State v. Wright
| Citation | 248 S.E.2d 490,271 S.C. 534 |
| Decision Date | 26 October 1978 |
| Docket Number | No. 20796,20796 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. William Henry WRIGHT, Appellant. |
John D. Delgado, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Brian P. Gibbes and Kay G. Crowe, and Sol. James C. Anders, Columbia, for respondent.
Defendant William Henry Wright, while serving as a prisoner at Goodman Correctional Institute was discovered missing from the facility. He was indicted for escape. At trial he was represented by John D. Delgado, Assistant Public Defender for Richland County. In spite of counsel's recommendation that he plead guilty and in spite of the fact that he was advised that he had no valid defense and that a trial would be futile, the defendant insisted upon trial. He was convicted and has appealed.
It was the contention of the defendant that some prisoners, upon escape, were dealt with administratively; it is apparent that he wanted to air what he conceived to be discrimination on the part of prison authorities. In cross-examining the warden, Mr. Delgado attempted to elicit answers tending to prove that his client had been ". . . singled out and selectively prosecuted by the Department of Corrections."
On his own motion the judge stopped the line of questioning and excused the jury. His subsequent admonition to defense counsel is the basis for the appeal. It is the contention of the defendant that his attorney was so disconcerted by the judge's reprimand that he was unable to effectively continue the trial of the case. Among the statements made by the judge to counsel are the following:
And it seems to me from what I have heard of your opening statement that you are, in fact, in a very serious position as to the canons and so forth of actually posing and presenting a frivolous defense here.
I would refer you to the Supplement, Canon Number Seven, particularly DR-7-106, the one about the position of the attorney is in in proffering a really spurious defense.
But the extent to which you participate in that defense has some circumscribing standards under both our Canons and the American Bar Association Criminal Standards on the administration of Criminal Justice.
With great reluctance I will permit some examination along this line but it is not going to be if so and so. It is going to have to be directed to specific matters and by permitting you to do so I certainly do not indicate that I approve of what I think is a violation of standards by you in so doing. That would be a matter for our Supreme Court to handle.
Sir I have a duty to make a report on anything of this nature. I would not do anything more than suggest that it be looked into or inquired into but I am not permitted to just lightly sit back and see something violated.
After a brief recess, he said:
I have considered the matter to the extent that while I have serious reservations as to the ethical propriety of a lawyer asserting even in the case of a public defender where he is appointed by the Courts to present what I consider to be a false defense. Nevertheless, if you will direct your questions with specificity to the witness and by that I mean as to any involvement of other persons, I would permit the continuation. I would not make a specific report on it but I would want you to investigate it and I am going to investigate myself to satisfy myself of my feeling on it but as of right now I don't have any hesitancy in arriving at that decision. . . .
Because of these comments, counsel asked that he be recused and also that a mistrial be granted. Both motions were overruled. The jury returned and the trial continued to a guilty verdict.
The confrontation in this case arises because of the zeal of the judge to expedite the work of his court and the zeal of counsel to represent his client as best as he could under difficult circumstances. Counsel always fear charges in post-conviction relief cases that some possible defense was not pursued, and fear charges that representation was inadequate.
If the judge conceived the evidence tendered to be no defense and accordingly irrelevant, he should have excluded the same after permitting counsel, in the absence of the jury, to make an offer of proof for the record. In re Corace, 390 Mich. 419, 213 N.W.2d 124 (1973), concerned a Michigan lawyer who handled many foreclosures. He always prayed for attorney's fees under liquidated damage provisions in mortgages, despite a longstanding line of Michigan authority holding that such liquidated damage provisions were void. The Michigan Grievance Board sanctioned him; the Michigan Supreme Court reversed the Board. In interpreting the Disciplinary Rules under Canon 7, that court said:
(O)ur adversary system "intends, and expects, lawyers to probe the outer limits of the bounds of the law, ever searching for a more efficacious remedy or a more successful defense."
Even if a defense is not recognized at the time of trial, an attorney will not violate the Code by asserting it if his position "(can be supported) by a good faith argument for an extension, modification, or reversal of the law." Disciplinary Rule 7-102(A)(2). To understand the requirement this rule places on attorneys, one must understand the words "good faith." It is made clear by Ethical Consideration 7-4 that an attorney's personal belief that a defense will fail is no evidence of bad faith:
The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.
Bad faith has been...
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State v. Hyman, 21524
...a presumption of prejudice when counsel has been chilled in his efforts to zealously represent his client. However, in State v. Wright, 271 S.C. 534, 248 S.E.2d 490 (1978), in addressing a similar problem, we held that although prejudice is sometime presumed, we will not grant a new trial w......
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State v. Harris, 1959
...absence of any indication that the excluded testimony would have benefited the appellant, the error is harmless. State v. Wright, 271 S.C. 534, 539, 248 S.E.2d 490, 493 (1978). The second issue on appeal concerns the solicitor's request to charge and the jury charge itself. The State's firs......