Moore v. United States
| Decision Date | 24 September 1970 |
| Docket Number | No. 17931.,17931. |
| Citation | 432 F.2d 730 |
| Parties | Gratton Earl MOORE, Appellant, v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — Third Circuit |
John H. Lewis, Jr., Philadelphia, Pa., for appellant.
Joseph R. Ritchie, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.
John Hassett, Philadelphia, Pa., for amicus curiae, Defender Ass'n. of Philadelphia.
Stanley Van Ness, Public Defender, Trenton, N. J., for amicus curiae, N. J. Defender Ass'n.
Before MARIS, SEITZ and STAHL, Circuit Judges.
Before HASTIE, Chief Judge, and MARIS, FREEDMAN, SEITZ, VAN DUSEN, ALDISERT, ADAMS and GIBBONS, Circuit Judges.
Argued Nov. 7, 1969
Before MARIS, SEITZ and STAHL, Circuit Judges.
Reargued May 26, 1970
Before HASTIE, Chief Judge, and MARIS, FREEDMAN, SEITZ, VAN DUSEN, ALDISERT, ADAMS and GIBBONS, Circuit Judges.
We ordered rehearing of this case before the Court en banc to review in the setting of representation by a defender agency the rule we adopted in United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3 Cir. 1968), that an untimely appointment of counsel will create a presumption that the defendant was prejudiced and shift to the state the burden of showing the contrary.
On March 30, 1965, petitioner was found guilty by a jury and sentenced on four counts of federal bank robbery based on the holdup of a teller of the Abraham Lincoln Federal Savings and Loan Association in Philadelphia. He did not appeal from the judgment but three years later, while still imprisoned under an earlier conviction not here challenged, filed in the district court what he designated as a petition for a "writ of Error Coram Nobis," which the court treated as an application for post-conviction relief under 28 U.S.C. § 2255.1 From his loosely drawn pro se papers it appears that he claims ineffective assistance of counsel, refusal of counsel to aid him in an appeal and failure of counsel to challenge the method of selection of the panel of prospective petit jurors.2
The district court, without holding an evidentiary hearing, denied the application. Petitioner appealed and argued in person before a panel of this Court. We later appointed counsel for him on the rehearing en banc. Because the case requires us to consider the practice of defender organizations, we permitted briefs to be filed as amici curiae by the Defender Association of Philadelphia, the Public Defender of New Jersey and the District Attorney of Philadelphia, who prosecutes most of the cases in which the Defender Association of Philadelphia furnishes representation to defendants. The Court is grateful to them and to petitioner's counsel who has ably represented him before us.
Petitioner was arraigned and pleaded not guilty on February 12, 1965. Leonard Packel, Esquire, appeared on his behalf as a member of the staff of the "Voluntary Defender's Office."3
Thereafter when the case was listed for trial on March 29, 1965,4 Austin Hogan, Esquire, another member of the Voluntary Defender's Office, appeared for petitioner and requested a short postponement of the trial so that he might confer personally with him.5 A continuance was granted to the following day, March 30, 1965, when the trial was begun and concluded with Mr. Hogan conducting the defense.
Petitioner claims that since he did not meet Mr. Hogan until the day before the trial, the district court erred in refusing to invoke the rule of Mathis and hold that a presumption arose that he was prejudiced. This contention assumes that Mr. Hogan's appearance was the result of a separate appointment, unrelated to Mr. Packel's appearance at the arraignment a month and a half earlier. It is clear, however, that in one form or another the legal staff of the Defender Association of Philadelphia, headed by the Voluntary Defender, supplied representation to the petitioner both at the arraignment and at the trial.6
There is no room for doubt today that a legal aid society or a defender organization may properly supply representation to indigent defendants in criminal cases. Such institutions came into existence as volunteer agencies to represent indigent defendants7 because no provision was made in either the federal or state systems for compensation of counsel appointed by the court. They have always been deemed to fall within the exception of charitable agencies from the traditional restrictions on corporate law practice or the supply of legal services by associations to their members,8 which, in any case, have largely been eroded by Supreme Court decisions based on the constitutional rights of freedom of association and to petition for the redress of grievances.9 The great social purposes involved in supplying services to indigents has always placed the activities of agencies like the Defender Association of Philadelphia on indubitably valid ground.10 In any event, after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), required the states to furnish counsel to indigents in serious crimes, Congress acted in the Criminal Justice Act of 196411 and expressly authorized compensation for representation of indigents by attorneys "furnished by a bar association or a legal aid agency" or by private attorneys, or by a combination of both.12
The recognition of the right of a defender organization to supply legal services to indigents makes it at once apparent that in such institutional representation the timeliness of the appointment must be measured by the time of the court's appointment of the institution and not by when individual staff members are assigned to perform their specialized duties. In Mathis there was no recognition of this distinction because it was blurred by the circumstances of the case.13
Mathis adopted the presumption rule of Fields v. Peyton, 375 F.2d 624 (4 Cir. 1967), out of the belief that it was desirable as a prophylactic measure to ensure prompt court appointment of counsel in the state courts. In fact, the cases in the Fourth Circuit14 deal with court appointment of individual attorneys rather than defender organizations, and so there was no need to consider the problem of institutional representation in assessing the untimeliness of appointment. Moreover, the "presumption" recognized in Fields but rephrased the "inference" which had been recognized in Twiford v. Peyton, 372 F.2d 670 (4 Cir. 1967), and Fields acknowledged that the presumption or inference may be overcome not only by evidence offered by the state but also by the circumstances inherent in the case itself which may disclose that the representation was adequate despite the lateness of the appointment, as in Dawson v. Peyton, 359 F.2d 149 (4 Cir. 1966).
We are aware of no continuing practice of belatedly appointing counsel in the state courts in this Circuit, and in the large urban centers indigent defendants are largely represented by defender agencies.15 There may often have been late appointments in times past, before the duty of the state to furnish counsel in criminal cases to indigent defendants became widely recognized. But at least since Gideon v. Wainwright, judges no longer designate counsel for a defendant from among the lawyers who happen to be present in the courtroom when the case is called for trial. In our Circuit as well as elsewhere state courts are mindful of the obligation to provide adequate representation to indigent defendants in criminal cases.16 There is, therefore, no need for a prophylactic rule, just as there is no need for the use of an artificial presumption.
What is a late appointment of counsel may in extreme circumstances seem evident, but the question necessarily involves a comparision of the time of the appointment with all the attendant circumstances, such as the gravity of the charge, the experience of appointed counsel, the extent of his knowledge and participation in similar cases, his opportunity for preparation and even what he may have been told by the defendant which may reduce the area of necessary preparation.17 We believe it is preferable that the factual question whether the defendant received adequate assistance of counsel should not be enwrapped in the label of a presumption which itself floats adrift and first requires a preliminary decision on the uncertain question of what is a belated appointment without eliminating a full inquiry thereafter into the facts to determine whether the presumption has been overcome or rebutted.18 If it be said that this will cast the burden of proof on the defendant, the answer is that it applies to the lawyer the presumption of the regularity of his conduct and that it is but just that one who claims his counsel had inadequately represented him should have the burden of proving the charge. A belated appointment of counsel would be strong evidence in a defendant's behalf, but a decision on the claim would still require an inquiry into the ability, experience and zeal with which counsel acted, both at the trial and in preparation, to determine whether the charge was made out.
We therefore overrule Mathis to the extent it adopted the presumption doctrine. In doing so we do not intend to minimize the strong inference of prejudice from the failure to appoint counsel until the day of trial or very shortly prior thereto. Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yields may disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge. Our abandonment of the Mathis presumption therefore does not alter our recognition of the objective it was meant to achieve, nor does it reflect any lessening of our concern...
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