McGill v. United States, 18828

• Decision Date: 29 June 1965
• Docket Number: No. 18828,18829.,18828
• Parties: Charles McGILL, Appellant, v. UNITED STATES of America, Appellee. Walter M. HINTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 179, 348 F.2d 791 (1965)

Charles McGILL, Appellant, v. UNITED STATES of America, Appellee.

Walter M. HINTON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18828, 18829.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1965.

Decided June 29, 1965.

Mr. Warren E. Baker, Washington, D. C. (appointed by this court) for appellant in No. 18828.

Mr. Robert B. Frank, New York City (appointed by this court) for appellant in No. 18829.

Mr. Frank Q. Nebeker, Asst. U. S. Atty. with whom Messrs. David C. Acheson, U. S. Atty., Robert X. Perry and Martin R. Hoffmann, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge.

Following the return of an indictment against them on April 27, 1964, appellants, McGill and Hinton, together with a third defendant Barnhart, were arraigned in open court on May 1, 1964. They were charged on one count with robbery, and on another count with assault with intent to rob (based on separate complaints). The case came to trial on June 9, 1964. On June 15, 1964, the jury returned its verdict, finding McGill guilty of simple assault and assault with intent to commit robbery and Hinton guilty of robbery and of simple assault. Barnhart was acquitted on all counts. McGill and Hinton appealed from their conviction proceeding in forma pauperis.

I Permissibility of Accepting Plea of Not Guilty Prior to Assignment of Counsel.

Appellants contend that they have been denied the constitutional right of an accused under the Sixth Amendment "to have the Assistance of Counsel for his defence." This claim is based on the fact that on May 1, 1964, prior to appointment or assignment of counsel, they were arraigned before the Chief Judge of the District Court, who accepted from each a plea of not guilty.

The docket sheet shows that on May 1, 1964, the Chief Judge referred Hinton's case and Barnhart's case for appointment of counsel. While no such indication appears on the record with respect to McGill's case, separate counsel were in fact appointed by the Court for each defendant on May 6, 1964.

The contention is that the Sixth Amendment requires the protection of counsel at "every step" in the proceedings. This is the language of Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Furthermore, Rule 44 of the Federal Rules of Criminal Procedure provides that when the accused is without counsel, the Court shall "assign counsel to represent him at every stage of the proceeding." The counsel appointed by this court argue to us that surely the arraignment is a "step" or "stage" in the criminal proceeding and that counsel is accordingly required. Cf. Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942).

Counsel concede that they seek reconsideration of our ruling in Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949). See also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964). The case involves a question of constitutional protection. The decision involved, rendered fifteen years ago, lies in a domain of jurisprudence which has been the subject of fresh consideration by the courts. The scope of constitutional requirements has been redefined in the light of changing conditions, and the increasing awareness of the underlying needs of a democratic society devoted to the pursuit of equal justice for all under law. Accordingly, we have taken the point under advisement for fresh consideration. See Ricks v. United States, 118 U.S.App.D.C. 216, 218-219, note 2, 334 F.2d 964, 966-967 (1964).

Upon due reflection we see no basis for concluding that the Constitution requires the presence or assignment of counsel at a point when and where there is no reasonable possibility of prejudice to the rights or position of an accused, as in these cases.

The general language in Johnson v. Zerbst and Rule 44 must be read in the light of their fundamental purpose to provide the guiding hand of counsel at every step where an accused who is without counsel may be prejudiced. The taking of appellants' plea of not guilty on arraignment stands on an entirely different footing from the taking of a plea of guilty, which manifestly involves a possibility of such prejudice and hence cannot be accomplished prior to assignment of counsel. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Evans v. Rives, supra.

Appellants' contention is developed in conceptual terms. The exaltation of abstraction above reality should not be condoned for the purpose of denying constitutional rights and should not be indulged for the purpose of creating constitutional rights. Counsel say that where the constitutional rights of an accused are involved it is not necessary to make a showing of actual prejudice. But before the court concludes that there is a constitutional right it must at least determine that the accused has been not necessarily prejudiced in fact, but at least exposed to a reasonable possibility of prejudice in fact.

Hamilton v. State of Alabama, 368 U. S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) is invoked by appellants. That opinion cannot fairly be taken as a decision or indication that counsel is required in the Federal courts upon a plea of not guilty.¹ In that case the Supreme Court held that the Constitution required Alabama to provide counsel to accused at time of arraignment because of the necessity under Alabama law for asserting certain defenses at time of arraignment. Accordingly, the Supreme Court stated (p. 54, 82 S.Ct. p. 159) that in Alabama "Arraignment is a critical stage in a criminal proceeding. * * * Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes."

In these cases, however, the accused were not subject to the loss of defenses because of lack of counsel at the time of the not guilty pleas. Counsel suggested there is the possibility of prejudice inherent in the provisions of Rule 12 of the Federal Rules of Criminal Procedure concerning motions asserting defenses and objections based on defects in the institution of the prosecution or in the indictment or information. Rule 12(b) (3) provides: "The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter." The possibility of prejudice is asserted to derive from the possibility that the court may not permit such motion to be entered after the plea.

It has always been the lore, and we hereby expressly declare it to be the law, of this jurisdiction that the defendant has an absolute right to consideration on the merits of objections encompassed by Rule 12, provided the motion be made within a reasonable time after the appointment of counsel, and his motion is in no way to be subject to prejudice because the plea of not guilty was taken prior to the appointment of counsel. If necessary to avoid possibility of prejudice, for some reason which we cannot anticipate, a defendant should be rearraigned.

In Blue v. United States, 119 U.S.App. D.C. 315, 342 F.2d 894, decided October 29, 1964, we held it requisite that accused be affirmatively advised that indigents are entitled to assignment of counsel without cost before United States commissioners in the District of Columbia may proceed with the preliminary examination. The court there discussed not only the Federal Rules of Criminal Procedure but also the Legal Aid Act, providing that the courts "will make every reasonable effort to provide assignment of counsel as early in the proceeding as practicable." 2 D.C.Code sec. 2202.²

The District of Columbia is unique in the lead it has taken in quest of equal justice for all. As noted in Blue, this is due "in large part to an enlightened bar which has shouldered a truly professional responsibility of staggering scope." Our courts and bar have been in the forefront of this effort, and it is a front that is ever moving forward. Administration is under constant study in quest of improvement. The Blue case itself should substantially reduce the number of defendants without counsel, retained or assigned, at time of arraignment. The administration of the Legal Aid Act and of the Criminal Justice Act provide continuing opportunities to the bench and bar to improve the administration of criminal justice and to enhance the effective representation of the accused in all ways right and proper. Without presuming in any way to speculate on the improvements that may lie ahead, it suffices here to say that the accused have not presented cause for reversal in these cases.

II Alleged Failure to Permit Defendant's Retainer of Counsel of His Choice.

Another Sixth Amendment question is raised by McGill's contention that his right to the assistance of counsel was violated when the Court summarily denied his pro se motion to dismiss appointed counsel, and when he was subsequently compelled to go to trial with court appointed counsel.

A handwritten letter signed by McGill was received by Chief Judge McGuire on June 5, 1964, four days before the beginning of the trial. The letter is short and is quoted as written:

Charles McGill 200 19th Street, S. E Washington, D. C Chief Justice McGuire United States District Court Washington 1, D. C.

The Most Honorable Judge McGuire

This letter in reference to criminal case No. 367-64 238 F.Supp. 230, I the defendant, Charles McGill would like to notify the court at this time that I am able to afford my own counselor, and would like for the legal aid counselor dismiss. I also would like for the court to reduces my bond from $10,000 to a reasonable amount. I hope the court will consider this, and pray that the court will take this under advisement.

Respectfully yours ...