United States v. Watson

• Decision Date: 20 August 1973
• Docket Number: No. 72-1452.,72-1452.
• Citation: 496 F.2d 1125
• Parties: UNITED STATES of America, Appellee, v. James A. WATSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

496 F.2d 1125 (1973)

UNITED STATES of America, Appellee, v. James A. WATSON, Appellant.

No. 72-1452.

United States Court of Appeals, Fourth Circuit.

Argued February 5, 1973.

Decided August 20, 1973.

Stefan C. Long, Alexandria, Va. (Court-appointed) for appellant.

Joseph A. Fisher, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and MURRAY, District Judge.

WINTER, Circuit Judge:

Defendant was convicted of first degree murder and sentenced to life imprisonment. 18 U.S.C.A. § 1111 (1969). He appeals because he requested, but was denied, the assignment of two attorneys to represent him. 18 U.S.C.A. § 3005 (1969). For this omission, we are obliged to reverse and grant a new trial.

I.

The command of 18 U.S.C.A. § 3005 (1969) is unequivocal. It states:

Whoever is indicted for . . . capital crime shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried . . . shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire. . . .¹

The indictment charging defendant was returned January 11, 1972. Shortly thereafter, a single attorney was appointed to represent him and he was arraigned and pleaded not guilty on January 17, 1972. The trial was set for March 27, 1972.

On February 4, 1972, defendant's court-appointed counsel moved for the appointment of co-counsel. He failed to refer to 18 U.S.C.A. § 3005, but assigned as a reason in support of the motion the need for assistance to interview a large number of witnesses before the rapidly approaching trial date.² The motion was denied, although then, and again later, when counsel sought a continuance to complete trial preparations, the district court ordered the government to furnish information and to make available witnesses to lessen defense counsel's burdens of preparation. The trial was held March 27, 1972, and, upon the verdict of guilty of first degree murder without capital punishment, the district court sentenced defendant to life imprisonment.

II.

The statute under which defendant was convicted, 18 U.S.C.A. § 1111 (1969), provides that whoever is found guilty "shall suffer death unless the jury qualifies its verdict by adding thereto `without capital punishment', in which event he shall be sentenced to imprisonment for life. . . ." As its first argument for affirmance of defendant's conviction despite the district court's failure to comply with § 3005, the government contends that as a result of the Supreme Court's ruling in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), defendant was not accused of a "capital crime" within the meaning of 18 U.S.C.A. § 3005 (1969). Furman held that, with respect to two Georgia cases and one Texas case, "the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." 408 U.S. at 239-240. Since the penalty provision of § 1111 is indistinguishable from those challenged in Furman, it is clear that, had the death penalty been imposed on defendant, such a sentence would have been void.³ From this circumstance the government concludes that defendant was not charged with a "capital crime" at the time his attorney requested additional counsel thereby rendering § 3005 inapplicable to such a request. Aside from the question of whether Furman is retroactive in the context that the government asserts,⁴ we are not persuaded.

In addition to 18 U.S.C.A. § 3005, a considerable number of statutes of the United States and the Federal Rules of Criminal Procedure, as well as many of their state counterparts, are predicated in their operative effect upon the concept of capital crime. Who may admit to bail, 18 U.S.C.A. § 3141 (1969), who may be admitted to bail, 18 U.S.C.A. §§ 3146, 3148 (1969 Ed. and 1973 Cum. Supp.), limitations on prosecution, 18 U.S.C.A. § 3281 (1969), the defendant's scope of discovery in criminal cases, 18 U.S.C.A. § 3432 (1969), his right to peremptory challenges of prospective jurors, Rule 24(b), F.R.Cr.P., and a convicted defendant's right to probation or suspension of sentence, 18 U.S.C.A. § 3651 (1969), all depend upon whether a defendant is charged with a capital offense, a crime punishable by death.

In the case law since Furman, no finely developed reasoning has emerged as to whether Furman has effected a wholesale repeal of these provisions and their state counterparts. The case most nearly in point is State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), which held that Furman does not destroy the concept of a "capital offense." It held that, despite the abolition of the death penalty, the state must continue to apply its statutory and constitutional laws requiring unanimous juries and jury sequestration to crimes formerly punishable by death. The court reasoned that Furman cannot be assumed to have affected statutes other than those dealing with imposition of the death penalty, and concluded that it should leave the task of harmonizing ancillary statutes to the state legislature.

The cases on the application of Furman to state constitutional and statutory provisions forbidding bail in certain capital cases are split. Those holding that despite Furman, bail is not available, reason that the classification is based not on the potential punishment but on the gravity of the offense. People v. Anderson, 6 Cal.3d 628, 657 n. 45, 100 Cal.Rptr. 152, 171-172 n. 45, 493 P. 2d 880, 889-890 n. 45 (1972); People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.Sup.Ct.1972) (Per Curiam); State v. Flood, 263 La. 700, 269 So.2d 212 (1972). Those cases holding that after Furman bail must be available, reject the logic that the nature of the crime remains the same and that exposure to a life sentence justifies denying bail. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); See Commonwealth v. Hollowell, 11 Cr.L. 2070 (Phila.Ct. of Common Pleas, March 14, 1972) (bail available pending retrial where sentence on now reversed conviction was life, not death). It should be noted, however, that the bail cases differ from provision for a second attorney, because the bail classification relates primarily to the nature of the offense as it affects society, and not to the nature of the risks or complexities facing the defendant at trial.

We start from the premise that Furman did no more than hold that imposition of the death penalty under statutes, which created a range of possible sanctions, including execution, was unconstitutional in an historical context of extremely rare and apparently arbitrary resort to that penalty. From the plurality of opinions which were filed in Furman, we cannot be certain that Furman forecloses all statutory schemes for imposition of capital punishment. It appears, however, that Furman neither repealed statutes, such as § 1111, which contain death penalty provisions that probably cannot be constitutionally applied, nor did it repeal statutes such as § 3005 which depend for their operation on the defendant being charged with a "capital crime." In a very literal sense, the offense defined in § 1111 is still a "capital crime;" the statute still authorizes the imposition of the death penalty and Congress has not repealed it. Nor has Congress amended any of the statutes creating special procedural rules in capital cases in response to the Furman decision. We are urged by the government to fill in a gap created by Congressional inaction on the basis of our belief that the death penalty may no longer be constitutionally imposed on defendant. Courts are very naturally hesitant about drawing solely upon their own authority to repeal pro tanto Congressional enactments. However, exceptional circumstances would justify a court in removing from the literal scope of a statute a case to which the application of such statute could not conceivably serve any of the purposes that motivated Congress to enact it. See Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). Were we convinced that defendant's exposure to the risk of imposition of the death penalty was the sole reason for the two-attorney requirement in § 3005, we would be inclined to agree with the government. However, we believe that there is a significant chance that other considerations also underlay the two-attorney requirement.

The legislative history of the Act of April 30, 1790, and its successive amendments to the present 18 U.S.C.A. § 3005, is relatively unrevealing. Of course, when it was enacted, treason, willful murder, piracy and forgery or counterfeiting of a public security of the United States were all punishable by death alone. It can, of course, be inferred, from the fact that the only punishment was death, that the inevitability of death as punishment in the event of conviction was the sole reason why Congress directed that one accused of a capital offense should be entitled to two lawyers if he requested them. On the other hand, the class of cases in which Congress retained the death penalty has diminished over the years. Presently, only such serious crimes as treason, 18 U.S.C.A. § 2381 (1969), first degree murder, certain types of kidnapping, 18 U.S.C.A. §§ 1201, 1751 (1969 Ed.1973 Cum.Supp.), certain types of bank robbery, 18 U.S.C.A. § 2113(e) (1969), and homicide resulting from certain postal infractions, 18 U.S.C.A. § 1716 (1969), purportedly carry a possible death penalty, although for none has Congress provided that death is the sole penalty. Not every capital crime is a complex one and not every capital crime arises from a complex set of facts which would require extensive investigation and trial preparation by defense counsel. Yet it seems to us that it is more likely than not that an...