725 F.2d 149 (2nd Cir. 1983), 66, Trapnell v. United States

Docket Nº:66, Docket 82-2025.
Citation:725 F.2d 149
Party Name:Garrett Brock TRAPNELL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:December 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 149

725 F.2d 149 (2nd Cir. 1983)

Garrett Brock TRAPNELL, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 66, Docket 82-2025.

United States Court of Appeals, Second Circuit

December 19, 1983

Argued Sept. 14, 1983.

Page 150

L. Kevin Sheridan, Brooklyn, N.Y., Asst. U.S. Atty., E.D.N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for defendant-appellee.

William C. Pelster, New York City (Robert L. Hubbard, of counsel), for plaintiff-appellant.

Before FEINBERG, Chief Judge, and LUMBARD and NEWMAN, Circuit Judges.

FEINBERG, Chief Judge:

Garrett Brock Trapnell appeals from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, J., denying Trapnell's petition under 28 U.S.C. Sec. 2255 to vacate his 10-year old conviction. Appellant argues that the assistance of counsel that he received at the trial was ineffective. Judging counsel's performance by the "reasonably competent assistance" standard, which we adopt in this opinion, we affirm the judgment of the district court.

I.

Appellant Trapnell was found guilty in May 1973 after a jury trial before then Chief Judge Mishler on all three counts of an indictment charging him with aircraft piracy, 49 U.S.C. Sec. 1472(i), interference with an aircraft flight crew, 49 U.S.C. Sec. 1472(j), and possession of a firearm in the commission of a federal crime, 18 U.S.C. Sec. 924(c)(2). All three charges stemmed from Trapnell's hijacking of a TWA airliner on a scheduled flight between Los Angeles and New York, in January 1972. The basic facts relating to the hijacking are set forth in this court's opinion affirming Trapnell's conviction. See United States v. Trapnell, 495 F.2d 22 (2d Cir.), cert. denied, 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974). We presume general familiarity with that opinion. We note, however, that Trapnell was tried twice: his first trial, before Judge Rosling, resulted in a mistrial because the jury was unable to reach a verdict; his second trial, before Judge Mishler, resulted in his conviction. In both trials, Trapnell presented an insanity defense.

In this collateral attack on his conviction, Trapnell points out that three witnesses who were not called to testify at the second trial--Drs. Stanley Portnow, James Cravens and David Hubbard--had had the most sustained contact with Trapnell immediately after the hijacking and were therefore in the best position to testify about his insanity at the time of the crime. Trapnell argues that the psychiatrists who testified at the second trial did not agree on the question of his insanity, and that if Drs. Portnow, Cravens and Hubbard had testified, the jury would have been likely to find that the government had not proven his sanity beyond a reasonable doubt. In addition, Trapnell argues that his attorney at the second trial relied too heavily on subpoenas to compel testimony, and did not adequately establish the professional qualifications of the expert witnesses. According to appellant, at his second trial he was not accorded

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his Sixth Amendment right to "effective assistance of counsel." Appellant also urges us to reject the "farce and mockery" standard used by this court to determine whether the assistance of counsel at a criminal trial was "effective," and to adopt instead a standard of "reasonable competence." That issue, as well as the merits of the appeal, was briefed and argued by both parties.

II.

Before examining appellant's specific contentions, we discuss the appropriate standard of competence for a defendant's attorney in a criminal trial. In the Second Circuit, that standard has been governed for over thirty years by the rule laid down in United States v. Wight, 176 F.2d 376, 379 (2d Cir.1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950): "A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the court and make the proceedings a farce and mockery of justice." In Wight, this court adopted the standard first formulated by Judge Thurman Arnold for the D.C. Circuit in Diggs v. Welch, 148 F.2d 667, 670 (D.C.Cir.), cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). By 1962, nine of the eleven circuits were applying the Diggs "farce and mockery" standard. See In re Ernst, 294 F.2d 556, 558 (3d Cir.), cert. denied, 368 U.S. 917, 82 S.Ct. 198, 7 L.Ed.2d 132 (1961); Snead v. Smyth, 273 F.2d 838, 842 (4th Cir.1959); O'Malley v. United States, 285 F.2d 733, 734 (6th Cir.1961); United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-81 (7th Cir.1948); Johnston v. United States, 254 F.2d 239, 240 (8th Cir.1958); Cofield v. United States, 263 F.2d 686, 689 (9th Cir.), rev'd per curiam on other grounds, 360 U.S. 472, 79 S.Ct. 1430, 3 L.Ed.2d 1531 (1959); Frand v. United States, 301 F.2d 102, 103 (10th Cir.1962). The two remaining circuits adopted the "farce and mockery" standard in 1965 and 1970, respectively. See Williams v. Beto, 354 F.2d 698, 704 (5th Cir.1965); Bottiglio v. United States, 431 F.2d 930, 931 (1st Cir.1970) (per curiam).

The resulting uniformity in the standard of competence of counsel was disrupted in 1970, when the Fifth Circuit stated: "We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Caraway v. Beto, 421 F.2d 636, 637 (5th Cir.1970) (per curiam) (quoting MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961)). That same year, the Third Circuit replaced the "farce and mockery" standard with a standard of "normal competency." Moore v. United States, 432 F.2d 730, 737 (3d Cir.1970) (in banc). Similarly, the D.C. Circuit, apparently the original architect of the "farce and mockery" test, held in 1973 that "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate." United States v. DeCoster, 487 F.2d 1197, 1202 (D.C.Cir.1973); see also id. at 1203 ("Counsel should be guided by the American Bar Association Standards for the Defense Function"). Since 1970, every circuit except this one has adopted a "reasonably competent assistance" standard, in one of its many formulations. See United States v. Bosch, 584 F.2d 1113, 1120-21 (1st Cir.1978) ("reasonably competent assistance"); Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) ("normal competency"); Beasley v. United States, 491 F.2d 687, 696 (6th...

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