Rastrom v. Robbins

• Citation: 440 F.2d 1251
• Decision Date: 14 April 1971
• Docket Number: No. 7789.,7789.
• Parties: John C. RASTROM, Petitioner, Appellee, v. Allan L. ROBBINS, Warden, Maine State Prison, Respondent, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

440 F.2d 1251 (1971)

John C. RASTROM, Petitioner, Appellee, v. Allan L. ROBBINS, Warden, Maine State Prison, Respondent, Appellant.

No. 7789.

United States Court of Appeals, First Circuit.

April 14, 1971.

John W. Benoit, Jr., Deputy Atty. Gen., for appellant.

Hugh G. E. MacMahon, Portland, Me., with whom Harold E. Woodsum, Jr., Portland, Me., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The appellee, serving a one to three year sentence for uttering a forged check, in violation of 17 Me.L.R.A. § 1501, sought a writ of habeas corpus in the district court. His contention was that he had been denied his right to the effective assistance of counsel by the refusal of the presiding Justice to allow his newly appointed and inexperienced counsel more than four hours to prepare for trial. The district court granted the writ and the state of Maine appeals.

Appellee henceforward, petitioner, after being arrested in August 1968, was represented at the Maine District Court arraignment by appointed counsel, whom he subsequently discharged. He remained in jail, pending indictment and trial, intending to defend himself. Shortly before trial, at the request of a Superior Court Justice, an attorney for Pine Tree Legal Assistance, Inc., visited petitioner on two occasions to advise him of his rights to court-appointed counsel. Petitioner, whose demeanor the attorney considered "bizarre", adamantly refused assistance. On the morning of the trial, the legal assistance lawyer listened to the county attorney interview two witnesses, then reported to the court his conversations with petitioner and stated his concern about petitioner's competence to stand trial. At 10 a. m. the case was called and the presiding Justice finally prevailed upon petitioner to accept counsel. The attorney requested by petitioner being unavailable, the court appointed the legal assistance lawyer. The latter informed the court that he was ignorant of the specifics of the case, having talked to petitioner only of his right to counsel, and asked for a continuance. The court continued the case until 2:00 p.m.

During the next four hours, counsel consulted with petitioner and examined the state's file. At 2:00 p. m. counsel moved for a further continuance to "make an independent investigation of the facts, to research the law, to consult with his client, to confer, and to reflect." The motion was denied. Trial commenced, examination of the jury was waived, and petitioner, who did not take the stand, was convicted the same day. Shortly thereafter counsel filed a motion for new trial, based on the denial of his second motion for continuance, additionally informing the court that he had had no prior trial experience, criminal or civil. The motion was denied and appeal was taken, the case being submitted on an agreed statement of facts under Me.R.Civ.P. 74(r).

The Maine Supreme Judicial Court, noting the absence of a transcript, and invoking the familiar principle that one claiming ineffective assistance of counsel has the burden of proving prejudice, held that no prejudice had been shown other than that which was attributable to petitioner's own action in dismissing earlier appointed counsel. The court made no mention of counsel's lack of trial experience. State v. Rastrom, 261 A.2d 245 (Me.1970). The district court, applying the Fourth Circuit presumption based on limited preparation time, discussed infra, held that petitioner had made out a prima facie case of denial of effective assistance of counsel, which the state did not rebut. Rastrom v. Robbins, 319 F.Supp. 1090 (D.Me.1970).

We look upon the case as exceedingly difficult, not perhaps if it is viewed in isolation but if decision is to be helpful in facing similar situations in the future. With the already widespread and increasing provision of court-appointed counsel for indigents, we foresee that counsel, neophytes and seasoned practitioners alike, will be asked to take on litigation in an area in which they have no experience. Lack of experience cannot be a reason for refusing to serve, for there is no adequate reservoir of specialists in criminal law or other complex fields. Yet there must in fairness be some accommodation to a genuine claim of inexperience. It is in this area of tension between the necessity for expedition in the progress of litigation and the requirement of fairness to litigants and their counsel that this case has its setting. With the objective of enabling our decision herein to contribute something to the sensitive and practical reconciliation of these interests, we first discuss our general approach to and requirements for appellate evaluation of claims that limited preparation time resulted in ineffective assistance of counsel. We then consider on the merits the exceptional combination of circumstances presented in this case.

Our Approach to Appellate Evaluation of Limited Preparation Time

A. Our view as to a rule of presumption.

In Megantz v. Ash, 412 F.2d 804, 807 (1st Cir. 1969), we indicated our sympathy with the presumptive approach of Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967), in extreme cases but also cited with approval United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), which held that it was possible to prepare adequately for some cases in as short a time as 15 minutes. On reflection we have concluded not to adopt the Fourth Circuit's presumption.

Final resolution of claims that a defendant was denied effective assistance by late appointment of counsel is necessarily made on an ad hoc basis.¹ As an intermediate aid to analysis, the Fourth Circuit has created the evidentiary rule that a demonstration of inadequate time for preparation establishes a prima facie case of ineffective assistance of counsel which the state must rebut. Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967); Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967); Martin v. Commonwealth of Virginia, 365 F.2d 549 (4th Cir. 1966). While this rule seems to set the Fourth Circuit apart from the other circuits, analysis reveals that the differences between the circuits are more apparent than real. Judge Freedman's thoughtful opinion in Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970) (en banc) recognizes that the Fourth Circuit's preliminary inquiry into the adequacy of the allotted preparation time requires consideration of many of the same elements that must be weighed in determining the prejudicial effect of inadequate preparation time. Most evidentiary presumptions exist because the ultimate fact is very difficult for the party bearing the burden of persuasion to prove; because the establishment of the intermediate fact more probably than not establishes the ultimate fact; and because the intermediate fact is more capable of proof. See C. McCormick, Handbook of the Law of Evidence § 309 (1954). The last reason is not present in the Fourth Circuit presumption. It seems specially motivated by the court's desire for a therapeutic rule suggested by its prior experience with state courts' late appointment of counsel. Moreover, despite the language of presumption, the Fourth Circuit cases have involved other evidence of prejudice in addition to mere shortage of preparation time.² Despite its stated rule, we see little difference between the Fourth Circuit test and the totality of the circumstances test applied in other circuits.³

To the extent that a difference remains, it may best be described as attitudinal, a lower threshold of tolerance toward stringently limited preparation time. We have on occasion shared that attitude. Megantz v. Ash, supra at 806-807. But we are not willing to corset that attitude in a standard applicable to all cases. We recognize that the amount of time required for adequate preparation can widely vary. While an experienced advocate would seldom wish to ready even a simple case for trial in a few hours, he might nevertheless — as many do — perform most competently. We therefore agree with the Third Circuit that concern over short preparation time does not need to be institutionalized in the form of a presumption. Moore v. United States, supra.

B. Our view as to the necessity of transcripts.

Although we reject a presumption of ineffective assistance of counsel based on shortness of preparation time, we realize that appellate review of such claims cannot depend on the winds of whim. The steadying element lies, in our opinion, in the transcript, which, in the great majority of cases is indispensable for effective review.

As has often been said, a perfect trial cannot be the standard; it perhaps exists only as a Platonic ideal. Unless counsel's assistance is so ineffective that a trial is fundamentally unfair, courts are reluctant to uphold ineffective assistance of counsel claims.⁴ Balanced judgment as to the existence of elemental unfairness cannot usually be had without seeing the comprehensive framework of the trial that only a transcript reveals.

Whether the claimed inadequacy lies in the legal and factual investigatory phase of preparation, the making of strategic decisions, or in trial tactics,⁵ a transcript is likely to be essential. Though perhaps it may seldom supply affirmative evidence of inadequacy, it nevertheless provides a necessary background for intelligent evaluation of the claim. For example, a defendant may claim error in the investigatory phase in not producing a certain witness, when the record would reveal an overwhelming case against the defendant which would not have been weakened by one more witness. As to strategy, a defendant may claim that counsel should have raised the defense of entrapment, when the record would show that counsel competently raised the inconsistent defense of denying that the defendant ever committed the act. And, of course, when serious tactical errors in the conduct of a...