United States v. Rundle

• Decision Date: 07 May 1968
• Docket Number: No. 16809.,16809.
• Citation: 394 F.2d 748
• Parties: UNITED STATES of America ex rel. Charles MATHIS, Appellant, v. Alfred T. RUNDLE, Superintendent State Correctional Institution, Philadelphia, Pennsylvania, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

394 F.2d 748 (1968)

UNITED STATES of America ex rel. Charles MATHIS, Appellant, v. Alfred T. RUNDLE, Superintendent State Correctional Institution, Philadelphia, Pennsylvania, Appellee.

No. 16809.

United States Court of Appeals Third Circuit.

Submitted on Briefs January 15, 1968.

Decided May 7, 1968.

Michael O'S. Floyd, Drinker, Biddle & Reath, Philadelphia, Pa., for appellant.

Welsh S. White, Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa. (Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before HASTIE, Chief Judge, GANEY, Circuit Judge, and WEINER, District Judge.

OPINION OF THE COURT

WEINER, District Judge.

The substance of this appeal concerns the too characteristic predicament of an indigent criminal defendant who is represented at trial by counsel hastily appointed by the court very shortly before trial itself. In the instant case, counsel for appellant was a voluntary defender, appointed on the eve of trial, who had not had a chance to interview his client but had only been able to consult the notes of a colleague who had previously been able to do so, as well as to spend about half an hour with witnesses in the courtroom just prior to the time of trial.

Appellant herein got into a brawl in a semi-private club on November 7, 1963. During this fray he stabbed another, who subsequently became the complaining witness in appellant's trial in the Court of Common Pleas on July 9 & 10, 1964. Appellant was there convicted of aggravated assault and battery, and of carrying a concealed deadly weapon. He pursued his post-conviction remedies through the state courts, and then sought a writ of habeas corpus in the federal district court below, all without success.

The chief question here before us is whether appellant was deprived of the effective assistance of counsel to which the sixth amendment to the constitution of the United States entitles him. More specifically, the question we are called upon to decide is whether appellant is correct in his contention that "ineffectiveness of counsel derived from the fact that he wasn't appointed soon enough to prepare his case."¹

The current legal standards under federal common law by which adequacy of time in which court-appointed counsel must prepare their cases is measured against the sixth amendment imperative of assistance of counsel are generally ad hoc and often lax. As Judge Higginbotham correctly pointed out in United States ex rel. Kelley v. Rundle, 242 F. Supp. 708, 709-710 (E.D.Pa.1965), the substantive content of this right to effective counsel began to take shape with Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where as conservative a jurist as Mr. Justice Sutherland said, generally, that, where it was the duty of a state court to appoint counsel (a duty at that time encompassing a much lesser scope of proceedings than at present), then

that duty is not discharged by an assignment at such a time or under such circumstances to preclude the giving of effective aid in the preparation and trial of the case.

Id. at 71, 53 S.Ct. at 65.

Since that starting point, the federal courts of appeals have adopted generally a functional test, by the standards of which counsel appointed to defend an indigent criminal only shortly before trial would still be found to have afforded defendant adequate assistance if the latter could not have been shown to have suffered substantive harm by counsel's late appointment. In general, this rule has been

that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.

Bell v. State of Alabama, 367 F.2d 243, 247 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967) (emphasis removed), citing Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965). The rhetoric is similar to that employed when speaking of the standard by which excessive verdicts are to be reviewed. Alternatively, this rule has been explained as signifying that

absence of effective representation must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it.

In re Ernst's Petition, 294 F.2d 556 (3d Cir. 1961) (Hastie, J.).

As evinced by both these examples, the criteria for measuring adequate representation have in the past often been articulated on a highly abstract plane, in conclusory language; and the rulings have been made on a case-by-case basis. If one thing has emerged as sure, it is only that "the time of appointment of counsel, in itself, does not establish ineffective assistance," United States ex rel. Spears v. Rundle, 268 F.Supp. 691, 700 (E.D.Pa.1967); accord, United States v. Ray, 351 F.2d 554, 555 (4th Cir. 1965). Indeed, it has even been held, the fact that counsel was not appointed until the day of trial itself does not on its face deny defendant the effective assistance of counsel, e. g., Mathis v. State of North Carolina, 266 F.Supp. 841 (M.D.N.C.1967).

A few cases have granted a new trial on appeal where it has appeared to the reviewing court, for reasons not always clearly set out, that the time for consultation between counsel and defendant, on the facts of a given particular case, was insufficient, e. g., United States v. Helwig, 159 F.2d 616, 618 (3d Cir. 1947) (one minute); Townsend v. Bomar, 351 F.2d 499, 500-502 (6th Cir. 1965) (15-20 minutes or 1-2 hours).

More characteristically, the courts in the past have granted a new trial where they have found present both too little time for preparation, consultation, or investigation by counsel and evident injury to defendant in the record, e. g., Johnson v. United States, 328 F.2d 605, 606 (trial counsel himself asserted that procedures in appointing him did not insure fair trial because they did not afford defendant experienced counsel with "time or inclination to properly sic investigate and prepare for said trial") (emphasis in original); Roberts v. Dutton, 368 F.2d 465, 474-475 (5th Cir. 1966) (one of two lawyers spoke with defendant for 40 minutes; "the trial itself evidences a total lack of preparation on the part of counsel").

Of late, however, there has been developing a more liberal and understanding rule as to the time required for consultation and investigation between the appointment of counsel by the court and the trial itself, as evidence by successive holdings in the Fourth Circuit. There the attitude seems to have been adopted from Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), where Mr. Justice Murphy warned:

The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.

At the outset, the Fourth Circuit required, as some other courts still do, that defendant bear the burden of affirmatively proving injury from hasty appointment of counsel. Reasoning that sufficiency of consultation and preparation depends upon the nature and difficulty of the matter involved, the court held that even six hours between appointment and trial might not evidence inadequate assistance of counsel such as to deprive defendant of his constitutional right, Baldwin v. United States, 260 F.2d 117, 118 (4th Cir. 1958), cert. denied, 360 U.S. 938, 79 S.Ct. 1463, 3 L.Ed.2d 1550 (1959); accord, United States v. Ray, supra.

Beginning in 1962, however, the Fourth Circuit moved toward the evolution of the new, more liberal rule which the crowded status of state criminal dockets and widespread practice of last-minute appointment of counsel rendered mandatory. In a display of consternation over the problem of late appointment and the attendant hazard of overhasty preparation, the court emphasized the constitutional necessity of providing indigent criminal defendants with substantial legal assistance:

Pro forma entry of an appearance without study or preparation for useful participation in the trial is not a satisfaction of the constitutional rights of the accused.

The petition may turn out to be an abuse — a complete fabrication born of a prisoner\'s desire to shift the blame for his predicament from his own shoulders upon those of a conscientious lawyer who did his full professional duty at a personal sacrifice. But this may not be surmised; there should be a hearing to determine the truth.

Turner v. State of Maryland, 303 F.2d 507, 511 (4th Cir. 1962). After ordering a hearing on this issue, the Fourth Circuit in a subsequent phase of the case developed further its rule reversing the prior assumption as to the burden of proof on the question of adequacy of a tardy appointment:

Normally, in the absence of clear proof that no prejudice resulted, we should be obliged to treat the lawyer\'s representation as falling short of the standards of due process as guaranteed by the Fourteenth Amendment where, as here, counsel failed to consult with his client until less than half an hour before trial.

Turner v. State of Maryland, 318 F.2d 852, 854 (4th Cir. 1963). In a further development, the requirement that appellant affirmatively show prejudice was omitted. As the court said, after reciting elements possibly mishandled by appointed counsel at trial:

Whether any attorney would actually have advised petitioner differently because of these factors, or others not disclosed in the record, is not the question. The question is not one that can now be answered with any degree of certainty, nor need it be answered. The point is that because of the haste that marked the entire process this lawyer was simply in

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