Suggs v. United States

• Decision Date: 04 January 1968
• Docket Number: No. 20463.,20463.
• Citation: 391 F.2d 971
• Parties: Zedekiah SUGGS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

391 F.2d 971 (1968)

Zedekiah SUGGS, Appellant, v. UNITED STATES of America, Appellee.

No. 20463.

United States Court of Appeals District of Columbia Circuit.

January 4, 1968.

Messrs. Robert E. May and Kirk W. Weinert, Washington, D. C., were on the motion.

Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., and John G. Gill, Sp. Asst. U. S. Atty., entered appearances for appellee.

Before EDGERTON, Senior Circuit Judge, and DANAHER and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

In this opinion we hold that Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) precludes our affirmance in the present posture of this case. The brief filed by counsel appointed by this court to represent appellant was in fact a brief against appellant, and was given to the Government. We also consider the motion to withdraw, subsequently filed by counsel on the ground that they find no non-frivolous question, and conclude that in the circumstances of this case, and in view of the combination of Anders and the instructions to counsel approved by the Judicial Council, the motion to withdraw should be granted and substitute counsel should be appointed.

I

The appeal is from convictions of robbery and assault with a dangerous weapon. The statement of counsel appointed by this court, concurred in by the Government, sets forth that appellant was convicted of taking the property of the driver of a taxi in which appellant was a passenger, to wit his handkerchief, along with the false teeth that the driver happened to keep there. He was also convicted of assaulting the taxi driver and another person with a knife. His defense consisted of testimony that he was in an advanced state of intoxication at the time of the offense, 1:00 p. m. on October 30, 1965, and lacked criminal intent requisite for robbery.

The brief for appellant begins as follows:

STATEMENT OF QUESTIONS PRESENTED

Court-appointed counsel have carefully reviewed the record in this proceeding, held conferences with Appellant, researched applicable law, made independent investigations concerning certain allegations by the Appellant and conferred with Appellant\'s court-appointed counsel at trial. Counsel have concluded that there is no non-frivolous question which counsel could present to this Court. However, the distinct possibility exists that a critical issue or issues may have been overlooked. Therefore, in an effort to comply with Johnson v. United States, 124 U.S.App.D.C. 29, 360 F.2d 844 (1966), and the concurring opinion of Judge Burger therein, and McCoy v. United States, 125 U.S.App.D.C. 202, 370 F. 2d 224 (1966), counsel submit this brief for Appellant, feeling that this procedure will bring the applicable facts and law of this case to the attention of the Court.

Counsel have no questions to raise on behalf of Appellant. Appellant, however, has specified the following questions:

1. "Was counsel ineffective in failing to subpoena defendant\'s witness?"

There are eight questions, each set forth in quotation marks, copied from the specification of errors which appellant filed pro se to accompany his application for leave to appeal in forma pauperis.

In the Statement the brief summarizes, with transcript references, the evidence presented by the prosecution and defense.

In the Argument the brief has eight sections, each captioned with a quotation of the appellant's pro se specification of errors, and containing an opening paragraph setting forth what "Appellant" believes or contends. There then follows a discussion of the transcript and law, a discussion whose manifest thrust is to show there is no substance in the contention.

The Statement to be Handed by the Clerk to Appointed Counsel (hereafter Statement for Counsel), as revised in January 1967 on instruction of the Judicial Council, begins by making it clear that appointed counsel "should understand that he is not an amicus curiae." Parenthetically, we have stressed that point in our opinions, e. g., Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245 (1966). We advise counsel not to conclude that there is no legally non-frivolous question until he makes a careful exploration of both facts and law.

In Anders Justice Clark, following a sentence that emphasizes that appointed counsel should be an active advocate rather than amicus curiae, appends this comment on District of Columbia practice, 386 U.S. 738, 744 n. 3, 87 S.Ct. 1396, 1400:

For comparative purposes see Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245, and Johnson v. United States, 124 U.S.App.D.C. 29, 360 F.2d 844, which outline the practice followed in the District of Columbia. These guidelines are elaborated in more detail in a "Statement to be Handed by the Clerk to Appointed Counsel" which has been prepared by the Court of Appeals for the District of Columbia. We indicate no approval of the requirements set out in the statement or in the cases.

To a sensitive reader it is plain that the Supreme Court was disturbed by some aspect of our procedure, though the precise aspect was not specifically identified. It may be that the Court was troubled by the following passage contained at that time in our Statement for Counsel:

As a general rule, the court will be greatly aided if appointed counsel remains in a case, even though he may be subjectively unimpressed with the merits of the available points. In appropriate cases he may fulfill his function by stating the facts, contentions and relevant authorities, and appearing at oral argument solely to answer questions if the Court has any. See McCoy v. U. S., 125 U.S.App.D.C. 202, 370 F.2d 224, October 27, 1966; Johnson v. U.S., 124 U.S.App.D.C. 29, 360 F.2d 844, September 15, 1966.

In all likelihood it was this expression in our January 1967 form of statement that guided counsel in this case in preparation of their brief. This court must take a full measure of responsibility for the fact that this kind of brief was filed, although we note that the brief in McCoy that was approved by the court see McCoy v. United States, 125 U.S.App.D.C. 202, 370 F.2d 224 (1966), was one which argued for the overruling of decisions barring McCoy's reversal.¹ On further reflection we conclude that the passage quoted from Statement for Counsel, inserted in an effort to maximize the assistance of counsel, did veer toward the shoals of an amicus curiae position. In any event, with the instruction provided by Anders it is manifest that a brief like that filed by counsel in this case is not constitutionally adequate, even though the court purports to review the record independently. Counsel may not "brief his case against his client."

II

We turn to the motion of appellant's counsel for leave to withdraw.

Anders makes clear that permission to withdraw may be requested by appointed counsel who "finds his case to be wholly frivolous, after a conscientious examination." The Court continued: "That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Justice Clark adds: "This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel." 386 U.S. at 744-745, 87 S.Ct. at 1400.

If we were free to pursue the motion to withdraw, we would have to set time for appellant himself to make his points.²

Unfortunately the brief filed by appellant's counsel — which may well be attributable to our Statement for Counsel, as already noted — does not meet the requirements in Anders. It cannot fairly be described other than as a "brief against the client." It is not surprising that appellee's brief stated that "counsel for the Government have concluded that they do not take issue with any of the arguments in appellant's brief."

Our Statement for Counsel did provide that an attorney who concluded that there was no non-frivolous issue could move to withdraw, assuming he filed "a supporting memorandum analyzing the case legally, citing record references to the transcript if one is available and also citing any case or cases upon which counsel relied in arriving at his ultimate conclusion." We thus provided for an amicus memorandum, but expressly instructed counsel that this should be available only to the court.³

Here, however, the brief of appointed counsel was transmitted to the Government, and indeed adopted by the Government. We cannot gloss this over as a mere technicality. The efforts of the courts in this field are to preserve an adversary system representing indigents.

It is of importance in the interest of justice that the final judgment against an indigent should not be compromised by the possibility that a different result would have ensued if only he had the resources to retain his own lawyer, instead of being required to accept counsel selected by the court. Much depends on a system that avoids suspicion of such compromise, for reasons that include awareness that where there is a basis for such suspicion prospects of rehabilitation are stifled. Justice must not only be done, it must appear to be done. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). Appointed counsel is of course not required to accept a client's views by asserting points his good conscience would reject even at the loss of a handsome fee. At the same time counsel cannot file a brief against his client. It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to feel sandbagged when the counsel appointed by one arm of the Government seems to be helping another to seal his doom. The courts of...