United States v. Simpson

• Citation: 475 F.2d 934
• Decision Date: 26 January 1973
• Docket Number: No. 24817.,24817.
• Parties: UNITED STATES of America v. Emanuel W. SIMPSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.2d 934 (1973)

UNITED STATES of America v. Emanuel W. SIMPSON, Appellant.

No. 24817.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 1972.

Decided January 26, 1973.

Rehearing Denied March 15, 1973.

Dennis G. Lyons, Washington, D. C., with whom Douglas G. Robinson, Washington, D. C., was on the brief, for appellant.

Broughton M. Earnest, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and John T. Kotelly, Asst. U. S. Attys., were on the brief, for appellee. John G. Gill, Jr., Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

PER CURIAM:

This case, involving appellant's petition under 28 U.S.C. § 2255 to set aside his plea of guilty to an armed robbery charge, has been before this court on two prior occasions.¹ Following the second remand, a hearing was held on petitioner's allegation that his assigned counsel falsely represented to him that the trial judge had given assurance that defendant would be sentenced under the Youth Corrections Act.

We conclude that the preponderance of evidence supports the judgment rejecting petitioner's claim. The record is not entirely free from doubt, particularly in view of the fact that the attorney assigned to represent appellant at trial, had at best an uncertain recollection as to this case and was unable to produce any file of the case in response to subpoena. He grounded his denial of appellant's allegations primarily upon his unequivocal, emphatic and reiterated assertion that he had never been in Judge Gesell's chambers. Yet at the remand hearing, Richard Hopkins, Esq., attorney for appellant's co-defendant, not only recalled in considerable detail a conference that both he and appellant's trial counsel attended in Judge Gesell's chambers, but also highlighted its importance.

At this conference, said Mr. Hopkins, Judge Gesell asked whether the case would go to trial, was informed that defendant was considering a suggestion to plead guilty to one count but had not yet decided on his course, and then told both counsel that if the case were not disposed of by plea in five minutes he would proceed to trial as scheduled.

While we do not credit the recollection of appellant's trial counsel, we think the record requires affirmance in view of the clearcut testimony of Mr. Hopkins that, following the session in Judge Gesell's chambers, he attended the conference that appellant had with his trial counsel, and that at this critical conference in which appellant shortly agreed to plead guilty, there was no representation such as appellant alleged. There is corroboration, to some degree, of Mr. Hopkins' account in the circumstance of the strong evidence of guilt that confronted all concerned—appellant and his co-defendant were apprehended shortly after the crime, in a "hot pursuit" situation, hiding in a nearby house; and both the proceeds of the robbery and the weapon purportedly used in its commission were recovered from the same premises.

Appellate counsel suggests that Mr. Hopkins' testimony should not be given critical weight, since he was an intruder, and represented a different interest— the prosecutor would not accept co-defendant's plea of guilty unless defendant pleaded guilty ; and the co-defendant, being younger than appellant and having had fewer previous brushes with the law, had a better prospect for Youth Corrections Act treatment.

The case is not free from difficulty. We are by no means confident of the reasons for, or propriety of, the prosecutor's approach, as reported. And we are not comfortable with the notion that the critical conference was not held under conditions permitting confidentiality of communication. Yet none of these elements has been put forward to us as having constituted undue pressure on this appellant. We cannot develop a blanket rule prohibiting testimony by a third party who attended a conference between client and attorney. Such attendance is not necessarily improper—if consented to by both client and attorney —and when it exists it precludes application of the rule protecting confidentiality.

This has been a most difficult proceeding, involving as it does the allegation that a member of the bar has fallen short of minimum standards. We are indebted to Dennis Lyons, Esq., for the way he has shouldered the burden we have placed on him with our assignment of what is inevitably an unpleasant task ; he has shown unremitting application and perservance in his conduct of what is an unwelcome, yet necessary, aspect of the functioning of an officer of the court.

One result of the proceedings has been to refocus the attention of all reflective judges on the need for provision of counsel who meet minimum standards of competence and diligence. This case involves an attorney who was, unfortunately, plagued with a drinking problem,² who did not even have an office, who had to be summoned by warrant to attend the 2255 proceedings. If we take pride in our system of justice, as we generally do, that pride must be eroded by records like this one. The case is a warning against complaisant acquiescence in any assumption that the mere assignment of some counsel is enough to meet the constitutional guarantee of effective assistance of counsel.

Affirmed.

BAZELON, Chief Judge, dissenting:

In the narrow view of the majority this case turns on whether Simpson's attorney told him that the trial judge had agreed to impose a Youth Corrections Act sentence in return for the plea. I agree that the record does not show that such a representation was made.

But two successive hearings ordered by this court have opened up new vistas on what else Simpson's Trial Counsel¹ did not do. Based on this showing I would vacate Simpson's plea on the ground that his attorney displayed "such an extraordinary inattention to a client's interests as to amount to ineffective assistance of counsel cognizable under Section 2255." Dillane v. United States, 121 U.S.App.D.C. 354, 355, 350 F.2d 732, 733 (1965) ; see Bruce v. United States, 126 U.S.App.D.C. 336, 344, 379 F.2d 113, 121 (1967). Moreover, I think that this case raises questions about the ability of the judiciary to ensure that any guilty plea comports with the requirements of the Constitution. Those questions can only be resolved if we specify that trial judges must precede acceptance of any guilty plea with an inquiry into counsel's preparation of the case.

Because the majority's statement of the sordid facts of this case focuses only on the events of the day of trial, a further exposition of the record is necessary. Trial Counsel was appointed to represent Simpson on October 11, 1968. Prior to the morning the case was first scheduled for trial, March 10, 1969, he communicated with Simpson once. That lone meeting occurred when Trial Counsel appeared to argue a motion for pretrial release that Simpson himself had filed in December, after Trial Counsel failed to respond to Simpson's request to act. Before appearing to argue that motion, Trial Counsel had failed to appear at arraignment and had failed to appear at the first hearing set for consideration of Simpson's motion for release. In fact, Simpson had resorted to the device of writing Trial Counsel to remind him of the rescheduled hearing. Simpson's motion was, not too surprisingly, denied.

When the case came up for trial on March 10, Trial Counsel had not prepared. He had filed no motions. He had, according to his own testimony on our first remand, interviewed no victims or potential witnesses—except that he "may have" talked to the arresting officer. Like the majority, I do not credit this selfserving speculation. Finally, he testified that he had not worked with counsel for Simpson's codefendant, nor did he know what that attorney had done to prepare. Indeed, Mr. Hopkins, the attorney who represented Simpson's codefendant—and who had prepared— testified that he informed Trial Counsel that the Government had a strong case while the two of them were on a 30 minute call before the scheduled trial.

The case was not tried March 10, but was put over for two successive days. During that period Trial Counsel interviewed Simpson twice in the presence of Mr. Hopkins, and may have talked with him a third time without Mr. Hopkins. Concerning the situation on March 12, Trial Counsel testified as follows on our first remand:

Q. Mr. Trial Counsel, would you have been prepared for trial if the Defendant had not, after the final conversation that immediately preceded entry of the plea, agreed to plead guilty?

A. I don\'t know whether I would have proceeded to trial under the facts known to me. It would have called for an exercise of my professional judgment, and I believe that I would have perhaps sought to be relieved of my appointment.²

These, then, are the facts of this case other than those recounted by the majority concerning the questionable "joint plea" demanded by the prosecutor, Trial Counsel's general qualifications as an attorney (including his disability due to alcoholism, his failure to respond to court process, and his failure to preserve documents), and the "interviews" at which Mr. Hopkins—who had been placed in an adverse position by the prosecutor's demand for a joint plea— was present.³

A plea of guilty constitutes a waiver of the bulk of the accused's constitutional rights.⁴ Before such a waiver can be accepted, the trial judge must determine that the plea is both voluntary and knowing.⁵ And, in deciding whether to plead, the accused has a constitutional right to the assistance of counsel.⁶ A brief examination of the procedures that currently surround the acceptance of guilty pleas will demonstrate that the effective assistance of counsel is not merely a prophylactic measure, but is a necessity if a plea is to be knowing and voluntary.

Rule 11 of the Federal Rules of...