Witherspoon v. United States

587 public, no of these any witness appear. WITHERSPOON, Ed- should See Appellant, events have to D. James J., wards, (Ferren, 430 A.2d at record, dissenting). On this I would have STATES, Appellee. UNITED pretrial or- voted reverse detention der, showing why hearsay absent as No. 84-71. necessary. Appeals. District of Court Columbia At argument, oral government stressed his concern 11, 1988. Oct. Submitted often reluctant government witnesses are April Decided appear jury, let grand before the alone trial, out fear the accused compatriots. There all accused’s would be reluctance, told, if greater we were appear prelimi-

on-scene witness had to hearing. appreciate I

nary this concern. J., Edwards, (Ferren, at 1358

See A.2d in every

dissenting). But all witnesses category. will fit into this Further-

case

more, government’s when the concern even justified, perceive why I reason

government, going for- condition of hearsay testimony,

ward its presenting

feel confident reasons court, subject to a

consideration appeal, expedited D.C.Code 23-1324(d)(1981). type No other of crim-

§ proceeding permits

inal incarceration time, appreciable length of without date, early or an based bail

solely hearsay.1

IV. overruling majority’s DeVeau Supreme opinion in Court’s

the basis step But the court’s is a forward.

Salerno 11(3) I repeats believe in Part what

position ruling in an incorrect Edwards. interesting, from that. It will be

dissent

moreover, court handles the to see how this anticipated surely will

case—which come— majority’s footnote 4. by the Edwards, Salerno, 1352-54 According Supreme ed States v. (Ferren, Court in Gerstein, therefore, J., dissenting). its 107 S.Ct. at earlier U.S. at Pugh, in Gerstein decision S.Ct. a fifth amendment limitation does not foreclose (1975), un- authorizes hearsay 43 L.Ed.2d evi based on on extended detention merely a "limited fourth amendment id., der the postarrest dangerousness. A.2d at dence of probable cause based on detention” J., (Ferren, dissenting). by hearsay. Unit- supplied See also that often is

Kathryn Myerscough, A. Asst. U.S. Atty., diGenova, whom Joseph E. Atty. filed, time the brief was Mi- Farrell, chael W. Trosman, and Elizabeth Attys., brief, Asst. U.S. were on the appellee. ROGERS, Judge,*

Before Chief SCHWELB, FERREN and Associate Judges.

ROGERS, Judge: Chief Witherspoon James D. appeals single posses- his conviction of a count heroin, sion of 33-541(a)(l) D.C.Code § (1988 Repl.), grounds on the that he was denied his Sixth Amendment to coun- judge sel where the trial failed to conduct inquiries into whether defense counsel had an actual conflict of interest with adequately prepared appellant’s had case. Singley

In A.2d (D.C.1988), the court stated that when inquiry the trial fails to conduct an being apprised possibility after of a part of interest on conflict defense ordinarily this court will remand hearing in for a order to determine whether exist. actual did fact Id. at 786. We must do so here. Defense coun- the case sel moved withdraw from after apprising Deputy the trial Bar had Counsel recommended of defense ethical con- basis ability adequately repre- cerns about appellant. sent Since the inquiry not conduct an to determine if counsel’s conflict would affect ability represent remand required so that such be Appellant’s made. other Sixth Amendment contention, that failed to necessary inquiry to determine conduct adequately prepared counsel had is meritless. I. Canan, 16, 1983, appellant’s appointed by On November case

Stacy J. judge’s appellant. was the oldest case on the trial Judge * Judge Rogers Judge changed Her to Chief an Associate decision. status court this case was submitted November at the time proceed go suppress calendar and was scheduled to to trial. motion to but the Defense counsel advised the to run continued because had a calendar pellant wanted a continuance because there games people play and he “let appellant thought were witnesses defense with that.” counsel should know about who following next the motion hear- day, subpoenaed. been Defense in- ing, advised the defense counsel judge appellant unhap- formed the that was from that he wanted to withdraw bench py with his and wanted ei- explained cryptically the case. Counsel ther to retain or to another pro- of an result incident attorney appointed represent to him. De- room, spective he witnesses the witness fense counsel that he did not admitted Deputy Counsel had conferred with Bar how know who the witnesses were or to him leave to who had advised to ask for appellant contact them. The judge asked apprised judge he withdraw. Counsel that not had been of these aware September witnesses on when his Deputy Bar him to base his Counsel told ready counsel had announced that he was 2- principally Disciplinary on motion Appellant responded for trial. he that had 110(C)(1)(d), provides permissive for which September aware of the on been witnesses withdrawal where the client’s “conduct ren- claimed that he told his but when had unreasonably ders it difficult for law- simply giv- counsel about them counsel had carry yer employment to out his effective- get en him a card and him to business told ly.” RE- CODE OF PROFESSIONAL in touch. further claimed that (1979). 2-110(C)(l)(d) DR SPONSIBILITY daily telephone his efforts Depu- judge also informed the that Counsel proved unavailing spoken and he had not Discipli- ty rely him Bar Counsel told day until with counsel before trial. De- 2-110(C)(l)(c), provides nary Rule which judge fense counsel informed the that he permissive where the client answering not had an service and had re- “[ijnsists pursue that the a course any message appellant. Ap- ceived prohibited under the Dis- conduct that pellant then told the that Melvin 2-110(C)(l)(c). Id. ciplinary Rules.” DR Burton, going Esquire, was to handle his “I can’t tell the Court Counsel stated: everyone The observed that case. happened out there but I what it was that long inform involved had had time to go forward with this sure don’t want appellant’s dissatisfaction and court about present posture.” The case in its change representation, that and “tough acknowledged that counsel was going grant a continuance since was not spot,” stating that denied but ready go to the case trial. was thing ... done the “[counsel had] afternoon, court reconvened When Witherspoon to Mr. going I’m not let [b]ut his motion for a defense counsel renewed court, just going do out it.” ground appellant continuance on judge that he Defense counsel advised the Mr. Mr. Burton and Bur- wanted retain ap- position not in a to call witnesses was confirmed that wanted enter ton had call and pellant want him to appeared Burton appearance. Mr. his appellant’s testi- without those witnesses his appellant was familiar with explain that silly almost.” The “may be rendered mony investigation prepara- and thoroughness of go- judge repeated appellant trial, represent him wished and said he did not ing to run the the continuance. The denied him.1 ne- was an “absolute think a continuance rejected defense judge also The hearing appellant’s cessity.” suggestion years and that he had for ten explanation known focused on Burton’s Most Mr. sys- advantage of the "let’s take pretrial preparation never indicated and on the nature of he had an appellant. The commented that representing In re- tem." past success playing somebody is with the feeling "inner sponse judge’s concern that system.” he had being dilatory, stated that Mr. Burton

II. the middle of the trial. This court held that the failing trial erred in to in- guarantee Sixth Amendment of as quire possible into the conflict of interest: sistance of counsel for an accused’s de requires fense “representation that is free is clear trial that the court was [I]t from conflicts of interest.” Wood v. Geor prised differing versions of the rela- gia, 261, 271, 101 1097, 1103, S.Ct. tionship between [the witness] [de- (1981) 67 L.Ed.2d 220 (citing Cuyler v. fense but not test either counsel] Sullivan, 446 U.S. party’s in an recollection effort to recon- L.Ed.2d Arkansas, Holloway v. cile the statements determine the S.Ct. facts in gauge order to whether an actu- (1978)); L.Ed.2d 426 Singley, su al conflict of interest existed at the time pra, protect To the defen and, so, whether it dant’s to counsel that is free of con any potential prejudice appel- interest, flicts of “the court has an lant. ‘duty inquire’ affirmative into the effec However, Id. at 784. because the record tiveness of possibili counsel ‘the whenever judge disclosed that the treated counsel’s ty of apparent a conflict’ becomes before or prior representation government the wit- during trial.” Douglas v. United and, ness as an actual conflict of interest (D.C.1985) (quoting disadvantage, the defendant’s instructed Wood, supra, 450 U.S. 101 S.Ct. at the ignore impeachment (emphasis original)). in An appellant witness, “ the court concluded that no who ‘shows that a conflict of interest required further inquiry and the con- actually adequacy affected repre of his viction must be reversed and the case re- prejudice sentation need not demonstrate in ” manded for a new trial. Id. at 786. order to obtain Singley, supra, relief.’ The in the (quoting Cuyler, supra, at 786 circumstances instant case 349-50, 1718-19). differ Singley potential S.Ct. at from since the con- flict stems from demand that Appellant’s objection to the absence of certain called in witnesses be his defense. any meaningful inquiry is well taken in judge might suspected, The trial have un- light of our recent decision in Singley, su- circumstances, der all appellant that pra. prosecutor In Singley, the informed sought to a conflict for the manufacture judge day trial on the second of trial purpose obtaining a further continuance previously that the defense counsel had appellant of his trial. After both and his represented government a witness in a civil ready had been trial two against arising action the defendant out of earlier, appellant months claimed for the the same incident for which the defendant first time on the November trial prosecu- 781-82. was on trial. Id. at The date that continuance he needed a because impeached tor stated that when subpoe- his counsel had not interviewed during witness cross-examination he relied judge naed his When the trial witnesses. on information he had obtained that from inquired, appellant defense counsel and prior representation his the witness. gave accounts. irreconcilable judge jacket The the court trial examined stated his that he had called counsel “dai- pending civil case the witness’ months, ly,” apparently provide for two and found that counsel had defendant him and addresses of his with the names represented at one time witness. Coun- reported witnesses. Defense counsel that recognize sel stated he did not messages on his an- had received no witness, questioning his implying swering posi- service. The the result of witness was not informa- tion to observe the demeanor of the two prior attorney-client obtained men, recognize and to defense counsel relationship, if but conceded that he had spoke ap- as an the court while represented he should officer of the witness with- pellant was, prior of his five convic- draw from the view case. tions, withdraw, if however, probably facing prison term con- not allow counsel to Moreover, disciplinary rules that were appellant cited the needed victed. defense, question for suggested further implicated. witnesses Counsel understandably at his could wonder his continued earlier when readiness for two months prejudicially could affect he had their absence. not mentioned defense; specifically, counsel pellant’s own “[b]y remaining in the case I stated that counsel’s motion to

Defense going following day problem think —feel that I’m to have to be arose from the of the witnesses whom now want- to not call witnesses that position supposed ed unavaila- whose call, with- [appellant] would want me to but request for bility was the basis for his testimony will out those witnesses be Disciplinary One of the Rules continuance. silly be rendered almost.” rendered — which defense counsel invoked on ad- sufficient These circumstances were Deputy provides vice Bar Counsel possibility of a con- alert permissive where a client in- duty his attendant to conduct flict lawyer “pursue a course of sists determine actual whether an prohibited under the Disci- conduct which potential preju- its conflict existed and 2-110(C)(l)(c). plinary Rules.” DR Given (citations appellant.2 Id. at 784 dice before, gone what had omitted). suspected might well that the by appellant’s created demand had been appears Where defendant present- him in that defense counsel assist attempting to a conflict and then create witnesses, testimony by ing perjured these ends, manipulating it to his own a new and apparently in- whom defense counsel had is introduced. The need significant factor he permitted in the interim. If terviewed manipulation may, protect to such withdraw, judge defense counsel to be, ought by a indeed to considered rewarding appellant, in effect be would deciding grant whether to judge trial he to grant very have him the contin- designed manipulation was relief which the day he uance which had denied on the Whiteside, to In 475 U.S. secure. Nix v. Nevertheless, assuming before. 988, (1986), 157, L.Ed.2d 123 106 S.Ct. 89 correct, judge’s he obli- instincts were was Supreme clear Court made de gated to of than he inquiry make more an fendant no Sixth Amendment to did. willing participate who is to counsel judge Defense counsel advised the trial presentation testimony. Id. at perjured of he to because of wished 173-74, of 106 S.Ct. at 998. Code might present a con- ethical concerns that Responsibility precludes coun Professional Although his client. flict interest with from such involvement. CODE OF sel defense counsel did not disclose the details DR RESPONSIBILITY PROFESSIONAL withdraw, underlying his motion (1979); 7-102(A)(4) STANDARDS see also judge he unsure told the trial Defense Func CRIMINAL JUSTICE FOR reasonably he “could be effective whether 4-7.5(a) (1986). express Nix Standard representing appellant] without [in “ a client’s ly held that a ‘conflict’between having to make some moral chances obli [illegal] proposal and counsel’s ethical I could didn’t know that decisions pre rise gation give[] would [not] He stated that had properly.” make assistance was sumption that counsel’s who Deputy Bar Counsel consulted with 176, case, 475 U.S. at prejudicially ineffective.” from the advised him to withdraw — 485, -, denied, 98 appellant U.S. prejudice cert. 2. In order to avoid States, (1987); 414 Butler v. United 483 counsel ex- L.Ed.2d could arise when defense which 844, banc); (en (D.C.1980) Thorn underlie A.2d plains which the ethical considerations 429, (D.C.), States, withdraw, 434 presides judge ton v. United who motion to 644, 50 from the appellant’s trial should be different at W.N.W., A.2d inquiry. In re 343 L.Ed.2d 626 Banks who conducts the (D.C.1975). (D.C.1986), 106 S.Ct. at 999.3 way, supra, U.S. at 483 n. 98 S.Ct. 5); Douglas, supra, n. 488 A.2d at In the instant if the trial Since seek not judge had made explicit finding, an after a appellant’s position on his counsel’s inquiry, sufficient to the effect that (as we do not know probably did alleged conflict resulted from not) precise problem what between going present wish avoid to trial or was, client and who the witnesses perjured testimony, both, then we could were, they going what were sustain denial of the motion to with say, why unwilling counsel was draw. Often the failure of the trial present testimony. their Lacking this in- inquire into the basis for defense coun formation, given compre- the less than provide sel’s concern that he could not ef hensive character of findings, con- we fective assistance to his does clude that remand is appropriate.6 Fur- justify alone reversal of a criminal convic might inquiry ther provided not have much Fitzgerald, tion. v. United enlightenment, but it is not obvious that it (D.C.1987); Thornton, A.2d su would have been fruitless. pra note 357 A.2d at In the ab Therefore, Nix, notwithstanding inquiry sence the usual case a by should have appeal defendant must determined demonstrate on appellant counsel and appellant actual conflict of interest af had been advised representation his counsel of coun- adequacy fected of his sel’s ethical responsibility supra, not to to obtain a reversal. Cuyler, perjured 348-50, testimony. If Fitz 1718-19; did not 100 S.Ct. at represented gerald, supra, 1138; waive his uncon- Thorn ton, flicted supra note de- have 357 A.2d at 429. The termined whether the ad- problem here is conflict would so far as we can determine, versely affect counsel’s even Nix appellant. Although provides aware of that a been his counsel’s to with motion it, If conflict between a client certainly draw. he did and counsel know respect presentation give never offered tes- opportunity perjured timony story.4 Nothing presumptively adversely his of the in does side suggests adequacy repre- appellant record that waived his affect the of the client’s sentation, representation.5 to conflict-free some counsel not wish States, supra Fitzgerald United any type associated manner with the (D.C.1987) (citing Hollo- presentation permitted A.2d evidence under time, See, suggested e.g., Singley, the same supra, 3. At the Court that conflict. proceed cautiously defense counsel should concluding (appellant’s representation adversely was present per- that his client wishes to attorney his affected where was to im unable testimony. jured 106 S.Ct. at Id. 475 U.S. at credibility peach complaining be witness Long, See United States v. 857 F.2d attorney previously represented had cause (8th Cir.1988) (defense must counsel have a against appellant civil action witness in believing firm factual basis for his client wishes appel same based on the incident for which the testify falsely pre- before measures trial); lant was on Lewis v. United presentation perjured testimony). vent (D.C.1982)(appellant’s representa A.2d adversely attorney tion was affected where provide may present 4. To opportunity such an appellant’s argue presentence motion problem judge, for the who must delicate trial plea underlying because of the facts questioning care before a defendant whose take appellant’s complaints against momentarily on the motion were is at least other Fitzgerald, supra, attorney); of the issue and to advise side be unable 530 A.2d at 1138-39 way. meaningful defendant in a (appellant's representation adversely affect was by joint attorney ed where failed may be need not decide whether there 5. We argue government’s develop and evi inherently prejudicial conflicts so that a some possession stronger dence of constructive was cannot waive them. appellant); than codefendant McIver (D.C.1971) appeal has other cases the record on en- In (same). rep- appellant’s court to hold that an abled by counsel’s was affected resentation appellant preferred his Responsibility. prepared, only Code of Professional standing alone, preparation. also stat- preference, not method of Counsel Such will his to with- presumption repre- ed connection with motion rebut the that counsel’s would be where, draw that certain witnesses adequate, especially sentation as here, of the defense for tactical called on behalf evidently believed reasons, and not or ethical because pellant’s Ac- manipulative. demands were unprepared. From these circumstances cordingly, the trial in- properly conclude that trial could quired pos- there was reasonable did not appellant’s desire for new counsel sibility that personal defense counsel’s con- legitimate result dissatisfaction with from might impair ability represent flict his prefer- from a defense counsel but appellant effectively aspects in other Burton, attorney Mr. ence for with so, case, and if allowed counsel to with- long-standing relationship. whom he had a draw. States, 459 v. United A.2d See Matthews (clear (D.C.1983) convincing III. competent representation). evidence Appellant also contends that the tri known the two had about wit- failing al a proper erred conduct nesses at the first trial date and was not response his Monroe/Farrell7 judge inquired specific pretrial when claim of ineffective assistance witnesses,” stating they only that “which inadequate pre counsel based on counsel’s appellant when arrested.9 were preparation.8 disagree. We He that the witness whose also admitted Counsel, appointed arraign- who was at subpoenaed he knew could still be address ment, appeared appellant with status for trial. Defense counsel’s statement 15, 1983, hearing September where answering no mes- his service had received announced, objection appel- from without provided sages appellant an additional lant, ready that he was for trial. He had ground on which the trial could dis- witnesses, interviewed several defense as complaints his appellant's credit about de- well one least of the two new witness- Furthermore, appellant had fense counsel. es appellant subpoena. whom wanted ample time before the second trial date expert He also had contacted witness his inform court of dissatisfaction with and had interviewed at four defense least counsel and desire to retain Mr. Burton. witnesses in the witness room before trial. appellant’s clear conduct It own Counsel consulted securing prevented substitute day November before Likewise, in advance of trial.10 began, and informed the that he had conduct, preparation, not defense counsel’s on his an- received calls from motion to the basis formed swering September 15 and service between withdraw. timely a 1983. He had filed November Accordingly, case is remanded identifica- suppress motion to evidence and argued to determine whether testimony and the motion to appellant and defense ex- competent Mr. Burton conflict between a manner. repre adversely affected counsel’s representing pressly that he was not stated appellant.11 un- counsel was sentation to the court defense States, (D.C. only reason 10. Burton stated that 391 A.2d 755 Mr. 7. Farrell United States, attempted appearance earli- 1978); to enter his had not v. United Monroe comply appellant had failed to (D.C.), er was because representation. (1978). requirements for with his 58 L.Ed.2d contention, prose- Appellant's 11. other assist- Appellant not claim that the actual does prior impeached a improperly him with cutor at trial was ineffec- rendered ance following appel- immediately where conviction tive. possession, general denial heroin lant's prosecution a about provided asked information further possession, prior for appeal. conviction marihuana brief on these two witnesses about FERREN, Judge, Associate “adversely will lawyer’s per- affect [the] concurring in the result of Part II formance.” Cuyler Sullivan, concurring otherwise 64 L.Ed.2d opinion of the court: (1980). manipulations The client’s the court’s own in expediting interest tug This case reflects a of war between part trial are not of that calculus. the trial court’s responsibility bring trial a case for which counsel and the de- I. fendant had they announced ready were earlier, First, two months there procedural are concerns. defendant’s new found desire The trial for a court had responsibility continuance immedi- a to in- ately quire counsel, before trial. The once defendant claimed an officer of the ineffectiveness of represented counsel and wanted a that he had an ethical new help present him basis for additional withdrawal. Singley v. Unit- States, witnesses. After (D.C.1988); the trial court denied the ed 548 A.2d 780 Doug- pretrial defendant’s request las v.

a continuance (D.C.1985). was transmuted into a differ- There prob- are three obvious question: ent whether defense lems inquiry: with such an protect how to parently confronted with a client secrets; now wish- pro- confidences and how to ing perjured testimony through tect the client-defendant’s fifth amendment witnesses,1 new permitted should be privilege against self-incrimination should jury sworn, withdraw before the had been speak hearing; choose to at the and how resulting in a continuance for a theoretical- tainting to avoid the trial ad- ly different substantially reason based on verse information about the client-defen- the same facts. dant.2 The solution to the last con- cern is to a different hear and agree required a remand is for further decide the withdrawal motion. This will inquiry into seeking counsel’s reasons for necessarily force a continuance of the separately, however, to withdraw. I write “judge trial. The designated chambers” suggest procedures for three reasons: matters, to hear emergency Super.Ct. see conducting timely pretrial (or a midtri- 12-I(b), upon Civ.R. can be called to con- al) cases; inquiry in future to stress that recess; inquiry during duct the a continu- analysis may be different when counsel necessary only ance will be if counsel’s client, seeks to withdraw because his request to withdraw has merit. witness, testify another defense intends to falsely; express my and to Preserving lawyer’s obligation belief that the not to single secrets, relevant is whether the law- reveal client confidences and yer 4-101(B),3 has an “actual conflict of problematic. interest” that DR is more There is, concedes, but, government obligation hearing, as the meritorious here. The court's to hold a maintains, government so, procedures doing as the and we as well as the will be agree, the error harmless. Dorman v. Unit the same when counsel seeks to withdraw for (D.C.1984) (en banc). intimating why. ed 491 A.2d 455 ethical reasons without Although immediately did not give cautionary jury, though, instruction to the 2. Even in this once the fact- finder, appellant objected prosecutor proceeded judge may unduly affected in his impeach rulings, properly judge gave sentencing, him and the trial or her as well as in eventual (in- cautionary if the instruction. The also included learns from defense counsel surmise) cautionary merely general a instruction in his instruc stead of that the defen- States, plans tions to the at the dant to lie. See v. United close of all the evidence. Butler 464; 844, States, (D.C.1980) (en banc) 414 A.2d See id. at Fields v. United 854 n. 1 J., 522, (Ferren, (D.C.1978); States, concurring part dissenting in in Dixon v. United (D.C.), part). A.2d 926, 99-100 (1972). 32 L.Ed.2d 813 The moreover, Responsibili- against appellant, 3. The Code of Professional evidence was over ty published Appendix whelming. is as A to D.C. Bar R.X. See Conduct 1.6 Rules of Professional 2-110(C)(1)(c), Rules) Report (Proposed (published 1.Counsel’s reference to DR in in Bar 2-110(C)(1)(d), tip-off (Supp. Aug./Sept.l988)). addition to DR was the meaningful one “an actual conflict interest way is to assure hearing permit on the motion: Cuyl performance.” withdrawal lawyer's affected his attorney all freely to disclose relevant er, 350, 100 S.Ct. If an U.S. at at 1719. judge designated facts to the hear shown, actual conflict of interest is how violating any without fear of ethi ever, conclusively pre an is impact adverse client, obligation as just cal to the the attor required; appel sumed and reversal is ney entitled to do when the client accus lant need not demonstrate that the conflict attorney es the of constitutional ineffec Id. prejudiced outcome of the trial. v. 4-101(C)(4); tiveness. See DR Butler 349-50, 100 at 1718-19. Further S.Ct. (D.C. United 854-55 more, of actual the kind conflict warrant 1980) (en banc) J., (Ferren, concurring in cases, as ing is not limited to such reversal part).4 part dissenting in Concomitant Cuyler, in which engaged protected ly, the must be client-defendant multiple con representation; all against any subpoenaed or volunteered tes might prejudice flicts of interest (or timony hearing judge by any See, representation are to be considered. hearing) other witness to the motion (counsel e.g., Douglas, 488 A.2d at 136-37 lawyer- disclose is a what otherwise complaint by client- subject disciplinary Butler, client confidence or secret. See trial); United States pending defendant (Ferren, J., n. 4 855-56 & 856 Cancilla, 725 F.2d (2d Cir. concurring part dissenting part). 1984) (counsel may engaged in crimi protects The fifth amendment the client- charges against activity, nal similar against any compelled response defendant client-defendant, involving possible com attorney’s But, accusations. if the co-conspirator). mon speak, client-defendant does wish hearing judge may to assure de wish Accordingly, we focus on access independent fendant counsel to proper pretrial mo- disposition of counsel’s and monitor that evaluate decision. tion to or on constitu- any any must assure that event appeal denial argument tional based on such statement is not later admitted motion, the is the of counsel’s concern trial, except, per the defendant at an same: the existence of “actual way haps, by impeachment some circumstances. Cuyler, of interest.” U.S. at Simmons Cf . conflict, If there is S.Ct. at 1719. such a grant court must then (1968). My hunch 19 L.Ed.2d 1247 withdraw; otherwise, on direct motion to problems given fifth amendment and the required appeal will be under reversal likely credibility attorneys, of most sixth amendment. primari decided motion will be pretrial If the court had conducted a lawyer, not the ly by reference to what question apparently inquiry, the central client-defendant, say. has to there was would have been whether course, longer we are no In this interest,” requiring “actual conflict judge is stage trying where a trial at the grant counsel’s motion with- hearing on de- arrange appropriate for an that counsel learned draw once motion pretrial to with- fense counsel’s proffered knew one or more witnesses chal- post-conviction We confront draw. give testi- intended false the defendant alleging the sixth lenge a violation supra note mony. counsel. therefore amendment issues. turn to the substantive 7-102(A) relevant: provides, where DR (cid:127) a representation of In his her] [or II. client, shall not: notes, majority to ob- Ordinarily, must show that reversal tain 1.6(d)(3).

4. See Proposed

596

(4) Knowingly perjured and, thus, use testimo- withdrawal; no basis for ny or false lawyer evidence. ethically is and legally charge of the situation.

(5) Knowingly make a false state- ment of law or fact. may There be situations where client in-

(6) Participate preser- creation using sistence on apparently perjurious wit- nesses, vation of coupled evidence when lawyer’s with the refusal to [or she] so, knows or it is obvious that the evi- do enough creates deterioration of the dence lawyer-client is false. withdrawal, relationship that midtrial, even permitted, should be for ex- See also Rules PROFESSIONAL Conduct, ample, 2-110(C)(l)(d) (conduct under DR 3.3(a)(4) (Proposed Rules) (published in rendering it unreasonably difficult for law- (Supp. Aug./Sept.l988)). An Report BaR yer carry employment to out effectively).5 therefore, attorney, may ignore a client- But, ground for withdrawal would have request (other defendant’s to call a witness something to be more than client insistence defendant) than the who intends to lie. calling perjurious such, witnesses as Counsel is duty-bound not to offer evidence lawyer since the properly moot that false, he or she knows to be and the client- particular by simply refusing to defendant no claiming basis for ineffec- call the witnesses. tive assistance lawyer of counsel if the proffered refuses to call the See witness. important mind, however, It is keep to Curtis, United States v. 1070, 742 F.2d may that the ethical situation be different (7th Cir.1984) (implicitly 1074 acknowledges when the client-defendant insists on propriety finding of district court that de- the stand testify falsely. to Whereas a obligation, fense because of ethical right defendant has no to relief when coun- sel, reasons, refused to call alibi witnesses who he knew for ethical to call refuses some witness, testimony). perjurious false In this other the defendant situation, therefore, legally cogni- right testify have a constitutional so, zable conflict between his or If her own defense.6 sworn, 310, 806, (1977); Cal.Rptr. 5. If the has been the level of conflict 142 v. 810-11 State Smith, 504, (Minn.1980); necessity per- must have created a manifest 299 N.W.2d 506 mon Com Lincoln, 489, 494, (unlike mitting Pa.Super. wealth 270 situation one) 824, (1979). 827 See also 1 ABA where the client wants the to con- Stan tinue; otherwise, consent, absent client double Criminal dards Justice —The Defense Function 5.2(a)(iii) ("whether (1979) testify jeopardy proceeding. —§ concerns would haunt the 4— 157, 170, by Whiteside, his or her own behalf’ is decision to be made See Nix v. 475 U.S. 106 S.Ct. accused). 988, 996, generally Rieger, Perju (1986). Client 89 L.Ed.2d 123 ry: Proposed A Resolution the Constitutional 121, Issues, and Ethical 70 Minn.L.Rev. 128-143 Although Supreme Court has never direct (broad (1985) right testify). discussion ly a criminal has a held that defendant constitu right testify, acknowledged tional it has Supreme Court has also held in certain right many times in dicta. See Faretta v. Cali contexts that a criminal defendant does 806, 15, 2525, fornia, right testify falsely, 422 U.S. 819 n. 95 S.Ct. have a constitutional 15, ("It (1975) L.Ed.2d 2533 n. now least not Nix v. without certain sanctions. right 988, accepted Whiteside, 157, that an accused has a ... ... 475 U.S. 106 S.Ct. L.Ed. behalf_’’); testify (1986) (counsel’s in his own Brooks v. Ten 2d 123 threat to inform court 605, 612, 613, 1891, nessee, S.Ct. 406 U.S. and to lied seek withdraw if client-defendant (1972) (whether 32 L.Ed.2d 358 on witness stand did not violate sixth amend- testify counsel); "matter criminal defendant is to ment effective assistance of right" "guiding Havens, 620, under constitutional counsel"); hand United States v. 1912, 446 U.S. 100 S.Ct. York, (1980) Harris v. New (prosecutor 64 L.Ed.2d 559 643, 645, 28 (1971) (every illegally impeach perjuri- L.Ed.2d seized evidence to use “privileged testify in his testimony criminal defendant ous defendant on cross-examina- defense”). York, appeals tion); (statements own Federal courts of supra Harris v. New supreme appellate express rights state cotuts have defendant taken in violation of Miranda right. Bifield, ly impeach found such a United States v. defendant admissible to statements (2d Cir.), cases, examination). 702 F.2d on direct None of these however, 77 L.Ed.2d 304 coun- addresses the (7th Gagnon, right, anticipated perjury, Cir. Alicea v. 675 F.2d sel has a because of Freeman, 1982); Cal.App.3d testify. People waive client’s

597 intends to lie. The right lawyer for the knows may not be able waive Cook, Compare Winters client. 489 the defen thus would become: (5th Cir.1973) (dicta) (defen- F.2d lawyer’s right testify and the dant’s right testify inherently per- dant’s provide representation can create duty to right waived sonal fundamental that can be interest,” Cuyler, conflict of an “actual by defendant, attorney) by not with 350, 100 1719, entitling, and S.Ct. at U.S. Curtis, 742 F.2d at 1076 United States v. requiring, counsel to seek to in fact even counsel, (although as matter of trial strate- withdraw. gy, may not waive defendant’s very place This is not the to elaborate right testify truthfully, de- constitutional issues, vexing of ethical much on this most to testi- fendant has constitutional recognize important but it ineffec- fy falsely and thus counsel was not acceptable court has announced refusing tive for to allow defendant to take indeed, one proach the to ease testify falsely). stand to conflict — in a criminal case presupposes counsel that, case, It follows such a perjuri- position to waive a will not be associating in may not able to avoid one testify. ous client’s election to We have lying way or another at trial with a wit- lawyer deals held if a defendant’s grants ness —the client —unless the court perjurious testimony the defendant’s The client counsel’s motion to withdraw.7 following procedure outlined in Pro- the of control will therefore have a measure 7.7(c) ABA posed of the Standard Stan- when, lawyer over the that is not por The Defense case, Criminal Justice: client the dards as the instant wants (1971),8 the client-defendant will lawyer some other to call witness who Function jurisdiction during defendant open question arises the trial and the It is an in this behalf, whether, falsely, testifying falsely upon after a client testifies tin attor in his own insists ney perjury may perjury. reveal the to the court and lawyer lend to the not his aid thereby disassociate himself or herself from the in these the defendant takes stand Before circumstances, lying violating disciplinary witness without lawyer make a record see Board Overseers the Bar v. rules. But taking defendant is the stand of the fact that the of of Dineen, (Me.1984) (disciplinary 481 A.2d 499 appropri- against of counsel in some the advice against attorney revealing action revealing the fact to ate manner without court), testimony to the cert. de client’s false nied, lawyer must confine his examina- court. The 90 L.Ed.2d identifying defendant the witness as the tion to King, P.2d In re 7 Utah 2d permitting his to the him to make statement however, Butler, (1958) (same). In con facts; lawyer may trier or the triers of the alleged cerning ineffectiveness engage of the defen- in direct examination importance protection we stressed the conventional manner dant as a witness in the and wrote that “in such a client's confidences dilemma, advice, argue may known not later the defendant’s disassociation, pas and even worthy version of facts to the false representation, be resorted to in lieu sive exposure.” rely upon not recite or belief and he By endorsing 414 A.2d at 849. closing argument. testimony in his false Proposed Standard Bar Association’s American expressly re- dealt with the This court has not Butler, 7.7, we allow an 7.7(b) lawyer must quirement of Standard rules, disciplinary attorney, with the consistent using "if feasible" before leave to withdraw seek representation. passive to choose 7.7(c) procedure, in Butler we but the Standard entirety strongly implied in its that Standard 7.7 (1971) provides: Proposed 7.7 Standard preferred, ap- acceptable, even reflected an Testimony by the defendant. peijury problem in crimi- proach of client (a) admitted to his law- defendant has If the Butler, A.2d at 850. nal cases. lawyer’s guilt and the yer which establish facts House Bar Association In the American investigation independent establishes Proposed 7.7 Delegates Standard withdrew but the defendant insists are true admissions amendments, including suggested rejecting after trial, must advise 7.7(b) withdraw- have made the that would one testify the witness stand to permissive than mandato- requirement rather al falsely. ry. trial, 1 ABA If, Standards Criminal (b) defendant insists that Justice —The before (Supp.1986). The § 4-7.7 testify falsely, the stand to Function— take the he will Defense Proposed 7.7 to the Standard referred House that is from the if lawyer feasible, must Special on Evaluation Commission necessary. ABA’s seeking of the court leave eventually pro- Standards which Professional (c) not feasible from the case is If withdrawal Professional Con- posed Model Rules of the ABA or if the situa- permitted or is not deprived altogether not be of the sixth amendment cannot avoid a sense to the assistance of effective counsel. of participation when the client takes the Butler, See v. 850; Thornton Thus, A.2d at opportu- stand and lies. without an United 429, (D.C.), 437-38 withdraw, nity lawyer to the with a client denied, cert. 1024, 644, 429 U.S. who intends to lie able to avoid Johnson L.Ed.2d 626 personal Accordingly, cf. an intense conflict.9 162, (D.C.1979) argument there will be room for the (where defense counsel did not believe client, absent serious harm to the a testimony client’s was untrue the trial compel lawyer, should not a over the law- court could not force him to follow Stan yer’s objection, to associate further in a See also 7.7). 3.3(b), Proposed dard Rule criminal case with a client-defendant who supra note and official Comment there lawyer perju- the knows intends to commit to. ry my judgment, trial.10 In calendar, eagerness in- believe, court’s to move its however,

I do not the avail- cluding an understandable desire not to ability Proposed Standard 7.7 or of Pro- 3.3(b) permit proposed perjury posed defendant’s necessarily Rule moots the continuance, proper force a is not a basis lawyer perjurious conflict and between compelling lawyer the way by client in the that DR 7-102 continue does empowering lawyer honestly if lawyer ignore the association the believes credibly represents he or she can- perjurious client’s demand call other wit- Despite availability thereby conveys nesses. a seri- Pro- not tolerate it and posed 3.3(b), serving Proposed Standard 7.7 or Rule ous conflict between duct, adopted August ethically expose as amended on 9. Even if counsel could proposed court, that form supra the basis for the Rules of perjury client’s see note Professional Conduct now under withdraw, consideration unless the court allows counsel id.; State, by this court. See Coleman lawyer go would be forced to forward (Alaska 1980), P.2d 881 n. 21 planning to ex- of a client while 70 L.Ed.2d 628 later, pose perjury the client’s to the court (1981); supra note 3. The ABA House of Del frought situation with conflict. egates, the District of Columbia Bar Model Committee, Rules of Professional Conduct lawyer Obviously, the Board of Directors of the District of Colum be said to "know” the client or other witness problem bia Bar all have addressed the reflected perjury, intends States, commit see Johnson v. United by Proposed Standard 7.7 and have made a variety of recommendations. This 163-65, ques- as well as the context, whether, withdrawal would "ser- publishing proposed Rules of Professional Con client, iously harm” the be difficult to an- comment, pro supra duct for note has swer. The "serious harm” criterion is a new 3.3(b) posed adopt Proposed Rule essen 7.7, supra Proposed tially approach formulation. Standard Standard 7.7. 3.3(h) Proposed provides: Rules "if feasible." note talks about withdrawal (b) give 3.3(b) When the who intends to provides spe- witness Proposed more Rule instead lawyer evidence that the knows to be false is cifically possible "without seri- for withdrawal if lawyer’s client and is the accused in a ously harming the client.” The official Com- case, lawyer criminal shall first make a 3.3(b) Proposed ment to Rule discusses what good effort the client from faith to dissuade says by harm” and the term meant “serious evidence; lawyer presenting the false if the narrowly preclude with- should be "construed client, shall unable to dissuade the special circumstances of drawal where If the seek leave of the tribunal to withdraw. signif- tire such that the client would be case client or is unable to dissuade the by express icantly prejudiced, or im- such as seriously harming the withdraw without client, plied divulgence pro- information otherwise lawyer may put the client on the by [proposed] Rule 1.6” on confidential tected fashion, testify stand to but the narrative find a violation of information. I would not lawyer shall not examine the client in such confidentiality use of the Standard 7.7 testimony the law- manner as to elicit which 3.3(b) approach in itself or use false, argue yer knows to be and shall not permitting suggested procedure for probative testimony of the client’s value underly- motions of the details to tell the closing argument. ing supra Part I. the motion to withdraw. propos- The ABA Bar and District of Columbia 3.3(b)

als for Rule differ from the one this court published for comment. honoring princi- lawyer’s client and own III.

ples. In the counsel was in a position ethically constitutionally to re- lawyers criminal Even most defense fuse to call the witnesses his client wanted expect lying are hardened to clients—or at thus, present; not have a trained least have themselves not might the same sense “know” when lies under oath are had if forced to be associated at trial awith place lawyers believe there still are who —I client who took the stand to lie. But this is simply do not want to be associated with foreclosed, say not to the trial court is perjury any way. respect that. To be remand, considering among other so associated—even the limited basis of things lawyer-client the deterioration of the 7.7, Proposed permit- Standard as we have relationship may have been caused ted under Butler and Thornton — over the contention client’s demand to use lawyers cause in some an understandable perjurious witnesses. DR 2- creating profound per- emotional reaction 110(C)(1)(d) withdrawal). (permissive I do sonal lawyer conflict between and client lawyer credibly rep- not believe that a who adversely affects the rep- resents he or she cannot continue the Sullivan, Cuyler meaning within the resentation without a conflict that supra. Under these circumstances, absent lawyer’s performance affects the client, supra serious harm to the note automatically be denied withdrawal lawyer I believe the merely should be allowed court because the wants to move its withdraw, if, calendar and finds the client manipu- even as in to be lative. It is lawyer’s the nature defendant initiated the effort for a continu- conflict, not the client’s machinations or the ance to force withdrawal and the trial court convenience, court’s own that determines lawyer pawn thinks the manipu- is the of a have, rights whether sixth amendment lative client. The fact that a client not, been honored. manipulative does imply lawyer that a honestly who seeks to withdraw for ethical party

reasons is a manipulation.

Furthermore, to repre- force a

sent a plans client who to lie under oath obviously

a criminal case is at odds with an

ethical scheme that tells the to ask permission the court for to withdraw under THOMAS, Appellant, Melvin W. such circumstances unless “feasible,” 7.7(b) Proposed Standard (c), “seriously or would harm [] STATES, Appellee. UNITED client,” 3.3(b). Proposed Rule Failure to No. 84-1647. grant a credible withdrawal absent client, serious harm to the would make this Appeals. District of Columbia Court of particular obligation ges- ethical a useless Argued Sept. En Banc Finally, talking ture. we are not about the April 20, Decided lawyer in Many last town. counsel will acknowledge they provide ade-

quate representation, personal, without

prejudicial qualms the client’s about behav-

ior, they procedure follow testimonial 7.7(c) Proposed

outlined in Standard supra 3.3(b),

Proposed If note 8. permitted,

withdrawal is the client will not competent lawyer.

be without a

Case Details

Case Name: Witherspoon v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 12, 1989

Citation: 557 A.2d 587

Docket Number: 84-71

Court Abbreviation: D.C.