications regarding prejudice ous whether the absence appellant seriously did not attend constitutionally means that counsel was not interests of his client. simply nonprejudicial ineffective or inef- Robinson, however, Judge require would burden the fectiveness does not reversal. See supra. having defendant with notes 121 & 131 establish the “fact Thus, any lish constitutional to offer violation. counsel’s failure whether government sentencing hearing put proof had was not to its allocution Moreover, the establishing harmlessness. judge’s decision bearing on the trial hearing remand was conducted with- prison of 2-8 initial to a term Decoster sentence opinion’s out benefit of this elucidation received while codefendants years principles gov- set forth in DeCoster I probation.152 ineffective erning questions of assistance. I, expressly stated DeCoster the court would remand the case to allow therefore required, “unless that reversal would be opportunity satisfy government is cast the ‘on which burden government, proving burden of harmlessness. its precepts of these proof once violation shown, there- can lack of establish IV ” 153 Thus, the harm- by.’ any doubts about course, reversing Of even Deeoster’s con- in this case lessness counsel’s violations remedy would pervasive viction not against resolved ordinarily would problem representation ineffective case be re- government, and the would disparity indigent.154 repre- between Yet, for a new trial. versed remanded poor and of well-to-do sentation remand, prior it is clear that despite our larger inequality reflects the of riches in required government was ever to satis- society. The imbalance in the our affluent that the denial of fy proving its burden of legal provided of for the quality assistance right effective assistance Decoster’s and is a indigent the one of wealthy beyond a reasona- counsel harmless of inequities society inequality host of in our — appel- In ruling doubt. on several of ble jobs, opportunity, of of hous- of educational lant’s the district court found contentions health ing, of care. any duty counsel not had violated issues, to client. As these province judiciary owed is the of the It not therefore, prejudicial the of the question remedy inequities. all these We have nei- of counsel’s conduct was never competence effect means the to re- ther the nor allegations, On several other the society’s reached. dress all of imbalances. We how- judge required ap- by to have appears duty, district ever do have the entrusted to us preju- Rights, individ- pellant demonstrate the Bill of to assure by deprived liberty by in to estab- our courts of diced counsel’s actions order ual codefendants, substantiality vio- the and the of counsel’s asserted ment and of his attorney’s before performance, lation” this court could even remand record of his overall more evidence the likelihood ineffective warrant remand on this issue alone. From the plea Opin- in assistance defendant’s decision. point jus- of view of the fair administration of Robinson, J., U.S.App. p. -of ion of at tice, in the of this we can- circumstances case D.C., p. 263 of n.158. trial coun- But ignore the likelihood that defendant’s deci- hardly expected sel can be to establish his own plead proper sion not to was made without Moreover, incompetence. appellate counsel is advice. ordinarily impugn competence reluctant the colleague according Judge of a Robinson, at bar. Also supra. 152. See note 29 amenability evidence of defendant’s guilty plea necessary appellate ato before an 153. 159 487 F.2d at 1204 inadequacy court consider the counsel’s (emphasis added). plea advice. can it Id. Yet how be reasonable expect a estimate to ity defendant to the advisabil- Throughout necessarily opinion, I this have entering plea when he has never had my problem limited discussion to the investigation legal benefit of basic ad- representation indigent in the vice counsel? legal process. Inadequate criminal assistance system justice Our criminal could not however, poor, for the is not confined to the yet present plea bargain, function without process: legal pervades criminal the entire inadequate countless cases of assistance con- system. reality, cerning plea This no less than ineffective reach never the attention of defendant, appellate Although we criminal chal- courts. do not know assistance lenges prejudiced equal justice moment whether Decoster was our belief fundamental surrounding plea, his counsel’s conduct law. under disparity the blatant between Decoster’s treat- constitutionally adequate appellate law without tri- rhetoric from courts can assure place al. we duty indigent We violate this when our representa- defendants effective imprimatur “Equal Justice Under Law” tion trial judges ultimately unless de- —and incompetent performance on the of court- fense counsel themselves—fulfill their re- appointed like the sponsibilities. Court, too, counsel cases one be- The Supreme fore us.155 recognized duty trial court to promise: fulfill the Sixth Amendment’s appellate An court’s is limited. role We guaranteed by to counsel [I]f promulgate specify can standards that purpose, Constitution is to serve its requirements minimum constitution- defendants cannot be left to the mercies ally competent performance. mandated We counsel, incompetent closely can scrutinize the records of those judges should strive to maintain proper issue, cases which effectiveness is at performance by attorneys standards of carefully monitoring per- trial counsel’s representing who are defendants in crimi- attorney’s ensure formance to that the obli- nal their cases court.157 gation have been fulfilled.156 When sub- uncovered, stantial violations are we can Because, demonstrates, as this case inef- enforce guarantee the Sixth Amendment’s representation fective is often rooted in in- vacating defendant’s conviction and adequate preparation, step a first that a for a remanding new trial in which the trial can judge take is refuse to allow effective assistance of will pro- be trial begin until he is assured that de- vided. fense necessary counsel has conducted justice, however, legal factual equal investigation. simple The real battle for question, waged must “Is ready?” may defense be trenches insuf- Although reversing Instead, courts. ficient provide criminal con- assurance. victions we significant formalizing can deterrent should consider proce- effect, appellate an dure necessarily judge court de- which the trial is informed pends upon implement the trial courts about the preparation.158 extent of counsel’s the it standards announces. No amount begins of Before the trial before a guilty —or goal not, Perhaps equal jus- 155. some including view the of but were the effectiveness of trial “utopian” society’s tice as and feel that unwill- expect counsel. It is unreasonable to that trial ingness expend the considerable resources acknowledge inadequacies counsel will the required improve quality representa- performance pro petitions their own se or that poor any tion for will doom to failure ef- filed illiterate or semi-literate defendants regard. Perhaps forts in this believe that will be sufficient to Sixth uncover Amendment promise equality courts should not if it cannot violations. agree promise be delivered. cannot that the equal justice impossible for all is to attain. Richardson, 759, 771, v. McMann 397 U.S. difficulty And I do not believe that the of at- 1441, 1449, (1970). 25 L.Ed.2d 763 goal justifies taining stopping that short of the my colleagues relegate mark. Some would inquiry The conducted this situation rights “aspirations.” fundamental to mere As- would defendant, similar be to that mandated when the pirations provide those, little comfort to like beginning challenges at the poor, powerless who are to fulfill them. attorney’s capacity to render just “earthbound,” effective as- Opinion Not see of Leven- - thal, J., preparation. sistance due to his lack of U.S.App.D.C., When of 199 at 217 of objection made, F.2d, approach such an is the Sixth Amend- shackled to but an that 624 failed in the has past, imposes obligation my colleagues ment an some of find it affirmative on the “salutary” pursue pro- inquire a course cannot trial court to into the basis of the de- “Equal vide Justice complaint. Under Law.” supra. fendant’s See note 38 Johnson, supra Sawicki v. note the court circuit, practice appointing 156. In this expressly investigation stated that this should many pauperis new counsel in forma crimi- obliga- focus on whether counsel fulfilled the appeals significantly improved nal our abil- Peyton, supra tions v. enumerated Coles ity performance. to monitor trial counsel’s note duties similar to those established in appellate lawyer objective can take an look at I, supra. DeCoster see note 63 the entire case and can ask the court to exam- ine issues that should have been raised below properly fulfilling obliga- counsel is not counsel could plea accepted159 is —defense tions, certifying appropriate must take ac- investigative judge an checklist submit complete prevent deprivation of the de- investiga- a tion has conducted “It rights. he has is the steps taken in fendant’s constitutional reviewing tion and counsel, including judge, what not who has ultimate records pretrial preparation, a obtained, responsibility the conduct of fair and witnesses were inter- for were which consulted, viewed; trial.” lawful when the defendant Although and what motions were filed.160 My colleagues judicial “inquiry fear cannot assure that ade- worksheet alone [may] and standards . tear undertaken, quate is it preparation But adversary system.” fabric of [our] gross obliga- counsel’s reveal violations of defendants, very indigent for so many tions; minimum, it should heighten adversary system already in shreds. In- sensitivity to the defense need for counsel’s deed, willing to judges until are take the should adequate investigation provide steps necessary guarantee indigent ap- record of asserted actions for counsel’s reasonably competent as- “the peal. attorney acting diligent as his sistance end, does we will judge’s obligation The trial conscientious have an advocate,”163 however, adversary system only. in name adver- with a determination protec- prepared during sary system salutary “provide for trial. Whenever can appears tion for the if rights course the trial defense accused”164 case, Simpson, justice but that 159. See is not that it shall win a United States 350, 352-58, App.D.C. be shall done. J., (1973) (per curiam) dissenting), 78, 88, (Bazelon, Berger C. v. United 295 U.S. denied, (1935). cert. S.Ct. L.Ed. 1314 (1973). L.Ed.2d 91 - Leventhal, J., Opinion of 199 present, appointed 160. At counsel in the Dis- My U.S.App.D.C., at of 624 F.2d. col- Superior trict of Court must Columbia submit leagues inquiry also into fear that an counsel’s Supplemental Information Voucher form with performance attorney-client will undercut every request compensation under relationship. inquiry is conducted When Act, Criminal 18 U.S.C. § Justice 3006A upon post-trial motion for relief the defendant’s Simpson, As I have noted in United States representation has and after counsel’s ed, conclud- supra easily note this document could then of concerns about the at- course converted into a worksheet to examine coun- torney-client evaporate. privilege See ABA preparation A sel’s in the case. similar form 8.6(c) (2d 4-8.6(c)); ABA § § Standards ed. used District the U. S. Court the District Responsibility, DR 4- Code of Professional Maryland Report of of is found the Judicial 101(D). at or if conducted before But even 13, 1965, Conference of the United States: Jan. trial, deeply judge’s inquiry the need not cut so 277, (1965). F.R.D. Several 36 338 commenta- attorney-client relationship. it that invades the suggested tors have checklists of also functions appears When it defense counsel has over- preparatory perform defense counsel must to major a looked a has made valid defense or See, g., Tague, Attempt trial. e. The to Im- blunder, only judge the ask trial need whether prove Representation, Criminal Defense 15 Am. counsel has an tactical reason for his informed (1977); Bazelon, 164 n.285 Crim.L.Rev. so, inquiry go actions. further; If need no then the supra Argersinger, The Realities of Gideon not, any deeper if intervention then Finer, 836-38; note Ineffective Assistance would be the We welcomed defendant. Counsel, (1973). of 58 Cornell L.Rev. 1119 attorney-client privi- must the remember that client, lege designed protect is to the not the 333, 341, Oregon, 435 U.S. 161. Lakeside v. 98 attorney. incongruous suggest It to that the is 1091, 1096, (1978). 319 55 L.Ed.2d The sanctity privilege act as of that should a shield government prosecutor is under less of a safeguarding to block the efforts at defendant’s duty to see that the trial conforms to constitu- rights. tional standards: Attorney repre- The is United States the I, U.S.App.D.C. at 163. DeCoster ordinary party sentative of an to a con- not F.2d at 1202. troversy, sovereignty obliga- but of a whose govern impartially compelling tion to is as - all; Leventhal, J., govern Opinion of obligation its interest, whose therefore, prosecution U.S.App.D.C., criminal of 624 F.2d. in a at 208 the trial progressed. cused as equally prepared [Emphasis sides are the both added] courtroom confrontation.165 very is the Constitu- Yet this role that the my colleagues also concerned are Some assigned judge. the trial His is the tion has the wide-ranging inquiry a into con- that the responsibility ensuring ultimate transform duct of defense counsel would receives a fair all the accused emphasize judge.

the role of the trial To safeguards Rights. attendant of the Bill of result, supposed hazards of such the say It is counsel no answer defense majority warning Judge refers to the will fulfill the function of protecting Prettyman in Mitchell v. United States:166 interest; very accused’s essence of tionship the court’s concern that counsel’s ty opinion Mitchell, L.Ed.2d86 would ties prudence is based. model on which much of ble lance by-product their criticisms are the stem process. eliminate the cert. propriety gine g., View, gation decisions, trial has been validity of the If just charge the counsel from client from inquiry into those them careful tial constitutional While the courts issue is raised. particular posed in terms of sponsibilities by defendant has of the bar are not a substitute for Frankel, Embarrassment Some failings relationship charge denied, judgment, between unfortunately go long way 123 U.Pa.L.Rev. truth” in the against unjust appraisal s(s trial between the bench and the bar: traditional judicial performance might of the Rather, commentators have adversary system of the inferior professionals inherent The Search protect poor. case into the of the gross of judge requisite unjust would also be embarrassment just ineffective assistance received I think the adversary system between courts and members administration. And where concluded, disparities A serious commitment to opposing parties matters when caused counsel well taken. ^[*] adversary must be have the reason of amenities toward defects were criminal those Judge conviction dissenting by appraising for Truth: skill. The bar is com- result remedy Anglo-American who have representation assistance judicial oversight s}s question required, rights Fahy courts bringing into line with the threaten (1975). Many paid process. from the duty under an but to system appropriate questioned representation is not ^[*] their F.2d of their skill But responded An the judge inquiry as the “en- cannot bar special of an ac- in a whether a of counsel by to adversary sentence. times for is a that is a the reali- 787, 793, Umpireal substan- many defense save his after a to save ^[*] calling. majori do not an un- defend availa- See, imba- juris- price obli- rela re- to of of of e. tion of The trial while the fundamental denied effective defendant’s 168. United States v. 167. The need for the trial that he duct at some future date. And I counsel must thus cannot understand how the tem will be “tortured out sel is duct in a ing upon informed tactical assert that his actions to substitute sel’s decisions are informed and rational. proach adopted that defense counsel the reasoning course; fears that the will ously be farther from the truth. nowhere does he elucidate the 433 U.S. by objection approach merely sary transform inquisitorial charges I must considering only ened if “thorough reordering counsel’s Id. at Judge In defend behind proceedings (1977) (Brennan, undercut 237-38, predicted eventually system disrupt 65-66, light ill-prepared emphasize judge simply reviewing post-trial inquiry, that our 72, 117-18, Leventhal his actions performance its own are forfeited them; complaint at trial. See be called 259 F.2d at 795-96. approach contemplate adversary system prompted nature.” —the dire in this called Judge administration of requires those claims that were justice” the adversary assistance courts are to be limited to that I am judgment approach to assure that our “adver- articulating by frequently expresses consequences. J., reveal—at each Powe, reviewing precise upon opinion decisions. And upon cannot “stand outlined is that he has during S.Ct. dissenting). rights Leventhal’s him to Indeed, Wainwright of really through from the it is The adversary in to judge shape” as system information does not will fact been justify enough justify exact trial is he be purpose into one pursue given fail adversary sys- of a in this long court nothing U.S.App.D.C. proposing justice. (1978). the counsel.167 produce adversary. the inac- if beginning nature of and seri- criminal as system,” repeated see how his con- stage his con- will not if coun- defense monitor able to for him idly by reason- L.Ed.2d opinion require height- . Sykes, “more of our raised based coun- could been .”168 Yet ap- problem certainly The bar must vigilant judge, increase its efforts However performances of its inadequate representation of indi- to monitor members alone, appropriate disciplinary take action by cannot solved the courts and to gent bench, jointly against attorneys must re- who fail to fulfill public bar and those justice.169 obligations their to their clients.170 Addi- equal new our commitment .”); (“[A] requiring fulfill most id. Ethical defense counsel Consideration rudimentary obligations pretrial investiga- lawyer competence proper should act with preparation disrupt clients.”); Disciplinary tion and will the adminis- representing in id. care justice. tration of 6-101(A)(2) (“A lawyer . Rule shall not: preparation legal without ade- Handle a matter years problem lawyer In recent in- circumstances.”); quate Rules competence subject has been the of increased Appeals Governing the Bar of the D.C. Court of among judges, legal community concern Columbia, XI, (“Bar 6(l)(b) § District of Rule See, public large. g., Advisory and the e. duty: power Comm, have the Counsel shall to the Judicial Council on Qualifications investigate involving alleged all matters To to Practice before the United States Courts by attorney an . called to misconduct Circuit, Report Proposed the Second Final by complaint or other- (1975), his attention whether Rules for Admission to Practice summa- wise.”) added). (emphasis Proposed rized in New Admission Rules for Courts, Federal District (the 61 A.B.A.J. 945 June, a committee of the Bar D.C. Burger, Report); Clare Committee report procedures issued a detailed on the bar’s Special Advocacy: Specialized Are Skills of complaints handling assist- for of ineffective Training Essen- and Certification of Advocates counsel, particularly indi- ance of those from Justice?, System tial to Our Fordham by gents represented attorneys. CJA The re- Kaufman, (1973); Judge L.Rev. 227 Does the Disciplinary port criticized the D.C. Bar’s own Counsel?, Right Have 61 A.B.A.J. Qualifíed failing investigate Board for such com- Kaufman, (1975); The Court Needs a plaints: Court, Tamm, (1974); Friend in 60 A.B.A.J. 175 problem We believe that the of substand- Advocacy Taught Way, Can Be N.I.T.A. —the performance by appointed ard attor- court (1973); Wilkey, 59 A.B.A.J. 625 A Bar Exami- neys is one which has been created in sub- Courts, nation for Federal 61 A.B.A.J. 1091 part by stantial such conduct the tolerance of Trial, Newsweek, (1975); Lawyers on Dec. accept- Attorneys over more than a decade. 1978 at 98. ing fre- cases under Justice Act the Criminal advocated, Many includ- reforms have been quently depend upon high of cases volume ing advocacy training in the law trial increased especially living. order to earn a This schools, on-the-job specialty certification such attor- the case since the vouchers that practices, raising standards for admis- neys frequently compensation submit for are practice mandatory sion to to include law pres- by judges. reduced economic This mandatory continuing school courses and edu- quality attorneys sure on effect on has an requirements. cation Efforts to raise the over- representation. the dis- Failure to enforce lawyers’ commendable, all level of skills are circumstances, ciplinary under these rules proposals begins but none of these even appointment the most and the continued unique problems providing address the ade- signaled notoriously attorneys, neglectful quate representation poor. for the None of many practitioners there is no criminal suggested attempts these reforms to deal with required. professionalism Once frequent real level of the most causes of ineffective assist- enforced, disciplinary we be- poor attorney rules are ance for the indiffer- defendant — message any prospect lieve nicated, will be commu- that a different ence and overwork. None offers problem correcting large part gross distri- and that a imbalance per- legal representation poor will levels of bution of between the resolve increased itself importantly, wanting by attorneys and the to risk affluent. Most none formance provide any disciplinary these reforms can assurance that action. Report, supra each defendant will receive the effective and note at'TO- Wolf Committee guaranteed of counsel conscientious assistance IL case, the Sixth Amendment. supra, note In the Saunders see outraged appellate so counsel was date, notably 170. To the bar has been lax obligations carry out his counsel’s failure attorneys disciplining those who shirk their ob- attorney grievance with the that she filed a ligations, despite provisions various The results of that com- D.C. Bar Association. plaint Responsibility that are Code of Professional designed significant public, it is are not but protect against such violations. ap- attorney continued to receive Decoster’s See, g., Responsi- e. ABA of Professional Code Apparently, pointments courts. D.C. bility, (“Employ- Ethical 2-30 Consideration 1971, episode. when is not an isolated accepted by lawyer when ment should not be administering responsibility the Criminal competent he is unable to render service only to increase the write to note that while there funding is needed is no tional court, majority opinion Judges Bazel- positions and to public of defender number on agree and Robinson and I on the two with better sup- organizations provide those principles dispositive fundamental of this the com- port We must increase services. (1) The case: constitutional standard of ef- to at- court-appointed of counsel pensation fective assistance of counsel in a criminal talent to ensure legal and high-quality tract reasonably competent case is assistance indigent on a represent who those attorney acting of as the defendant’s to sacrifice all regular basis do not advocate; diligent, conscientious and this vital role. security perform economic is shown by where that standard the de- pub- both the caseloads We must reduce satisfied, fendant not to have been the de- court-appointed counsel to and lic defenders fendant has been denied constitutional we must establish levels. And to counsel and his conviction must be manageable proves reversed unless the Government be- appointed to insulate procedures yond a reasonable doubt that the ineffec- pressure curry favor with the from the tive assistance of counsel was harmless. fix their com- judges appoint who them and California, 18, Chapman v. pensation. 824, (1967). 17 L.Ed.2d 705 not lie solution does That the ultimate APPENDIX exclusively province within the ignoring the justify courts does not our (Criminal Opinion After Remand 2002- our it as accepting situation nor immutable. 71). upon the people have bestowed courts a BAZELON, Judge, Chief and Before power trust: to ensure that the awesome MacKINNON, WRIGHT and Circuit against anyone is not invoked the State Judges. that individual charged with a crime unless rights guaranteed all the has been afforded by filed BAZEL- the Court Opinion for We fail that trust if by the Constitution. ON, Judge. Chief silently while indigent we sit countless by deprived to be liber- defendants continue Dissenting Opinion filed MacKIN- NON, Judge. assistance of coun- Circuit ty without the effective sel. BAZELON, Judge: Chief WRIGHT, Judge, Chief J. SKELLY of armed rob- Appellant was convicted and by BAZELON SPOTTSWOOD joined ROBINSON, III, Judges: years.1 On bery Circuit W. and was sentenced competent attorneys removing Justice Act in the District of Columbia was them from and Court, Superior appointment transferred to the the Criminal lists was criticized two Advisory Justice Act independent Board was established as studies commissioned D.C. part Bar, required Furnishing Repre- Report Appointed Plan for first see on Indigents. Board, Courts, Program, supra sentation to Counsel note which was D.C. composed 31-32, attorneys, again given seven Austem-Rez- see au- thority responsibility Report, supra (“One attorneys neck note to remove at 124 system existing eligible upon most serious weaknesses in the the list of CJA counsel machinery hearing complaint is the lack of effective inadequate and demonstration grievances taking disciplinary representation. action report In the conclusion of one against incompetent attorneys.”). errant handling complaints against court-ap- pointed counsel, however, “[d]espite the clear Appellant was also convicted of assault with act, wholly mandate to the Board was ineffec- dangerous weapon and received a sentence during years tual its three of existence.” robbery with concurrent his armed sentence. Washington Program Report, Pretrial Justice dangerous weapon Since assault ais supra note at 5. The Board considered robbery lesser included offense of armed aris- particularly case, egregious one and even then transaction, ing from the same act or United 6; refused to take action. Id. at Austern- Johnson, States v. Report, supra Rezneck note at 15. The (1973), F.2d 1297 we vacated the assault con- any attempt Board’s failure to make DeCoster, to reduce viction. United States v. appointed provide the number of n.2, App.D.C. counsel who 1199 n.2 representation by “decertifying” ineffective in- defense, appellant In his own testified the crime he on the afternoon of had that sponte noticed several court sua appeal, this Crump with at the Golden drinking been sixth amend- appellant’s indications bar, alleged the Gate near scene effective assistance the ment (Crump having admitted been in crime. States v. United had been violated. counsel but not recall whether he had the bar could 326, 328-330, DeCoster, U.S.App.D.C. there.) appellant Appellant claimed seen (1973). Unwilling the walked leaving after bar he had whether these indica- speculate about he and staying, the hotel where was was ef- provide failure to would reveal a tions from the obtaining key arrested while the assistance, remanded record fective we having clerk. He denied been desk supplementation. for knowing Taylor, and even the Earl denied Appellant the court for moved in district robber, Douglas Eley, at alleged the third holding evidentiary a new trial. After only of the offense. The other defense time hearings argument, and district oral Eley; agreed appellant he was witness judge denied the motion. The record Crump together been at bar and had us, appel- we been returned to and find subsequently he had seen but stated that lant’s conviction must be reversed because outside the bar. fighting them rights infring- were his Sixth Amendment ed. surrounding trial counsel’s ef- The facts require a more detailed statement. forts Court appellant arraigned was surrounding facts the offense are set 30,1970, and May bond General Sessions opinion briefly forth in our first can be and $5,000. lawyer time At that was set victim, Roger Crump, summarized. The appellant at trial was represent who was May testified that on his wallet preliminary hearing held appointed. A men, containing was taken three $110 represented 8 which trial counsel on June one whom He held knife. further questioning. and did most of appellant occurring, testified that while this was two testimony, Officer Ehler’s On the basis of persons, who he plain- later learned were for the three were held defendants Ehler, jumped clothes officers and Box out Jury. Grand aof car and chased three men. Because indicted, the three defend- being After eyesight impaired as a result of an Dis- arraigned were in United States ants automobile occurring accident months after Court, ap- counsel’s appellant’s where trict offense, alleged Crump was unable to On November pointment was reaffirmed. identify appellant stated, He trial. judge the district appellant wrote to however, immediately alleged after of “assault guilty claiming was robbery persons he had identified all three requesting a new defence” self [sic] who were arrested. only specific charge leveled lawyer. The ap- identify Box and Ehler did Officers appellant was that had been against persons had seen as one pellant custody by the Black accepted pretrial also testi- robbing victim. Officer Box on October Development Center Man’s appellant into that he had chased fied had been filed. review motion bond Annex, appel- hotel, where nearby the D.C. filed such a motion November 9 counsel On standing at the while was arrested lant court, but did not mention in district stated, hotel, Box At hotel desk. One week la- acceptance by Black Man’s. appellant. Officer Crump had identified ter, proa appellant filed se motion bond chased, arrested, had that he Ehler testified (which not mention Black also did review had Taylor and found Earl searched Man’s). the district On November The wallet pockets. in his straight razor law,2 continued the judge, required found. were never money States, U.S.App.D.C. F.2d 212 3146(d), (1970); §§ 2. See 18 U.S.C. v. United Grimes (1967); v. United Shackleford F.2d that the Government had served an alibi- notice demand response. and received no motions review the Court of to await argued Defense counsel that while he might Sessions, originally which set General had alibi, rely on an response necessary was the the bail. Counsel did not make motion the given for General Decem- because Government had not review in Sessions until 8, 12. ber and it was denied December notice the days required as local rules. court although decided that On January 1971, the case was called dilatory, for Government had been trial names court, in district but a continuance granted was provided after of alibi witnesses should be prosecutor none- indicated Crump hospitalized was following theless. Counsel then announced that he his auto- mobile later, accident. days Two “proceed would without the alibi dis- witness- trict judge granted the bond review motion es.” appellant released to Black Man’s. On next court Counsel informed the that his January 21, 1971, appellant absconded, and jury. client wished to be without tried shortly thereafter a bench warrant issued. When asked if he considered the fact had On June trial of the two codefendants judge already that the trial had listened to commenced, but in the middle of trial they of the evidence in the codefendants’ pleaded some guilty. trial, thought he counsel stated that their Appellant was September 2, rearrested on pleas on had been entered before evidence charges unrelated for which he was ultimately convicted point was heard. At the defendant Superior Court. Trial was set in this ease felt, for November requested a continuance because he “I 1971. day On the trial, appellant get proper representation.” can’t Counsel asked the subpoena court to the two code- requested then to withdraw because of his fendants, explaining that he “didn’t have a dissatisfaction, his motion client’s but was chance” to talk to lawyer about this. convicted denied. Defendant was on No- Counsel indicated he had considered the vember and sentenced March 1972. possibility subpoenas, but did not have 4, 1973. opinion Our issued October prosecu- codefendants’ addresses. The This much us original was clear to on the reported tor Eley (where jail was in appeal and concern.5 aroused our At the had been weeks);3 for six the court read hearings remand, on February held from the file court Taylor address Earl additional information was had listed at the time of his release on concerning preparation elicited counsel’s personal recognizance eleven months earli- explanation and his for his actions. er. Coun- That proved address out of date. After counsel sel admitted he had announced he was interviewed ready the prosecutor victim, perhaps at informed court least one and both of length possible some The dissent discusses at On October a letter from the Chief explanations acts innocent various informing Probation Officer Eley the court that pointed omissions to which we in our first had been arrested in North Carolina unrelat- (Dissent charges placed opinion. ed at---of was in the clerk’s file for App.D.C., F.2d). Eley’s at report, We A case. later not available to adequacy expla- need not consider the of these appellant’s counsel at the time of trial but in- nations, point for our in DeCoster I was not us, cluded in the record before indicates that Eley brought the various acts the de-' established 3,' to D.C. Jail on November fendant denied his to effective assist- 1971 for a determination of whether revoke counsel, ques- probation. ance but raised tions to whether a violation constitutional proceedings on had occurred. The remand ful- partial transcript reprint- 4. A colloquy of this ly it was vindicated our belief that desirable to opinion ed in our first at 159 at concerning per- ventilate the issues counsel’s 329, 487 F.2d formance, text, explain great since as we significant was elicited deal information hearing. was con- this letter —which testified that letter Decoster’s earlier sistent with officers,6 anyone Golden police testimo- Eley’s judge district Hotel,7 D.C. Annex code- bar or Gate had indi- appellant time first ny claimed that he —was Taylor. Counsel fendant had seen appellant that to counsel cated Eley on the codefendant had interviewed that Until Crump leaving bar. after trial, and day the second that morning of testified, had main- time, appellant counsel Eley appellant had maintained that was not trial, he had that tained, he testified present during robbery.8 Counsel also on the hotel.11 Based to the directly transcript gone he had not admitted obtained testimony that letter, counsel concluded stated that preliminary hearing, but devastating” “might held several with the had conferences the codefendants surmised, defense). prosecutors, and based on their He alibi to the (presumably practice, usual that had made tran- subpoena the at trial to agreed nevertheless script he had available to him and that read after inter- codefendants, Eley called guessed, it.9 He also on his based usual Eley establishing that viewing him practice, that he had the 251 obtained Form testimony.12 alibi appellant’s would support from police department. In the new By explanation denying request, trial way of counsel testified shortly district court identified seven acts or omis- appel- not until trial had before witnesses, alleged sions counsel which appellant lant ever mentioned deprived his right then had him of just the two effective codefendants. Counsel respect assistance of counsel.13 With further stated that at the same time two about in allegations delay moving for appellant he had received a bond letter —the transcript review and the failure obtain a appellant fought which he had admitted having preliminary hearing with court Crump but denied robbed —the found that the defendant had not him.10 The letter been indicated code- support prejudiced by respect would this claim. the violations. With fendants Counsel judge explain had 12. asked rea- 6. The district found counsel not in- Counsel was also “tactical terviewed either officer. sons certain decisions” he made. why he He could not recall had moved for bond requested Appellant 7. testified that he had his district court rather than in review the Gen- hotel, lawyer manager to interview Sessions, why eral he had omitted or mention respect request peo- but made no such acceptance by origi- Black in the Man’s ple at the bar. attempted stated nal motion. He that he had direction, jury at his to waive spite client’s de- interviewed, Eley having but the denied been misgivings. explained counsel’s own He testimony found incredible. district court opening that he had waived statement because testimony he believed “the I would have would prosecutors were called as witnesses at Two case,” proceed in be sufficient to this but could remand, hearing on but neither remem- not recall the factors that him to that led con- testified, however, bered this case. Each clusion. And he stated that he did not check to Attorney’s during tenure in their Of- properly executed, was determine if sentence fice, they frequently appellant’s had discussed filing appeal because after a notice of on the Cohan, cases with Mr. at counsel’s counsel. who day imposed, sentence he considered his trial, represented the Government further representation appellant terminated. appellant’s practice usual stated that counsel’s speak prosecutors informally regard- was to supplemental 13. In in this brief filed court ing discovery request hearing to see returned, appellant gener- after the record practice transcripts, and that usual Cohan’s presses points, ally plus these same an addi- them. was to show object appel- tional one: counsel’s failure to jury prison garb. because, appearing before the lant’s Appellant wrote to as he counsel explained letter, was not the rec- you Since this issue raised below “1 tried to call considerations, any, before, what if ord does not reflect underlay but couldn’t make contact.” object. not to counsel’s “decision” remand, hearing appellant clung 11. At the Consequently, cannot it at we consider testimony that the to his trial and stated state- time. letter to was a ment in his “fabrica- tion.” that, DeCoster I we unanimously held least when performance counsel’s is chal- allegations to three other at- —counsel’s lenged appeal, appellants on a need tempt direct jury to waive his waiver of an proceedings not show that “the were a statement, opening and his failure to see justice”15 mockery farce and a Reformatory gave Lorton appellant “gross incompetence of counsel credit for time served as ordered sentencing judge court effect blotted out the essence of a found no inef- —the Rather, fective substantial respect following assistance. And with defense.”16 final allegations circuits,17 two adopted failure to we inter- number of other —the view premature stringent witnesses and counsel’s “a more standard: an- nouncement that he was ready reasonably competent court entitled to the assist- —the made findings of fact and attorney diligent several ance acting conclu- of an as his law, sions reprinted pertinent part U.S.App.D.C. 159 conscientious advocate.” margin.14 These conclusions Moreover, can be 331, recog- 487 at 1202. F.2d “ read as either holding that there was no assist- ‘reasonably competent nizing that constitutional violation and in event no label, and not a shorthand only ance’ is prejudice, or simply holding that preju- we articulat- subject ready application,” dice was shown. by counsel duties owed ed several client:

II A. In General —Counsel guided should be adjudicating benchmarks American Bar Association Stan- dards for original case are set opinion. forth our Defense Function. . 15. See 148 F.2d trial and was to have interviewed the to ineffective assistance of counsel warrant- ing prior convinces prejudiced raise the defense was duties owed to his client. have been thorough herein under the circumstances. proof. And in and attitude counsel while it was less than a cate,” ceedings, this Court cannot ness, sonably competent assistance of an proper do l. 2. While it so . Diggs new trial. Further, considering the record in in this ^[******] . substantially . supported announcing “Ready”, might police 89 L.Ed. 2002 weight a factual this Court that DeCoster possible, . thereby [T]his prudent lax in his during particular putting defense available to Welch, officers appear “diligent cert. light Court finds that we find that counsel did be that defense counsel course investigation denied, violated case does not add that defense and the codefendants government’s (1945). not denied the “rea- course of these duty conscientious DeCoster’s hearing government complaining wit- say for trial counsel any one of the to conduct as his failure to that defense him, on remand attorney” while the was not posture case at which might advo- 5, 7, toto, pro- up its 17. At the joined this well. ley F.2d 125 ambiguous L.Ed.2d 407 cated 90 S.Ct. (8th Argersinger, 432 F.2d (1976). coming Hogan, tence cases”). advice must be “within Peyton, 389 F.2d 224 Cir. States cert. mockery” 393 U.S. (1968); Galli, circuits See also McMann sonableness” test. v. 1974); United States v. A “reasonableness” Twomey, 510 F.2d 634 v. United 1960), Cir. denied, 534 F.2d See demanded of v. 494 F.2d might MacKenna v. already 877, 730 1976); (5th Since Stern, standard Bazelon, time DeCoster was 849, trend, modified, in its majority (3rd (1975), 423 U.S. 82 S.Ct. Cir. 64 Geo.L.Rev. reconsider States, then, 89 S.Ct. see also 519 F.2d had standard, United States ex rel. Williams L.Ed.2d 763 Cir. 1974). v. (9th See Moore v. United for some version of a “rea 289 F.2d rule in the state courts as and one circuit Richardson, three more circuits 1970) (en banc); rejected 121, Ellis, 491 F.2d 687 1222 n.4 standard is (4th Cir.), attorneys Realities of Cir. Herring its old (7th Easter, One 80, compare 280 1976), L.Ed.2d range Cir. 928, (1970) (counsel’s 21 circuit has been the “farce and Morgan rule, (1st decided, F.2d 592 v. 539 F.2d 663 397 U.S. L.Ed.2d 1975); cert. cert. in criminal with United Gideon Estelle, rapidly Cir. Lischko (9th Cir.), 820 n.48 has indi (6th Coles compe denied, denied, (1961). States, 1974). Beas three 759, (5th Cir. 120 be- v. v. U.S.App. 16. See Bruce v. United 336, 339-40, D.C. Carnegie, and resources an Andrew then confer

Specifically (1) Counsel should perhaps concern embodied in DeCoster I — delay without and as with his client might unnecessary. be This say is not to necessary to elicit matters of often as render, lawyers always that such will defense, potential or to ascertain that always clients such receive effective assist- are unavailable. Counsel defenses counsel; ance of repre- task of criminal fully potential strategies should discuss sentation is too difficult and the human tactical choices with his client. animal too fallible. But in a world of Dar- (2) promptly should advise his Counsel Carnegies, perhaps rows and it would be rights client of his and take all actions tolerable for judges to assume pas- a more necessary preserve them. . sive role. appropriate Counsel must conduct world, We do not live in that kind of investigations, legal, both factual and however. In the real world of criminal to determine what matters of defense justice, the majority vast of defendants lack can developed. . most [I]n representa- the means to afford effective attorney, agent, cases a defense or his sophistication tion and/or to vindicate interview not only should his own wit- governing their to it. The principle is govern- nesses but also those that equal justice clear: “There can be no where call, ment intends to when are kind gets depends of trial a man on the investigation accessible. The should al- money amount of he has.” Griffin v. Illi- ways include efforts to secure informa- nois, 12, 19, possession prosecution tion in the L.Ed. 891 And, and enforcement authorities. law course, duty investigate also requires adequate legal research. B. (Footnotes omitted.) “[Ijnvestigation preparation,” and as the 332-33, Id. 487 F.2d at 1203-04. And we Commentary to the ABA Standards only starting stated that these duties are “a recognize, Defense Function keys “are the ” point develop, by for the court to on a case representation. to effective . . . basis, guidelines case clearer for courts and is axiomatic among trial lawyers [I]t lawyers meaning as of effective judges and that cases are not won in the n.23, assistance.” Id. at 332 487 F.2d at by long courtroom but hours of labo- 1203 n.23. investigation rious prepara- and careful requirements The set forth in DeCoster . . tion. The adversary process as- indisputably components are the minimal its proper sumes and functioning de- “reasonably competent assistance.” Even prepared mands that both sides have so, every not violation of one of the duties organized their case in advance of trial.18 reversing warrants a conviction for ineffec- Moreover, as the Standards themselves Rather, tive assistance. DeCoster I con- state, the “duty to investigate exists re- templates step inquiry: a three did counsel gardless of the accused’s duties; admissions or violate one of his articulated statements to the “substantial”; lawyer of facts constitut- violation and was the ing guilt.” “prejudicial.” substantial violation Id. at 333, 487 F.2d at 1204. duty to investigate is not necessarily all attorneys simply by

If defense had the dedica- fulfilled interviewing per- those tion, experience skill and of a Clarence Dar- sons whom a client names as defense wit- row, nesses; sophistication or if all clients had the it demands that counsel “make an Project infrequently, inquiring 18. ABA on Standards for Criminal Jus- 20. Not without as to tice, Relating client, Standards to the Prosecution what counsel was told his courts and the Defense Function lawyer’s Function have found ineffective assistance in a 1971). (App.Draft exculpatory See also id. at 226-28. failure to uncover evidence that found, or, generally, should have been his more thorough investigation. 19. Id. at 4.1. failure to make a length that counsel argues The dissent facts, cir- examination of independent would the codefendants along that knew all cumstances, involved. and laws pleadings false, appellant and that alibi was say the ,”21 requires coun- Minimally, this to which participated had in the crime persons to contact (or investigator) sel nothing in coun- pleaded guilty. There is to be- have reason he has or should whom remand, testimony hearing at the sel’s ques- to the events were witnesses lieve however, conclusion. In- support tion; places in which he witnesses to seek evidence, logic, relies on stead dissent to believe the have reason has or should reasoning that counsel’s “decision not occurred; these in- and to conduct events finding probable contest cause [at investigations promptly af- terviews hearing] necessarily preliminary involved before possible, as is appointment ter knowledge by defense counsel for Decoster disappear.22 witnesses fade or memories (the Taylor counsel whose conduct is case, according to his own admis- In this question) here in that could have been court’s factual find- by prior the district discussion of the offense sions—and obtained investiga- nor an ings trial counsel with these men and consultation with —neither - things. He any of these did tor did Eley or his counsel.” Dissent at Taylor, delayed codefendant interview at 319 of 624 U.S.App.D.C., F.2d. interviewing Eley day until the second circularity of this deduction is trans- complain- interview the trial.23 He did not parent: by assuming precisely what is at officers, arresting and he failed ant or namely, issue that counsel rendered here — or the search for witnesses at hotel reasonably effective assistance —the dissent record, appears all that facts, which, bar. From spin is able to a web of if go client on whether to record, counsel advised his supported by the would at least trial, present conducted the with- question. and then more difficult As mat- making any stand, real effort to determine assuming out ters there is basis for way with the code- what could be elicited of defense. that counsel had discussions Swenson, 2.1, Shadoan, See, (1974); g., Law and §§ e. v. 498 F.2d 207 ual .12 G. McQueen Swenson, (1964). (8th 1974); 7 v. 497 F.2d Tactics in Federal Criminal Cases Cir. Garton Perini, 1974); (8th 1137 Johns v. 462 F.2d Cir. denied, (6th Cir.), literal,” cert. “overly 1308 409 U.S. 93 Dissent 23. The dissent finds us (1972); Pennington (cid:127)--(cid:127) 34 L.Ed.2d 501 v. S.Ct. U.S.App.D.C., 624 at at 319 of of 199 Beto, (5th 1971); F.2d, colloquy: 437 F.2d 1281 Cir. Andrews v. interpreting following (9th 1968); United 403 F.2d 341 Cir. a inference that Would then be correct Q Peyton, (4th Cir.), 224 cert. v. Coles denied, you Taylor prior interviewed Mr. never 80, 21 L.Ed.2d 393 U.S. trial? Texas, (1968); (5th v. 381 F.2d 619 120 Brooks A That’s true. Dickson, 1967); Brubaker v. 310 F.2d 30 Cir. you any interview Mr. Did make effort to Q denied, 1962), (9th 372 Cir. cert. Taylor before the trial? (1963); McLaughlin 10 L.Ed.2d 143 S.Ct. A I did not. Royster, F.Supp. (E.D.Va.1972); v. (Tr. 37), following colloquy: at or the Green, (N.D.Ohio F.Supp. v. Kott you only [Taylor and Did think that Q Eley’s testimony Swenson, 1968); F.Supp. v. Goodwin devastating] might and be Beto, (W.D.Mo.1968); Smotherman you not know it because had not interviewed F.Supp. (N.D.Tex.1967). them before the trial? thought A The reason I that was be- Gillies, 708, 721, 21. Von Moltke Mr. cause of the letter that I received from 316, 322, 92 L.Ed. 309 Decoster. you have views on Well how could Q appeal, testimony you In addition to their common sense if had not what their would be requirements these are set forth as cardinal interviewed them? leading me that rules in the manuals for defense law- A Mr. Decoster had told Because See, Amsterdam, fight- yers. g., Segal, they B. him the time he was e. A. & M. were with Miller, ing in this letter. Trial Manual the Defense of Crimi- 1974); (Tr. 38), (3d never inter- ed. to mean counsel §§ nal Cases Section, Ass’n, Taylor Eley Lawyers Young interview until Bar 11th viewed and did not D.C. day the second of trial. Practice Institute —Trial Man- Annual Criminal

of careful investigation would have been to mention at the that he failed heightened, lessened, fendants rather than since hearing on remand. counsel would have needed to determine which defense could or should have been interview, Although conducted counsel presented. jus- special circumstances possible it is omission, therefore the and that tify (b) The argues Government locating breached. To investigate was not duty Taylor would have been a “formidable sure, there or room for is less need be task” appellant’s flight. after But before deciding who not to decisions in tactical the flight, September 1970 to Janu- than, example, deciding interview ary 1971 when trial was scheduled to prudential to call. and who not But tactical begin, Taylor was available in the D.C. involved,24and this judgments still be Moreover, Jail. one week after appellant guess” does in- court not sit to “second rearrested, three days before judgments they sort unless formed of this set, trial date Taylor was sentenced case, manifestly In this are unreasonable.25 probation. district court to It strains however, explanations prof- we find the credulity that Taylor to believe could not counsel or hypothesized fered have been appellant’s found had counsel lack government plausibility.26 Taylor’s contacted on-and-off employer who had written letter Taylor’s be- 1. Codefendants Taylor Eley. prior half sentencing; Taylor’s proba- arguments Three offered are officer, tion with whom the record re- the failure support Government to or Taylor regular veals was in contact at the delay interviewing the codefendants: trial; time appellant’s perhaps even (a) It is argued appel- that the fact that Taylor’s lawyer. gave conflicting lant his counsel accounts events—the and the claim alibi (c) The district found that not until court fight excuses the lack of —somehow day appellant suggested of trial had prompt interviews. While existence to his the codefendants counsel that these might conflicts be relevant were might helpful the defense. But issue, counsel’sfailure to call witnesses at counsel knew that the codefendants were justify the conflicts can hardly failure alleged robbery in a participated have interview. did The defendant not of- client, knew client fer self-defense claim to his counsel Surely claimed not to been there. day long or two after until before realized that the should have co- been the interviews should have conduct- potential defendants were least wit- Moreover, alibi, support ed. even if defendant had con- nesses in earlier, importance tradicted himself the should have been interviewed. Clayborne, U.S.App. question guilt. ute on United States v. the the defendant’s Cf. - (1974) (failure (Dissent U.S.App.D.C., D.C. F.2d 473 to inter- at of 199 at 319 witness excused because client had been view F.2d.) argued, Similarly, of 624 it is based frequent witness). contact with drawing that introduced at the desk clerk appellant could not have seen enter the hotel DeCoster, 1201; supra, 25. United States v. at U.S.App.D.C., lobby. Dissent at-of Moore, see, g., U.S.App. e. United States v. F.2d.) points 319 of 624 both On the dissent: n.7, D.C. & 529 F.2d 358 & n.7 may possible well But it is be correct. also Brown, (1976); U.S.App. United States v. that, wrong, example, that the dissent is 177, 179, (1973); Camp 476 F.2d D.C. appellant codefendants have said would was States, U.S.App.D.C. v. United bell present, not or the would have said clerk (1966); 377 F.2d Jackson v. Unit away appellant’s he was from desk and saw ed entry. only prove These rationalizations our point: potential main counsel should interview dissenting propounds colleague

26. Our a num- offer, they witnesses to what have to determine arguments why it would ber as to have been engage so that we —must neither he —nor example, For fruitless conduct interviews. it post speculation hoc to what as witnesses argued that two because the codefendants would have said. by pleading guilt guilty, their own confessed they anything could useful to not have contrib- potentially two places fruitful for investiga- The dis- witnesses. 2. The Government that were tapped: lobby tion not the hotel justified was that counsel trict court found the bar. For the same reasons interviewing Ehler because Officer in not might hotel clerk’s recollections have been prelimi- had examined him counsel e., useful, dispute i. as resolve to how respect hearing. agree. We But nary hotel, appellant guests reached or resi- Box, court noted the district to Officer lobby who had dents been in the the time consist- “generally testimony was that his have been very should interviewed. At the Ehler,” and with with that of Officer ent least, the clerk have been should asked for victim, “[tjhere Crump, that respect persons the names of he remembered hav- [hisj testimo- incredible nothing about ing appellant in the lobby. Similarly, seen substance of ny.” relevance the Whatever persons testified unknown to him had ques- testimony may have to their trial in the bar time been at the same he was to inter- the effect of the failure tion of have there. Such witnesses could been view, justifi- hardly provide a tactical it can helpful they if ap- could have corroborated inter- pretrial conducting cation for not claim pellant’s Crump that he and had been that af- government contends views.27 or, drinking together, if perhaps, they had interviewing flight, Crump appellant’s ter conversation, or seen Crump overheard living since he was “impracticable,” appellant leave. least Counsel at could ig- again, But Georgia. the Government questioned employees bar to see for the sever- nores the failure interview if had or sup- useful information could al between the time of offense months ply the names of were customers who at the accident, very oc- though even at the time. bar currence of accident demonstrates sum, we hold that counsel’s failure to prompt importance of interviews. Taylor, interview Crump, Box, Officer or The dis- The desk clerk at the hotel. clerk; the desk delay in interviewing out found no reason to seek trict court Eley; and his failure to seek out witnesses dispute “[tjhere was desk clerk because the hotel were or the bar not sup- entered D.C. to when the defendant considerations, ported tactical informed he was arrest- or when where Annex otherwise, duty and violated the or to con- However, the reveals that trial record ed.” course, a factual Of investigation.28 duct walked from the appellant claimed had duty to assist was “under no lobby, the hotel and into the while bar to defense,” as the fabrication district testified that he had chased Office Box counsel was wisely noted. But Surely clerk should court under appellant. the desk whether there duty investigate was a contacted to ascertain whether have been appellant the hotel or he saw the enter could be non-fabricated defense appel- about anything relevant remembered well be dissent correct presented. while at the desk. lant’s demeanor were defenses available that there no such case, significant although may in this potential witnesses. No other 4. Other pled guilty only job the two codefendants were name witnesses identified robbery. robbery and armed But position. Nevertheless, reveals the record sup- dissenting counsel further agree Two other omissions col- 28. 27. We cannot with our U.S.App.D.C., finding inadequately pre- league, port he was our that Dissent at-of 199 ’ First, F.2d, reading prosecutor’s pared. did not obtain a tran- counsel 624 319 of preliminary hearing, script thus was his witnesses is on his conversation with dice investigate. from a near-total failure to 47 L.Ed.2d 592 of evidence favorable to the defense —a the same within squarely falls This case unlikely hypothesis appellant somewhat — here —a total fail- violation category. The still would have benefited from a full inves- investigations— factual to conduct ure tigation. appellant Had been told in which analogous to ones this case makes lawyer that there was no evidence available immediately until appointed counsel is not support theory, appellant to the defense Investigation is so central trial. before have make a would been able to better that, except defense function trial, go whether informed decision circumstances, gross extraordinary most plea agreement compara- whether to seek a investigate will duty violation of Thus, given to his ble two codefendants’. Fur- rights. adversely affect defendant’s the magnitude both of counsel’s violation was thermore, violation in this case effect,38 probable and its we conclude that failed to interview cer- simply that counsel to effective appellant’s constitutional here also named witnesses.36 Counsel tain assistance of counsel was violated. there whether promptly failed to determine alleged witnesses were additional D. flight who robbery appellant’s alleged toor a new Appellant the defense. is whether remaining question could have aided I teaches DeCoster that such an expected required. be to show cannot since the burden of discharges would have been fruitful appellant effort once necessary of one of very reason such effort violation showing a substantial duties, identi- appellant was that did not know the shifts counsel’s the burden witnesses.37 the constitu- ty of such to establish Government U.S.App. violation was harmless. even an investi- tional Finally, we note that if DeCoster I at 487 F.2d at 1204.39 a scintilla D.C. gation produced not have would presumption consequences appellant alleged, adverse 38. The If this were all that was course, is, appropriate required here to show that those which we find would have been helped Indeed, testimony respect would have with to counsel’s witnesses’ rebuttable. change appellant’s prior in cir- defense or else demonstrate a trial that failure to discover time, cumstances, passage pled guilty which such as had not until the mid- codefendants showing impossible. trial, supra, would have made such their see note 28 the record dle of inconsequen- indicates that the omission was tial, Pinkney distinguishable on all these judge since the trial informed counsel of large-scale points. failure to inves- Whereas started, appellant re- this fact before trial always adversely tigate affect a will almost jury to waive trial. versed his initial decision rights, inform a defend- a failure to defendant’s concluding But there is no similar basis for government allocution ant of the contents of a counsel’s failure to interview the Government inherently injurious, sentencing is not so at especially witnesses, potential witnesses or defense when, Pinkney, as in the allocution witnesses, search for other defense or to be previously published largely material 426, rehashes preliminary hearing transcript familiar with the addiction, drug U.S.App.D.C. impact position. had no on defendant’s previously devel- F.2d at and information oped at id. at 543 F.2d at 912. More- Although dissenting colleague devotes a our over, appellant Pinkney presumably in a portion attacking considerable of his dissent to upon position to come forward with “evidence (Dis- aspect holding this of DeCoster constitutionally elements of a defi- which the U.S.App.D.C., at sent at----of found,” properly performance might be cient ultimately F.2d), seems he of 624 327-340 e., “evidence, if id. at 543 F.2d at i. accept at-of Dissent to App.D.C., it. See any, by which he would undertake an effort at F.2d, quoting United at 334 of memorandum, id. refutation” of the allocation Pinkney, supra note at 431 of 177 States v. 917; yet repeatedly 543 F.2d at failed n.59, at 916 of 543 F.2d n.59. evidence, either after trial or in to offer such disagree we seems to The real issue on which resentencing, support id. of his later motion for case, whether, counsel’s on the facts of 543 F.2d at 917. As we state presumed to have had ad- should be omissions text, appellant in this case is not now in a pp. consequences for the defense. See verse evidence, produce position can it be such nor .....— U.S.App.D.C., pp. to do so means that assumed that his failure supra. F.2d might have been no evidence that there was reasonably thorough investi- discoverable helped might gation his defense. and that

3H pro- of did not affect the outcome of the weight Ordinarily, question ceedings not address the in the trial court. does must bear. by compar- of the burden Government will be an onerous burden: imposing a burden on Govern- But have ing what defendant shows should n.34, ment, cite, we id. at 333 487 F.2d did produced been with the evidence that was n.34, California, Chapman at 1204 readily appar- adduced at it should be 824,17 (1967). L.Ed.2d 705 87 S.Ct. exists as to ent whether a reasonable doubt Chapman that a defendant’s consti- holds if violation on effect of the constitutional violated, rights were his conviction tutional placed is on the outcome.42 burden must reversed unless the Government be simply emphasize that when Government “prove[s] beyond a reasonable doubt exists, such a reasonable doubt a new trial complained the error of did not contribute required. is to the verdict obtained.” Id. at When, however, the defendant is excused previously at 828. This court has followed showing consequences, pp. adverse see Chapman determining harmlessness vel U.S.App.D.C., pp. 309- ---of non in the ineffectiveness context.40 If supra, 310 of 624 F.2d allocation anything, Chapman apply should with respect burden with to harmlessness often cases, greater force in ineffectiveness since cases, dispositive. by hy- will be In such finding that a defendant’s sixth amend- pothesis, impossible precisely it is to know ment to effective assistance was in- affected coun- how the defendant was fringed necessarily casts doubt on the entire failures; sel’s it will adjudicative process. consequently, Indeed there is even be most authority holding that such violations prove prejudice difficult for a defendant to harmless, theory can never on the negate or for the Government it. To right to have the assistance of coun- “[t]he effectively penalizing avoid a defendant for sel too to allow fundamental absolute failures, requires counsel’s DeCoster I indulge courts to in nice calculations as to placed that in such cases the burden be prejudice arising the amount of from its the Government. 41 Although rejected we denial.” case, application In the instant per approach, se we harmlessness hold that principles these is clear. The Government beyond must a reasonable be established burden, its discharge made effort doubt. by refuting presumption either that ad- defendant, proof of part When a of his gross from the consequences verse resulted violation, a constitutional demonstrates the duty investigate, violation of the consequences that resulted from counsel’s consequences omissions, showing that whatever acts or the Government’s burden the result.43 prove injury complained will be to that the could not have affected States, U.S.App. know wallet. We 40. Matthews v. United he did not who took the however, 323, 326, 985, 988, court, agree 449 F.2d rev’d on with the district that this D.C. rehearing grounds, consequence beyond on other 449 F.2d 992 was harmless a reasona- Hurt, (1971). question See also United States v. ble doubt: of which of three rob- U.S.App.D.C. taking 543 F.2d 162 bers did the actual was not material. Pinkney, supra See also United States v. note States, v. United Glasser n.59, at 431-432 543 F.2d (1942); Beasley 86 L.Ed. 680 see at 916-917 n.59. (6th 1974). United 491 F.2d 687 Cir. discussion of the In view of the dissent’s example, respect 42. For to one of coun- failure to in- lack of from counsel’s familiarize sel’s omissions here —his failure to vestigate, U.S.App. see dissent at- of 199 preliminary hearing testimony, himself with the D.C., F.2d, repeat here what we supra possible gauge the see note 28 —it p.-of U.S.App.D.C., p. we said omission, consequences and hence to supra: whether the omission was harmless. determine sum, consequence we hold that counsel’s failure was that of counsel’s failure Box, Taylor, Crump, appellant opportunity impeach or the interview Officer lost the Offi- clerk; interviewing Eley; testimony delay appellant cer Ehler’s took the desk prior testimony his failure to seek out witnesses from the wallet with the Officer’s especially since the effective assistance must be Accordingly, appellant’s conviction on the first was not even briefed question the case remanded.44 Moreover, reversed and of our insis- price appeal. concerning prepa- proof on counsel’s

tence de Ill delay while evidence ration is additional since years elapsed hors the record have than six presented.47 More is committed, alleged offense noted, “it would recently But as we also years since defendant than four more suggest the entire disingenuous be time, only ten this at most Of convicted. during which a case is under advise- time appellant time from the date months —the or, add, might we on remand —“is ment” — wholly at- his retrial —are until absconded unraveling complex issues. consumed in during some appellant, and tributable to the Court, court, not the District This like una- was also complainant time the of that problem free of calendar back- time was The remainder vailable. daresay study” We that “careful log.” workings of the consumed the deliberate require this case did not 18 months between this court. court and in system in the trial opinion, another 18 sentencing and our first recently “delays observed that We have opinion on months until the district court’s appeal are not insulated from the due filed, year or more than a for remand was process clause of the Fifth Amendment.”45 opinion this to issue. course, process require Of due does not appellant already Because served sacrificed; study” “careful be “the essential most, all, sentence, if not of his Govern- ingredient orderly expedition and not For may retry appellant. ment elect not to speed.”46 delay mere must be antici- Some reason, sort, this we do decide whether due pated not precedent-setting cases of this Sarvis, supported by U.S.App.D.C. hotel or the bar were not tacti- 45. United States v. 228, 235, 1177, considerations, otherwise, (1975). cal 523 F.2d informed or duty and violated the to conduct a factual U.S.App.D.C. 46. Harrison v. United course, investigation. Of counsel was “under 245, 249-50, 203, (1967), rev’d 387 F.2d 207-08 duty no fense,” assist fabrication of a de- 2008, grounds, on other 392 U.S. 88 S.Ct. wisely as the district court noted. (1968). 20 L.Ed.2d 1047 duty investigate But counsel was under a whether there was a non-fabricated defense suggested 47. Several commentators presented. may that could be minimized, The dissent delay judges’ this could trial be well ability be correct that there were no such de- proper per “to maintain standards of case, although may fenses by attorneys available in this formance ... in criminal significant pled enhanced, Richardson, be that the two codefendants cases” McMann v. guilty only 1441, 1449, robbery and not armed rob- 90 S.Ct. 25 L.Ed.2d bery. correct, (1970), judges “develop But even if the dissent is in- were trial meth whereby they quickly vestigation necessary ods can discern before a is still so begins they will whether receive defendants receive informed advice from the truth which effective adver results from an their counsel and make informed decisions as sary proceeding.” University Boston Center go to whether to lawyers but also so that Justice, Right Criminal to Counsel Crimi unwittingly present perjured do not Argersinger nal Cases: The Mandate of testimony, apparently occurred in this (1976); 193-98; Hamlin 196 see id. at United Thus, case. while counsel have been Simpson, States v. 352- fully justified calling in not the codefendants dissenting), J„ (Bazelon, C. witnesses, any other his failure to inter- denied, t. cer duty investigate. view them violated the Finer, (1973); 38 L.Ed.2d 91 Ineffective retrial, 44. Should the seek Government Counsel, L.Rev. Assistance Cornell district court will have decide whether the Grano, (1973); Right to Counsel: Col impossibility point determining Process, Affecting lateral Issues Due 54 Minn. whether there were unidentified witnesses fa- L.Rev. vorable to the defense should bar a second Sarvis, supra note 48. United States v. trial. 234-35, 523 F.2d at 1183-84. compelling ceremony, a useless burden”, well that the “allocation of process would bar a second trial.49 That know manufacture, will, by which their they here question must await the district court’s de- standards, “dispositive” subse- instance, termination in the first should quent trial, in their as it is of this trial sought. such a trial be opinion, p.-of opinion. (Majority Reversed. F.2d). The of 624 U.S.App.D.C., p. 311 MacKINNON, Judge (dissenting): Circuit satisfy applica- can never their Government my view this dissent is required be- they of the here create be- tion standard cause foregoing opinion the relentlessly dis- they require showing cause that evidence regards the facts and the applicable law to, to pointed completely cannot be this case in unjustified an switching witnesses, speculative prejudicial was not to proof burden of result, belief, to reverse a beyond conviction of the defendant. The is an admittedly guilty investigate reversal any without for a failure to fabri- showing even of a by admittedly guilty mere cated defense an de- possibility that might truthful evidence fendant. have helped the defense, might or have affected the out- recognition do not dissent from the come of the trial.1 The factual findings of defense counsel to must conform reasonable the trial court are obviated without suitable representation. My objection standards of explanation, and, additionally, my two col- my is shift the colleague’s attempt leagues attempt change the law proof established burden of Govern- unjustified appellate experiment so as to intrudes, directly ment on an issue that greatly increase the discretionary powers of justification, without into the confidential appellate judges to reverse criminal convic- privileged relationship between defense

tions. They accomplish this creating a counsel and his client. The burden accused new difficult, and extremely if impossi- proof more properly should retained ble, proof upon burden of government by the defendant. again sustain a conviction after a prior THE final PROCEDURAL BACKGROUND judgment of conviction. AND THE FACTS law, regard majority here With attempting I are without and DeCoster introductory paragraph What the en banc consideration to overrule the unam- majority opinion fails to disclose is that this biguous and settled law of this circuit on my colleagues two attempt by third proof prejudice; to show but burden of in their find some search for error to changing absent an en banc decision our counsel, ground, by appellate not raised law, opinions decisional both which switch reversing judgment of conviction. proof the burden of are nullities. Even majori- appellate odyssey indulged worse, opinions respect also two in this ty finally claiming in their error on results ignore governing Supreme rulings Court grounds by appellant factual raised —never principles law and create dras- common holding or his that the trial counsel—and conflicts, unnecessary tic and constitutional judge committed error when held finishing by refusing apply the law presented defense counsel de- had But, saying majority seek to create. that a “new trial fense available to him. required” my colleagues point in this case are never other non-fabricated Perkins, U.S.App. possibility 49. See United States v. 162 “The mere that an item of undis- n.10, 1054, might helped D.C. 498 F.2d 1059 n.10 closed information fense, the de- (1974); U.S.App. might Clemons v. United have affected the outcome of n.9, (1968), trial, ‘materiality’ D.C. 1239 n.9 does not establish denied, cert. Brady Maryland, constitutional sense.” (1969). L.Ed.2d 567 83, 90-91, 1194, 10 U.S. 83 S.Ct. L.Ed.2d n.15, Agurs, 1. United States v. 427 n.15, (1976): 49 L.Ed.2d 342

expanded sponte sua venture on October truthful defense that could have been 1973 when it opinion, filed its DeCoster I presented.2 DeCoster, United U.S.App. States v. (1973), ordering D.C. 487 F.2d 1197 appealed This case was first on a brief shotgun type remand of the case to the trial suggested (1) three issues: denial of hearing court for a on the effectiveness of speedy (2) insufficiency of the evi- representation appellant by his coun (3) alleged dence and error in submit- specific sel on five general matters and a ting aiding abetting issue to the inquiry preparation into defense counsel’s jury (Appellant’s iii). br. and investigation.3 Then, just prior argument ap- to oral 328,487 F.2d at 1199. The hearing remand peal, sponte division of the court sua ordered, was held as and the judge, launched the case into its Phase Second applying I, the test stated DeCoster with a telephone request asking to counsel appellant found that had not been denied them prepared (1) to be to address whether proper representation by his counsel at the judge the trial improperly appellant denied trial. This appeal and, is from finding Youth Corrections Act treatment and despite the any finding absence of that the any whether question as to the effective- decision of the clearly ness trial court is of counsel was errone by raised the discussion ous, (Tr. 15, majority of an 7-9) judgment. alibi defense reverse its pp. Nov. alleged and the testimony alibi offered We are thus in the Phase Third of this (Tr. thereafter pp. 29-43). at trial Nov. handling court’s of the case and in the argument, After oral following second attempt by my colleagues to raise order, appellant counsel for was ordered: points appeal on that were not raised sponte . sua supple- to submit a appellate Indeed, counsel. my colleagues memorandum, mental days within ten have already taken care to sow the seeds of order, from the date of this addressed to the Fourth Phase: because of the delay question whether the District Court’s caused their fruitless search for other [sentencing] adequate statement grounds reversal, the majority intimate support a denial of Youth Corrections that delay (if itself their present fails) tack treatment to appellant. United See would now be cause appellant to claim Coefield, States v. U.S.App.D.C. [155 reversal on speedy trial grounds! Majority (1973). 476 F.2d specifi- Counsel is 1152] nn.44, opinion, accompanying text at cally requested to discuss the considera- - p. of 199 U.S.App.D.C., p. 312 of tion, any, given if to the overcrowded 624 F.2d. conditions then existing at the Lorton Youth Center. I. INQUIRY SPECIFIC ITEMS OF Order of March 1973. The order did not BY THE SUGGESTED OCTOBER press

further the effectiveness of counsel as 1973 OPINION OF THIS COURT to the alibi defense. Appellant’s response to this order con- A. The bond review. cerning the Youth Corrections Act was filed April 2, Thereafter, 1973. any majority without first claimed that de- further mention of response, the aforesaid fense counsel timely did not file a bond the majority of the panel embarked on an review motion. suggestion This demon- opinion, pp.-,-of Majority Alleged premature 2. 2. U.S. announcement App.D.C., pp. “ready” 310 of 624 F.2d. for trial. Alleged inquire disposition failure to into against appellant’s accomplices. of cases DeCoster, 3. United States v. Alleged 328-30, lack of communication between expressed specific and defendant and dissat- suggestions The five listed therein for isfaction of defendant counsel. the district court to review on remand were: appellant’s testimony by 5. Contradiction of Delay filing bond review motion. accomplice point. on a fundamental

er reluctance of defense counsel to furnish understanding strates a lack of of the stan- Government with the details of his alibi defense, judges ordinarily apply in con- including dards the names of alibi wit- nesses, sidering requests. appellant such When in advance of the time applica- charge already was arrested on this he was ble district required court rule him to do so. fugitive on a war- being sought as a bench When we consider that there were no truth- previ- rant issued in case. He had witnesses, another ful alibi counsels’ refusal to name ously been arrested in South Carolina any completely witness is understandable. carrying dangerous weapon and had ab- In any event this refusal had no adverse by leaving jurisdiction while he sconded upon effect during defendant’s case because Also, juvenile was under bond. $600 the trial he permitted, was objec- without robbery he had been involved in a Government, tion from the to introduce his District of Columbia and was sent to the subsequently alleged discovered alibi wit- Receiving escaped Home which he ness whose name had not been previously (Tr. 3, 1972, pp. 2-3). March For an given. witness, however, This did not testi- appellate suggest court to that defendant’s fy (Tr. to an alibi. pp. 39^40). Nov. trial counsel was deficient in not immedi- Such testimony cannot be characterized as ately moving for release under such circum- an alibi. only person who testified to suggest stances is to that defense counsel an alibi was himself, the defendant should clutter the courts with frivolous mo- 84(c) Rule District Court Rules tions. event when the review bond for the District provided, then Columbia motion was made on November 1970 it the same as 12.1(d), Fed.R.Crim.P. now pro- denied, as it should have been. vides: “This rule shall not limit the

Thereafter, however, testify when the in his own behalf.” delayed Thus, from January out, as it 1971 to turned February there was no viola- 9, 1971, because tion injury of an Alibi Rule. Eley com- Had testified plaining alibi, witness in to an accident, an appellant appellant thought would, he was released. might As have circumstance would have expect- been benefited the ed from prior defendant, history rather than escapes, prejudicing of two him and promptly it fugitive became a would have justice from been the for Government the third might prejudice. time —thus further have claimed delaying Such facts trial. are a cry proving far from inadequate rep- by resentation counsel.

Finally, the delay so-called in moving for bond absolutely review had no relevance

whatever to the appellant. conviction of It C. The waiver of a jury trial. complete was a judicial waste of time for point For their third my colleagues appellate court, knowing this, all to re- claimed that defense counsel lacked knowl- mand the case for hearing on such frivolous grounds. edge of the disposition against of the cases appellant’s accomplices and that the offer B. The alibi and readiness for trial. by defense counsel try the case to the

(2) The point second inquiry slight a same court that part had heard of the evi- enlargement original inquiry against into dence accomplices the two other procedures. alibi It was a suggestion by further laxity indicated a in representing majority that when defense trial coun- Decoster. I judicial would take notice that sel announced ready himself for trial he judge trial here fairly involved would prepared not have been go to trial. try the testimony case on the basis of the conclusion, however, This clearly does not against be introduced Decoster notwith- follow. The colloquy upon relied standing in the prior the court’s connection with opinion court’s as the basis for further in- against accomplices. the case Decoster’s quiry by the trial explained court can be agree would also have to with defense coun- just by as well justifiable a improp- and not sel’s contention that had the Government

II. PREPARATION AND INVESTIGA- appellant jury a willing to waive been TION BY COUNSEL DEFENSE judge a trial from obtained would have remanding In addition to the case for jury. any as fair as from every was bit discussed, just inquiry points into the five ex- fact, with substantial many lawyers In my colleagues also the trial directed cases believe trying criminal in perience inquire prepa- court into defense counsel’s hold most cases judges trial The remand hear- investigation. ration and prov- stricter standard to a Government ing separate days was held on three all that juries. From than do ing guilt February and the February 6 trial this court the in the records appears findings fact and complete court filed exception to that is no here involved judge (Hereafter Findings conclusions law. significance not without rule. It is also Conclusions.) These concluded that was reputation judge’s this case that duty counsel was under no to as- “defense anxious personally Decoster such that a sist the defendant in the fabrication of jury. without a by tried him to have his case defense,” that defense counsel raised “the counsel’s clear that no means So (putting defense available” to Decoster way any respect was conduct in this Findings proof, the Government to its interest. his client’s adverse to Conclusions, p. 19), appellant and that event, was tried appellant any since reasonably competent not denied “the as- court, the record jury attorney.” Appellant’s sistance of an mo- any way. prejudiced indicated he was not tion a new trial was therefore denied. to the conduct point is thus irrelevant colleagues originally set my While forth my lawyer in his appellant’s suggested deficiency five items of in de- their draft of colleagues present Decoster, fense counsel’s representation of More- recognized this. now opinion have present opinion they in their in effect over, there is substan- I fail to see that finally now abandoned most of them and wheth- resulting prejudice tial difference in settled more or less on one item which judge learns the facts trial er seasoned now characterize as the failure of defense with a mid-trial jury the crime from promptly groups counsel to interview four inves- by presentence guilty plea followed alleged of witnesses and witnesses—which ac- sentencing of defendant’s tigation and alleged is asserted to be an failure in neces- the details of judge learns complices,or sary preparation investigation. and pre- the exhaustive solely from the crime following guilty pleas by report sentence accomplices prior without the submis- the A. The Risk of a Fabricated Defense majority were any evidence. The sion of holding majority prob- The on this chasing point. an insubstantial again

once witnesses, interviewing applied lem of when here, they the to facts indicates that would D. Miscellaneous. require make full in- defense counsel to (4) {5) remaining points The were even — vestigation support of a fabricated de- slight present more and frivolous and by fense which fanciful is and contradicted greatly majority opin- modified draft of the overwhelming not presently evidence and ion has abandoned defense of them. claimed the defendant. However, majority since continue course, arrive at majority against the same result as it did in its come out Of defense, prior only say they assisting drafts it is fair in the fabrication of a they point have but to no “non-fabricated de- finally given up prior on their conten- - -, (Majority opinion, fense” pp. tion that defense counsel should be found to represented 308, 310, have inadequately a defendant 624 pp. U.S.App.D.C., of 199 F.2d), they merely because the truth came find that Decoster was somehow out from prejudiced by a defense witness and contributed the failure of his counsel to proper guilty investigate support to a of a verdict. in a vacuum

317 “productivity attempts to define cessful v. United from Durham emanated Result: that is never defined. defense 228, 862 214 F.2d U.S.App.D.C. 94 grounds is reversed on such conviction banc).5 (en (1954) conclusory my col- wholly assertion not sus- the Government had leagues that here, many other issue The real proof of estab- the shifted burden of tained ignore, majority completely cases, which the beyond a reasonable doubt lishing a defense investigation extensive how raise the available counsel did defense rea- when has sound make he lawyer must him, e., to its putting government i. and when guilty his client is son to believe even proof. What truthful defense only a present him to fabri- urges his client available, speculatively completely fail they any investi- The extent of cated defense. point suggest. out or even necessarily must be af- gation by counsel opinion lip service to of a de- My colleague’s guilt does innocence fected Waddy’s con- showing alleged Judge a factual that the I hold with requiring fendant. defense, the nub of clusion, points but no error was harmful which here, when stated in my col- impairment controversy is shown. Instead ease: the facts of this attempt rely newly estab- on leagues conclusions presumption. (Majority rules of lished Certainly defense was under no counsel opinion, pp.---of U.S.App. 199 duty to assist the in the fabri- F.2d). D.C., 309-310 of pp. cation of a defense. holding gist they their real is that would Conclusions, 20. The effect Findings p. would not investigation reverse “even if an opinion is to hold that majority here favor- produced have a scintilla of evidence fabri- investigate support counsel must p. (Majority opinion, to the defense” able aspect It is on this cated defense. - U.S.App.D.C., of 199 p. 310 of 624 take to majority and the means case F.2d) is exactly the rule —and such result and other accomplish in this They applied accomplish here. this bit part company convictions that criminal legerdemain by with the words toying my colleagues. “substantial,” “consequential,” “harmful” “prejudicial”4 majority opinion course disclaims a manner any obligation on defense strongly many imposing reminiscent of unsuc- 21, 28, Greene, U.S.App.D.C. majority 489 F.2d footnote 32 the state: denied, (1973), cert. distinguish question . we between (1974); States 42 L.Ed.2d 190 United were conse- of whether counsel’s violations Marshall, U.S.App.D.C. 471 F.2d e., defense, v. impaired quential, i. and the (Bazelon, J., dissenting); C. question impairment of whether Wilson, U.S.App.D.C. e., harmful, pp. United States i. affected outcome. See denied, U.S.App.D.C., (1972), pp. cert. ----of 311- infra; 35 L.Ed.2d 691 United States F.2d of 624 312 Pinkney, Brawner, U.S.App. supra, (1973); at 431 States v. United n.59, using 1, banc); (1972) (en 543 F.2d at 916 n.59. We avoid 969 United D.C. 471 F.2d “prejudice” Trantham, 113, 115, U.S.App.D.C. it blurs these the term because 145 States v. inquiries. 1036, (1971); two 1038 United States v. 448 F.2d -p. U.S.App.D.C., p. Op., Majority 110, 113, of 199 Eichberg, U.S.App.D.C. 142 439 F.2d attempt J., This some 620, (1971) (Bazelon, 624 F.2d. to create concurring); of 309 623 C. “prejudice” something between and Carter, 46, distinction U.S.App.D.C. United States v. 141 “impaired the defense harmful [ex- 54, 200, [to a] (1970); 436 F.2d 208 United States v. be worka- is too thin to substantial —or 392, 396, tent]” Collins, U.S.App.D.C. 139 433 F.2d practical matter. ble as a 550, States, (1970); Washington v. United 554 29, 444, 31, U.S.App.D.C. 129 390 F.2d 446 aspect this of an instructive chronicle of For States, (1967); King U.S.App. v. United 125 imbroglio, v. States Durham see United 318, 323, (1967); Keys 372 F.2d D.C. 388 75, 83, Peterson, U.S.App.D.C. F.2d 166 509 States, U.S.App.D.C. 120 Robertson, United 346 v. (1974); United 416 States States, (1965); 325, 340-41, Whalem v. United F.2d U.S.App.D.C. F.2d (en U.S.App.D.C. J., dissenting); (1974) (Wilkey, F.2d 812 United banc); Morgan, McDonald United States v. (1962) (en banc). n.2, (1974); App.D.C. 312 F.2d 73 n.2 States v. United alleged investigate B. The failure to perjury, holding effect to suborn but the majority The assert that here counsel failed in constitutional did not interview code- duty to defendant because did not inter- [Defense counsel] Taylor, delayed fendant interviewing and view to support witnesses fabricated de- Eley day until the second trial. He fense, did guilt in the face of Decoster’s obvious not interview the or the lawyer’s complainant ar- knowledge and his his untruth- officers, resting objecting and he failed to search guilt, fulness and his is to force witnesses the hotel the bar. indulge defense counsel in the future in for record, appears From all that investigation other coun- for no reason than to obviously go sel his client on whether to aid an untruthful advised somehow de- trial, then conducted the trial recog- fense. In this connection must be and with- out appellant’s making any nized at all times that real effort to determine accom- Taylor way what plices, Eley, pleaded and had both could elicited defense. guilty against and the case Decoster was U.S.App.D.C., Majority Op. p. -of substantially the against same as case p. 306 of 624 F.2d. them. This bald was a assertion that there com- take issue the effect my thus plete investigate repeated failure else- case, colleagues’ holding on the facts of this where majority opinion. It consti- duty defense counsel owes same tutes the entire basis for its decision. How- investigate support aof fabricated de- ever, defense represented because fense —which is this case—as when his Decoster and one of his co-defendants at client makes what appears to him as a preliminary hearing and conducted that truthful claim of innocence. Once defense hearing them, all represented ground counsel has reasonable believing continuously Decoster for the thereafter guilty, his client extent the investiga- months until the record is not clear required substantially tion diminished. investigate just that the failure To illustrate the unsoundness posi- interrogate a failure to some witnesses majority case, tion of the in this let us look trial. shortly Majority Op., before Cf. n.23. investigations further at the my colleagues investigate alleged failure thus did assert should have been conducted in this ignorant not cause counsel to be defense case doing, defense counsel. In so while is really facts of case—which defense counsel made particular point investigation requirement vice that hearing, the fact at the remand it is per- Therefore, seeks the entire to avoid. base fectly apparent from the record that he was majority opinion for the is not as firm as disadvantage at a answering many ques- frequent repeti- would be indicated (Tr. 44) tions because of the years three unqualified tion of the assertions that there eight elapsed months that from the investigate. was a frequency failure preliminary (6/8/70) hearing to the remand majority repeat with which claim hearing (2/11/74) many and because authenticity. does not to its add questions related to decisions he had been required to make quickly and the reasons C. Co-defendants Taylor Eley therefore had not been recorded. Nor could expected it have Because, been rep- would be Decoster’s defense counsel recorded. Defense Taylor counsel most criminal resented both and Decoster at expected keep cases cannot be hearing books preliminary on June ten corporate offense, records like repre- days counsel —the in the absence after the is different pace sentation and trial to the it can showing contrary, be as- Taylor’s much swifter. Defense counsel was sumed was aware testi- also that he great lengths not aware of the mony very which a from the start of the case. I am majority panel go of this would unwilling presume reverse a that counsel did not n.7, criminal conviction. infra. learn that See the facts of the case at time. Decoster) pulled

counsel for who entire majority laboring oar for all three defendants that strong reliance overly The “never inter- that he testimony hearing (Tr. transcript prelimi- 34 and counsel’s (Tr. trial” Taylor prior 8, 1970). hearing, Mr. June The evidence nary viewed 23) fails to note 37, Majority opinion, cf. against three men was substan- guilt all thrust of principal recognize same, following the introduc- tially the and point at this examination of his context case the decision tion of the Government’s imme- to his actions was directed record by all not to contest the obviously made 36-37). (Tr. Counsel to trial” diately “prior by magis- cause finding probable Taylor immedi- obviously never interviewed was not trate. This decision attacked then Taylor was not because ately prior to trial and is not attacked now. To reach the he then, to that time prior and available finding proba- to contest the decision not witnesses Eley out as Taylor and had ruled necessarily knowledge by ble cause involved contra- they would both he believed because Taylor for Decoster and defense counsel 29) (which Eley (Tr. story Decoster’s dict ques- is here in (the counsel whose conduct the trial day did). was not until It tion) by that could have been obtained story and de- changed his that Decoster with prior discussion of offense these and Taylor call that his counsel manded Eley or his men and consultation his altered support witnesses to Eley as Moreover, the trial court made counsel. relied, as he had a also Counsel defense. finding Eley did interview counsel be- ... re- to, “letter on the [he] fore he acceded Decoster’s demand and (Tr. 21, (Tr. 38). Decoster” from Mr. ceived Also, Eley placed on the stand. before De- that coun- apparent 29). It thus seems tried, Taylor Eley coster was both and en- inquir- question interpret sel did robbery and were guilty pleas to sen- and tered knowledge of the offense ing into the gained be- thereto that he had parties tenced. earlier when some 17 months ginning Then, suddenly, day on the Decoster’s Taylor and De- began by representing both apparently switched began, trial Decoster col- preliminary hearing. My coster at the his counsel that he had a story and told reading leagues overly are thus literal that his self-defense claim and demanded reply charge their the record and this Taylor as witnesses Eley counsel call and pp.---of (Majority opinion 29). failure to have fore- (Tr. It is for the F.2d pp. 306-307 of U.S.App.D.C., admittedly spe- investigated seen and n.23) it completely and is deficient because defense, up by the accused conjured cious scope possible to reflect on the limited fails trial, day of the opening on the thus, majority, erro- question. of this con- majority now bases its reversal assume, unreasonably their neously majority cast their decision viction. The interpretation scope of the two broad {Id., indicating coun- questions pp.---of form slightly different F.2d), Taylor of 624 pp. 306-307 App.D.C., have realized should sel with the true that counsel was not familiar witnesses who potential Eley were at least case, This from the outset. facts of the interviewed; previously been should have than was from the answer assumes more even never himself the defendant but majori- question. clearly asked involving his confeder- the defense claimed being based on this conclusion as ty faults day before witnesses until ates as {Id.) Actually of evidence. logic instead realize expected to counsel be so how could logic, and common is based on evidence change going the accused sense, as it should be. clairvoyance de- require such story? To Moreover, as of counsel. mands too much also a de- Eley, was appellant, The third was aware pointed out above hearing, preliminary the same fendant and the Eley’s participation, (Mr. Taylor’s separate counsel Eley while had thereof, from the evidence government’s counsel in Kehoe), it was Deeoster’s hearing. preliminary time of the (who was also hearing preliminary for the They required accused. were not Moreover, so do. rely great testimony Defense must ex- of all three Government substantially witnesses was tent on the defendant for the facts of his the same and was consistent. The record accomplices involvement and that of his and supports thus a conclusion that there was a require it is unreasonable counsel to an- lack of on this score. ticipate day that his defendant on the begins radically change will story as to majority, however, attempt to make participation his own in the crime. It point prelimi- out of the fact that at the record, however, clear in this that defense nary hearing Officer Ehler as fol- testified already counsel had through pre- been lows: liminary hearing all three men and it Mr. Ely Decoster and Mr. had a hold [sic ] is submitted that this was a sufficient basis subject, complainant. One of conclude, for him to (Tr. 34), as he did him, yoking them was I don’t know which there was no need for the further investiga- time, one it was at but —and tion the majority suggest. removing something pock- were from his It apparent is also that as a reasonably ets. competent lawyer defense counsel realized Preliminary Tr. Hearing (emphasis add- early from his prior knowledge acts, of their ed). and their subsequent guilty pleas and the While at Decoster’s trial Officer Ehler letter he client, received from his Tay- testified: Eley lor and potential were not witnesses Decoster, was the one who [Willie Jr.] who could benefit his client. He correctly going through was complainant’s concluded that they would contradict his pockets. (Tr. story client’s 38), Eley’s testi- Tr. Nov. p. 12. This latter state- mony proved at trial his judgment to be ment was corroborated Officer Box’s correct. What the majority attempts to do testimony (Tr. 42, 47). there ap- So is an is to rescue Decoster from his perjury and parent conflict in that Ehler testified at the his bull-headed demand his counsel to preliminary hearing that he did not know Eley. call Decoster forced his counsel to whether Decoster Eley yoking or carry out his unreasonable demands and Crump and at the trial 17 months later he thus there is no reason that he should now testified go- that was Decoster who was be saved from folly, his own particularly so e., ing through pockets, Crump’s i. that left because in his allocution he in effect admit- Eley as the one yoking Crump. who was guilt. ted his The record does not specifically disclose D. The Government Witnesses explanation obvious for this. The most

The majority likely explanation probably admits that there was lies in the fact need for a in the further interview of interim between the two Officer Ehl- state- er, ments since defense Officer Ehler the other par- counsel had cross-exam- two ticipants crime, Taylor ined him preliminary Eley, at the hearing, but had guilty pleas entered insist and been Officer Box should have sentenced. been necessarily This However, acquisition involved the interviewed. prior to trial de- considerable additional reliable knowledge fense given counsel was full access to the by the Government as file, partici- to what the Government including grand jury pation of each accused had been in the testimony and the transcript prelimi- crime. nary hearing containing testimony, Ehler’s since defense counsel knew of Decost- Actually, point one, is a minor untruthfulness,

er’s necessary it was not from a substantive point of view it is rela- Box, interview either or the Crump. victim tively immaterial whether Decoster go- Likewise showing there is no these ing through pockets yoking victim’s Government willingly witnesses would have him because both acts aided the same crime submitted to such interview the lawyer and the perpetrators of acts are prop- both

624 F.2d). adequate Thus no foundation principals. 18 erly chargeable majority’s U.S.C. exists in the record for the com- 2(a). fact is that both important The pletely speculative suggestions. § as an actual officers identified Decoster Further, examination of Exhibit which robbery. originally in the After participant area, is a sketch of clearly shows that it taking contrary position, majority a impossible for the desk clerk to see the beyond admit that this was harmless now path which Decoster testified he took “from n.42). (Majority op. reasonable doubt the bar to the hotel.” This is so because the point was so immaterial it should never (E) desk clerk was situated at point on the Also, raised. there is no have been reasona- (Exhibit 2) sketch which was at a considera- ble doubt about Decoster’s identification as ble distance inside the Annex and the entire participant Taylor in the crime with area that Decoster testified he covered in Eley, since he was arrested almost immedi- walking from the bar to the Annex was ately thereafter a short distance from around a corner of the building from the scene robbery. Eley placed Even line of vision that the desk clerk had from Decoster as participant in the crime. where he was stationed inside the Annex. E. The Desk Clerk at the D.C. Annex point (E), See Exhibit 2. It would also have

Hotel been impossible for the desk clerk to see how Decoster approached the Annex if De- My colleagues also assert it was coster path had taken the from the club to clearly judge erroneous for the trial to find the Annex as testified by the Govern- interviewing prejudice in not the desk ment Eley witness and or his own testi- clerk at the D.C. Annex Hotel where De- mony. 2 clearly Exhibit shows that They suggest pos- coster was arrested. desk clerk would have had to be able to see

sibility guests the desk clerk or or corner, around a which was a considerable lobby might in the at the time residents distance away from where he was situated have corroborated or denied that Decoster point (E), before could have seen how “walked from the bar to the hotel and into Decoster any covered lobby, while distance Officer Box testified that the bar to (Majority opinion, the front appellant” he had chased door of the Annex. -p. This is difficult to do—even appellate of 199 in an U.S.App.D.C., p. 308 of opinion However, of this court. F.2d). Exhibit 2 an examination of the and the prove record transcript suggestion possible indicates that this that it was not for the speculative, any not desk clerk to purely competent based foun- witness on the whatsoever, suggested dation there is no indi- issue so the majority, e., i. any testimony cation that material could be whether Decoster walked from the bar to thus obtained. proper the absence of a the Annex. Thus the record discloses that just dig up foundation court cannot there was no in not interviewing potentially helpful witnesses out of its him.

imagination speculation is pure —that —and assertion majority opinion majority that is what the here relies “the lobby hotel . . upon. showing proffer potentially There was no or [was a] [place] fruitful by appellant any investigation^]” (Major- sort that there were for - guests “lobby”, op. p. U.S.App.D.C., of 199 ity p. or residents in the or even anything F.2d), that this so-called “hotel” had and the finding 308 of 624 might pass lobby, any showing as a nor as defense counsel was constitutionally defi- to, testify client, to what the desk clerk would cient in representation of his that at his location the hotel he was doing good inside so is a example of the far- position in a so that he was able to see speculation fetched the majority indulge in whether Decoster walked from the bar had support their extreme conclusions and of hotel, hav- or that he “remembered” lawyers what defense public and the can ing anybody lobby (Majority op., seen in the expect majority from the in the future if -p. of 199 U.S.App.D.C., p. 308 of placed mercy are at the of an unrea- any possible

As witnesses at the An- above, nex, no conflict in as stated there is change proof sonable in the burden of in all Compe- testimony happened as what ineffectiveness of counsel cases. ac- lawyers tent should think twice before hotel, witnesses were unneces- so further cepting assignments that would bar, defense De- sary. As for witnesses from subject professional reputation their Roger Crump was the coster testified that on such second-guessing appellate criticism with at the Golden Gate person him grounds for claimed fail- highly speculative 34). that he (Tr. Decoster testified Club and immaterial ure to seek out non-existent Crump in bar together had been with evidence. (Tr. 30-31), robbery some time before who, evidence is that when

The uneontradicted by Crump this was not denied and lobby walking.6 he was Decoster was in the injuries, head intervening of his because only testimony is that when Decoster So (Tr. 35, testified, say for sure” “I couldn’t and, walking, was inside the hotel he was if 36). dispute about what there was So this, testimony the desk clerk observed event, in the bar either. happened merely Anything would be cumulative. be- bar, testified to meeting in the as prior such yond pure speculation. this is Decoster, him, helpful to since was not Crump paid that for drinks he testified F. Other Witnesses (Tr. 34), testimony this afforded cash and majority specula- make the further suggesting that the Government a basis suggestion tive that the clerk desk should opportuni- given have Decoster this persons have been asked for names of in the Crump quite big “had roll ty to see that lobby, and that (Tr. 34), money night” on him that thus Similarly, appellant persons testified that leading robbery. The indictment unknown to him had been in the bar at was taken from charged cash $110 the same time he was there. Such wit- Crump subsequent robbery. in the helpful they nesses could have been if could have appellant’s corroborated claim person Decoster also testified that no Crump drinking and had been St.,” “the little restaurant on 9th where he or, together, perhaps, they if had over- once claimed to have before he conversation, been walked Crump heard or seen and Annex, to the D.C. “. . appellant testify leave. could Counsel at least could 36). So, questioned employees (Tr. there” bar to even if [he was] they had see if useful information or witnesses had been found in the Annex or supply could the names of customers who bar, there dispute was no as to the were at the bar the time. there, events some of the facts as testified - (Tr. to Decoster were helpful not to him Majority opinion, U.S.App. p. of 199 35, 36), they were (emphasis added). particularly F.2d rele- D.C., 308 of 624 p. degree offense, e., words vant to the The italicized indicate commission of the i. indulged majority. speculation robbery Crump on the street some from hibit 2. (Tr. D.C. after he nex nex “ (2) Crump: when key” (Tr. 35). (1) . point 31). Annex arrested the entrance door. See Officer Decoster: and that Hotel] got This does not inside the Annex at which Decoster Hotel and he testified: into when I went he was at the counter of the An- Box arrested me. was at a “[Decoster] is where I arrested him “I arrested just building. walked into the door considerable distance indicate that he ran ran inside Decoster I was point into a [the getting my (E) inside the building” D.C.An- . on Ex- Tr. 46. double door but one of them where there is a it? the D. C. Annex? A It was on A Yes Q Q stationery go Had the door closed before Did he have to in. ^[******] sir, [sic] but it was one of those doors its way open you the door to closing. have to you got open get into one

know I can be rehabilitated which I have did on my part in having view out of the come to face away and distance majority just like, facts. It you witnesses seems know— phantom and useless well, At and interviewed. really, I left I be located home when at an demand denial of majority’s early age asserted I point, didn’t have that much this . (“Unwilling speculate just confidence speculation up hooked in the .,” opinion, Majority wrong . places we remanded and in the wrong ways. p. -, p. U.S.App.D.C., But now I believe that I can —I know It is thus ludicrous. F.2d) given becomes an opportunity that I help can based majority opinion my family clear well myself. as I ask So possibilities speculative completely upon Court sentencing me consider is no there for which witnesses unidentified this. record. support foundation Sentencing Proceedings, Tr. March Thus, p. 4. sentencing of Guilt Decoster not Admission at did G. claim to be innocent in effect and admitted my which significance, of great A matter guilt. his From such admission it appar- is prior that recognize, is colleagues refuse to ent testimony that his at trial was false.7 effect admit- Decoster in sentencing his to Thereafter, height sophistry the is judge. to the trial guilt in a letter ted his reached majority when the contend that the Thereafter, following his the occurred might have benefited from addi- sentencing: investigation tional he since could have has ... the Court THE COURT: “been by told his that there was no lawyer the Defend- letter from long received evidence available to the support defense that has learned ant, himself, stating he - theory” opinion, (Majority p. of 199 he ways and that error of his the U.S.App.D.C., p. 310 F.2d). of 624 But with fooling was the out that he found appellant knew anyone better than that crowd, using he been wrong and that had there was no truthful evidence to support the use of drugs and now knows that he any defense theory. He did not need his jail, or could to death drugs lead lawyer to investigate to tell him what he to him. acceptable one which is neither already knew. have some- [s/c], you do Mr. DeCoster own say your to on be- thing you want Majority as to Suggestion H. half? Duty the of Defense Counsel just I wanted the DEFENDANT: ma- the presently position stated in writ- I was sincere to know that Court investiga- that a “full well, jority opinion is I I ing this letter. I feel like can — right fighting, him I think I as much as have that Decoster testified The record indicates Elley and (1) the As for [sic ] he saw and can do same. oath: that the last time under they testify (Tr. 31); Taylor my partners Crump can Gate Club accused was in the Golden Club, my Elley (2) he to aid when that after he left Golden Gate their role. came [sic] straight pocket to the D.C. from the Club his and went across the victim stuck his hand in (Tr. 32); (3) not with Taylor just standing that he was Annex Hotel on sidewalk. was May Taylor P.M. at or about 6:15 on written notes com- Govt. Ex. 2. Both these (Tr. 33); Eley night (Tr. 33); on testimony gave or with pletely Decoster contradict anybody trying (5) that not observe and he did They prove participation in his on the stand. May 29, Roger Crump night of on the to rob robbery falsity his His and the alibi. testimony obviously with conflicts 1970. This by testimony contradicted in court also judge, own handwritten note Decoster’s witnesses, testimony practically in- all (Tr. Feb. him about Nov. received February accomplice Eley, cluding his guilty only 62), of assault “that he was ((3) his reiterated denial 1974 Decoster effect lawyer he also defense.” In a letter his self Eley Taylor (4) above) or that he with said: (Tr. of the offense Feb. time against my charges I want file assault 65-68). testified in contra- At this time he also have as much victim. think I accuse testimony [sic] he had never his trial diction to has, right to it. he least I’m entitle [sic ] 65). (Id., Eley he arrested seen before robbery charge me while can If words, showing lack In other prejudice. of the refusal lurking there is in the silence [might been appellant tion . . have] the lack of to even discuss majority lawyer there was no evi- by his told investigate prejudice from the refusal support theo- available defense dence defense, the fabricated reason is have appellant would ry false [and] [a alibi] majori- implicit theory” in “the defense been deci- able to make a better informed ty upon, refer asserts reliance but go [plead sion whether majority explain. while the does not And -p. of 199 (Majority op. guilty]” was ‘under no opinion states that “counsel F.2d). When 310 of 624 App.D.C., p. of a de- duty to assist in the fabrication refers to “the majority opinion defense the- - (Maj.Op. fense’” p. of 199 U.S.App. supra, context of his case it ory,” F.2d), places of 624 D.C., all p. if, contending that aas result of the investi- precise duty by holding counsel under that gation, Decoster had realized his alibi de- this case that this counsel violated the was weak changed fense and so had accused’s “constitutional to effective story fighting, which was an admit (Id., assistance of counsel” p. -of easily provable fact, denied obvious U.S.App.D.C., F.2d) p. 310 of 624 in al- e., i. facts, incriminating taking, the actual investigation to legedly stretching larceny, might thus obtained an provide more fuel for fabricated defense - by testifying acquittal falsely. From the majority which now knows (p. very beginning vigorously opposed I have of 199 U.S.App.D.C., p. 310 of 624 F.2d supra) this latter being legiti- alternative as not would be What perjury. based on the majority position mate up adds to is that consideration.8 The reluctance of the it reverses the conviction majority prejudice, to this they because argumen- discuss contend the prejudiced defendant was tatively by resulting inability from the pos- to lack of an investigation that might sibly secure an acquittal from the use of talking been used as the for Decoster testimony basis majority per- now knows is perjured might of one jured, out defense so he part parcel is and complete of the upon have relied failure of perjured a second defense majority even to discuss the that had a effect of Decoster’s succeeding.9 better chance of guilt admission of robbery process,” properly 8. The im- difference between and armed criminal which robbery system plicates attorney. in this case carries no assurance of a rather than the Bazelon, substantially Arger- shorter sentence. When Decoster The Realities of and Gideon already serving singer, (1976) (emphasis was sentenced he was a sen- 64 Geo.L.J. conviction, added) (hereinafter majori- Georgetown tence on another ty Arti- which the cited as event, any cle). does mention. In not most claiming lawyers cases sel, It ineffective assistance of coun- is of course not true that “all will [constitutionally] guilty where a defendant is involved the be ineffective some of the justified difference will be between a conviction time” —and constitutional ineffectiveness is possible unjustified acquittal. imply and what is involved. It is incorrect also to “appointed that counsel and defenders in some appreciate my writing 9. To the attitude that constitutionally areas will be all of ineffective colleague opinion engrave upon his seeks to gross the time.” What a fact. distortion of circuit, the law of this one need note his easily my colleague This demonstrates how current law review article which sets forth his finds constitutional error. But then comes the “ guidance judges views for the in all ineffec light. What he considers to be ‘ineffective tive assistance of counsel cases: really correctly assistance’ ... more [is applying process,’ In this standard be the criminal the de- ‘failure of [whether termed] properly implicates system fendant received the effective assistance of which rather counsel], attorney.” judges recognize should that all than the Id. With such a view- time; lawyers point, practically will be ineffective some of the all criminal convictions would aside, my colleague’s the task is too difficult and the human animal be set objective. which seems to be may expect too fallible to otherwise. It even conditions, thus, is, my colleague given present ap- surprising be true that It not that pointed position that need not counsel and defenders in some areas has taken the proven by complain- Perhaps a convicted defendant will be ineffective all of the time. be ing attorney. indicting “system” replace phrase of his In we should “ineffective as- case, carry- term, and in sistance” with a new such as “failure rather than the facts of each others) on some counts and reversed victions only 52 were reversals. Thus, my colleague is we see that the burden case, my ing into that attitude this forward shifting in these cases Government attempting colleague to create a format prove really fur- that defense counsel not easy reversal of criminal circuit this assistance, competent reasonably but nished deftly opinions are Decoster convictions. “beyond prove his a reasonable satisfaction opinions would im- to that end. Such crafted process” “the in the Unit- that criminal doubt” Government, jury pose upon once by my colleague’s States courts did not fail ed personal proving guilty, the burden of found a defendant non-legal applies As standard. every beyond a reasonable doubt that conceiva- him, recog- it to cases before must be standard defense, overly imaginative item of ble that he will consider nized from article conceive, judges possibly activist could two lawyers (constitutionally) are ineffective all investigated thoroughly re- had been true, time; it and that some opportunity for Such unlimited searched. conditions,” “present appointed given majority guessing, second as articulated is, lawyers) (that all defenders opinion, require to ne- would the Government That areas are ineffective ail of the time. some gate imaginative defenses the entire universe of impossible for the an almost burden seems meeting specific complaints of instead opinion overcome. Government require- prejudice. were a claimed If this valid by proving not be overcome here could govern- might save it to ment it time to add except had defense a fabricated accused original trial. stan- burden ment’s one. apply dard of reasonable doubt was intended to colleague warring, My to be not thus seems positive require guilt as a fact. To such to be with what reasonable courts consider proof negative requiring be like of a would assistance, per- adequate defense but with his prove beyond a reasonable doubt “present as to and “the sonal views system conditions” guilty. he was not attorney.” state- rather than the This colleague’s “sys- My disposition to blame explains large in a measure the weird ment by the fact that in tem” is somewhat reflected majority opinion bring that his result would reported opinions involving ten crimi- the last freeing admittedly about in this case—the “the issues occasion[ed] nal convictions where investigate guilty defendant —for the failure to (Rule 13(c)), my opinion for an need” [a] sug- which was even a fabricated defense together colleagues a three- have been on two gested until the defendant the trial started. judge panel, have reversed 8 of the 10 non-legal Freeing guilty defendants affirmances, the two one involved cases. Of basically my writing grounds is also what col fraudulently obtaining gasoline conviction “Jury league Nul under the name of advocates contrary to the conservation restrictions. fuel Thus, Barker, in United States v. lification.” Rosser, 79, U.S.App.D.C. v. United States 174 312, 208, U.S.App.D.C. cert. de 514 F.2d 168 Sarvis, (1976); 652 United States v. 528 F.2d 2420, nied, 1013, L.Ed.2d 95 S.Ct. 44 228, (1975); U.S.App.D.C. F.2d 173 523 1177 separate opinion: (1975), he stated in 682 117, David, U.S.App.D.C. v. 167 United States precluded defendants should be [T]he DeLoach, (1975); 355 States 511 F.2d United v. asserting invalid from their defense 116, U.S.App.D.C. (1974); F.2d 164 504 185 jury. previous opinion, I have . In a Melton, U.S.App.D.C. United States v. 160 permissi- jury nullification indicated is Brown, (1974); 45 United v. 491 F.2d States escape forthrightly should valve and be ble (1973); U.S.App.D.C. F.2d 160 490 758 recognized as such. Wright, U.S.App.D.C. v. 160 United States 340-41, U.S.App.D.C. at 514 F.2d at 236-37 168 (1973); 1181 v. DeCost- 489 F.2d United States added). attempting (emphasis he is is What er, U.S.App.D.C. 326, F.2d 487 1197 “escape guilty illegal thus to create valves" (“DeCoster I”); Morgan, United States to, dis- case referred in a defendants. U.S.App.D.C. (1973); 482 F.2d 786 United sent, jury argued that “the should be told Riley, U.S.App.D.C. States v. 481 F.2d nullify power to the law . . .” United its eight 76, 102, indicates were re- Dougherty, U.S.App.D.C. This States v. part (one part) added). (1972) (emphasis in and affirmed in and versed majority thought two were affirmed. lawless otherwise. Such by rejected orders suggestion again This list excludes cases affirmed United States 150-152, Gorham, . .” where the “issues need . occasioned] opinion, published opin- (1975), includes all for an but with a citation F.2d three-judge Sparf panels opinion cases in Hansen v. ions of criminal Harlan’s Justice my colleagues completely votes which the United (1895). My colleague’s proposal for en decisions. controlled decision—no banc L.Ed. juries involving jury be in- nullification is that should In all cases criminal convictions they period judge during return need not the same when the issues occa- structed deny- including opinion, on the law or the evidence—thus those verdicts sioned a need an equal any process sat, ing of due by or my colleagues semblance were cases on which there jury anarchy. (32 protection a form of law the con- 116 affirmances of these affirmed in the case mation. been from the He had trying Waddy, after beginning. Judge very my from col- part company Basically I conducting the exten- initially, and what it con- the case holding that in their leagues perceived clearly also hearing, of counsel sive remand assistance to be ineffective siders in this to assist involved what was in a failure the remand grounded on may be defense coun- fabricating a defense. case likewise stated accused the defendant duty to assist sel owed no Judge Waddy has The risk foreseen completely agree I a defense. fabricate been realized. with his the law and with his statement suggestions analysis as to what lawyer obligation an deny up actually add to. majority here assist investigate in order to create or agree cannot majority say court appellate and no such a fabrication defense coun finding that the trial court’s such a result should eyes open with its they point only defense —but sel raised the grounds. on such Eth- reverse a conviction present here All that is to no valid defense. it. That de- prevent alone should ics defense. I sub fabricated admittedly an lawyer might pre- also clining to do so the showing upon this is an insufficient mit committing perjury vent his client the trial to base a conclusion which neces- of course be a beneficial but would erroneous, and clearly finding was court’s further sarily secondary result. In this case finding majority not make does necessary because de- investigation was not reversal.9a support its required already adequate infor- which fense counsel had appointed District of Columbia because all Congress may replace juries opinion, carefully picked In his list are from a selected they go. legislate approved by of defense as counsel who are all the disturbing opinions judges Court, re- Such demonstrate of the United States District apply it results in the the law when luctance to continuously. the list is monitored guilty proper Shifting proof defendants. The conviction of the burden of from the defend- legisla- place theories is in the to advance such necessity prov- ants will relieve them of the Government, political branch of or on tive ing prejudice open and thus the door for the by advocating hustings, that the Constitution convictions, here, reversal of in order sub process” provide amended to for “non-due permit silentio to defendants to assert “their my protection “unequal of the law.” What or colleague right jury.” Supra. invalid defense to the This is public has some overlooks is that the proper objective system not a under our guilty convicted. The true to have the laws. guilt rule is that innocence should not suffer escape. My position interviewing 9a. the witnesses country up so No in the world sets majority opin- referred to in footnote 43 of the many charged protections with crime for those ion is that Decoster’s counsel in connection well do without as does this nation and we can shifting preliminary hearing with the and thereafter had impossible bur- to the Government already become familiar with the facts sur- every “presume” den defendant was speculative would convicted which rounding robbery people the the from most of overly prejudiced if and fanciful alleged in the involved. As for the witnesses grounds conjured up, not could be bar, sufficiently they hotel and identified, were never defendant, by judges by of an the but two as were or what con- to who who, guise appellate under the of enforc- court to, testify testimony they might counsel, crete relevant ing ally unspecified are actu- reasonable assistance of testimony system” attacking so as to conclude that their would be for some “the [entire] any consequence already grievance they against of pointed I have have in the trial. social the in the so-called it. out that desk clerk My colleague’s grievance be that seems to hotel was unable to view Decoster’s activities crimes,” George- they might any place “defendants accused of street at where be material. Article, plead supra, obliga- agree every at too often town guilty an I that counsel is under “cop-out-bar” “plea- and investigate because and tion to I also non-fabricated defenses finding Thus, Judge Waddy’s lawyers agree hungry judges.” Judges with Id. at 813. and put was to Decoster here are denounced because defendants the the defense for e., proof, that there i. to its Jury plead guilty Government indictments. This to Grand none has and indiscriminately defense name-calling no non-fabricated was is directed at prejudice fail- results from a No been shown. lawyers” “regulars,” “uptown “public de- and investigate We defense. a fabricated fenders,” to by specific ure mention id. at and Decoster’s admission the basis of know now on includes the bar of the District of Columbia. guilty, sentencing and from the acknowledges that he was Id. at 813. He nowhere appears his counsel competence to me that record it of trial coun- entire more than reasonable pre- following the the conclusion Court for to the same in the U.S. District came sel is assured “ (Id. . . p. . total failure to conduct - U.S.App.D.C., p. of 310 of 624 DEMONSTRATE TO THE BURDEN F.2d) . investigation ... a full PREJUDICE support theory to the defense alibi [the prove, case and the The facts of this (Id. . . presented at defense trial] a majority disprove, not opinion does p. -of 199 U.S.App.D.C.,p. 310 of not have resulted would truthful defense This investigation. con- any further F.2d).”10 compelled by appellant’s subse- clusion is reasoning placing the purported In guilt. addition quent admission of Government, proof which of on the burden factual basis for the lack of substantial asserts, majority and which the DeCoster of majority opinion concluding that lack time, the shown, attempt apply to here for first majority not the also prejudice was changed the law. linch- support contorted nor justification neither lends reasoning is: pin majority a new attempting support the rule. appellant I teaches that once DeCoster major- proof the shifting rule the burden of showing his of a sub- discharges burden utterly ignores the stages: (1) ity opinion in violation of one of counsel’s stantial circuit, ignoring case law in this settled duties, the Govern- the burden shifts to Judges Pretty- particularly the wisdom of constitutional ment to establish that the (now Judge of and Leventhal and man (Emphasis was add- violation harmless. (2) control- Justice) Burger, overlooks Chief ed) which proof on burden ling principles U.S.App. Majority opinion, of 199 p.- Supreme Court and been set the D.C., this quo- p. 310 of 624 F.2d. From law, (3) common in the are anchored which quickly “guide- see tation one can how judicial perceptions two erroneous cites into “duties” result lines” are converted rule, process support as instantaneous “constitutional vio- in almost conflicts unnecessary constitutional creates majority does is to What the lation[s].” involving amendment the sixth comply with some feature make failure trial, adversary independence guidelines prima facie consti- into amendment, separation the sixth under viola- tutional violation. The “substantial amend- of the fifth powers, and waiver triggered quick metamor- tion” which protection against ment self-incrimination.11 according majority was the phosis, liminary hearing receipt attorney, being of the letter involved in to his he admitted alibi, affair, yoking admitted that he was from Decoster which and thus his contrived fighting with the victim the time of the obviously known at the start of robbery. To this evidence counsel also lawyer The relevant to be fabrication. rely pleas robbery by guilty able on the n.7, supra. is set text of letter out being both of the men that Decoster admitted fighting victim them. with and fully thought not DeCoster I comes on scene my opinion, As stated in the text of it is also and, attempting to work a shift out my testimony view of evidence simply prejudice, proof not burden remand Decoster’s counsel text 65 in the This is illustrated note workable. therein, majority opinion, and footnote Article, question Georgetown supra n.9: “The indicating upon, relies to interview failure separate analytically from the witnesses, period certain referred of time question sixth of whether the defendant’s immediately in before trial and should rights The “mock amendment were violated. terpreted indicating as never dis counsel blotting incompetence ery” “gross out a necessary case the cussed the witnesses recognize failed to defense” tests years substantial when first entered the case some three he by blurring years) (33A distinction the issue of ineffec he this and nine months before when question prejudice. proceedings De- conducted the for all defend with the tiveness realize, preliminary hearing. Coster, in ants makes the same have come mistake, by stating “a shows that if showing in 10. There is no this record that De- he has been substantial violation ... a coster to have been claimed before “not representation Cf., majority opinion, unless p.- denied effective of 199 there.” . n government lack . establish ['lean p. U.S.App.D.C., this of 624 F.2d. In 307 Peyton, thereby. prejudice fact, v. 389 F.2d respect opinion Coles majority In errs. 224, (4th 2, 1968).” (emphasis 226 Id. add- Exhibit a Cir. Government letter Decoster

328

cases in order to avoid penalizing defend- However, ant his counsel’s failures. it points They These are discussed in turn. penalizing is not defendant where is very are important in this ease because the prove substantially required to that he was majority opinion has not been able to an- prejudiced repre- improper his counsel’s any swer of them. sentation. I. THE INCORRECT RULE AND THE my dissent in DeCoster 11 concurred CORRECT RESTATEMENT generally in performance the standards of majority attempted In DeCoster I the majority for defense counsel outlined in the relieve future criminal defendants in most only opinion assumption responsibility situations of all whatsoever to general would act as took guidelines, and prejudice show ineffectiveness of attempt issue with the stated shift 487 F.2d claim. at 1204. To accom- proof prejudice burden of in future cases. end, plish guidelines this some for conduct attempted The rule as applied to be here is proposed, opinion counsel were and the pernicious and should not be accorded a states: foothold. If a defendant shows a substantial vio- My view is that the law this under lation of of these requirements he circuit of proving prejudice the burden is has been denied representation effective clearly upon the criminal defendant in most unless the government, “on which cast cases, by Judge stated in his Craven proof the burden of once violation of Coles, supra, dissent in shown, these precepts is can establish lack prejudice thereby.” Peyton, v. Coles the burden showing [proceeding to (4th 389 F.2d 1968) 226 Cir. [cert. prejudice lack of falls show] on the state denied, 393 U.S. when, when, but petitioner has (1968)]. L.Ed.2d 120 shown a set of facts that demonstrate prejudice defense, to his inherently or Id., footnote omitted. otherwise. I, proof Thus DeCoster on the entire cases, issue prejudice in future where (emphasis 389 F.2d at 230 original). any one of the asserted standards is violat- assertion in the majority opinion that, “This ed, is placed upon Government, prove case squarely falls within the [inherent ” negative of prejudice.” Why . ignores . cases] —“lack required

should Government be prove facts present. here This is not a case where this when its conduct improp- been counsel had insufficient time to consult er, evidence, when exists, if defendant,12 it with the sup- where there was an port charge, peculiarly interest,13 obvious available to conflict of or where the the accused, and court particularly when the denied the al- defendant his to con- leged inadequate representation Here, fer with his par- every counsel.14 alleged tially failing caused major- subjective defendant? relates to decision made ity time, contends that with sufficient should done in all without conflict of in- ed). nonprejudicial States, A denial v. of effective assist- 13. Glasser United 315 U.S. reversal, analy- ance need not result in but the S.Ct. L.Ed. From the con- sis should tradictory be distinct.” duties to different clients the conflict apparent. par- inquiry of interest was spared No into The bench and bar should be another made; judgments continuing attempt ticular undeveloped Castillo v. Es- to sustain an telle, 1975); prejudiced system.” (5th “the attack on Id. at 823. Cir. cases U.S.App.D.C., p.-of p. cited at 309 of Cox, (4th Cir.), Garland v. F.2d 875 cert. F.2d, 34, supra. n. Garland, Slayton denied sub nom. 414 U.S. (1973) (the S.Ct. L.Ed.2d 146 Geders United presumption court any event); described as weak p. (1976); 47 L.Ed.2d 592 cited at Virginia, Martin v. 365 F.2d 549 F.2d, U.S.App.D.C., p. 309 of 624 --of (4th 1966); p.-of Cir. both cases cited at 35, supra. n. U.S.App.D.C., p. n.33, 199 309 of 624 F.2d supra.

329 Bruce, In the claim ineffective as- arose In sistance on collateral attack. to con- ample opportunity with terest and then, several cases since when the inef- inherent or obvious Prejudice is not sult. ap- fectiveness issue was raised on direct say is too to proved. be It much must peal, silently ignored the court has universally act any given omission or that requirement Bruce the defendant defendant on the prejudice. entails Each a “heavy prejudice, has burden’’ to show case, except exceptional in facts of his own a implying appli- different test was show actual circumstances must v. cable on direct appeal. United States evidence, exists, if it his cause. Such Hammonds, U.S.App.D.C. to him than to the normally more available v. (1970); F.2d Matthews United carry through he Government and should States, U.S.App.D.C. 449 F.2d having rather than prove his case Indeed, (1971). in Bruce itself a shifted to the Government on burden pointed powerful court out “a more slight on his showing mere of some effect showing necessary inadequacy is defense, majority as the holds. sustain a collateral than war- attack LAW IN CASE II. THE SETTLED rant order for a new trial either CIRCUIT THIS District Court this court direct Circuit and the A. of this The Cases appeal.” U.S.App.D.C. 340], [126 Reasoning of DeCoster 117; F.2d at accord United Scott I is threshold DeCoster its The crux of States, U.S.App.D.C. 427 F.2d question justify reopening attempt (1970). leave Since these decisions prej- must show or not a defendant whether ap- uncertain correct standard to be of coun- an ineffectiveness making udice plied question when of ineffectiveness by deliber- opinion does this claim. The sel now appeal, is raised on direct we address wholly separate a issue. ately interweaving that issue. desirability of is the separate The issue added, omitted.) (Emphasis footnotes gauge perform- by which some standards This circuit not from the departed place takes at 177 counsel. This all ance of preju- show rule defendant must 330-331, 487 F.2d 1201-02: U.S.App.D.C. point dice. law on that is not “uncer- The case in major first ineffectiveness tain.” It was stan- Huff, question of was Jones this Circuit performance coun- dards of defense Apply- 152 F.2d App.D.C. open. Bruce sel that was was written ing fairness process-fundamental a due Judge Although a collateral at- Leventhal. to be held the standard approach, we case, expressly tack held that defendants incompetence rendered counsel’s whether prejudice: must show mockery.” a and a the trial “farce v. United Bruce But that services rendered and were (1967), we reconsidered gross inat- that there not the flavor and mock- that the “farce Jones held a interest does nec- tention to client’s not liter- ery” was “not be taken language A essarily dispose of the case. claim of description of vivid ally, but rather might ineffective assistance heavy accused has that the principle if the appellant made out the wishes of showing unfairness.” requisite burden by clearly were fact diverted erroneous required Bruce rule announced in substantially legal advice and prove: Turning ques- prejudiced thereby. bar- prejudice, incom- tion of we find the record gross there has been both any showing on this and that this has ren substantial petence of counsel as- point. Appellant of a sub- crucial made bare out the essence effect blotted innocence, but he has not come . . sertion of stantial defense [126 that his ad- 339-340], at 116- forward evidence App.D.C. F.2d Judge are accurate. missions Sirica 330

At the recognize outset we that cases involving ineffective assistance counsel U.S.App.D.C. 344, 126 at 379 F.2d at 121 questions difficulty “raise of extreme in added). Later, (emphasis in Matthews v. justice.” v. administration Jones States, 323, U.S.App.D.C. United 145 449 Huff, U.S.App.D.C. [255], 80 254 152 F.2d (1971), case, a direct appeal Judge F.2d 985 14, (1945). Appel- 15 “The burden on the Leventhal, concurring, wrote: lant to his claim of ineffective establish I have taken the of outlining trouble * * * heavy. assistance occurred, I think because I ** * The question is whether his view, no suggested am means of the representation so ineffective that Rehearing, in the Petition for in Appellant was denied fair trial.” Har- possibility of prejudice these cases States, U.S.App.D.C. ried v. United 128 need shown. Where defendant has 281, [333-334], 330 389 F.2d 284-285 counsel, provided not been that fact However, (1967). requires less “pow- in and of itself establishes the need for showing erful inadequacy” sustain regard reversal without pos- other appellant’s appeal burden direct than sibility prejudice. Glasser United is required on collateral attack. Bruce v. States, 457, 315 62 86 340, States, 336, U.S.App.D.C. United (1942), 126 L.Ed. 680 but when the claim is 113, (1967). 379 117 posed F.2d terms ineffective assistance of counsel, then I think the ineffectiveness Hammonds, United States v. 138 U.S.App. has to be measured in terms of whether D.C. at (emphasis 425 at F.2d 600 add attorney effect blotted out the ed, omitted). footnote Hammonds con defense, substance of a Bruce v. United cludes: States, U.S.App.D.C. 336, 340, 126 Appellant has sustained his burden of F.2d establishing his claim that he was de- 145 U.S.App.D.C. at 449 F.2d at 994 prived of his constitutional to effec- (emphasis added.) More importantly, tive assistance of counsel. disposition in Matthews rested explicitly at Id. 425 F.2d at squarely on United States v. Ham- monds, U.S.App.D.C. 166, 425 F.2d 597 Although defendant’s burden in these di- (1970), a appeal direct Matthews, In case. appeal rect cases is than less the burden in Judge Fahy, writing for himself Judge attacks, collateral the defendant must Wright, stated: prejudice. nevertheless show That has nev- petition appellant Matthews for question. reproduced er been in The test rehearing has led us to reconsider our supra Harried, from Hammonds relies on affirmance of his convictions. In United governed and of course Hammonds turn Hammonds, States v. U.S.App.D.C. Matthews. was a appeal Harried direct 166, 425 F.2d (1970), involving simi- Harried, case. In then-Judge Burger

lar problem of ineffective assistance of wrote: counsel, the court reversed Hammonds’ Appellant The burden on the to estab convictions because of constitutional er- lish his claim of ineffective assistance of ror there found. In that case as in this heavy. counsel is See Bruce United the conduct of the same counsel was in- States U.S.App.D.C. 336], 379 F.2d [126 volved, and the same kind of casual sum- (1967); Mitchell v. United jury mation to the Moreover, occurred. U.S.App.D.C. 259 F.2d cert. de the evidence guilt in Hammonds was nied, L.Ed.2d no less strong than guilt the evidence of 86 (1958). in Matthews’ case. U.S.App.D.C. 333-334, F.2d at 992. Hammonds, case, added). appeal (emphasis direct expressly setting this test, follows circuit, excerpt Mitchell, earlier case law this Harried relied on which holds that Judge defendant must show in which Prettyman, writing for him- prejudice: then-Judge Burger, self and wrote: aware in it was of the standard it sought apply Bruce and that bring about person cannot A convicted to the facts of this case. standard judicial hearing upon and determination a competence 340, of of defense U.S.App.D.C. at 427 F.2d at 610. 138 which, either by making allegations Bruce, Hammonds, Harried, Matthews, for veri- testing after initial their face or are the in this circuit. and Mitchell law great a skill so ty, to indicate lack of fail con- They They not been overruled. had not accused in realistic fact that the favor, example, to be cited with as for tinue bring An cannot fair trial. accused in v. Holi- Judge Robinson United States quality judicial evaluation of about 140, 5, 482 U.S.App.D.C. 157 142 n. day, defense; allege only to of he is entitled 729, (1973). examples F.2d 731 n. 5 Other was not a proceeding and show that Judge of recent favorable citation are fair trial. DeLoach, in United v. 164 Wright States 63-64, F.2d at 793- U.S.App.D.C. 104 259 116, 120, 185, F.2d 189 U.S.App.D.C. 504 added). Mitchell is Although 94 (emphasis (1974), Judge in United and Bazelon States case, is obvious a collateral attack Butler, 151, 155, 504 U.S.App.D.C. v. 164 Hammonds, Matthews, and the Harried 220, (1974). 224 F.2d Bruce language in Mitchell and foregoing The there is majority’s insinuation that on the the burden is both indicate uncertainty in the law this circuit as to ap- prejudice in direct to show prej- whether or not a defendant must show to all burden extends peals as well. Such udice in effectiveness of counsel cases thus We made of counsel claims. effectiveness gross amounts to a It ac- misstatement. approval the action this clear in our cordingly majority becomes clear that Appeals District of Columbia Court opinion attempting change is the settled States, U.S.App.D.C. in v. 138 Scott United case law in this circuit with no reference 339, (1970): F.2d 609 427 precedents prop- must whatever for ineffec- appropriate standard effec- erly be overruled before that can be counsel, in set forth tive assistance can- tively accomplished. judges Two alone Bruce, supra, gross incompe- is whether An en is the not do that. banc court a sub- tence out the essence of blotted accomplish Thus the vehicle to that end.15 stantial defense. in its majority opinion attempt for the first Moreover, appeal in case of direct proof create a new rule in time to burden of appropriate takes reviewing court action law, circuit, contrary settled case our justice, though even the interest of authority its acting in excess of its problem not rise the constitu- would opinion point nullity. on that Its at- a fi- necessary tional dimensions to undo tempt change the rule need not be fol- Dyer judgment nal on collateral attack. majority way opinion lowed. The in no 312, States, U.S.App.D.C. v. 126 United point. denies this Bruce, (1967); 126 379 F.2d 89 see U.S. 340, 379 at 117. App.D.C. at F.2d majority [interprets] “incorrectly However, requirement process” of due opinion of the District constitutional it. when was before Appeals panel Agurs reveals both our did Columbia Court Grimes, 285, 286, 374, U.S.App.D.C. F.2d 375 District of Columbia v. 131 U.S. 244 367, 1337, (1968) Wash 360, See also District of v. App.D.C. Columbia 404 1343 F.2d Co., 304, (Robinson, J., ington concurring), U.S.App.D.C. 235 F.2d Post and cases cited 98 denied, 147, Agents’ 912, v. 531, Int’l Union 1 Insurance cert. 352 77 S.Ct. therein: U.S. NLRB, 218, U.S.App.D.C. v. and District of Columbia F.2d 736 260 118 L.Ed.2d Grimes, supra (1958), aff’d at 1347 404 F.2d States, J., (1960); Polisnik v. United dissenting). particularly (McGowan, L.Ed.2d 454 This is U.S.App.D.C. 259 F.2d cases are less since the bulk the affected true Mallory U.S.App. old, United (1958); certainly v. years recent. are than ten so (1958); v. Peerless Davis Insurance 259 F.2d of Columbia Grimes D.C. District Co., NLRB, supra. Inc. Agents’ Int’l Union v. Thompson Thompson, (1958); Judge rejects Robinson Pink- nevertheless ney’s claim of ineffective assistance of Supreme Agurs Court Thereafter counsel, flatly holding that a DeCoster I the failure counsel to obtain held that is a motion motion a new which record murder victim criminal obligation the defendant bears the same demonstrate ineffectiveness be- does not show cause as other evidence would not a rea- cause such create new trial motion. guilt. sonable doubt of n. same 2392. The is true here. 1. The Reasoning Pinkney Facts and showing There is no or claim that truthful evidence exists that create a would Pinkney, appellant, convicted of dis- guilt. Certainly reasonable doubt of the tributing heroin, claimed ineffective assist- proc- fabricated alibi not meet does the due sentencing: ance counsel at ess standard. The reversal here is thus The Government’s memoran- allocution contrary Agurs, supra. to dum was on appellant’s served counsel a week sentencing, appellant ahead of but true It is that some statement of stan- asserts that counsel the never discussed lawyer’s professional dards for a work are contents of with the memorandum him. here, helpful foregoing sup- and the cases He also complains of counsel’s failure to port proposition. But the same cases dispute allegation, the made in the memo- are the direct in this for case law circuit randum, appellant party was a to the proposition that the burden is on the de- drug District’s traffic. prejudice. fendant show The cases cited supra At uncertainty point. (footnotes omitted). leave no 543 F.2d on that reasoning There incontrovertible in our Judge Robinson introduces his ratio deci- case law that I blindly attempts DeCoster dendi surveying certain preliminary fac- ignore. majority in DeCoster tors: predicated its on proof statement burden of stated, As previously motion re- illogic with that callously disregards the sentencing charging ineffective assist- trust of the principles reader appellant ance counsel when was sen- stare decisis. And the assertions in the rejected by Court, tenced was the District majority opinion that this is dissenting perceive but we upon basis which that opinion Judge and so opinion Craven’s ruling upset. could now be In the first Coles, supra, in are an adequate not refuta- place, since appellant prosecute did not tion of the reasoning opinions which those appeal motion, ruling from the on the our embody. jurisdiction is, point to entertain the say least, And, not clear. in view of B. United v. Pinkney States sentencing judge’s specification of his eloquent rejection An of the factual rea- motion, denying reasons for it soning majority here equally unclear whether the allocution proposition that the burden is on the played significant part memorandum in Government, movant, not to show the sentencing decision. We need not prejudice is found United in States v. Pink- case, pass aspects these how- ney, 177 U.S.App.D.C. 543 F.2d 908 ever, because even additional reasons Judge Robinson, In Pinkney, with the District Court must be affirmed. Judges Wright Stanley and C. Blair concur- (emphasis added) Id. at 543 F.2d at 915 ring, alleged examines a set of errors and (footnotes omitted). counsel, omissions of which are of the same that, nature as alleged case, although those It should be noted namely, uncer- as- failure to tain to the extent of discuss a material the trial court’s matter client, allocution, Pinkney reliance on the inquire or to court whether certain assert- significantly itself relied “grave allegations ed on the allocution: of the Governments (at 428, allocution memorandum were true” appellant’s evidence adduced at tri- 913, 914). 543 F.2d at The opinion by strongly engaged al indicated that he was letter postsentence raise the claim in his sentencing judge, and in And, wholesaling narcotics. the infor- omission present unexplained counsel’s conveyed mation al- Government’s Moreover, advance earlier than did. appellant locution memorandum cast opportuni- upon a further insisting while positively. role alle- ty dispute drug-involvement added) (emphasis Id. at 543 P.2d at 912 memoran- gations of the Government’s (footnote omitted). dum, no indica- gave appellant’s motion profitable drug- We refer evidence, any, by if which tion as transcript selling reflected at refuta- undertake an effort he would memo- allocution Government’s tion. by appel- also a statement randum but 431-432, (empha- at 916-917 Id. at lant, court communicated to the omitted). (footnotes added) sis indicating that he presentence report, unemploy- receiving week in per $80 Pinkney Performance in Counsel’s alleged when of- compensation the ment foregoing The extract glaring fact the transpired. fenses Pinkney appellant from is that both 913 n. 30 543 F.2d at Id. at n. the timely counsel failed to advance claim added). (emphasis that, assistance, in filing of ineffective goes present on Judge Robinson then motion, supply the the counsel failed to his ratio decidendi: particulars. Pinkney major- court with envi- plainly Our DeCoster decision temper ity declines to conform the a affidavit motion bolstered sioned the untimely DeCoster and find that emanating key points, expectation its filing insufficient is itself ineffective assist- De- vehicle which procedural ance of counsel. as a record-im- pressed into service Coster highly suppositive But under the reason- said, vehicle, we plementing device. case, poten- ing majority in this trial, obviously for a new was motion untimely and the tial revelations on remand evidence in the sense presenting one new require motion of counsel fortiori other of evidence outside the record —in on Re- simple remedy inquiry remand. newly words, a new-trial motion based Pinkney simply was not in issue in versal — charac- An essential discovered evidence. of a out the substance a remand find disclosure a motion is a teristic such I, course, In DeCoster pleaded claim. claim the movant’s portraying evidence court raised no at all. This there was claim resolutely, evincing materially and sponte. sua assistance the issue effective chal- mounting a serious capability of Supra, pp.---of U.S.App. token, a motion lenge. By same D.C., If this court of 624 F.2d. pp. 300-301 of counsel charging assistance ineffective speculation indulged appellate can allow the which upon must set forth evidence reversal, then cer- require case constitutionally deficient of a elements Pinkney’s tainly as to possible revelations might performance properly found. drug District of Columbia participation in meet these Appellant’s motion did not sought on a remand. traffic could be requirements. There was wholesome indistinguishable pos- factual Given motion, nor was supporting affidavit case, the Pinkney ture of and of this obvi- There verified. the motion otherwise Pinkney court was to ous recourse for that sen- only the bare statement was I, hearing remedy of DeCoster invoke appel- with tencing counsel did not confer government thereby compelling the charge on the in the Government’s lant Pinkney prove prejudiced appellant memorandum that allocution alleged of counsel. omissions drug-distributing cog local Judge machinery. forthrightly abjures The absence of substantia- But Robinson type speculation majority is the better assessed tion therefor to here calls for: failure appellant’s conjunction caution. The burden proving the ne- cessity for a new petitioner. trial is on the appellate court, As an adjudicatory our He must satisfy the court jury authority questions extends amply might have reached a different result grounded in the record. challenged without the testimony, Id. at 543 F.2d at 915 (emphasis added) had the subsequent testimony been (footnote omitted). The coup grace de presented at the trial it would have the mode of analysis fanciful factual which “probably” produced a different result.

Judge opinion Bazelon’s would hereby seek 291 F.Supp. at (emphasis added) (foot- impose is that the refusal of the court in omitted). note My colleagues completely Pinkney to set aside the conviction turned gloss over these requirements. on the conclusion— Norman states that a factual basis there “that alleged counsel’s derelictions [had alleged for a new trial is insufficient be- appellant’s frustrated opportunity to not] cause . that fact would not have present his side of the controversy,” id. at undermined the Government’s case in the 429, 543 F.2d at 914. least.” 402 F.2d at 78. Neither would the Prej- 3. The Burden of Defendant to Show fabricated defense which the majority con- udice tends Decoster’s counsel was required to investigate. Judge The crux of Robinson’s Pinkney

analysis holding is his that an Frame flatly ineffective states: assistance of counsel claim is a motion for a Turning merits, to the we hold that the subject new trial and is legal settled motion for new trial was properly denied. standards for such motions: No showing was possible made of preju- dice from the alleged The vehicle relief conflict. in ineffective See as- [for Davidson v. Cupp, (9th 446 F.2d 642 Cir. cases], said,

sistance of counsel we was a 1971), and cases cited. motion for a new trial . . . An essential characteristic of such a motion 454 F.2d at 1138 (emphasis added). Nor is a disclosure of evidence portraying the majority does the point any prejudice movant’s claim materially Decoster here. evincing capability mounting a seri- Newsome tells us: challenge. ous Having had a full the defendant 431, Id. at 543 F.2d at 916. clearly is not entitled upon to a retrial

Each of the cases proposi- cited for this basis of an unsupported statement unambiguously tion requires that he would defendant like additional produce time to prejudice show in unidentified possible his motion. witnesses whose Judge Robin- tes- timony son was not cites: disclosed. Smyth, 452,

Newsome v. 261 F.2d 454 261 F.2d at 454. (4th 1958), denied, Cir. 969, cert. 359 U.S. 59, In his footnote Judge Robinson notes: 79 S.Ct. (1959); L.Ed.2d 837 United Our conclusion in regard way this in no Frame, States v. (9th 454 F.2d impinges upon rule, which readily we Cir.), denied, cert. 406 U.S. reaffirm, that once a substantial violation 1794, 32 (1972); L.Ed.2d 126 United shown, of counsel’s duties is the Govern- Norman, States v. (9th ment’s burden is to demonstrate lack of 1968), denied, Cir. cert. prejudice therefrom. (1970); L.Ed.2d 119 Dansby (Emphasis added). But he omits mention United 291 F.Supp. absolving defendant of the duty initial (S.D.N.Y.1968). prejudice show no such absolu- —because Id. n. 58. possible. tion is To show a “substantial Dansby we find: duties,” prejudice violation of counsel’s

Motions for a new trial are not favored must be shown —otherwise the violation granted should be great would not be By pre- substantial. its own preju- not before disprove that fact —but proved. To the extent dice has been Pinkney reiterates cases sentation would absolve majority in DeCoster prejudice before show must defendant obligation to from the initial fall can forward going obligation to the it does not conform prove prejudice in is the issue That the Government. upon and hereafter. law as stated heretofore is proceeding remand The case. present ABA issue, value and the in THE PRINCIPLES CONTROLLING III. is not of counsel conduct standards OF BURDEN OF ALLOCATION an- the standard issue, the issue nor is PROOF ON PREJUDICE duty of to the I as in DeCoster nounced circuit on the The settled law in this as- reasonably adequate to furnish preju- to show of defendant responsibility simply The issue is accused. sistance cases re- of counsel dice in effectiveness case the settled court honors whether enunciated controlling principles flects a new trial must movants for law Court and arlchored Supreme prejudice. show common law. analysis Judge Robinson’s validity of Supreme Court Principles A. Set cases, defend- In DeCoster is unassailable. adopts majority DeCoster claim and one a “substantial” lacks ant assertion Coles legally unsupported the defendant unless “consequential,” is Peyton certain acts or omissions that once Whether prejudice. substantial first show shown, the case for ineffec- by counsel are is the result prejudice, harm or calls it one prevail tive counsel must un- assistance of initially upon rests and the burden the same Government, is cast the less the “on which That prejudice. prove the defendant of these proof burden of once a violation in this the cases holding of all clear shown, establish lack of precepts can ac- to an not amount and this does court prejudice thereby.” 389 F.2d at op. p. (Majority II I or ceptance of DeCoster (em- U.S.App.D.C. at 487 F.2d at - p. 310 U.S.App.D.C., of 199 added).16 phasis cases, proponent if the F.2d). in all As here, rule evi- case, the burden This assertion conflicts with the proves holdings by Supreme Court. party dent to the other then shifts proceeding Peyton, possible suggested. majority opinion 389 witnesses were ever A de- in Coles 16. The 849, lawyer clairvoyant, denied, (4th Cir.), nor can fense divine witnesses is not he U.S. F.2d 224 cert. 393 80, (1968), where none exist. is uncon 89 S.Ct. vincing L.Ed.2d to, side, reply judicial authority respects. It fails to in several On the law no or rea- with, convincing apparently is son whatsoever cited for the switch in the or even deal proof. any pertinent Nor are sets forth burden factors that the dissent in that casé answers as majority opinion replies to the access to admissible evidence cited to require what the claims to justify representation or the switch in normal of his bur- defects in counsel’s are client, actually proof. contrary (1) den of Coles is thus to both date counsel to wit: accused, justice however, (2) logic. represent In began law and to Coles the defend DeCoster, distinguish it somewhat from and the half admission to the counsel ant’s court, alleged finding by did of the action, violations in Coles did involve the state that defendant inaction, state, e., (it alleged by prosecutrix or i. with the intercourse have thus alleged promptly appoint unnecessary explain penetration failure that defense crime), (3) to afford lack of counsel and able defense counsel a reason- element of the was an interviewing opportunity any point a wit to defend his client. Since in not substantial only proof theory this new burden of in was launched who “heard” a disturbance and ness screams 1968, (4) subsequent nighttime, no at a distance in the Fourth Circuit case Cox, 1089, asserting applied (4th it. Jackson v. 435 F.2d there was no foundation 1970) investigating apply delinquent it in a case in not Cir. refuses to counsel was alleged companion was with where defense counsel failed to locate and sub- male the accused poena gave prosecutrix an unknown witness where there was no the accused never because found, lawyer any suggestions showing, if that he as to where even he could be his he could be found or who he an leads or was, (5) might provide a defense. Those facts are sub- stantially investigation reputation prose in what we have in Also of the DeCoster. 653, (4th chastity in Hall v. United Cir. 410 F.2d cutrix for was never made at 1969), against appeal, the case was decided connection with the federal because position majority

dice. The must be precepts that violation of their constitutes preju- show example, defendant must For prejudice whatsoever, inherent in case on the sixth amend- in claims based dice Wainwright, as occurred in Gideon jury and the right impartial to an ment (1963), 83 S.Ct. L.Ed.2d U.S. process. right to due Ex- fifth amendment representation where there was no at all. prej- actual showing to the rule of ceptions are those instances in which udice made in analysis ques- thus devolves into the that he is the victim of defendant shows tion of whether “substantial” deviation inherently op- prejudicial, acts that are majority’s precepts, from the U.S.App. prejudicial. actually are posed to acts that D.C. at ipso 487 F.2d at facto also is whether A factor to be considered rises to the level of the fundamental consti- any way participated in the Government deprivation in, tutional say, inherent com- causing to be ineffective. But the counsel plete denial of the assistance of counsel. In it is actual or inher- regardless of whether phrase, is precepts deviation from the alleged, it is defendant ent equivalent prejudice? inherent If it is Murphy v. prejudice. who must show not, prejudice, inherent, then actual or must Florida, be shown each defendant on the facts of (1975), 44 L.Ed.2d the Court held: the defendant’s own case. has failed to show that Petitioner The precepts listed I are: DeCoster setting inherently preju- of the trial was jury process dicial or that the selection In General guided —Counsel should be permits complains which inference the American Bar Association Stan- prejudice. of actual dards the Defense Function. They represent profession’s the legal own ar- added). (Emphasis The allocation of the ticulation of guidelines for the defense proof Murphy poses burden the same of criminal cases. raised questions are the DeCoster I majority. It is true that the burden in Specifically (1) Counsel should confer — Murphy requires a defendant bear a fact- delay client without and as producing responsibility in his own cause. necessary often as to elicit matters of defense, potential or to ascertain that Also, true that circumstances can be defenses are unavailable. Counsel the alleged infringement described which fully potential should discuss strategies obscures evidence of the tactical choices with his client. infringement general itself. Id. But promptly Counsel should advise his provide rule stands. The courts can rights client of his and take all actions prejudice, to uncover no mat- necessary preserve Many them. obscured, but ter how it is defendant who rights protected by can prompt prejudice. regard must show With legal Supreme has, action. The Court sixth amendment issue of effectiveness of example, recognized attorney’s the counsel, possible there is no reason for hold- role in protecting privilege client’s ing that the rule that prej- defendant show against self-incrimination. Miranda v. mysteriously udice discontinues. Arizona, U.S. S.Ct. [86 Thus, the majority in DeCoster and here (1966), rights L.Ed.2d at a 694] assuming must be that prejudice to the line-up, Wade, United States v. defendant is inherent in the or acts omis- 18 L.Ed.2d [87 guidelines proposed sions as in assessing (1967). Counsel also should 1149] performance. counsel’s Neither in DeCost- concerned with the accused’s er I here there showing nor has been a custody be released from pending prejudice, preju- inherent much less actual prepared, appropriate, and be where ample being without to the reference burden of bad law made a hard case on proof being also, facts, e., 25-year imposed on the Government. See i. sentence 75-1056, (No. Hustings United States v. Peterson 4th Court. Cir., July 1975). Maybe this is another ex- they

While the claim Standards judicial intended “as criteria psychiatric are not pre-trial for a motions make suppression evaluation for the effectiveness[citation examination relevant certainly are omitted], they evidence. largely uncharted area. in this guideposts appropriate must conduct Counsel legal, factual and investigations, both at 332 n. 487 F.2d at matters of defense determine what added). 1203 n. This is one of (emphasis Supreme developed. can be The Court majority They mistakes the makes. adversary system noted that place weight now more on the standards that “all available defenses are requires than their authors them intended to bear. government put raised” so that here, they attempt As to have them serve that in proof. to its This means most as guideposts.”17 much more than “relevant attorney, agent, or his cases defense key The to ineffectiveness of counsel, per only his own wit- should interview not the majority in DeCoster I is “substantial” govern- that the nesses but also those violation precepts. Now we are told call, they intends to when are ment here in Decoster II that “substantial” investigation The should al- accessible. “consequential” means (Majority opinion, p. ways efforts to secure informa- include - U.S.App.D.C., p. of 199 309 of 624 prosecution possession tion in the F.2d). What an exercise in elementary And, se- and law enforcement authorities. mantics. What my colleagues are trying course, duty investigate also do is to skate around the “prejudicial” research. re- requires adequate legal quirement and appear make it as though 332-33, 159 U.S.App.D.C. at 487 F.2d at they have invented a new standard. But (footnotes omitted). discovery their reality merely adds up to standards very generality The of these recognize failure to that when they are indicators their use as conclusive prevents talking about “substantial” and “conse- ev- prejudice constitutional for each and quential” they doing are nothing more Their than ery effectiveness of counsel case. describing ingredients essential of “preju- prejudice to a defendant’s cause relation dice.” To have question. of the case in causative fac- turns on the facts tor must be us, “substantial” I reminds majority in DeCoster sufficiently related to the result in a regard incorpo- to the ABA standards causal relationship so that precepts: result foregoing correctly into the rated be con- majority 17. The violates the intent of the draft- should be over- such that a conviction attempting apply general guide- beyond scope ers in of the Commit- turned are Relating lines set forth in the Standards work. tee’s (American Administration of Criminal Justice added). (Emphasis majority are Id. at 65 Association) (1974), though Bar 4.1 as § guilty error that Justice Black- of the same thus penal were a statute and an standards absolute opinion in his chambers found the Ne- mun “duty” of counsel. Those who wrote the Stan- adoption court’s of the Nebraska braska trial 4.1, dards indicated that the standards of § for Disclosure and Re- Bar-Press Guidelines since a violation thereof was not characterized Relating porting of Information to Imminent or “unprofessional,” were “intended to serve as Litigation Pending in Nebraska Criminal Press guides practice.” (em- to honorable Id. at 64 Stuart, Assn. v. phasis added). They were never intended to be (1975): L.Ed.2d 237 applied overly strict manner which the description rehearsing Without those majority attempts. here guidelines my prior opinion, set forth in may prove useful these standards While “voluntary evident constitute respect, empha- it should be courts in this code” which was not intended to be manda- proposed has not sized that the Committee Indeed, “guidelines” tory. the word itself so applicable per se rules them as a set of and, They merely suggestive indicates. are procedures. post-conviction The standards necessarily accordingly, vague. are primary impact drawn with their have been Id. at 96 S.Ct. at 254. Section 4.1 of the prosecutors and defense on the conduct of Standards, too, just guide ABA is a larger The considerations in mind. operate conjunction never intended to whether a determination involved in equivalent penal presumption. lawyer what is to a prosecutor or defense conduct of a U.S. S.Ct. L.Ed.2d 705 factor, e., consequence of that i. a sidered majority write: Actually, “substantial” “consequential.” Chapman holds that if a defendant’s con- abstract, “consequential” in the rights stitutional violated, were con- my colleagues as “prejudice,” divorced from viction must be reversed unless the them, try to isolate are mean- apparently “prove[s] Government beyond a reasona- adjectives ingless. They merely are stand- ble doubt that complained the error ing just alone. Error that is “substantial” did “prejudicial” not is no moment. not contribute to the verdict obtained.” (and that “consequential” And error what we hold that harmlessness be consequence is not a of some causative error beyond established a reasonable doubt. factor?), being prejudicial, is without imma- - Majority opinion, p. 199 U.S.App. Thus, all, terial. to be relevant at the ne- D.C., p. added). 311 of 624 F.2d (emphasis glect must be of so sufficient substance that Chapman dealing But with a claim of may consequence be found be both a after a substantial constitu- harmless error alleged prejudicial. failure and Here, tional violation had been found. Coles, here, facts well as in show existence of constitutional error is the is- great a that deal turns on actual facts sue, majority presented and the has neither supra of each case. The discussed factors any facts nor consti- law establish that ----of pp. 199 U.S.App.D.C., at pp. tutional of defendant been vio- Judge 314-321 of 624 F.2d and Cra- all, particularly sixth lated amend- Coles, ven’s review of the facts in right. ment counsel 228-30, demonstrate that the facts of neither of a summary finding case admit of What the majority skip does here is prejudice. requires Substance prejudice requirement that the defendant prove first consequential, that is majority and the here and, a substantial constitutional violation beg cannot the question legislating a upon appellate sponte court’s sua asser- prosecution. new task for the The terms tion that the ABA standards were con- “substantial” and are “consequential” to, imposes upon formed the Government majority admission DeCoster that unprecedented prove beyond burden to question effectiveness and the meaning doubt reasonable that the assumed error majority’s precepts own must be was harmless. The defendant should first basis, case-by-case settled on a on the facts required prove be a constitutional viola- so, of each case. Since it is true that substantially prejudiced tion that him. precepts universally dispositive are not Chapman specifically fact refused to hold factors, such as providing counsel in the errors, all “that federal constitutional re- place, first foreclose need show prejudice. Therefore, gardless circumstances, case of the facts and here falls into that category identified always Su- be must deemed harmful.” [to be] preme requiring Court as 21-22, 87 S.Ct. at 827. The show either actual or prejudice. inherent It majority opinion upon relies the statement immediately follows Judge Craven’s California, Chapman v. rule Coles is correct: showing burden of lack of prejudice before federal constitutional error when, falls on the when, state but only harmless, be can held the court be must petitioner has shown set facts able to declare belief that it was harm- demonstrate to his de- beyond a less reasonable doubt. fense, inherently otherwise. (latter emphasis added). 389 F.2d at 230 holding But in that this is applicable rule majority here the opinion Application Chapman fairly B. The does not Cali- fornia hesitating consider the and qualifying steps that Justice Black took before he made that This sets in stark relief the majority’s remark, manipulation Chapman California, and which fairly considered

339 Although plaintiff generally a carries the of persuasion burden on each element of Chap- The qualifying statement. action, special his cause of circumstances opinion man concludes: may lead a court to shift the burden of little, any, if difference between is There persuasion part to the defendant on some Connecticut, Fahy statement in v. 375 our special of the claim. One circumstance 85, 229, L.Ed.2d 171 11 S.Ct. U.S. commonly accepted is that the burden pos- “whether there is a reasonable about will be where the shifted material neces- complained sibility that the evidence of sary prove disprove or an element “lies the might have contributed to conviction” within the particularly knowledge” of the a requiring beneficiary the of consti- defendant. prove a beyond error to reasona- tutional Airlines, Inc., v. Allegheny Nader 167 U.S. complained that the of did ble doubt error 350, 361, 527, App.D.C. (1975), 512 F.2d verdict obtained. not contribute the 290, grounds, rev’d on other 426 U.S. So, while at 828. S.Ct. (1976) (citations 48 L.Ed.2d 643 S.Ct. clearly appropriate earlier statement is the omitted). case, but, Decoster is a criminal clear, is the a constitutional violation where held, as we have it is not a denial of due appropriate to Fahy qualification is more place process on defendant the burden here, situations, where such as the exists proving separate that is claim from the existence, alleged charged. extent and effect of elements of a crime United Greene, U.S.App.D.C. 21, States 31- violation have been constitutional (1973), cert. de Fahy refinement proved. Applying the nied, 95 S.Ct. U.S. L.Ed.2d proof require facts here would (1974). Thus, the common law fact- possi- is a reasonable defendant “there finding govern principles in Nader this case. [alleged inadequate represen- bility that the comparison with Nader is illuminat- might . . have contributed . tation] ing. In person asserting Decoster the . . .” The defend- conviction . to the claim is with person also the the access to in view of the no such claim and ant made practically important all the facts that are verdict, admission facts jury’s guilty prejudice. relevant to proving In Decoster (n. supra), lawyer letter to his in his policies twin placing the burden of implications his in-court clear proof person pressing on the the claim and (p. when was sentenced statement placing proof the burden of on the person supra), guilt is certain be- p. 828 particular access to facts are both just yond doubt —not reasonable all by holding satisfied that Decoster re- Thus, possi- “reasonable there is no doubt. quired prejudice. first to show inadequate [alleged assist- bility in There no conflict the common law might . . con- ance counsel] principles principles Those here. direct that conviction” —unless of tributed showing prejudice. defendant make sporting one would advocate the- course Moreover, Supreme Court has set con- might perjury pre- in justice which ory require stitutional standards acquittal thereby obtained. vail prejudice. here show relevance of But, Brady in Douglas as Justice remarked principles these to this case was stated Maryland, dissenting opinions DeCoster I (1963), permissi- not a this is L.Ed.2d In I my Coles. DeCoster dissent stated: Thus, even if it be as- ble consideration. addition, I do not concur in the sumed, constitu- presumed, that “federal conclusion that the burden in such cases existed, harmless error error” tional non-prejudice shifts prove Chapman has been satisfied. standard proof is usually Government. Such more Law Principles of the Common C. accused, ability within such if succinctly all, and it recently place stated evidence exists at would circuit This an unfair burden on Government proof law on civil burden the common upon it. impose that task For instance cases: justify requirement. Two factors First, constitutionally prescribed in our accused could frustrate the Govern- adversary system the is on the burden many ment’s effort instances merely prove guilt. require- to A government by claiming his privilege against disclos- prejudice, that the ment defendant show ing some facts on ground that hand, on the other shifts the burden to might incriminate him. makes him the likeli- him and establish 487 F.2d at 1205. answer to hood of his innocence. It is no inAnd Coles Judge Craven wrote: appellant already had a say that has Switching proof the burden of does not government put which the trial in startling these true but it make defenses the heart his com- proof its because of put upon exceedingly does state the effective is that the absence of the plaint unbearable, awkward, if not burden of him of deprived of counsel has assistance proving negative. sug it is And not added). adversary (Emphasis trial. a full nega gested prove the state can proceeding [Thus, majority, of easily tive such matters than more supposed is whether which determine petitioner prove positive can —the effective, has been switches counsel usual reason for the burden. switching proof, burden of in advance traditional matters, opinion, Nor do these my fall issue, on the determination of that within the category of de constitutional only “complaint” that what ground inherently fects must be deemed This already proved. has been alleges prejudicial (1) intuitively because we court logic by appellate an perversion prejudice, sense the extent of it is is unbelievable.] simply not susceptible practicably Second, may well proof prejudice proof, (a) such as failure counsel because precisely absent from the record assigned, (b) appointment counsel fol exam- has been ineffective. For trial, (c) lowed immediately by division of counsel fails an in- ple, when to conduct responsibility among an entire bar indicate vestigation, record (what’s everyone’s responsibility is no called, or which witnesses he could have responsibility). one’s Except such situ he could have raised. defenses ations, kind, and others of like it is still U.S.App.D.C. at true that “in involving most cases claims (footnote omitted). process due deprivations require we showing of identifiable prejudice to the respect points to both these With Texas, accused.” Estes v. State of that a is entitled obvious truth is defendant 1628, 1632, 1633, 14 counsel, court-appoint- engage or obtain L.Ed.2d 543 (the very appeal in direct cases ed counsel their my colleagues which bottom cases on (footnotes 389 F.2d at 230 omitted). may lie develop whatever facts analysis) the Supreme Where Court set consti- constitu- The fact of earlier in his favor. tutional standards require can of counsel tional ineffectiveness prejudice, here to show and where the com- to defend- fact follow mon law fact-finding rules direct the same consequences If the cause. ant’s result, obviously is to relieve incorrect indicate of his counsel do not performance defendant of the responsibility to show defendant, is not to injury to substantial prejudice, particularly proof when require- The constitutional obtain redress. fact, exists, if it peculiarly available is not reasonably adequate counsel ment to him. behavior. as a shield for criminal be used IV. THE PURPORTED JUSTIFICA- TION IN DeCOSTER I FOR SHIFT- THE CONSTITUTIONAL V. ING THE BURDEN OF PROOF CONFLICTS attempting In justify constitu- placing the bur- in DeCoster I causes The rule proof unnecessary den of on the which are Government in certain tional conflicts cases DeCoster I be avoided. states: therefore which should

ing negative respect to the conduct certain opposing counsel. A. The Conflicts prose- highly likely it is situations explicit- that it based I states DeCoster times, at court to might, cutor move the adversary process: for the ly on concern lawyer’s alter defense decisions. This a the recognition this with Consistent inevitably right the of would interfere with that the repeat to continued has Court the parties, the and de- both Government the “preserve to counsel is purpose fendant, adversary truly to a trial. that counsel must and adversary process” Mitchell, Judge Prettyman As wrote active advocate role of an act “in the I with to the DeCoster respect the burden his client.” behalf of judge: on a type place of rule would at 1202 omitted). (footnotes right of the an Moreover constitutional inves- appropriate must conduct might Counsel to the of counsel accused assistance deter- legal, to factual and tigations, both destroyed selections well be if counsel’s can be of defense what matters supervised mine upon problems tactical were has noted Supreme Court developed. to by a is entitled the judge. The accused requires that adversary system that the counsel, not his judgment of so that are raised” “all defenses available opinions judge. Surely tactical proof. to its government put judge confidences should not share the (footnote counsel. An accused omit- shared client and F.2d Id. approved by a bound to tactical decisions ted). process of judge get would not the due requirement. justify Two factors And law we have heretofore known. First, prescribed constitutionally in our judge it a trial how absurd would be for is on the system the burden adversary a course was opine . .It to that such-and-such prove guilt. to government it incompetent per- or because say appellant to ineffective answer govern- (the which the judge) had a trial in him to decide thus- already suaded proof put to its because adversely ment and-so to the accused. complaint is the absence heart at 793. this is true with F.2d Since of counsel has of the effective assistance respect judicial supervision to of defense adversary trial. deprived him a full counsel, prosecutorial it is a true of fortiori Id. supervision or of defense coun- surveillance necessary explicit to and realistic It is be they will not majority sel. The assert that adversary would to the happen about what (Majority guess” counsel “second defense shifted proof burden of were

process if the -p. U.S.App.D.C., p. of 199 opinion, suggests as DeCoster Government F.2d), exactly they then do 307 of 624 but As majority attempts. as here they reject interpre- a reasonable that when through government inability loses an cases 5, 23) (id., tation his actions nn. meet unfair burden be- generally against speculative doubts him resolve all negative “lack of ing required prove (id., extravagant conclusions with adverse prosecutors increasingly, will prejudice,” U.S.App.D.C., pp.---of n. justifiably, attempt protect guilty pp. F.2d). 307-309 of 624 seeking decisions to monitor the verdicts Placing the on the burden Government order counsel in and activities defense was not prove that defendant’s counsel why deci- showing a record certain build inadequate wars ineffective majority opinion proper. sions were adversary sixth to an tri- amendment pros- require, that encourages, if it does not al, attempt shift and for reason of defense ecutors look over the shoulder Moreover, the burden cannot be sustained. They will also counsel in all activities. facially: I is also inconsistent DeCoster prosecutions so required to tailor their be assure the effectiveness coun- seeking to eventually forced to will sel, very of ac- prov- freedom undermines extremely difficult burden bear allegedly

fense counsel committed some of his representation criminal offense in his tion on which such counsel relies. To the client, disproving if the burden of majority opinion extent that in this case my prosecution, were shifted to the col- investigate holds that defense must leagues compel, majority would of such fabricated, support untruthful defense required probe investigations would be against counsel’s conscience and better depth into confidential communications and judgment, lawyer’s it strikes at the inde- relations between the defendant and his pendence integrity. qualities These lawyer. particular A of such investi- target preserved truly must be we are to have a if gations would be admissions and statements adversary system practicing and a bar with guilt as to high standard of ethics. made his lawyer. to Can defense disclose lawyer required No should ever be to these In privileged communications? such investigate support a fabricated defense. an inquiry the interests of former defense his In 1975 Sonnett Lecture at Fordham counsel would then become adverse those University, Widgery Justice encapsulated of Any his former client. evidence the law- properly required what is an advocate: client, yer may have been furnished lawyer must . .in- be [T]he repre- otherwise obtained while he was dependent in and in mind fact —he must accused, the senting which bore on the able do be what his conscience tells question guilt, fairly producible would be him is fear antagonizing without if the attacking defendant was his counsel. or being the court overborne his client. Finally, integrity he must have situation, But what of a such we as have pursuit justice, recognizing respon- here, where appellate judges two raised the sibility opponent, to the court and his and issue without informing the defendant or rejecting alike the desire win at all advising him the privileged disclosures temptation costs the and to take an un- that might compelled? be If the defendant advantage fair such pieces of forensic made the open motion the door to would luck way.18 which come his such inquiry by prosecutor, the the defend- many There are inherent ant difficulties that himself always prime would be a target proof would if for interrogation, arise the burden of were and his exercise of his placed prove on the Government fifth rights might amendment conflict with defense counsel not an inadequately rep- adequate investigation did possibly in —as all, resent a prepara- defendant. First it appears appellant case—where require apparently tion to assume that burden would perjury committed in the trial of prosecutor the investigation an the order into case.20 Defense might counsel himself what for prosecution the face the has heretofore in same hazard. If entire rela- most completely prohibited instances been a tionship between the defendant and his area —the counsel relationship confidential between were not opened up thus for search- a criminal ing defendant and investigation his counsel —and and interrogation, then it would be the investigative Government’s effect of the rule sought here to be arm, the police,19 FBI or applied by that would be the majority would be to shift necessary investiga- ordered to make the the burden of proof away from the side tion. While there be cases where an in normally best position police FBI or investigation lawyer’s produce into the most (the relevant evidence representation of defendant) a defendant a criminal deny and to or seriously restrict case be appropriate, would as de- where the Government in its access to what 18. Rt. Widgery, Hon. Lord gence IRS, Ford Chief Inspectors Justice of Division of the the Postal England, Compleat Advocate,” “The investigative agencies upon 43 Ford- or the arm of other ham (1975), L.Rev. Congress jur- Fifth investigative Annual John which has conferred Lecture, F. Sonnett January Memorial isdiction cases. various appropriate cases the FBI or Police would pp.-,-of U.S.App.D.C., pp. See replaced by Service, F.2d, be supra. the Secret the Intelli- 316 of 624 typical would become

The situation here would be appellate defense counsel cases be the best evidence most would Court, “ineffective”, if in this found upon being placed meet the that is burden pursue largely unreasonable unfair, did grossly it. Such result would be which patterns great many place practi- second-guessing speculative would in a cases cally impossible conjured up burden on the Govern- in this case. colleagues have my impose penalty It ment. would what we seen here is And alleged deficiencies defense, Government for effect beginning of this accused. try lawyer in which is to the defense counsel, if second trial. and his both the accused Thus fifth amendment not exercise

they do convicted, prac- the accused is Once self-incrimination, would against guarantee appellate friendly be for a court tice would the Govern- interrogated by thoroughly be speculative its as to imagination to exercise and, proper upon a investigators ment the lawyer and defenses. If witnesses records of accused showing, papers there “convicted” the second then subpoenaed,21 search be counsel could ordinarily retry a third trial to would rele- obviously be issued could warrants him against accused if case were not possibly autho- evidence, wiretaps vant pattern majority obtain- If the the here Evidence thus dismissed. by court order. rized attempt applicable to sustain be used in an would establish became the rule would ed prej- to proof disprove law, every guilty unfair burden of practically the of defendant on the my colleagues place would that post udice would have a second trial— defense — Government, the basis might be used as and evidence, speculative imaginary based of the de- either prosecutions additional for witnesses, and other excursions into fanta- both, to add lawyer, or or his fendant Long-established imposing the sy. rules re- if a strength to the Government’s case proof contending party burden of on the eventuated: trial fraught proposed would be violated. A rule majority has seems that the apparent It not be consequences with such dire should the con- fully thought through some of law, defending imposed. If such were the to the bur- attempt of shift sequences their jurisdiction of this accused criminals in these proof prosecutor the den of to court a hazardous occu- appellate would be Instead, problems leave those cases. professional reputa- insofar pation as one’s song is the same siren to the future. This the district court tion were concerned. In we have heard before with disastrous that already had one libel case for $2 we judge who my It is belief a results. sub- arising of an accusation million out change the program radically to presents prior appellate counsel defense sequent particular an should dem- important law in represented his ineffectively had counsel fairly would work proposal onstrate his at trial. client col- reasonably practice. My actual and leagues principle. this dissent from to say This is not that a defendant in an appropriate case no relief. He does. has hoc require post in a To the Government judge appoint The trial can new counsel for justify (second guessing) proceeding The judge, supervising defendant. would legal activities of defense counsel provide can and should investigators go to require Government competent But this with counsel. when origi- and The extreme unreasonable ends. attempts prosecu- court to transfer to the investigative sugges- subsequent nal and for, of, responsibility and tion burden majority prove made here tions proving performance of defense (supra, 1). point n. Nobles, prosecution inspection completion for at the 21. United States v. U.S. investigator’s testimony (1975). which related L.Ed.2d 141 The defense S.Ct. Contra, report. investigator’s report relating the interview covered in the his interview witness, Wright, particular previously United States v. with a delivered counsel, F.2d 1181 be to the defense must furnished

legitimate investigative steps prosecu- defendant, undertake, as the must then act did not tion defendant’s do,22 even majority attempts invoking here an claim ineffective assistance violation is estab- greater may constitutional of counsel constitute a waiver of de- lished, shift a the rule would constitu- guarantee fendant’s fifth amendment obligation cannot be shifted: tional which against self-incrimination of the confi- dentiality of attorney-client relationship. duty judge rests the Upon Supreme recently Court reminded seeing that the trial conducted privileges waived, us that such rights of the can be for the essential solicitude doing importance in so reminded us . . The trial court should of the accused. an to have protect right accused very independence adversary of counsel. assistance majority counsel that the here so fervently undermines. Maness v. Meyers, 60, 71, Glasser United (1974), S.Ct. L.Ed.2d 574 (1942) (emphasis L.Ed. Court, in holding attorney could not added). held in contempt advising his client prosecutor. The executive branch is the guarantee exercise against self-in- rights While it must be solicitous crimination wrote: defendants, counsel, defense is not cannot this court shift executive layman A pre- not be aware fundamentally branch that which nuances, scope, cise and boundaries of duty judiciary. constitutional his Fifth It privilege. Amendment is not represent can judiciary appoint counsel to mechanism; self-executing it can be defendants, legislature provide and the can waived, affirmatively by not or lost as- appointment payment for the of coun- serting it in timely per- If fashion. indigents provide sel for defense order lawyer’s formance of a to advise a duty But, lawyers. the Government unless client privilege exposes that a is available per- somehow involved in the inadequate lawyer contempt to the threat of counsel, of formance defense it is the de- giving hardly honest advice it is debata- lawyers fense the selected defendants or ble that some advocates lose their appointed by the who develop court must forthrightness zeal for independence. and carry proof showing the of inade- the 419 U.S. at 95 (footnotes S.Ct. at 595 predecessor quacy of counsel. adver- The omitted). goes The Court on 419 U.S. at sary system by very its nature not does 467-68, 95 S.Ct. at to quote Mr. Chief permit placement obligation the of that Fuller, Justice speaking for the Court in In upon prosecutor. The United States Watts, re U.S. prosecutor attorney cannot be both and de- L.Ed. (1903): counsel, fense complexity and the of the oversight problem it makes undesirable that clients, the ordinary In case of advice to case, charged every pain he be so in upon of an attorney good if acts in faith and in reversing guilty convictions of admittedly the honest is well belief his advice defendants. just of founded and in interests client,

Finally, majority if the in he cannot be held liable for error persist here burdening prosecution judgment. preservation The the com- then, plete inquiry prejudice, independence on vital to the given the of bar is too majority F.2d, opinion steps 22. The reference in the to a’ take the first two on the step “inquiry,” including adroitly three whether the vio- run and switch the to the burden “prejudicial” investigation (Majority opinion, p. lation was if an would Government “even U.S.App.D.C., p. produced F.2d), -of a scintilla favor- of 624 not of evidence ” hopes major- (Majority opin- should not raise false able the defense . . ity places ion, proving prejudice p. U.S.App.D.C., p. burden on -of 310 of 624 Subsequently, pp.-- F.2d). the defendant. on pp. U.S.App.D.C., --of

States, Hammond, United States v. Mat- justice to allow of supra. United It also due administration thews general rule. any other application highly unreasonable to force this circuit to regular practice requiring embark on a added.) (Emphasis investigators defense as counsel to function Unnecessary Are B. The Conflicts and search for non-existent witnesses to certain constitu- are cases in which There support con- fabricated defenses are with others. guarantees conflict tional jured up by day defendants on the of trial. to create and majority case the seeks this Judge Coles, Craven’s dissent in which is in proof rule that sets apply burden of circuit, accord with the case law in sets of counsel adequate assistance rule, proper supported by forth the and is adversary guarantees against judicial authority, cited which is not true of amendment, independence of sixth majority opinion in that case. counsel, sanctity attorney-client DeCoster I represents attempt sixth a bold relationship protected by amendment, change the law separation powers, proof on the burden of guaran- fifth amendment guise exploring subject the defendant’s under the against tees self-incrimination. standards for counsel. ABA standards speak strength for themselves. Their does conflicting these Adjudication among depend being reprinted in the F.2d should not be un- provisions constitutional reporters, specious attempt and it is unnecessary it is to do so. dertaken where justify the change by referring in the law Valley Authority, Ashwander poverty of most criminal defendants 80 L.Ed. 688 (Majority opinion, p.-of U.S.App. J., (Brandéis, concurring). conflicts D.C., p. F.2d). 305 of 624 There is noth- should, They DeCoster are needless. ing here to indicate that Decoster’s finan- can, keeping the bur- easily be avoided cial condition any way caused him not to den to show on defendant and receive a fair poverty argu- trial and so the assist defendant using successor counsel to injudicial ment is an appeal passion carrying the in normal cases. burden prejudice. Today, under the Criminal Jus- CONCLUSION Act, well, tice most defendants are as if not better, represented than the Government. switching proof the burden of The rule Moreover, poor the interests of the lie on majority attempted to fashion in that the both the here, people’s defense and the I, apply and to must be DeCoster —the government’s in criminal cases.23 repudiated. clearly The law in this circuit —sides proof The burden of dictum in DeCoster prejudice upon places proving burden of rejected States, entirely, should therefore be the defendant. Bruce v. United underlying conviction affirmed. To v. United Mitchell v. United Harried right majority attempt appear A have that neither 23. The to make it rich man does not defendant, they fighting “equal justice” poor are for the does a man. Likewise no However, poor. poor, right confine their benefaction he rich or to have his convic- undeserving poor lawyer who are criminals did not inves- tion set aside because ignore deserving tigate support victims who are also to obtain of a fabricated facts depreda- poor my writing colleague criminal victimized What is at- defense. —and groups impose personal small of vicious criminals tempting tions of who social to do is to prey largely poor “wreaking on the sector. To this end philosophy ven- the courts are Illinois, they copy the statement from Griffin v. geance” they impose sentences on de- when Bazelon, 100 L.Ed. 891 To "Es- fendants such as Decoster. equal justice Tranquil- that: “There can be no tablish Justice” and "Insure Domestic gets depends where the kind of trial a man just ity,” 61 A.B.A.J. It is money amount of he has.” This is a sim- wrong judge for a to use his individual social attempt plistic and one not to raise a false issue acquit philosophy to a defendant as it would be presented the facts of this case. That a philosophy individual to con- to exercise that give him a not be rich does person. vict an accused perjured testimony to use in his defense. admitted appellant, the accused I re- spectfully dissent. It is unthinkable for proof scorns both the switch burden this court require counsel at the outset of so in the manner logic. To do law and investigate criminal trial to every possible collapses the in effect majority suggests defense might be fabricated. remedy. standard into reasons, this at- foregoing For any showing prejudice,

tempt, without single witness producing

and without that would be testify single fact

would Decoster, aside the to set

beneficial which was con- finding guilty,

jury’s judge, and by the trial

curred in twice notes the court Bines, Remedying Ineffective Assistance 77. See may response by govern- with a be satisfied Departures Habeas in Criminal Cases: ment, any injus- in fact been that there has not Corpus, 59 Va.L.Rev. tice, though response this falls short of a even “beyond standard. a reasonable doubt” performance of as an defense should viewed abdication —not an exer protection. imperil professional cise—of judgment.”80 subject Counsel’s defect was simple, to a approach we have outlined is con remedy workable proper and thus was a gruent most of decisions of this subject judicial intervention. court, including Pinkney78 United States exception An should be noted for DeCoster Most claims of failure to investi result, I —not for the but some of the broad gate will not involve clearcut such situa observations. They appraised tions. must be in light of to the attorney. information available Duty Investigate D. The To A claim failure to interview a witness abstract, may impressive sound duty investigate but it is a subset ineffective duty of the overall cannot establish assistance when of defense A counsel. person’s account is otherwise attorney fairly conscientious defense will natural known defense counsel. ly investigate possible This is part defenses. As process, teaching of our Glayborne opinion.81 who witnesses have infor MacKinnon, Judge joined by As Judge mation relevant case should be iden McGowan, and writing Judge over However, any tified and Bazel interviewed.

Notes

notes J., Bazelon, dissenting opinion See Hurst, Unit- 108. W. Law Social Process in U.S.App.D.C., ---of at 289-290 Cooley History (1959 Lec- ed States F.2d, Holloway Arkansas, citing of 624 tures, Michigan). U. (1978); U.S. 55 L.Ed.2d Geders v. United 47 L.Ed.2d 592 justice tection Perhaps spectre accused. and a reordering of adversary disruption appro- will lead to increased system, with guarantee little improved priations justice system, to the criminal but performance and impassivity as to the un- approach such a tactical judicial charted likely noxious consequences. perilous. function would be Our approach toward the legal minimum Starting with Bruce109 in obligations of our society democratic

notes Chapman test); dressed under harmless-error text. Liddy, 1, U.S.App.D.C. United States v. 7-8, 76, (1976) (merits 542 F.2d 82-83 of claims 55, California, supra Harrington note v. Brady Maryland, of violations under 83, 254, 1728, L.Ed.2d at 287. 89 S.Ct. (1963), L.Ed.2d 215 S.Ct. deprivation of Sixth Amendment to com- Arkansas, Holloway supra pulsory note process See not reached because error if 1180-1182, 487-491, Scott, harmless); 435 U.S. at 98 S.Ct. at United States v. 436-438; York, 96, 98-99, Herring U.S.App.D.C. su L.Ed.2d at v. New (1975) (erroneous pra burden-of-proof at 2556- note 422 U.S. at instruction 602; beyond doubt); Chapman v. harmless 45 L.Ed.2d at Califor a reasonable United nia, 111-112, Liddy, supra States v. note 386 U.S. at frequently adequate preparation,98 Two factors combine to render or when he labored Chapman’s special inap- harmless-error rule under a conflict of interest precluding com- First, propriate. entitlement to assistance pletely loyal and effective service to explicitly of counsel conferred instances, client.99 these harm to Amendment,93 Sixth with effectiveness of inescapable,100 and in- nigh accused is well Second, the assistance as its soul.94 harm to telligent range assessment of its is elusive many accused’s interests is inherent might because the the violation effects of right95 denials of scope and the of con- permeate well trial.101 the entire sequent injury readily all too often is not circumstances, however, not even In some probable.96 identifiable or necessarily com a total lack of counsel Thus, where the defendant had no coun- Prejudice may mands these conclusions. sel at all stage at a critical of his

notes adequate actually Ehler’s statement at the necessarily to use Officer unable substitute hearing credulity which the three interviewing did not know It defies witnesses. Crump’s actually took wallet the cases the codefendants to believe that the run of testimony impeach that it De- Ehler’s was prosecutors the answers will ask —and record Second, took the wallet. counsel questions who a defense coster or even most to —all had not learned that preparing at trial that he admitted would want answered counsel pled guilty had appellant’s former codefendants defense. trial. middle their in the 309 sequences every do not inhere in violation correct, investigation even if dissent of the DeCoster precepts.30 necessary is still not so that defendants In circumstances, certain however, receive informed advice from their counsel acts or omissions of counsel are so likely to make informed decisions as to whether impaired defense, yet this go to lawyers but also so that do consequence would be prove, so difficult unwittingly present perjured testimony, that, in accordance with ev- well-established apparently occurred in this case. Thus, identiary principles,31 such an impairment fully justified while counsel have been can presumed.32 be example, For there is in not calling any the codefendants or other persuasive authority for indulging such a witnesses, his failure to interview them vio- presumption when appointed counsel is not the duty investigate. lated trial,33 until eve of or when counsel has C. a clear conflict of interest.34 Only recently, We come then question of whether Supreme unanimous Court held that a the violation here was “substantial.” In petitioner whose to effective assist- DeCoster I we had no occasion to define the ance of counsel was infringed by an order “substantiality” requirement. Recently, issued during trial barring him from con- however, in United v. Pinkney, States 177 sulting with attorney overnight between U.S.App.D.C. 423, (1976), 543 F.2d 908 we his direct and cross-examination need not made clear that for a claim, demonstrate, violation to be or even sub- prejudice.35 To stantial it must “consequential,” is, use the language of the dissent in the way some must have impaired case, present these are all instances defense.29 Pinkney also makes clear that which there is prejudice” “inherent the burden is on the defendant to prove nature of the violations. Dissent at- such adverse consequences, since such con- of 199 U.S.App.D.C., at 335 of 624 F.2d. Pinkney appellant 29. Although language contended that suggests his law- prej- in Coles yer had failed to discuss with him presumed the Govern- udice is to be violation of sentencing ment’s days establishes, memorandum 226, filed several the duties Coles see id. at sentencing. before The court held violations, gross Coles has been limited to more allegation allegation did not see, constitute an Cox, g., 1089, e. Jackson v. 435 F.2d 1093 of a duty substantial violation of a Decoster (4th 1970). Wyrick, Cir. See also Thomas v. “any because omission 407, (8th 1976). 535 F.2d Cir. inconsequential unless there was evidence primary ap- distinction between our upon which counsel could undertake a refuta- proach and that followed in the cases cited is tion,” n.60, at 432 543 F.2d at distinguish question that we between the n.60, “appellant’s gave motion no indi- consequen- whether counsel’s violations were evidence, any, by cation as to the if which he tial, e., impaired defense, question i. and the refutation,” would undertake an effort at id. at impairment harmful, e., of whether the i. 432, 543 F.2d at 917. pp.---of affected the outcome. See U.S.App.D.C., pp. 311-312 of 624 F.2d n.59, 30. Id. at 431 543 F.2d at 916 n.59. infra; Pinkney, supra, United States v. 177 U.S. 431, See, App.D.C. g., McCormick, 31. e. F.2d at 916 C. n.59. We Evidence § (Cleary 1972) (“The using “prejudice” avoid important the term ed. most because it consid- inquiries. presumption proba- eration in the blurs these two creation of bility.”) See, g„ Cox, (4th 33. e. Garland v. 472 F.2d 875 Cir.), nom., Slayton Garland, cert. denied sub v. holding, align In so we ourselves with sever 908, 414 U.S. 94 S.Ct. 38 L.Ed.2d example, al other circuits. For in United States (1973); Virginia, (4th Martin v. 365 F.2d 549 Rundle, ex rel. Green 434 F.2d 1966). Cir. (1970), showing the Third Circuit held that a “prejudice” when, alia, is excused inter See, g., States, e. Glasser v. United pervasiveness of the ineffective assistance (1942); 62 S.Ct. 86 L.Ed. 680 Castillo v. impossible makes ilarly, to determine. Sim Estelle, (5th 1975). 504 F.2d Peyton, Cir. in Coles v. cert. denied, 393 U.S. 21 L.Ed.2d (1968), presumed preju the Fourth Circuit Geders United

Case Details

Case Name: United States v. Willie Decoster, Jr., (Decoster Iii)

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 10, 1979

Citation: 624 F.2d 196

Docket Number: 72-1283

Court Abbreviation: D.C. Cir.