Scott v. District of Columbia, 1359.

• Decision Date: 13 October 1953
• Docket Number: No. 1359.,1359.
• Citation: 99 A.2d 641
• Parties: SCOTT v. DISTRICT OF COLUMBIA.
• Court: D.C. Court of Appeals

99 A.2d 641

SCOTT v. DISTRICT OF COLUMBIA.

No. 1359.

Municipal Court of Appeals for the District of Columbia.

Argued August 24, 1953.

Decided October 13, 1953.

Rehearing Denied November 3, 1953.

Frank D. Reeves, with whom Curtis P. Mitchell, Washington, D. C., was on the brief, for appellant.

Hubert B. Pair, Asst. Corp. Counsel, with whom Vernon E. West, Corp. Counsel, and Chester H. Gray, Principal Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

The government charged that defendant Scott had engaged in the business of selling taxable personal property (alcoholic beverages) and had failed to file returns and pay taxes thereon, in violation of the District of Columbia Sales Tax Act.¹ Defendant was also charged with failure to obtain a certificate of registration as required by the Act.² He was tried without a jury and convicted.

New counsel came into the case and argued on his behalf a motion for new trial. Several reasons were urged on the trial judge for setting aside the conviction. In our view the most important was a constitutional question: the contention that defendant did not have effective assistance of counsel because (as his new attorneys have stated it in their brief in this court) "defense counsel at the trial was in the untenable position of representing at one and the same time both the appellant and the Government's principal witness against appellant."

The witness referred to was a man named Postell who had allegedly worked for defendant, and without whose testimony the prosecution would have failed. At the time of the trial there were pending against Postell two charges of violation of the Alcoholic Beverage Control Law. At the outset of the trial the attorney for defendant revealed to the court that he had received information that Postell had been promised a withdrawal of the two charges against him as a reward for his testimony against Scott in this case. In the course of a thorough cross-examination by defendant's attorney Postell denied this, but said his reason for testifying was that Scott had threatened him and that he "had a warrant for Scott for breaking my nose. * * * I know Scott, and I know what he has done in the past, and that my life is no better than a dime if he comes after me, that is the only reason. I have a warrant for him downstairs that has never been served for four or five months, that is my only reason."

At the argument on the motion for new trial the prosecutor admitted that he had dismissed the two charges against Postell immediately after Scott's conviction in this case.³

At the trial, Scott's lawyer in arguing for an acquittal admitted that "unfortunately" he was also representing Postell in the two cases above referred to, that "I do know some things which I cannot divulge to the court," and that he was on the "inside" as to both Postell and Scott. He revealed an embarrassed and gingerly attitude with reference to his dual fiduciary capacity. We think it is apparent and beyond question that the interests of Postell were adverse, and highly so, to those of the defendant. And we think it was impossible for the trial attorney to have given defendant the undivided and undiluted fidelity to which he was entitled.⁴ He was presumably attempting to establish the innocence of Scott at the same time that he was under a duty to protect the rights of Postell, between whom and Scott there was such marked and unmistakable enmity. In the tangle of conflicting interests it seems almost inevitable that the defense of Scott lost that stout and unswerving loyalty which the law demands.

Provision was made in the Bill of Rights for the assistance of counsel in criminal proceedings in Federal courts. The sixth amendment guarantees a basic right that is not merely formal. It is substantial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. There the Supreme Court said: "It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty * * *. The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights * * *." To the same effect is Johnson v. United States, 71 App. D.C. 400, 110 F.2d 562.

The Supreme Court had occasion in a still later case to consider a situation where an attorney had represented adverse interests and the effect of such dual representation upon the guaranty of the sixth amendment. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, a trial judge had over objection of Glasser appointed counsel retained by Glasser to also represent a co-defendant. It was...