Johnson v. United States

• Decision Date: 02 May 1966
• Docket Number: No. 19969.,19969.
• Parties: Tommie A. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

360 F.2d 844 (1966)

Tommie A. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 19969.

United States Court of Appeals District of Columbia Circuit.

Filed May 2, 1966.

Before BAZELON, Chief Judge, and FAHY and BURGER, Circuit Judges.

PER CURIAM:

In Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, (1958), the Supreme Court held that an indigent is entitled to representation by counsel acting as an advocate. In examining the role of appointed counsel the Court stated:

If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may seek to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel\'s evaluation of the case, then leave to withdraw may be allowed * * *.

356 U.S. at 675, 78 S.Ct. at 975; accord, Hardy v. United States, 375 U.S. 277, 281, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). Pursuant to the Ellis decision, this court has established some further guidelines for appointed counsel who, after making a "conscientious investigation," concludes a case is frivolous. See Statement to be Handed by the Clerk to Appointed Counsel, dated December 13, 1963. We indicate in that Statement that we "will be greatly aided if, as a general rule, appointed counsel remains in a case."¹ We also recognize that counsel may justifiably feel a case to be so lacking in merit that he desires to withdraw on that ground. But if he moves to withdraw, we require that he —

* * * file a supporting memorandum analyzing the case legally, citing record references to the transcript if one is available² and also citing any case or cases upon which counsel relied in arriving at his ultimate conclusion.

Statement, supra. The confidential memorandum in support of the motion is not placed in the public files of the case and is to be served upon the appellant but not the appellee, so as not to prejudice appellant's case in advance of the filing of the brief, if we conclude that the appeal is not frivolous. In effect, the memorandum as described in our 1963 Statement is to be similar to a brief, and its length and detail will, of course, depend upon the nature and complexity of the particular case.

To fulfill our responsibility under the Ellis decision, we must conclude not only that counsel has made a conscientious investigation of the case, but also that we agree with his evaluation of it.³ We cannot reach such a conclusion in the absence of a fully documented memorandum. We therefore deny the present motion to withdraw.

BURGER, Circuit Judge (concurring):

This case brings into focus a problem which has been developing over recent years during which the right to appellate review at public expense has been judicially expanded so that it is now, for all practical purposes, an absolute right for every indigent. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21 (1962). The Supreme Court recognized that under a system in which virtually all convictions would be reviewed, it was inevitable that many would have no non-frivolous point; its opinion in Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), contemplated that if assigned counsel was convinced, after full study, that the appeal was frivolous, he could withdraw. Ellis also held that if the Court of Appeals "agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied."¹ (Emphasis supplied.)

Since Coppedge this Court has been confronted with numerous requests for withdrawal by counsel who concluded that appeal was pointless; when we granted such requests, as we did in most cases, we advised the Appellant he could continue his appeal pro se. At the same time we adopted a general but not rigid practice of declining to appoint a new lawyer after the first had withdrawn. Since the Supreme Court had made clear that appointed counsel had the same burdens and duties of advocacy as private counsel, we tended to view the right of withdrawal of appointed counsel as equal to that of private counsel.

In concluding that appointed counsel's rights and duties are the same as private counsel's we may have erred in overlooking certain inescapable differences between the two categories. Under the Criminal Justice Act provisions to compensate appointed counsel, there may be additional points of differences. It now seems clear to me that it is unrealistic to view appointed and privately retained counsel as in precisely the same posture for all purposes; it is especially unrealistic to allow appointed counsel to withdraw and tell Appellant he can continue an appeal "on his own," including writing his own brief.

The frequency of withdrawal applications by counsel who see no point for an appeal and our response to those motions is a consequence, I think, of some misconception and confusion as to the role of the advocate. Courts have often said, and the literature and the professional canons make clear, for example, that the advocate need not believe and indeed may not assert a belief, if he has such, in the innocence of his client or the justice of his cause.

The popular misconceptions about the function of lawyers in criminal cases flow from many sources including misconduct of some lawyers themselves, distortion of real life in popular media such as television and movies, and a misplaced sentimentality which has put some lawyers in doubt as to their function.

One result of these fallacious and blurred conceptions of the advocate's function is the public image of the "criminal lawyer" as the servile "mouthpiece" or the alter ego of the accused or one who does for the accused what the accused would do for himself if he had the legal skills. This is more than a fallacy; it is totally incompatible with the basic duty of a lawyer as an officer of the court and contrary to the traditions and ethics of the legal profession.

A lawyer complying with the canons and traditions of the bar advocates but does not identify with his client. The alter ego or "mouthpiece" school of thought, which is happily a minute fraction of the legal profession, would carry this perverted notion to the point of complete identification of lawyer with client, i. e., the lawyer as an extension of the accused himself with a community of interest, motivation and goals, bound to engage in falsehood and chicane at the command of the client. These concepts have long been rejected by the legal profession and find no acceptance among honorable members of the bar.²

The lawyer engaged in defense of an accused should be — and should be recognized as — a professional advocate with a highly important but none the less limited function, i. e., limited and circumscribed by the rules of the system and the ethics of the profession.³ At the trial stage his duty is to put the prosecution to its proof, to test the case against the accused, to insist that the procedural safeguards be followed and to put forward evidence which is valid, relevant and helpful to his client. On appeal his function is to point to trial errors, if such there be, and expound...