Johns v. Smyth

• Decision Date: 29 September 1959
• Docket Number: Misc. No. 2454.
• Citation: 176 F. Supp. 949
• Parties: Raleigh JOHNS, Petitioner, v. W. Frank SMYTH, Jr., Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

176 F. Supp. 949

Raleigh JOHNS, Petitioner, v. W. Frank SMYTH, Jr., Superintendent, Virginia State Penitentiary, Respondent.

Misc. No. 2454.

United States District Court E. D. Virginia, Norfolk Division.

September 29, 1959.

Joseph E. Baker, Norfolk, Va., for petitioner.

A. S. Harrison, Jr., Atty. Gen., Thomas M. Miller and Reno S. Harp, III, Asst. Attys. Gen., for respondent.

WALTER E. HOFFMAN, District Judge.

Petitioner is a state prisoner serving a life sentence for the murder of one Melvin Childress in accordance with a final judgment of the Circuit Court of the City of Richmond, Virginia, entered on December 17, 1942. Petitioner and Childress were inmates at the State Penitentiary when the killing took place on October 7, 1942. While there is no transcript of the evidence available from the state court, as no court reporter was present, the petitioner's signed statement given on the day following the crime is to the effect that he killed Childress with a knife in the cell of the latter, when Childress took hold of the petitioner and suggested an unnatural sexual act. An investigation by prison authorities points to other motives for the killing but, for the purpose of this proceeding by way of habeas corpus, we are not particularly concerned with the details of the crime.

On some date following the return of an indictment on October 14, 1942, the state court assigned counsel to represent petitioner. The record reveals that the court-appointed attorney had been practicing for a period of approximately fifteen years at the time of petitioner's trial. There is nothing in this proceeding which would reflect that the trial judge or prosecutor were negligent in the performance of their duties with respect to the appointment of court-assigned counsel and the ensuing trial.

While the Attorney General now states that petitioner has not exhausted his state court remedies before turning to the federal court, this is apparently in conflict with a prior concession stated in the brief that such remedies had been exhausted. The record discloses that petitioner has, on two prior occasions, instituted habeas corpus proceedings in the state court. The first case alleged the incompetency of assigned counsel and was dismissed without a plenary hearing. A petition for a writ of error to the Supreme Court of Appeals in Virginia was filed too late, but the latter court nevertheless treated the request as an original petition and denied same. Apparently certiorari was not requested in the United States Supreme Court. On April 19, 1955, petitioner made application to the Hustings Court of the City of Richmond, Part II, which court declined to consider the question of incompetency of counsel because of the prior adjudication of this point, but granted a plenary hearing on an entirely different issue. On June 30, 1955, the state court denied the petition. Subsequent appeals to the Supreme Court of Appeals of Virginia and the United States Supreme Court were to no avail; a petition for a writ of certiorari having been denied on February 25, 1957. The present proceeding was instituted in this court on May 29, 1957, but has been delayed due to petitioner's alleged inability to secure what he considered to be pertinent evidence.

At no time during the state court proceedings did petitioner waive his right to allege the incompetency of his court-appointed counsel. True, he did not appeal the initial adverse ruling on habeas corpus to the United States Supreme Court, but he properly excepted to the action of the state court in declining to consider this point in his later petition which thereafter followed the course of exhaustion of state remedies. Indeed, the Assistant Attorney General candidly stated that if the matter reverted to further proceedings in the state court, the Attorney General would take the position that the point had been previously adjudicated. Under such circumstances petitioner has exhausted his state court remedies and has not been accorded a plenary hearing on the sole question before this court.

While the petition alleges several points for consideration, it is only necessary to determine whether petitioner had a fair trial by reason of the actions of court-appointed counsel. All too often the incompetency of counsel is assigned in vague allegations which are invariably without merit. It is on the basis of the testimony now given by court-assigned counsel that this court has arrived at the conclusion that petitioner's constitutional rights have been invaded.

One of the cardinal principles confronting every attorney in the representation of a client is the requirement of complete loyalty and service in good faith to the best of his ability. In a criminal case the client is entitled to a fair trial, but not a perfect one. These are fundamental requirements of due process under the Fourteenth Amendment. United States ex rel. Weber v. Ragen, 7 Cir., 176 F.2d 579, 586. The same principles are applicable in Sixth Amendment cases (not pertinent herein) and suggest that an attorney should have no conflict of interest and that he must devote his full and faithful efforts toward the defense of his client. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Von Moltke v. Gillies, 332 U. S. 708, 725, 726, 68 S.Ct. 316, 92 L.Ed. 309.

With this in mind, let us examine the facts to determine (1) whether the representation afforded petitioner at his murder trial was so totally lacking that it cannot be said that he had a fair trial in the usual sense of the word, and (2) whether the court-appointed attorney was so prejudiced and convinced of his client's guilt of first degree murder that he was unable to, and did not, give his client the "undivided allegiance and faithful, devoted service" which the Supreme Court has held to be the right of the accused under the Constitution, and (3) whether the attorney's interest in his client was so diverted by his personal beliefs that there existed a conflict in interest between his duty to his client and his conscience.

The importance of the attorney's undivided allegiance and faithful service to one accused of crime, irrespective of the attorney's personal opinion as to the guilt of his client, lies in Canon 5 of the American Bar Association Canon of Ethics, in effect during 1942, where it is said:

"It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound, by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law."

The difficulty lies, of course, in ascertaining whether the attorney has been guilty of an error of judgment, such as an election with respect to trial tactics, or has otherwise been actuated by his conscience or belief that his client should be convicted in any event. All too frequently courts are called upon to review actions of defense counsel which are, at the most, errors of judgment, not properly reviewable on habeas corpus unless the trial is a farce and a mockery of justice which requires the court to intervene. Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667. But when defense counsel, in a truly adverse proceeding, admits that...