Opinion · Court of Appeals for the D.C. Circuit
United States v. Willie Decoster, Jr., (Decoster Iii)
624 F.2d 196
- Type
- Opinion
- Court
- Court of Appeals for the D.C. Circuit
- Jurisdiction
- Federal
- Date
- 1979-07-10
- Topic
- general
“During an ongoing trial, real-world trial counsel make crucial decisions based on the reaction of the jury to testimony, evidence, argument, and other courtroom proceedings.” | “an attorney has a duty to his client to be a diligent and conscientious advocate and to provide reasonably competent assistance” | "an attorney has a duty to his client to be a diligent and conscientious advocate and to provide reasonably competent assistance" | "Realistically, a defense attorney develops his case in large part from information supplied by his client." | "(t)he constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant's diligent, conscientious advocate" | “[t]he constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant’s diligent, conscientious advocate” | "[W]here the defendant had no counsel at all at a critical stage of his trial, automatic reversal of his conviction is usually in order." | S.C. 598 F.2d 311, cert, denied, 444 U.S. 944 [1979] | “direct appeal gives more latitude to the court” | "direct appeal gives more latitude to the court" | claims of failure to investigate were “abstractions without context” | concurring opinion by ROBINSON, J. | commenting on Judge Bazelon's dissent | commenting on Judge Bazelon’s dissent
Citator
- Cited by
- 129 opinions
UNITED STATES v. DECOSTER,624 F.2d 196(D.C. Cir. 1976)
UNITED STATES OF AMERICA v. WILLIE DECOSTER, JR., (DECOSTER III), APPELLANT.
No. 72-1283.
United States Court of Appeals, District of Columbia Circuit.
October 19, 1976.
As Amended October 21, November 16 and 24, 1976.
Argued En Banc May 26, 1977.
Judgment Filed May 14, 1979.fn*
Opinions Filed July 10, 1979.
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 199
Earl J. Silbert, U.S. Atty., Washington, D.C., at the time of oral argument, with whom Carl S. Rauh, Principal Asst. U.S. Atty., Henry F. Greene, Executive Asst. U.S. Atty., and John A. Terry and Larry C. Willey, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.
John Townsend Rich and Mark W. Foster, Washington, D.C., were on the brief for amicus curiae Division V of the District of Columbia Bar.
Leon E. Irish, Washington, D.C., was on the brief for amicus curiae Division IV of the District of Columbia Bar.
Robert J. Paul, Washington, D.C., was on the brief for amicus curiae National Legal Aid and Defender Association.
Appeal from the United States District Court for the District of Columbia.
Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
Opinion in which McGOWAN, TAMM, and WILKEY, Circuit Judges, join filed by LEVENTHAL, Circuit Judge.
Opinion in which TAMM and ROBB, Circuit Judges, join filed by MacKINNON, Circuit Judge.
Opinion concurring in the result filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Dissenting opinion in which J. SKELLY WRIGHT, Chief Judge, joins filed by BAZELON, Circuit Judge.
Statement in which BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges, join filed by J. SKELLY WRIGHT, Chief Judge.
Opinion in which McGOWAN, TAMM, and WILKEY, Circuit Judges, join filed by LEVENTHAL, Circuit Judge.
Opinion in which TAMM and ROBB, Circuit Judges, join filed by MacKINNON, Circuit Judge.
Opinion concurring in the result filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Dissenting opinion in which J. SKELLY WRIGHT, Chief Judge, joins filed by BAZELON, Circuit Judge.
Statement in which BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges, join filed by J. SKELLY WRIGHT, Chief Judge.
[2] A.Proof at Trial
[3] At trial, Roger Crump, a soldier, testified that he was accosted by three men at about 6 p. m. on May 29, 1970, on the sidewalk at 8th and K Streets, N.W., near the parking lot of the Golden Gate Bar. He was yoked from behind by one man, threatened with a razor by another, while a third rifled his pockets and took his wallet which contained over $100 in cash.[4] Two plainclothes policemen cruising in an unmarked car saw the robbery in progress, alighted and gave chase. One officer followed the man later identified as Fred Eley. Officer Box testified that he followed appellant Decoster — whom he identified as the robber who went through Crump's pockets — from the scene to and into thePage 200D.C. Annex Hotel, found him at the lobby desk and arrested him. He testified that the chase lasted two to three minutes, that he did not lose sight of appellant and that Crump, who had been following along, immediately identified Decoster as one of the robbers. Crump was unable to identify Decoster at trial, because in the meanwhile his sight had been impaired in an accident, but he testified that he had been positive of his identification when he made it in the hotel. A search of appellant's pockets did not turn up any money, and the wallet was never recovered.
[5] Appellant testified he had met and had a few drinks with Crump at the Golden Gate Club bar, but had left Crump in the bar, walked back to the hotel about a block away, and was getting his key from the desk clerk when he was arrested.
[6] The defense called Eley. He (as well as the other codefendant, Taylor) had already pleaded guilty at a time when Decoster, having jumped bail, was a fugitive from justice. Eley corroborated that Decoster had met Crump in the bar (a point on which Crump was unsure). However, he also testified that he had seen appellant fighting with Crump in the parking lot across from the bar — and as to this contradicted appellant.
[7] Decoster's conviction for aiding and abetting an armed robbery, which resulted in a 2-8 year sentence, is on appeal to this court.
[8] B.Subsequent Proceedings
[9] When the appeal was first before this court, the panel, while rejecting the contentions presented by appellate counsel, remanded for a hearing on the issue of ineffective assistance of counsel, an issue that it raisedsua sponteand directed be presented to the district court on motion for a new trial.1The panel ruled that a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Giving content to this standard, the panel adopted duties owed by counsel to his client derived in large part from the guidelines for the defense function promulgated by the American Bar Association Project on Standards for Criminal Justice.2The panel then held that once the appellant had shown a substantial violation of a duty owed to him by counsel, the burden was on the government to demonstrate lack of prejudice.[10] Pursuant to the remand, the motion for new trial was filed November 1, 1973. In February, 1974, District Judge Joseph Waddy held three days of supplementary hearings on the adequacy of trial counsel. On April 23, 1975, with findings of fact and conclusions of law, he entered an order denying the motion for a new trial.
[11] On October 19, 1976, the panel of this court, one member dissenting, reversed the judgment of conviction, holding that appellant had been denied the effective assistance of counsel. Essentially, the panel opinion (referred to asDecoster II) concluded that trial counsel had violated his duty to conduct a factual investigation. On March 17, 1977, the court granted the government's motion for rehearing en banc, vacated the panel opinion, and provided for supplemental briefs and oral argument.
[12] C.Guiding Principles
[13] TheSixthAmendment guarantees that "in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense." In giving content to this provision, the courts have recognized the need for differing approaches depending on the nature of the particular claim of denial of assistance in each case. These differences stem from the courts' perceptions of the exactness with which a denial can be identified and remedied, as well as their views of the need for a showing of prejudice.Page 201[14] The cases present a continuum. At one end are cases of structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee. The most obvious example is, of course, the failure of the state to provide any counsel whatever. The Supreme Court long ago held that theSixthAmendment requires that the federal courts provide counsel for indigent defendants charged with felonies under federal law.3As to the states, the Court first defined the right to counsel as an aspect of a fair trial,4with the eventual result that the right was restricted to less than that provided in the federal courts.5Gideon6made theSixthAmendment applicable to the states by incorporation into theFourteenthAmendment. Today theSixthAmendment requires that counsel be provided not only in all felony prosecutions,7but also in all prosecutions for misdemeanors that result in imprisonment.8
[15] The right to have counsel provided is so fundamental that, like the admission in evidence of a coerced confession,9or trial before an interested judge,10the violation of the constitutional right mandates reversal "even if no particular prejudice is shown and even if the defendant was clearly guilty."11In this area, the doctrine applied is more stringent than that applicable to most denials of constitutional rights — permitting affirmance when the government shows beyond a reasonable doubt that the violation did not affect the conviction.12
[16] "Effective" assistance of counsel13is denied by a statute that, while permitting a defendant to make an unsworn statement, bars the defendant from having his testimony elicited by counsel through direct examination;14by a statute that restricts counsel in deciding when to put the defendant on the stand;15by a statute that gives the judge in a non-jury trial the power to deny defense counsel closing summation;16and by a trial court order directing a defendant not to consult with his attorney during an overnight recess that falls between direct and cross examination.17These state-created procedures impair the accused's enjoyment of theSixthAmendment guarantee by disabling his counsel from fully assisting and representing him. Because these impediments constitute direct state interference with the exercise of a fundamental right, and because they are susceptible to easy correction by prophylactic rules, a categorical approach is appropriate.Page 202
[17] A less clearcut rule emerges from the cases on multiple representation. The principle is stated categorically — to require an attorney to represent co-defendants whose interests may conflict denies the right to effective assistance of counsel.18No showing of prejudice is necessary. However, because there is no absolute requirement that every defendant have his own attorney,19the application of the rule requires some factual analysis to determine whether divergent interests that justify separate counsel may in fact exist. The factual analysis will not be exhaustive. As the Supreme Court has recently indicated, the courts must rely, by and large, on the representations of defense counsel that potential conflicts exist, since a thorough scrutiny might require the attorney to reveal the confidences of his client.20
[18] The problem of late appointment moves us farther along the continuum. The Supreme Court has long recognized that sufficient time to prepare a defense is a vital element of effective assistance.21Late appointment of counsel resembles the state-created restrictions on counsel's ability to assist and represent his client. Yet in its 1970Chambersopinion,22the Supreme Court indicated categorical rules were not appropriate in this area. Although the Court's treatment was cursory, it made clear that determining whether counsel was ineffective due to late appointment turned on the facts of the case. The Court emphasized, "we are not disposed to fashion aper serule requiring reversal of every conviction following tardy appointment of counsel."23
[19] At the other end of the continuum are cases, including the present one, in which the issue is counsel's performance when he is "untrammelled and unimpaired"24by state action. The Supreme Court has never addressed this issue frontally, though it has indicated — albeit in abbreviated fashion — that it does not contemplate simplistic or categorical approaches.
[20] The Court has twice held that reliance on the erroneous advice of counsel does not negate an intelligent and voluntary guilty plea, so long as the advice fell "`within the range of competence demanded of attorneys in criminal cases.'"25The Court recognized the "inherent uncertainty in guilty-plea advice" and rejected any requirement of aper serule invalidating guilty pleas. It emphasized that to undo a guilty plea, the defendant must show "serious derelictions on the part of counsel."26In the 1976Agurscase,27the Court ruled that defense counsel's failure to request the criminal record of a murder victim did not demonstratePage 203ineffective assistance.28The Court's opinion is without explication but is significant, since what was apparently involved was a failure of defense counsel to pursue potential sources of aid to the defense available without inordinate effort — and yet the Court abruptly negatived the possibility of a constitutional claim.
[21] While the reasons for a non-categorical approach were not developed inAgurs,they are not difficult to discern. The defense attorney's function consists, in large part, of the application of professional judgment to an infinite variety of decisions in the development and prosecution of the case. A determination whether any given action or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel's judgment. In this fact-laden atmosphere, categorical rules are not appropriate.
[22] Over and above — or should one say below — the Supreme Court opinions, there has emerged a considerable body of circuit and state court law on the issue of ineffective assistance. Several reflective judges have recognized that differing approaches are pertinent where different aspects of the assistance of counsel are involved. Judge Bright, writing for the Eighth Circuit, has noted that while the total absence of counsel cannot but be harmful, when a defendant is represented by counsel and the performance of counsel has fallen below the accepted standard, "the seriousness of this constitutional violation must be judged in terms of the particular factual circumstances of that case."29
[23] Recently, Judge Browning, writing for the Ninth Circuit en banc inCooper v. Fitzharris,30pointed out that the rulings that a defendant need not show prejudice involved an absolute denial of counsel or a structural impediment to counsel's effective performance. In a case involving the quality of performance, as reflected in acts or omissions at trial, the accused must prove not mere errors but "serious derelictions"31and that counsel's errors prejudiced the defense. Judge Hufstedler's dissent put it that a defendant with a "totally inept counsel" would not also have to show "precisely" how he was affected,32but this opinion acknowledged that courts consider "prejudicial impact of attorney behavior" in determining whether the attorney was constitutionally competent,33and further recognized that in many cases the outcome would be the same under both majority and dissenting approaches.
[24] The task remains of delineating the noncategorical criteria that are to be applied in evaluating claims of inadequate performance by counsel. It is now clear that the courts will not abstain completely from some oversight of counsel's performance. At one time this court came close to abstention, in the 1945Diggscase34adopting the "farce and mockery" standard. Even under that standard counsel's performance was on occasion found so delinquent as to prompt judicial correction,35but the occasions were rare. In the 1958Mitchellopinion,36Judge Prettyman in effect defended an approach of nonintrusion into the attorney/client relationship. Some of his observations still have merit, but they survive today as reasons for limiting the degree of judicial intrusion, not as a brief for abstention.Page 204Judge Fahy dissented, on the ground that a hearing was required on the ultimate question whether the conviction "rests in substantial degree" upon a course reflecting a lack of professional skill.37
[25] Our 1967Bruceopinion,38which Judge Bazelon joined as to this issue, laid down a standard that recognized the need for more judicial oversight. It was put that "ineffective assistance" was established where "there has been gross incompetence of counsel and . . . this has in effect blotted out the essence of a substantial defense."39Brucethus departed fromDiggsandMitchell,as has been recognized by this court40and others.41Although not stated explicitly, theBrucedeparture was obviously away fromFifthAmendment due process concepts to aSixthAmendment approach to the problem of ineffective assistance.42AndBrucewent beyond that to state that a less powerful showing of ineffectiveness was required on direct appeal than that necessary to support a collateral attack.
[26] We pause to take note of the formulations adopted by the other circuits. As Justice White has put it, the circuits are in "disarray."43
[27] One prominent formulation appears in the Third Circuit's 1970Mooreopinion as a standard of "normal competency:" "the exercise of the customary skill and knowledge which normally prevails at the time and place."44This is essentially a negligence standard. Indeed the Third Circuit cited the American Law Institute's formulation of the standard for civil liability of an attorney.45However, as the ALI points out, the mere fact that performance falls below average does not equal negligence. Thus, the question remains of what departures from a potential "norm" are so egregious as to call for judicial interposition.
[28] Other circuits have adopted variations on a notion of "reasonable" competence,46usingPage 205tests that suffer from the same uncertainties as the Third Circuit's. The Seventh Circuit has held that a defendant is entitled to assistance of counsel that meets a "minimum professional standard."47In the last analysis, all the circuits recognize that the performance of counsel must fall below a minimum, not just an abstract "norm." There must be "serious derelictions."48
[29] Some circuits have attempted to give content to their standards by adopting, explicitly or by implication, specific duties the violation of which amounts to ineffective assistance. The panel of this court that wroteDeCoster Iemployed — with some embellishment — the standards for the defense function promulgated by the American Bar Association.49InDecosterIIthe panel referred to theseDeCoster Irequirements as "the minimal components of `reasonably competent assistance,'"50although in both opinions the panel qualified these duties by requiring a "substantial" violation.51
[30] The ABA Standards, however, were not put forward by the ABA as either exclusively "minimum" standards or as "a set of per se rules applicable to post-conviction procedures."52Rather, they constitute a "blend of description of function, functional guidelines, ethical guidelines and recommended techniques,"53a mixture of the aspirational and the obligatory.
[31] Even those circuits that formulated an apparently categorical approach to these problems have shown restraint in actual application to the specific facts presented. While inColes v.Peyton54the Fourth Circuit laid down duties of defense counsel, including an unqualified duty to investigate, inJackson v. Cox,55the court apparently limitedColes,by distinguishing it as a case of virtually complete lack of investigation that was not controlling in a case where there were shortfalls in investigation, yet counsel had performed more than a "perfunctory" investigation. Similarly, the Third Circuit's 1971Greenopinion56has tempered any implication ofMoorethat it sufficed to identify specific aspects of incompetency. The District Court had granted habeas corpus because of unfairness due to the consolidation of rape and assault indictments arising out of unrelated events.57In reversing, the Third Circuit stressed that the acquiescence of defense counsel in the consolidation was based on information furnished by the client that suggested a connection between the events. This course was accepted as not outside "the range of normally competent representation," even though defense counsel acknowledged that he was not aware that the police version of the events differed significantly from that of his client.58
[32] Finally, we find support in the recent 1979 decision of the California SupremePage 206Court in thePope59case. As we have already noted, both majority and dissenting opinions of the Ninth Circuit's 1978 en banc decision inCooper v. Fitzharrisacknowledged that the determination of lack of competence requires an assessment of both materiality and likely prejudice, with the opinions differing only as to the rule applicable to a defendant with a "totally inept counsel."60The California state court inPopealso disclaimed a categorical approach. In discarding the "farce or sham" standard, the court articulated "basic duties" of defense counsel that it characterized as "constitutional obligations," using theDeCoster Iapproach of the "reasonably competent attorney acting as a diligent, conscientious advocate." However, after establishing that defense counsel had failed to perform in accordance with that standard, defendant still had the additional burden of establishing that "counsel's acts or omissions related in the withdrawal of a potentially meritorious defense."61This differs in degree but not in kind fromBruce("blott[ing] out the essence of a substantial defense"), and requires a showing of likely effect on outcome.
[33] This brief survey underscores that generalized standards may be little more than a "semantic merry-go-round."62OurBruceopinion was one formulation and other courts have used others — but in the last analysis they are necessarily limited efforts to describe that courts will condemn only a performance that is egregious and probably prejudicial. As put by Justice Kaplan in the MassachusettsSaferiancase:
Whatever the attempted formulation of a standard in general terms, what is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense.63
[34] For the first condition of judicial intervention,Saferianspeaks of "serious incompetency, inefficiency or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." This may fairly be regarded as a refinement of the "gross incompetence" language ofBruce.The other condition is more important.Brucerequired that the accused show that the deficiency "blotted out the essence of a substantial defense." ButSaferianrequires only that the accused show that counsel's deficiency "likely" deprived him "of an otherwise available, substantial ground of defense." This is an appropriate modification ofBruce.64Overarching concepts of justice tug on the court whenever it is seriously troubled by likelihood of injustice, even though there is no concrete establishment of injustice as a fact.Page 207
[35] In effect this consideration was identified inBruce,where the court noted that on direct appeal the accused would be held to a lesser showing than that required for collateral attack.Brucewas in harmony with a similar observation by Judge Fahy, dissenting inMitchell.65In general, including matters totally unrelated to performance of counsel, a federal appellate court has statutory authority to reverse convictions when this is "just under the circumstances."66Exercise of this authority may depend in some measure on a concern over the way the case was handled. It does not depend on a determination that there has been a lack of "effective assistance of counsel" in the constitutional sense. Indeed, in theDyercase,67cited inBruce,68the court noted counsel's general competence and the difficulties of "trying circumstances" and "an uncooperative client." Nonetheless, the court had "misgivings" as to the adequacy of the defense "in net result" that caused it to reverse, on direct appeal, without any statement that the defendant had been denied effective assistance of counsel. On direct appeal the appellate court has latitude to exercise its supervisory function over the administration of justice in the court(s) subject to its review.69That latitude is not fully available when a challenge is presented on collateral attack.70
[36] Collateral attack requires a showing of violation of constitutional rights — save for the exceptional circumstance" of a claim that both could not have been raised on appeal and that constituted a "fundamental defect which inherently results in a complete miscarriage of justice."71It may also be noted, without now attempting any doctrinal declarations, that the availability of collateral attack is also affected by concerns such as respect for finality of judgments and conservation of judicial resources, concerns that emerged inStone v.Powell,72Although the distinction between direct appeal and collateral attack, in terms of scope of cognizable problems, was not made the subject of separate discussion and justification inBruce,it has been reaffirmed73and has current vitality.
[37] Although direct appeal gives more latitude to the court, the difference is likelyPage 208one of application rather than formulation of standards. On direct appeal, as on collateral attack, the court is still concerned with the two consideration focused inSaferian.The claimed inadequacy must be a serious incompetency that falls measurably below the performance ordinarily expected of fallible lawyers. And the accused must bear the initial burden of demonstrating a likelihood that counsel's inadequacy affected the outcome of the trial. Once the appellant has made this initial showing, the burden passes to the government, and the conviction cannot survive unless the government demonstrates that it is not tainted by the deficiency, and that in fact no prejudice resulted.74
[38] The need for a criterion that requires defendant to show at least probable effect on outcome has been identified even by judges seeking to liberalizeSixthAmendment protection.75Such a criterion achieves a realistic resolution of the pertinent legal tensions.
[39] The court's appraisal requires a judgmental rather than a categorical approach. It must be wary lest its inquiry and standards undercut the sensitive relationship between attorney and client and tear the fabric of the adversary system. A defense counsel's representation of a client encompasses an almost infinite variety of situations that call for the exercise of professional judgment. A shortfall by defense counsel that is perceptible but is modest rather than egregious is no basis for judicial interposition — as appears fromAgurs, Bruce, Saferianand the other cases cited. This limitation preserves the freedom of counsel to make quick judgments, and avoids the possibility that there will be frequent and wide-ranging inquiries into the information and reasoning that promoted counsel to pursue a given course. The problem is complicated by the fact that these decisions often derive from the information supplied by the client.
[40] For the law to encourage a wide-ranging inquiry, even after trial, into the conduct of defense counsel would undercut the fundamental premises of the trial process and transform its essential nature.76The resulting upheaval in the role of the trial judge, widely recognized as a serious difficulty,77would in itself call into question any broad doctrine of ineffective assistance. And the prosecution in a criminal case would in turn ask to oversee defense counsel's conduct at trial — to ensure against reversal.
[41] An even more difficult problem would be posed by the supervision of defense counsel's development of the case before trial. Even if we had the authority, it would be unwise to embark upon a doctrine that would open the door to a fundamental reordering of the adversary system into a system more inquisitorial in nature. The adversary system, warts and all, has worked to provide salutary protection for the rights of the accused. Efforts to improve thePage 209performance of defense counsel should not imperil that protection.
[42] The approach we have outlined is congruent with most of the decisions of this court, includingUnited States v.Pinkney.78An exception should be noted forDeCoster I— not for the result, but some of the broad observations.
[43] D.The Duty To Investigate
[44] The duty to investigate is a subset of the overall duty of defense counsel. A conscientious defense attorney will naturally investigate possible defenses. As part of this process, witnesses who may have information relevant to the case should be identified and interviewed. However, any claim of ineffectiveness must turn not on abstractions as to duty, but on an appraisal of consequences. And the development of the case before trial is an area of peculiar sensitivity in the attorney/client relationship.[45] Some failures to investigate may be so egregious as to command judicial correction without more. InMcQueen v. Swenson,79the defense counsel had adopted a blanket policy which he adhered to even in the face of requests by the defendant that certain persons be interviewed. This was held "an absurd and dangerous policy which can only be viewed as an abdication — not an exercise — of his professional judgment."80Counsel's defect was subject to a simple, workable remedy and thus was a proper subject for judicial intervention.
[46] Most claims of failure to investigate will not involve such clearcut situations. They must be appraised in light of the information available to the attorney. A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person's account is otherwise fairly known to defense counsel. This is the teaching of our 1974Clayborneopinion.81As Judge MacKinnon, joined by Judge McGowan, and writing over Judge Bazelon's dissent, pointed out: "[T]rial counsel had their own clients as sources of information."82
[47] Realistically, a defense attorney develops his case in large part from information supplied by his client. As the Third Circuit indicated inGreen,83choices based on such information should not later provide the basis for a claim of ineffectiveness even though that basis would have been undercut by inquiry of others. Judicial intervention to require that a lawyer run beyond, or around, his client, would raise ticklish questions of intrusion into the attorney/clientPage 210relationship, and should be reserved for extreme cases where an effect on the outcome can be demonstrated. And so inMatthews v.United States,84involving a claim that counsel was ineffective in failing to introduce evidence or call witnesses, then Circuit Judge Stevens focused on the failure to allege that such witnesses or evidence existed, adding:
Petitioners have not told us what was said in their conference with counsel. Perhaps, for all we know, they merely explained that they had indeed forged the 35 ballot applications which were placed in evidence by the government and that they were indeed guilty as charged. Surely, if that were the case, counsel had no duty to search for witnesses, expert or otherwise, who might falsely testify to the contrary.85
[48] Our reflections on this point are congruent with the standard applicable when counsel for an indigent defendant seeks funds to obtain investigative services to assist in the preparation of the defense. While in general effective assistance of counsel embraces such an allowance it is far from automatic and "depends on the facts and circumstances of a particular case," with funds provided when counsel makes a showing of necessity of the specific subjects to be explored and of their likely materiality.86
[49] Finally, claims based on a duty to investigate must be considered in light of the strength of the government's case. "When, . . . the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do."87It is all well and good for a millionaire to retain counsel with the instruction to "leave not the smallest stone unturned." But it goes too far to insist that such a course is a general constitutional mandate.
[50] E.Appellant's Claims
[51] We turn from general questions of principle and approach to the matter of application to the case at hand. As focused in the remand proceedings, appellant makes some seven allegations of defective performance by his counsel.88Following three days ofPage 211hearings, Judge Waddy found that appellant had not been denied the effective assistance of counsel. We affirm. While we do not commend counsel's performance, we have no serious misgivings that would lead us to reverse in the interest of justice.[52] 1.Failure To Interview Potential Witnesses
[53] We turn first to the claim that defense counsel failed to interview potential witnesses prior to trial. This is the claim that is most vigorously pressed on appeal, and by its nature requires somewhat detailed development.[54] Admittedly, defense counsel did not attempt prior to trial to interview the three prosecution witnesses — complainant Crump, and Officers Box and Ehler. However, at appellant's preliminary hearing counsel did hear Officer Ehler testify that he and Officer Box were together when they witnessed the crime, and that Box pursued appellant to the hotel where he was apprehended. Ehler further testified that within minutes after the assault, Crump had identified appellant in the hotel lobby — a point appellant has never contested. Defense counsel was aware, therefore, of the main points of the likely testimony of the witnesses at trial.
[55] Appellant attacks defense counsel's failure to interview the desk clerk at the D.C. Annex Hotel, and his failure to make an effort to locate and interview potential eyewitnesses that might have been in the hotel at the time appellant entered and was apprehended. These are abstractions without context. Appellant himself testified at trial that he had just entered the lobby when he was arrested. Counsel was aware that there would be, as indeed there was, testimony of the police officer that he had not lost sight of appellant from the time of the robbery to the time of his apprehension. Appellant makes no claim that he advised counsel of any occurrence that would generate a significant issue as to his entry into the hotel.
[56] If given an unrestricted budget and freed of any constraints as to probable materiality or accountability, a lawyer might have cheerfully logged in many hours looking for the legal equivalent of a needle in a haystack. As already noted, a millionaire might have retained counsel to leave not a single stone unturned. However, a defendant is not entitled to perfection but to basic fairness.89In the real world, expenditure of time and effort is dependent on a reasonable indication of materiality. In the circumstances of this case, appellant has singularly failed to make a meaningful demonstration that counsel's omission probably affected the outcome of the trial. It is argued that potential witnesses might have testified to appellant's demeanor as he entered the lobby. This abstract possibility is not only speculative but remote in the extreme. It cannot fairly be said to undercut materially the positive police testimony.
[57] Appellant goes on to challenge counsel's failure to seek out and interview potential witnesses in the Golden Gate Club. It would be extravagant to require counsel to seek out the anonymous patrons of a bar in order to testify that two persons were having a drink — a point that is, incidentally, undisputed as far as appellant and Crump are concerned. Appellant makes no offer as to what more could have been learned.
[58] We turn next to the failure of defense counsel to interview appellant's co-defendants, Eley and Taylor, prior to trial, and his belated interview of Eley shortly before Eley testified on the second day of trial.Page 212
[59] The record reveals that appellant consistently maintained to his attorney that his defense was alibi90— that he had not been present at the scene of the crime, but rather had returned directly to the hotel from the bar where he had a drink with Crump. This was the essence of appellant's eventual testimony at trial.
[60] We may assume for present purposes that appellant's lawyer should have made some timely effort prior to trial to learn of the accounts of the co-defendants, beginning with consultation with their counsel. However, counsel subsequently did interview Eley and called him to the stand. At this time, be it noted, appellant had recently written to his counsel and raised a possible self-defense claim, altering his previous account (that he had left Crump in the bar) to claim that outside the bar Crump had assaulted him, and that Eley and Taylor would testify that they had come to his aid in fighting off Crump.
[61] At the insistence of appellant, Eley was subpoenaed to appear at trial.91Eley, who was in jail, was brought to the courthouse in the same bus as Decoster and placed in the cellblock behind the courtroom with Decoster. At the remand hearing, defense trial counsel testified that he had interviewed Eley, and that Eley had told him Decoster was not present at the scene of the crime. This narrative was consistent with Decoster's trial testimony, and defense counsel called Eley as a witness. On the stand, however, Eley gave a different account, testifying that he had seen Crump and Decoster fighting. At the remand hearing Decoster and Eley both admitted that counsel had visited the cellblock prior to calling Eley as a witness. Decoster stated that he could not recall whether counsel had interviewed Eley, and Eley denied that he had spoken to counsel. The District Court found Eley's testimony "incredible" and credited the testimony of defense counsel as to his interview of Eley.
[62] As already indicated, we do not approve the belated effort to interview the co-defendants. However, appellant has not demonstrated a likelihood that counsel's omission affected the outcome of trial. Counsel did interview Eley, and at a time when Eley could at least be asked to exculpate appellant without fear of self-injury, for by this time Eley's own fate was set, following the plea of guilty he had made during the period appellant had eloped. Appellant was insisting that Eley be called, and Eley's interview provided a glimmer of hope of corroborating appellant against a phalanx of credible prosecution witness. Neither appellant nor his counsel was in an enviable position at any time. Although appellant now claims ineffective assistance of counsel, what this conviction reflects is the clear-cut prosecution evidence, appellant's weak contradiction, and Eley's turnabout.
[63] As a variant on the claim of failure to investigate, appellant points to counsel's apparent confusion at the beginning of the trial. After defense counsel had announced "ready" for trial, the government demanded the names of alibi witnesses. Counsel stated that he might present alibi witnesses, but he sought the full twenty day period permitted by local rules to respond to such a demand. When this was denied, defense counsel announced he would proceed without alibi witnesses.
[64] The effort of defense counsel to keep his options open was hardly unusual, but even if this indicated uncertainty as to theory of defense, some degree of confusion would not be unexpected in view of appellant's shifting accounts and demands. In any event, there is no indication of likely effect on outcome. Counsel's responses came beforePage 213the jury was impanelled. At the trial, counsel did call Eley as a witness he understood would support defendant's alibi defense.
[65] 2.Other Claims of Ineffective Assistance
[66] As to appellant's other claims, the District Court's findings, while framed in response to theDecoster Imandate, are generally in accord with the principles we have developed in this opinion.[67] a.The Bond Review Motion.Appellant was arrested on May 29, 1970. A judge of the District of Columbia Court of General Sessions set bond at $5,000. Appellant could not meet that figure and remained incarcerated. On October 12, 1970, the Black Man's Development Center accepted third-party custody. On November 9, 1970, counsel filed a motion for bond review in the District Court. The issue was disputed at the remand hearing, but Judge Waddy apparently found that this motion had included the condition of third-party custody. However, it was not until December 8, 1970, that defense counsel filed in the correct court (General Sessions) a motion for bond review explicitly reflecting the third-party custody condition.92Appellant was eventually released on January 14, 1971.
[68] The District Court found that counsel's deficiencies did not affect the result of the trial in the slightest degree, did not "limit defendant's ability to contact witnesses and inform his counsel of them if there were any; nor did it frustrate his defense, nor affect his guilt or innocence." While lack of diligence in obtaining a criminal defendant's pretrial release cannot be condoned, reversal of a conviction is not the appropriate remedy where the trial itself was not affected by the default.93
[69] b.Failure To Obtain Transcript.Defense counsel did not obtain a copy of the transcript of the preliminary hearing. At the remand hearing, he testified that it was his normal practice to read the prosecutor's copy. This practice, and their cooperation, was substantiated by the prosecutors' testimony. We cannot say that counsel's practice was impermissible. He had not only access to a transcript, but his own memory of the preliminary hearing that he had attended. Appellant argues that Officer Ehler's testimony at trial differed from his testimony at the preliminary hearing on the exact role of each of the defendants in the robbery. These variations were not "substantial" — Judge Waddy's term — insofar as the alibi defense was concerned. There is no showing of likely impact on the trial result.
[70] c.Offer To Waive Jury Trial.Appellant's effort to condemn defense counsel for the offer to waive jury trial is frivolous. Appellant was in fact tried by a jury. Moreover, as the District Court found, appellant himself demanded that his attorney offer to waive jury trial, and appellant persisted in this demand even after the court advised him of his constitutional rights and explained that the court had heard part of the evidence against him.
[71] We are moved to add a word. The trial judge, the late Honorable Joseph Waddy, had a distinguished record at the bar as a compassionate and effective defense counsel, and on the bench as a patient, fair and conscientious judge. Appellant's wish for a trial by him was neither unusual nor such as to require conscientious counsel to set himself in opposition to his client.
[72] d.Waiver of Opening Statement and Failure To See SentenceProperly Executed.As the District Court found, there is no merit in the claims of ineffectiveness onPage 214the ground of waiver of opening statement and failure to see that appellant's sentence was properly executed. Waiver of an opening statement is a tactical decision. There was no effort to demonstrate that the waiver had, or was likely to have had, a substantial effect on the outcome. As to the sentencing issue, defense trial counsel had withdrawn from the case before the issue had arisen, an appeal had been taken, and appellate counsel had been appointed. And of course an omission would justify at most a reconsideration of sentence, not a reversal of the conviction.94
[73] F.Conclusion
[74] The several claims, both seriatim and in combination, do not raise in our minds serious misgivings as to whether justice was done. We certainly do not commend counsel's performance as ideal. Yet some of the complaints border on the frivolous. And ultimately there was a total failure of appellant to show that it was likely that counsel's deficiencies had any effect on the outcome of this trial. As the District Court found:While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof.
[75] In the absence of a governmental impediment to effective assistance of counsel, the court cannot lightly vacate a conviction on the basis of its own appraisal of the performance of defense counsel. The door is open, but only for cases of grievous deficiency and where the court has serious misgivings that justice has not been done. Our adversary system will be tortured out of shape if defense counsel must contemplate from the beginning that the judge will subsequently retrace his conversations with his client, and his evolving perceptions of the problems and possibilities presented by the assignment.
[76] We support efforts to upgrade performance of defense trial counsel. We commend the programs of the last decade in clinical education for law students. We approve the American Bar Association's efforts to clarify the defense and prosecution functions. More should be done. But more is not better if it undercuts the adversary system.
[77] So far as the present case is concerned, ultimately dispositive of the appeal are the strength of the government's case and failure of appellant to demonstrate a likelihood of effect on the outcome.
* * * * * *
[78] As Jan Deutsch has recently noted, it is often in the nature of a dissent to present a political statement.95
[79] Judge Bazelon's characteristic eloquence destines his remarks to stand as an oft-quoted expression of aspirations for the legal system. In our view, that eloquence is not matched by tenable standards.
[80] 1. Starting from the ABA Standards Relating to the Defense Function,96Judge Bazelon propounds a list of "duties owed by counsel to client" as representing the "minimum requirements of competent performance."97The ABA issued its standards — dropping the term "minimum" — as a "blend of description of function, functional guidelines, ethical guidelines and recommended techniques."98They were not designed as a hard and fast checklist of duties for defense counsel. In application there must be room for judgment, and for consideration of context.
[81] Our analytic structure permits reversal in the interest of justice, but without inappropriate rigidity. The claimed deficiencyPage 215must fall measurably below accepted standards. To be "below average" is not enough, for that is self-evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel's acts or omissions deviated from a checklist of standards.
[82] What is all-important is significance in terms of context. This has been understood by virtually every court and judge that has spoken to the issue.99We resolve the problem of taking context into account without imposing an undue burden on the defense. We do not require that defendant bear the burden of proving actual prejudice.100What defendant must demonstrate is a likelihood of effect on the outcome. In that event, the government would have the burden of showing that there was in fact no prejudice in the particular case.
[83] Judge Bazelon qualifies his formulation by asserting that his "checklist" does not compel automatic reversal, as it applies only if the violation is "substantial." InDeCoster I,the meaning of "substantial" was left ambiguous, but a fair reading of the opinion suggests that it referred to the magnitude of the violation, either in terms of egregiousness or frequency, rather than to the violation's impact or likely impact. In Judge Bazelon's panel opinion inDecoster II— later vacated by the en banc order — the defendant's burden was expanded to include a reference to impact. Judge Bazelon stated thatPinkney101made clear that "for a violation to be substantial, it must [have been] `consequential,' that is, it in some way must have impaired the defense."102Judge Bazelon's dissent now appears to recede from the concept of burden on defendant to show impairment of the defense. While Judge Bazelon's dissent acknowledges that "the `reasonably competent' attorney must tailor his actions to fit the unique circumstances presented by a given case,"103defendant's nominal burden to show "substantiality" is structured so that, realistically, deviation from the checklist makes out a prima facie case, leaving the actual burden on the government (or defense trial counsel) to show that the departure was "excusable" or "justifiable." Judge Bazelon's difficulties with the substantiality concept suggest that it is unsound to make this the analytical cutting edge.
[84] Judge Bazelon recognizes that the government can always defend by showing beyond a reasonable doubt that the violation was harmless — a rule prescribed byChapman104even for established constitutional violations. The realistic thrust of Judge Bazelon's approach, however, is a rule structured toward a conclusion of prejudice from any deviation from the checklist of standards concerning preparation, whateverPage 216the likely or actual consequence. Omissions of investigation lead to new trials on the rationale that one can never be certain what might have happened had counsel performed better. A new trial is needed if exculpatory information might have been turned up (obviously), and also if the fruits of the investigation would have proved neutral or even inculpatory, for defense counsel could have been in a stronger position to lead his client to plead guilty. This kind of speculation renders no error harmless.
[85] 3. The crucial difference between our views of this case is not the shortfall of counsel so much as the analysis of effect on outcome. The critical point is the duty to investigate. Since the defendant's account to his counsel of his entry into the hotel was so close to that of the police, the speculation that something might have been turned up by interviewing the hotel clerk is tantamount to an obligation to turn over each and every stone. This is even clearer for the extreme suggestion that defense counsel should have made inquiries, of persons unknown, at the bar where defendant and the victim were drinking.
[86] The is more force to the objection that counsel rested with the preliminary hearing, and did not interview the policemen or the victim. However, a notably conscientious trial judge has found that there was no effect on outcome. Finally, co-defendant Eley was interviewed prior to trial. Eley's damaging testimony on the witness stand was a turnabout, defense trial counsel submitted. When one also factors in the reality of the turnabout in defendant's own statements to counsel, the notion that counsel's shortfall contributed to the outcome is comminuted.
[87] 4. Judge Bazelon's premise is that theSixthAmendment dictates an inevitable progression toward categorical rules governing the assistance of counsel. The Supreme Court decisions, however, establish a variable and judgmental approach depending on the nature of the claimed deprivation of the right. In particular,Chambers v. Maroney105clearly, if briefly, rejected the proposition thatper serules were appropriate, and implicitly accepted an outcome requirement. In the cases where the Court rejected any kind of prejudice requirement,106the violation could easily be remedied by a categorical prohibition of a state-erected impediment to effective assistance. Those cases did not involve intrusion into the more sensitive area of pretrial preparation. We are constrained byChambersand the signals inAgurs.107In the law, "leadership requires lieutenants as well as captains."108On an intermediate court we have some latitude to initiate approaches and to interpret Supreme Court decisions, but we must abide by their constraints.
[88] 5. Judge Bazelon is animated by a view of the adversary system as so impaired in practice as to warrant a thorough reordering, with extensive supervision by the trial judge through a pretrial "checklist" to ensure that counsel has met his duties of preparation, and oversight of the conduct of the trial. The manifest consequence would be inevitable and increasing intrusion into the development and presentation of the defense case by the trial judge, and (out of self-protection) by the prosecution.
[89] The adversary system is neither sacrosanct nor impervious to change. But Judge Bazelon has not pointed to any system — let alone the inquisitorial system of the Continent — that guarantees better protection against injustice. We do not think he has made a case for the drastic overhaul of a system that historically has heightened protectionPage 217of the accused. Perhaps the spectre of disruption will lead to increased appropriations to the criminal justice system, but such a tactical approach to the judicial function would be perilous.
[90] 6. Starting withBruce109in 1967, this circuit has evolved and refinedSixthAmendment protections against the ineffectiveness of counsel. Judge Bazelon fashioned an important advance in the ruling ofDeCoster I110that established a procedure by which the trial court could take a fresh look within the structure of a direct appeal.111This opinion modifies theBrucerequirement of a showing that a substantial defense has in fact been "blotted out" by requiring only a showing of a likelihood of effect on outcome. We cannot accept the more radical departure outlined in theDecoster IIpanel opinion and reiterated in the dissent.
* * * * * *
[91] The concurring opinion subsequently received from Judge Robinson is subject to the comments addressed to Judge Bazelon's dissenting opinion insofar as those two opinions are congruent. In key aspects the concurring opinion differs from Judge Bazelon's dissent, notably Judge Robinson's appraisal112of the limited utility of the checklist approach ofDeCoster I,and basically his assessment of the particular case before us.
* * * * * *
[92] The judges of this court are emphatically not indifferent to the plight of the poor in the criminal justice system. Certainly there is need for the allocation of additional resources. Certainly there is need to cull out incompetent counsel or to call them to account. Responses are primarily required from the bodies that can supply resources — the legislature and the bar. Judge Bazelon's bold but single-valued approach would tolerate disruption of the administration of justice and a reordering of the adversary system, with little guarantee of improved performance and impassivity as to the uncharted and likely noxious consequences.
[93] Our approach toward the minimum legal obligations of our democratic society to ward off injustice may be more earthbound, but in our view it is more salutary.
[94]Affirmed.
[97] In Judge Leventhal's plurality opinion, which was prepared after my earlier originalPage 218draft, many issues raised by the earlier panel majority are now subordinated to a discussion of more general law, and the specific factual issues of this case, which support the finding of guilt and the effectiveness of counsel, receive less attention. I reach the same result as the opinions by Judges Leventhal and Robinson, but on several issues those opinions do not make as complete and conclusive a case against the theories and analysis of the dissent as the record supports, and, in some respects, I differ from their analysis. However, since such theories are now relegated to a dissent from anen bancopinion the need for an opinion to completely refute them is diminished. Thus, to avoid repetition, I have withdrawn a large portion of my original opinion and instead will make a few observations with respect to the dissent beyond those of Judge Leventhal's opinion, and discuss the issues surrounding the burden of proof which I believe should be set forth with greater clarity and precision. I stand by my earlier statements which are accurately quoted in the dissent. I vote to affirm the conviction.
[98] I. THE BURDEN OF PROOF INSIXTHAMENDMENT RIGHT TO COUNSEL CASES
[99] TheSixthAmendment provides that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense."1In addition to the right to not beactuallydenied the "Assistance of Counsel" it has long been recognized that a defendant has a right to theeffectiveassistance of counsel, for courts have understood that a defense may be so ineffective as to constitute aconstructivedenial of the assistance of counsel. Obviously, the two types of cases are composed of radically different essential elements. This case turns on the nature of the showing that must be made in order to reverse a conviction because of allegedineffectiverepresentation. I believe thata defendant who alleges that hiscounsel was ineffective must show that substantial prejudice tohis defense resulted from the alleged violation of duty owed himby counsel.2I base my conclusion on four considerations: (1) precedent in this Circuit; (2) the Supreme Court's approach in the analogousFifthAmendment area; (3) traditional common law principles governing the burden of proof; and (4) respect for the adversary system.
[100] A.Precedent
[101] 1.Before DeCoster I
[102] The early cases in this Circuit held that theSixthAmendment only established aPage 219defendant's right to appointment of competent counsel. Subsequent negligence of that counsel did not implicate theSixthAmendment. However, theFifthAmendment's due process clause guarantees the accused a fair trial, and the early cases recognized that the performance of counsel might have been so inept that the defendant did not receive a fair trial. Thus, initially, the adequacy of counsel was considered to involve aFifthAmendment question.3[103] TheSixthAmendment, however, guarantees more than the appointment of competent counsel. By its terms, one has a right to "Assistance of Counsel in his defense." Assistance begins with the appointment of counsel, it does not end there. In some cases the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided. Clearly, in such cases, the defendant'sSixthAmendment right to "have Assistance of Counsel" is denied. Thus, inScott v. United States,138 U.S.App.D.C. 339, 340,427 F.2d 609,610(1970) we recognized that the right to adequate assistance of counsel is derived from theSixthAmendment as well as from the Fifth.4
[104] In addition to applying theSixthAmendment to the adequate assistance of counsel area, the pre-DeCoster Icases established two principles. First, they delineated a constitutional standard by which the adequacy of attorney representation can be tested. Second, they clearly allocated the burden of proof in adequacy of representation cases.
[105] (a)The Standard.In our earliest decisions on the subject, we stated that a defendant's constitutional right to adequate representation is violated when counsel is shown to be so inept that the trial is a "farce and a mockery of justice."5Later cases stated that the "farce and mockery of justice" test was meant as an example of a constitutional violation; it was not intended to restrict theSixthAmendment's application to only those cases in which the trial could be called a "farce."SeeMitchell v. United States,104 U.S.App.D.C. 57, 63,259 F.2d 787,793(1958).6Page 220
[106] Once the ambiguity surrounding the "farce and mockery of justice" test was cleared up, this court consistently held that a defendant's right to assistance of counsel is violated when his attorney's ineptness substantially prejudiced defendant's ability to receive a fair trial. InUnited States v. Hammonds,138 U.S.App.D.C. 166, 169,425 F.2d 597,600(1970) we stated that "`[t]he question * * * is whether [counsel's] representation was so ineffective that Appellant was denied a fair trial.'" Similarly, inScott v. United States,138 U.S.App.D.C. 339, 340,427 F.2d 609,610(1970) the court held that the "appropriate standard for ineffective assistance of counsel . . . is whether gross incompetence blotted out the essence of a substantial defense."
[107] (b)Burden of Proof.The pre-DeCoster Icases also established that the burden rests on the defendant to show that he did not receive a fair trial. InBruce v. United States,126 U.S.App.D.C. 336, 339-40,379 F.2d 113,116-17,121(1967) (emphasis added) Judge Leventhal wrote for the Court:
In earlier cases it was said that a claim based on counsel's incompetence cannot prevail unless the trial has been rendered a mockery and a farce. These words are not to be taken literally, but rather as a vivid description of the principle thatthe accusedhas a heavy burden in showing requisite unfairness.Although the cases are rare and extraordinary, it appears that an accused may obtain relief under28 U.S.C. § 2255if he shows that there has been grossincompetence of counsel and that this has in effectblotted out the essence of a substantial defenseeither in the District Court or on appeal.
. . . . .
A claim of ineffective assistance of counsel might be made out if the wishes of the appellant were in fact diverted by clearly erroneous legal advice and he was substantially prejudiced thereby.Page 221
[108] The defendant inBrucewas seeking habeas corpus release. Since his constitutional claim was made as a collateral attack on his conviction, Judge Leventhal acknowledged that a "more powerful" factual showing was necessary than would have been required were defendant seeking a new trial on direct appeal.7But the fact thatBrucewas a collateral attack case does not denigrate the relevance of its holding thatthe defendant bears the burden ofshowing prejudice.8
[109] Judge Leventhal in a concurring opinion filed on petition for rehearing inMatthews v. United States,145 U.S.App.D.C. 323,449 F.2d 985(1971) reiterated that the defendant must show prejudice. He wrote:
I have taken the trouble of outlining the prejudice I think occurred, because I am by no means of the view, as suggested in the Petition for Rehearing, that in these cases no possibility of prejudice need be shown. Where defendant has not been provided with counsel, that fact in and of itself establishes the need for reversal without regard to any other possibility of prejudice.Glasser v. United States,315 U.S. 60,76,62 S.Ct. 457,86 L.Ed. 680(1942), but when the claim is posed in terms of ineffective assistance of counsel, then I think the ineffectiveness has to be measured in terms of whether the attorney has in effect blotted out the substance of a defense,Bruce v. United States,126 U.S.App.D.C. 336, 340,379 F.2d 113,117(1967).
[110] 145 U.S.App.D.C. at 332,449 F.2d at 994. This excerpt expresses the basic difference between those cases in which the defendant wasactuallydenied counsel and those in which it is asserted that his counsel was ineffective: in the ineffectiveness types of claims the burden of proving prejudice rests on the defendant.
[111] Judge Fahy's majority opinion inMatthews,joined by Judge Wright, rested explicitly onUnited States v. Hammonds,138 U.S.App.D.C. 166,425 F.2d 597(1970).Hammonds,which involved a direct appeal, reaffirmed the earlier case law in this circuit that required the defendant to show prejudice. 138 U.S.App.D.C. at 169,425 F.2d at 600.Hammondswas decided in favor of the defendant. But this was because "[a]ppellant ha[d] sustainedhisburdenof establishing his claim that he was deprived of his constitutional right to effective assistance of counsel." 138 U.S.App.D.C. at 173,425 F.2d at 604(emphasis added).9Page 222
[112]Hammondsrelied heavily on then Judge (now Chief Justice) Burger's opinion for the court inHarried v. United States,128 U.S.App.D.C. 330,389 F.2d 281(1967). ThoughHarriedinvolved a direct appeal, the court relied onBruce, supra,andMitchell, supra,and explicitly stated that the
burden on the Appellant to establish his claim ofineffective assistance of counsel is heavy.The question . . . is whether his representation was so ineffective that appellant was denied a fair trial.
[113] 128 U.S.App.D.C. at 333-34,389 F.2d at 284-85(citations omitted) (emphasis added).
[114] Finally, inScott v. United States,138 U.S.App.D.C. 339, 340,427 F.2d 609,610(1970) the court held that the District of Columbia Court of Appeals properly applied the "standard inBruce" in a direct appeal case.Scottis significant both because it is a direct appeal case and because it was the first case to acknowledge that inadequate assistance of counsel claims haveSixthAmendment underpinnings. By relying onBruce,theScottcourt held that in theSixthAmendment context, as well as under theFifthAmendment, theburden is on the defendantto show prejudice from the acts or omissions of his counsel.
[115] To recapitulate, both the Fifth and theSixthAmendments are implicated in cases involving alleged ineffectiveness of counsel. TheFifthAmendment is violated if counsel's performance is so inadequate that defendant is denied a fair trial. TheSixthAmendment is violated when the performance of counsel is so inadequate that, in effect, the required "Assistance of Counsel" in his behalf has not been afforded. Under either Amendment, the pre-DeCoster Icases indicate thatthe defendant has theburden of showing that he was prejudiced by his counsel'sinadequacy.TheDeCoster Iopinion and subsequent cases in this Circuit do not abandon — nor do they provide a basis for abandoning — the decisions in this Circuit as to the burden of proof.10
[116] 2.DeCoster I
[117]DeCoster Istated that under theSixthAmendment an attorney has a duty to his client to be a diligent and conscientious advocate and to provide reasonably competent assistance. This standard of conduct is almost self evident. The court gave this general duty more specific content by listing some of counsel's responsibilities toward his client.11Page 223[118] No itemization of general duties, however, can serve as a check-off list of absolute, hard and fast rules such that the slightest deviation will constitute a constitutional error.12It would be wrong to construeDeCoster Ias establishing such rigid guidelines. The duties listed inDeCoster Iwere phrased generally,13and most of them require the exercise of considerable judgment, discretion and adjustment to the widely varying facts of criminal cases. The borderline between the adequate assistance (required by the Constitution) and inadequate assistance may vary greatly with the factual circumstances of each case.14In recognition of this, the American Bar Association Standards for the Defense Function, which theDeCoster Iguidelines incorporate by reference, explicitly provide that they arenotintended "as criteria for judicial evaluation of the effectiveness of counsel to determine the validity of a conviction."15Page 224Thus, while counsel has certain general duties to his client, the exact nature of these duties varies with the case, and counsel's competent judgment exercised in the best interests of his client should be afforded great weight, as should that of the trial judge with his first hand knowledge of the proceedings. In short, whether counsel has breached his duty depends upon the facts in each case.
[119] Once a defendant establishes a breach of duty by his counsel,DeCoster I, supra,still requires that the defendant demonstrate that this breach constitutes a "substantial violation."
If a defendant shows asubstantial violationof any of these requirements he has been denied effective representation unless the government, "on which is cast the burden of proof once a violation of thesePage 225precepts is shown, can establish lack of prejudice thereby."Coles v. Peyton,389 F.2d 224,226(4th Cir. 1968).
[120] 159 U.S.App.D.C. at 333,487 F.2d at 1204(emphasis added). The deficiencies in this formulation are set out in the plurality opinion. In addition, what was meant by "substantial violation" is not clearly articulated inDeCoster I. United States v.Pinkney,177 U.S.App.D.C. 423,543 F.2d 908(1976), decided subsequently, indicates that "substantial violation" contemplates a showing that counsel's duty to the defendant was breached substantially and that this prejudiced the defendant.
[121] InPinkney,appellant alleged inadequate assistance of counsel. The court rejected Pinkney's claim, holding that aDeCoster Imotion is one for a new trial in which the defendant bears the same obligation to show prejudiced to his cause as in any other new trial motion:
The vehicle [for raising an inadequate assistance of counsel claim], we said [inDeCoster I], was a motion for a new trial, obviously one presenting new evidence in the sense of evidence outside the record — in other words, a new-trial motion based on newly discovered evidence. An essential characteristic of such a motion is a disclosure of evidence portraying the movant's claim materially and resolutely, and evincing a capability of mounting a serious challenge. By the same token,a motion chargingineffective assistance of counsel must set forthevidence upon which the elements of aconstitutionally deficient performance might properlybe found.
[122] 177 U.S.App.D.C. at 431,543 F.2d at 916[footnote omitted] (emphasis added). The court then cited several cases, each of which unambiguously states that a defendant must show prejudice to sustain his new trial motion.16According toPinkney,therefore,Page 226prejudice to the accused is a necessary element of a claim of a "constitutionally deficient performance" by counsel.17
[123] In summary, underDeCoster Iand our prior decisions, the defendant lacks a substantial claim unless he makes out aprimafaciecase showing (1) that counsel's constitutional duty toward him was breached and (2) that he suffered unfair prejudice as a result of that breach. The burden of proof to make this showing falls squarely on the defendant.18
[124] B.FifthAmendment Analysis
[125] A defendant's right to adequate assistance of counsel is derived from both the Fifth and theSixthAmendments. Therefore, the Supreme Court's treatment of cases involving purported violations of theFifthAmendment is relevant. In such cases the Court has required that defendants prove prejudice.19Page 227[126] InMurphy v. Florida,421 U.S. 794,95 S.Ct. 2031,44 L.Ed.2d 589(1975), for example, petitioner claimed that his rights were violated when members of the jury heard news accounts about his case. The Supreme Court found no violation of his constitutional right:
Petitionerhas failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which he complains permits an inference of actual prejudice.
[127]421 U.S. at 803,95 S.Ct. at 2038(emphasis added). The court thus refers to the two types of prejudice that must be shown — inherent and actual prejudice. InMurphy,the Court refused to presume that the trial was unfair. The defendant was required to bear the initial burden of showing prejudice; only after such proof would the government be required to show the lack of prejudice or harmless error.
[128] Similarly, inUnited States v. Agurs,427 U.S. 97,96 S.Ct. 2392,49 L.Ed.2d 342(1976), which emanated from this court, defendant claimed that her rights were violated by prosecutor's failure to inform her of her victim's criminal record. The Supreme Court rejected this argument even though she had not been so informed:
[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial. . . .
If there is no reasonable doubt about guilt whetheror not the additional evidence is considered, thereis no justification for a new trial.
[129]427 U.S. at 108,112-13,96 S.Ct. at 2400,2402(emphasis added). Since the victim's criminal activities did not cast doubt on the verdict, the defendant's conviction was upheld — obviously because of the defendant's failure to prove prejudice.
[130] WhileAgursdoes not explicitly deal with the burden of proof issue, it strongly indicates that the Supreme Court would be reluctant to presume the existence of a constitutional violation from the mere failure to comply with a single guideline where "there is no reasonable doubt about guilt." TheAgurscourt indicated that it was concerned with the "justice of the finding of guilt."427 U.S. at 112,96 S.Ct. at 2401.20If the logic of the dissent here had been followed inAgurs,once it was shown that the government had not disclosed the victim's criminal record, the government would have been required to bear the burden of proving lack of prejudice to the defendant. The Supreme Court refused to impose such a completely impractical burden.
[131] There will be a few cases in which, because of the inadequacy of counsel, exculpatory evidence is lost. But in light ofFifthAmendment cases likeMurphyandAgurs,courts should be wary of declaring certain acts or omissions of counsel, without proof of prejudice, to beper seconstitutional violations that in the absence of refutation are sufficient to negate a criminal conviction. Where theSixthAmendment is relied upon, the defendant must always show by direct or indirect evidence that the complained of acts or omissions by counsel were the legal equivalent of the denial of his right "to have the Assistance of Counsel for his defence." That is what theSixthAmendment is all about.
[132] C.Common Law Principles
[133] The dissent argues that once a violation of any duty is demonstrated, even though no prejudice is shown, the government has the burden of showing that the defendant was not prejudiced. This shifting of the burden of proof from the proponent to the Government is inconsistent with common law principles.21InNader v. Allegheny Airlines, Inc.,167 U.S.App.D.C. 350, 361,512 F.2d 527,538(1975),rev'd on otherPage 228grounds,426 U.S. 290,96 S.Ct. 1978,48 L.Ed.2d 643(1976) we delineated two criteria for allocating the burden of persuasion.[1] Although a plaintiff generally carries the burden of persuasion on each element of his cause of action, special circumstances may lead a court to shift the burden of persuasion to the defendant on some part of the claim. [2] One special circumstance commonly accepted is that the burden will be shifted where the material necessary to prove or disprove an element "lies particularly within the knowledge" of the defendant.
[134] 167 U.S.App.D.C. at 361,512 F.2d at 538. Thus, normally the burden should lie on the person pressing the claim;22an exception may be made when the other party has sole access to the facts.
[135] In the instant case, Decoster has the primary access to the relevant facts; the government is highly restricted in its ability to discover them because of the attorney-client privilege and theFifthAmendment privilege against self-incrimination. Moreover, normally it is the defendant who raises the inadequate assistance of counsel claim (here it was raised by the appellate courtsua sponte). Therefore, the twin policies of placing the burden of proof on the person pressing the claim and placing the burden on the person with access to the facts are both satisfied by holding that Decoster bears the burden of proving aprimafacieSixthAmendment violation which includes a showing of prejudice.
[136] D.Attorney-Client Relationship and the Adversary System
[137] The formula suggested by the dissent for determining when a defendant has not received effective assistance of counsel —presumingprejudice from scanty evidence and then shifting the normal burden of proof to the Government to disprove the existence of prejudice — would have very detrimental consequences to the adversary system. The Government would be forced to attempt to produce proof entirely from the acts and privileged discussions of the accused and his counsel and to make its showing long after the trial, when memories have faded — as they have here.23In addition to creating an almost impenetrable obstacle to sustaining convictions in many cases, such requirement would lead to highly objectional intrusions into the adversary system in most cases. Shifting the burden to the Government would force it to get very involved in a relationship that it should stay out of.[138] If the Government were required to prove that its adversary defense counsel was adequate, it would be strongly motivated and well advised during a criminal trial, in order to protect the prospect of guilty verdicts, to oversee the major decisions and activities of defense counsel and the accused that affect the trial. Performing this function would, as a practical matter, require the prosecution to probe what has heretofore been a sacrosanct area — the highly confidential relationship between a criminal defendant and his lawyer. SomePage 229tension in this area unavoidably exists when the defendant makes aprima facieshowing of prejudicial conduct constituting a constitutional violation, and the Government seeks to rebut that showing. Presuming prejudice from certain minimal facts that do not constitute a fullprima faciecase and then switching the burden of proof to the Government (which has limited access to the defendant's information) to prove that no prejudice resulted would heighten that tension inexorably.
[139] To the extent that the prosecutor during trial might implore the trial judge to correct or direct the decisions or acts of defense counsel, or the accused, to prevent presumptive prejudice which would redound against the Government (though it in no way participated in such conduct or decisions), the result could well be judicial supervision of many of the tactical trial decisions of defense counsel. The hazards of creating such a rule were described by Judge Prettyman inMitchell v. United States,supra:
[T]he constitutional right of an accused to the assistance of counsel might well be destroyed if counsel's selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known. And how absurd it would be for a trial judge to opine that such-and-such a course was ineffective or incompetent because it persuaded him (the judge) to decide thus-and-so adversely to the accused.
[140] 104 U.S.App.D.C. at 63,259 F.2d at 793. These difficulties can be avoided by leaving the burden of proof in most cases on the defendant to show substantial unfair prejudice from the acts or omissions of counsel. Such showing would constitute aprimafaciecase of aSixthAmendment violation, and the burden of proceeding would then be cast on the Government to disprove theprima faciecase and failing that the accused would prevail.24
[141] E.SixthAmendment Framework
[142] To summarize,SixthAmendment right to "assistance of counsel" cases can be divided into two categories: (1) those in which the accused is actually denied the assistance ofPage 230counsel, and (2) those in which his constitutional right to the assistance of counsel is denied by virtue of the ineffective representation that counsel rendered. The classic case involving the actual denial of counsel isGideon v. Wainwright:25no defense counselPage 231was appointed. Other examples in which the assistance of counsel was actually denied includeGeders v. United States26andHerring v. New York.27In both of those cases the defendant did not have the assistance of a lawyer at a critical stage in his trial.[143] The second category, which may be termed a constructive denial of counsel, includes cases in which defense counsel was present and able to participate in every aspect of the trial, but for one reason or another the defense presented is viewed as the equivalent of a denial of the constitutional right to the "assistance of counsel." Cases in which the defense lawyer was ineffective fall into this second category: though the defendant was actually represented, his lawyer's performance was so ineffective that it was tantamount to a denial of his constitutional right.
[144] If a defendant is denied the actual assistance of counsel, his constitutional right is violated without any further showing. A showing of such denial is all the prejudice that the Constitution requires, so when he is denied the "presence and assistance" of counsel at a critical phase of his trial a defendant need not prove further exactly how he was harmed.28But cases wherePage 232counsel was present and assisting, and which involve allegations that a defendant's constitutional right to assistance of counsel was constructively denied as a result of the defense lawyer's ineffectiveness, are different. In these cases the question is: was the attorney's performance so deficient as to constitute the equivalent of a denial of the accused's constitutional right? And in case after case involving an alleged constructive denial of the assistance of counsel it has been held that a lawyer's ineffectiveness is not tantamount to denial of the constitutional right to the assistance of counsel unless the defendant can show that he was prejudiced.29Therefore in order to establish that his lawyer's ineffectiveness amounted to aSixthAmendment violation, a defendant must show substantial unfair prejudice to his defense resulting from a substantial violation of duty owed him by his counsel.
[145] To illustrate: suppose defense counsel, as frequently happens in criminal cases, does not call any witnesses.30Such an allegation would have no force unless it were shown that witnesses to beneficial material facts exist and the lawyer's failure to produce their testimony worked some substantial unfair prejudice to defendant's cause. If the defendant makes the requisiteprima facieshowing of a substantial violation of the constitutional duty owed him by counsel that resulted in substantial unfair prejudice to his defense, the burden of proceeding shifts to the Government.31Then the Government has a right to show, for example, that the alleged witnesses did not exist or could not be located, or that counsel was given no indication that such witnesses did exist, or that the testimony of the witnesses was irrelevant or otherwise deficient.32IfPage 233despite the Government's effort to rebut the evidence presented by the defendant, the defendant eventually carries his burden — he demonstrates that a substantial violation of a duty owed him by counsel resulted in substantial unfair prejudice to his defense — then a constitutional violation has occurred.33
[146] Applying this test to the instant case, it is clear that Decoster'sSixthAmendment right was not infringed. First, Decoster has great difficulty demonstrating that there was a substantial breach of duty by his lawyer. Judge Waddy's findings to the contrary have not been shown to be clearly erroneous. I agree that counsel is under an obligation to investigate non-fabricated defenses, but the facts here overwhelmingly support Judge Waddy's finding that the only possible defense for Decoster was to put the Government to its proof. From the entire record, it is my view that Decoster's lawyer concluded that he was guilty after: (1) participating in the preliminary hearing;34(2) six interviews with appellant;35(3) studying the government's file, to which he had access;36(4) reviewing the grand jury testimony;37(5) reading the transcript of the preliminary hearing;38and (6) receiving a letter from Decoster in which he admitted that he was fighting with the victim at the time of the robbery.39InPage 234addition, counsel, who acted for all defendants at the preliminary hearing,40knew that both men who were with Decoster at the time of the robbery had pleaded guilty to that charge on June 18, 1971. Under such circumstances, an extensive investigation was not warranted.
[147] More important, there is not a shred of evidence in the record suggesting that Decoster was prejudiced in any way by the conduct of his counsel. We now know, on the basis of Decoster's admission at sentencing on March 3, 1972, that he was guilty, and this is corroborated by a letter he wrote to the Judge which the court referred to at sentencing and which Decoster then acknowledged.41Even without Decoster's admissions, it would be hard to imagine a case with more certain proof of guilt and with less room for creditable contrary evidence. Two policemen actually observed Decoster committing the robbery in broad daylight; one of them chased him andwithout losing sight ofhim,arrested him. (The dissent shades the facts by stating that the police officers "found" Decoster. Dissent page ___ of 199 U.S.App.D.C., page 267 of 624 F.2d.) Decoster was identified on the spot by the victim and one of Decoster's confederates contradicted Decoster's alibi when he testified that Decoster was present at the scene of the robbery. With this factual background, it is not, and cannot be, contended that Decoster was innocent. Even the most extensive investigation could not have discovered exculpatory facts, for there were none to find. Since any failure on the part of defense counsel to investigate was not prejudicial to Decoster, Decoster'sSixthAmendment right to have the assistance of counsel was not violated.
[148] II. THE DISSENT'S POSITION ON THE BURDEN OF PROOF
[149] Since Decoster has been wholly unable to show that he was prejudiced as a result of his lawyer's alleged inadequacies, the dissent is forced to argue that the burden of proof is on the government to show thatPage 235Decoster was not prejudiced.42In addition toDeCosterI43and the dissenting opinion inCooper v.Fitzharris,586 F.2d 1325(9th Cir. 1978) (en banc),44which are obviously not controlling, my dissenting colleagues rely primarily on three cases:Geders v.United States,45Holloway v. Arkansas,46andChapman v. California.47They conclude, on the basis of these decisions, that "[r]ecent Supreme Court decisions affirm that a distinct showing of prejudice is unnecessary to establish aSixthAmendment violation."48That conclusion is unwarranted in the context of a claim based onineffectiveassistance of counsel.
[150] A.Geders v. United States
[151]Gedersis easily distinguished from this case. It wasnotbased on ineffectiveness. In that case the defendant was not permitted to consult with his attorney during the overnight recess between his direct- and cross-examination. This prevented the accused from having theactualassistance of counsel during a critical stage of his trial. When a person isactuallydenied counsel at an important point in his trial, his constitutional right is violated without any further showing of prejudice. This case, which involves an allegedconstructivedenial of counsel because of the defense lawyer's ineffectiveness, involves different considerations.49Accordingly,Gedersis not controlling here.[152] B.Holloway v. Arkansas
[153] InHolloway,three defendants were charged in connection with a rape and robbery incident. The public defender who was appointed to represent all three defendants informed the court that his clients had conflicting interests, but the trial court insisted on joint representation. The Supreme Court reversed the defendants' convictions, holding "that whenever a trial court improperly requires joint representation over timely objection reversal is automatic."50[154] The facts inHollowayhave a superficial similarity to those involved here. In both cases the defendants were actually represented by counsel throughout their trials. Nevertheless, the two reasons why the Supreme Court presumed that there was prejudice inHolloway,and dispensed with the requirement that the defendant show it, are plainly inapplicable here.
[155] First, the Supreme Court noted that a defense counsel's statement that his clients have conflicting interests is extremely strong evidence that joint representation will prejudice them by preventing their counsel from being able to fully represent one of them at all stages of the trial. Chief Justice Burger wrote:
[M]ost courts have held that an attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. . . .
An "attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial."State v. Davis[110 Ariz. 29,31,514 P.2d 1025,1027(1973)]. Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.Page 236
Ibid.Finally, attorneys are officers of the court, and "`when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.'"State v. Brazile[226 La. 254,266,75 So.2d 856,860-61(1954)]. We find these considerations persuasive.
[156]435 U.S. at 485-86,98 S.Ct. at 1179-1180(footnotes omitted). In effect, the Court was able to determine from counsel's statement that the accused had been denied full representation by his counsel because of the lawyer's conflicting loyalties. Since the conflict of interest creates a presumption of prejudice, a further showing of prejudice was not required.51
[157] In addition, the Supreme Court recognized that it would be virtually impossible for an accused to show prejudice in the joint representation context.
[A] rule requiring a defendant to show that a conflict of interests — which he and his counsel tried to avoid by timely objections to the joint representation — prejudiced him in some specific fashion would not be susceptible of intelligent, even handed application. In the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. CompareChapman v. California, supra,[386 U.S.] at 24-26 [87 S.Ct. 824, at 828-829], withHamling v.United States,418 U.S. 87,108[94 S.Ct. 2887,2902,41 L.Ed.2d 590] (1974), andUnited States v.Valle-Valdez,554 F.2d 911,914-917(CA9 1977). But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled torefrainfrom doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a conflict. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.
[158]435 U.S. at 490-91,98 S.Ct. at 1182.
[159] These two reasons do not support a presumption of prejudice in cases that, like this one, involve allegations that defense counsel was ineffective. Unlike the joint representation cases, there is no showing that a defense lawyer's mistakes usually cause prejudice to an accused. This case is a good example in which a defendant was not even slightly harmed as a result of his counsel's alleged errors.
[160] Perhaps more important, in cases involving alleged inadequacy of representation, it will not be as difficult for the defendant to prove prejudice. For example, if (as the dissent asserts) an attorney fails to undertake a thorough investigation, the defendantPage 237could readily prove prejudice simply by showing that the evidence that would have been found was exculpatory. Unlike the joint representation cases, the defendant would not be forced to engage in "unguided speculation."52
[161] In short, while the facts inHolloway(the trial court ignored counsel's warning that his clients had conflicting interests) establish inherent prejudice so that "a distinct showing of prejudice [was] unnecessary,"53that ruling does not constitute a precedent for presuming prejudice from a defendant's allegations that his counsel provided ineffective representation.
[162] C.Chapman v. California
[163] According to the dissent,Chapman v. California,386 U.S. 18,87 S.Ct. 824,17 L.Ed.2d 705(1967) establishes that "the burden in each case rests squarely on the government to prove beyond a reasonable doubt that [the] error was harmless."54I have no quarrel with that interpretation ofChapman: once a constitutional error is proven the burden of proceeding does shift to the government to prove that the error is harmless. But it begs the question for the dissent to rely onChapmanhere becauseChapmandoes not address who has the burden of proof with respect to whether a constitutional error has been committed.[164] Before the burden of proof shifts to the government underChapman,whatever prejudice the constitutional error involves must first be established by the claimant. Thus, inChapmanitself, the Government was not required to show that the error was harmless until the defendants had shown that a prejudicial error had been committed. Mr. Justice Black wrote:
Certainly error, constitutional error, in illegally admittinghighly prejudicial evidenceor comments, casts on someone other than the personprejudicedby it a burden to show that it was harmless.
[165]386 U.S. at 24,87 S.Ct. at 828(emphasis added).Chapman,therefore, only supports the dissent's position if one assumes that counsel's alleged breach of duty alone constitutes a constitutional violation. Since that is the question at issue in this case, such an assumption is obviously inappropriate.
[166] D.Chambers v. Maroney
[167] While neitherGeders, Holloway,norChapmanis precedent for the view adopted by the dissent, another Supreme Court opinion,Chambers v. Maroney,399 U.S. 42,90 S.Ct. 1975,26 L.Ed.2d 419(1970), is strong authority for the rule that the burden of proving prejudice rests on the accused.55InChambers,the defendant asserted that he "was not afforded the effective assistance of counsel" because his new counsel at his second trial56did not confer "with [him] until a few minutes before the second trial began."399 U.S. at 53,90 S.Ct. at 1982. The defendant contended that because his lawyer was "unprepared," he failed to make an adequate effort "to have [certain] guns and ammunition excluded from evidence."399 U.S. at 54,90 S.Ct. at 1982. The district court rejected petitioner's claim without a hearing and the court of appeals affirmed, noting that "the guns and other materials seized from thePage 238car were admissible evidence." Id. In light of the defendant's inability to show that he was prejudiced, the Supreme Court (7-1) affirmed the conviction. Mr. Justice White wrote for the Court:Unquestionably, the court should make every effort to effect early appointments of counsel in all cases. But we are not disposed to fashion aper serule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated appointment, an evidentiary hearing must be held to determine whether the defendant has been denied his constitutional right to counsel.
[168]399 U.S. at 54,90 S.Ct. at 1982-1983. From the foregoing it is obvious that a mere breach of duty to an accused is not a constitutional violation unless the defendant proves that he was prejudiced. If the principles advocated in the dissent had been applied inChambers,then the failure of counsel to confer with the accused before trial (a violation of the American Bar Association guidelines) would have been sufficient to establish a constitutional error, thereby forcing the prosecution to prove beyond a reasonable doubt that the defendant was not prejudiced. Thus,Chambersis contrary to the basic contention of the dissent.57
[169] III. THE PHILOSOPHY OF THE DISSENT
[170] There are a great many assertions in the dissent that are not supported by the record and which are unsound factually, legally and logically. These are set forth in considerable detail in my dissent to the panel opinion inDecoster II,(1976), 199 U.S.App.D.C. ___,624 F.2d 196. The plurality opinion ignores many of these and only partially deals with others. Lest silence be interpreted as recognizing their validity a few are hereinafter replied to.
[171] A.Adequacy of Investigation
[172] The principal contention of the dissent is that counsel's investigation was inadequate because certain witnesses or possible witnesses were not interviewed. The supposed witnesses fit into five categories: (1) witnesses at the Golden Gate Bar, (2) witnesses who were in the D.C. Annex, (3) the two policemen, (4) the victim, and (5) the co-defendants.[173] 1.Golden Gate Bar.There is no controversy as to what happened in the bar; no proffer as to what witnesses in the bar could have said; and Decoster told his counsel, and so testified, that there was "nobody [in the bar] who could testify [he was] there."58
[174] 2.D.C. Annex.There is no dispute as to what transpired at the hotel, and there has never been any indication that exculpatory evidence could have been obtained from witnesses in the Annex.
[175] 3.Policemen.Counsel examined officer Ehler at the preliminary hearing.59In addition, the United States Attorney furnished Decoster's lawyer with all Jencks Act material and grand jury testimony in advance of the trial. From this, he knew that the testimony of all three of the Government's witnesses was substantially the same, and very prejudicial to defendant's case.
[176] 4.Victim.After the incident, Crump moved away from the Washington area. There is no indication that he was available to be interviewed by defense counsel. InPage 239addition, a witness need not consent to pretrial interviews by defense counsel, and there is no assurance that Crump would have done so. Finally, Crump was seriously injured in an automobile accident, and his ability to recollect the incident at the trial was hampered. His only testimony at the trial was as to his identification at the scene of the crime. In light of the limited nature of his testimony, a lengthy interrogation of Crump would have been useless.
[177] 5.Co-defendants.Decoster's counsel was familiar with their versions of the events because he had represented two of the defendants at the preliminary hearing. Counsel's probing cross-examination of the government's witnesses proves his familiarity with the facts of the case.
[178] Even now, the dissent and appellant do not and cannot point to any exculpatory evidence that could have been found if Decoster's lawyer had conducted the unnecessarily thorough investigation that the dissent demands. Judge Bazelon concedes that "[m]y colleagues may be correct that no material information could be elicited from such an investigation."60His whole argument rests on the assertion that "it is . . . possible" that exculpatory evidence could have been found. From this he concludes that an enormous investigation should have been conducted so that we would not have to "speculate, post hoc, as to what the witnesses would have said."61
[179] On this record, it is clear that it is only my dissenting colleagues who are engaging in speculation. Decoster's counsel knew from the information available to him that his client was guilty.62This knowledge was confirmed after the trial when Decoster admitted his guilt. Thus, without speculating at all, it can be said that no investigation, however exhaustive, could have discovered evidence that would have helped Decoster. When as here a defense attorney knows his client is guilty, I wholeheartedly agree with then Judge (now Justice) Stevens' statement that "counsel ha[s] no duty to search for witnesses, expert or otherwise, who might falsely testify to the contrary."Matthewsv. United States,518 F.2d 1245,1246(7th Cir. 1975). This statement contradicts the dissent's claim that counsel was required to search for alibi witnesses. Dissent nn. 107, 110.
[180] B.Duty to Investigate Accused's Contradictory Statements
[181] The dissent contends that defense counsel are obligated to investigate contradictory statements by an accused. Dissent n. 110. To apply that law here, an accused like Decoster who initially told his attorney that he was present at the scene of the robbery, but later contradicted himself and said that he was not present, would thereby force his counsel to conduct an independent investigation for evidence that might support either statement to determine which version should be presented as a defense.63This suggestion is incredible. It grossly overstatesPage 240the duty to investigate and is symptomatic of the unreasonable duties that the dissent is attempting to foist on defense lawyers. Without any investigation, the defendant's contradictory statements are conclusive proof that one of them is false and defense counsel owes no duty to a prevaricating accused to straighten out an obviously crooked story.SeeDissent nn. 22, 49, 112, page ___ of 199 U.S.App.D.C., page 272 of 624 F.2d.[182] C.Duty to Investigate for a Guilty Client
[183] The dissent states: "[T]he suggestion that a client whose lawyer believes him to be guilty deserves less pretrial investigation is simply wrong. An attorney's duty to investigate is not relieved by his own perception of his client's guilt or innocence."64This pronouncement is foreign to a lawyer's basic obligation to the court and his profession. When, as here, defense counsel has reasonable grounds for believing his client guilty, that perceptionmustinfluence his representation of the client. My dissenting colleagues recognize that a lawyer's obligation is only to make "reasonable" inquiries (dissent n. 112), but then they ignore the reasonableness requirement and dissent because of counsel's failure to investigate in support of a fabricated defense. Dissent pages ___, ___, ___, ___ of 199 U.S.App.D.C., pages 285, 286, 292, 294 of 624 F.2d. The dissent would "brand as ineffective any conduct falling below the minimum standards of competent lawyering, without regard to the client's guilt or innocence." Dissent n. 131. While the quality of counsel's performance may not depend on the guilt or innocence of his client, that does not contradict the principle that in determining whether a counsel has breached a duty, the guilt or innocence of his client may affect what he was required to do to satisfy the requirement of a reasonably competent lawyer.[184] Defense counsel are not required to close their eyes to the obvious and search for alibis for defendants who would like assistance in the fabrication of a defense, for that would be a violation of the ethical standards of the legal profession. As Chief Justice Burger wrote for the Court: there is "an important limitation on a defendant's right to the assistance of counsel: counselethicallycannot assist his client in presentingwhatthe attorney has reason to believe is false testimony."United States v. Grayson,438 U.S. 41,98 S.Ct. 2610,57 L.Ed.2d 582,592(1978) (emphasis added). Thus, when the dissent states that an attorney cannot be guided by "his own perception of his client's guilt or innocence,"65it contradicts the Supreme Court.
[185] D.Bond Review
[186] The dissent contends that defense counsel's delay in seeking bond review is an example of his ineffectiveness. It is clear, however, that such delay was entirely irrelevant to the outcome of the case, for when the bond review motion was filed it was denied. Even assuming that counsel had unreasonably delayed filing for bond review, Decoster was not prejudiced in any way.[187] In addition, on the facts of this case it is apparent that it was unnecessary for defense counsel to file for bond review at all. Counsel, however, cannot be blamed for filing such a frivolous motion as this court is partially responsible because of the ever increasing list of unreasonable burdens some of our opinions place on defense counsel. On the facts the merit of the decision to deny bond reduction cannot be questioned. When Decoster was arrested on this charge, (1) he was already being sought as a fugitive on a bench warrant issued inPage 241another case; (2) he had no fixed address, no community ties, and no employment whatsoever; (3) he was an admitted narcotics user; (4) he had previously been arrested for carrying a dangerous weapon and had jumped bail while under a $600 bond; (5) as a juvenile he had been involved in a robbery and was sent to the Receiving Home from which he escaped;66and (6) the Bail Agency did not recommend release, even on conditions.
[188] The wisdom of the decision to continue Decoster's incarceration was borne out when his trial was postponed. As a result of this delay, Decoster was released to the Black Man's Development Center. As might have been expected from his history of escapes, appellant promptly became a fugitive from justice. Under these circumstances, all of which were known to Decoster's counsel, it is folly to suggest that a motion for release should have been filed or that any prejudice resulted from trial counsel not immediately moving for Decoster's release. It was a complete waste of judicial effort for the panel, knowing all of this, to remand the case for a hearing on this frivolous point.
[189] E.Decoster as a Fugitive from Justice
[190] The dissent comments critically about the seventeen month period between the date of the offense and appellant's trial. It fails to recognize that over eight months of this delay was caused by Decoster jumping bail and remaining a fugitive. The facts are delineated in the Government's Supplemental Brief 3:On January 21 appellant absconded from the Black Man's Development Center and never returned. [The] Bail Agency then reported that appellant had further violated the conditions of his release by reporting only once since being released. When the case was called for trial on February 9, appellant did not appear, and a bench warrant issued. Appellant was not rearrested until September 1971, after his codefendants in this case had pleaded guilty [at their trial] on June 18, 1971.
[191] The trial was also delayed because one of the primary prosecution witnesses, Mr. Crump, was seriously injured in an automobile accident. The seventeen month delay, therefore, was not caused by any fault on the part of the Government.
[192] F.Avoiding Futile Retrials
[193] The dissent states:Although the question of prejudice remains part of the court's inquiry, it is distinct from the determination of whether the defendant has received effective assistance. Rather, prejudice is considered only in order to spare defendants, prosecutors and the courts alike a truly futile repetition of the pretrial and trial process.67
[194] Decoster was found guilty on clear, uncontradicted evidence. Prior to trial his letters in effect admitted his participation in the robbery and thereafter, at sentencing, he practically admitted his guilt. If this case is a good example of how my dissenting colleagues would apply their rule, then it is hard to imagine what it would take to convince them that a retrial would be futile. This illustrates part of the problem presented by the issues here. Courts can agree on language for standards for counsel but some judges, as in the dissent, give the standards such an unreasonable construction that the actual standard becomes meaningless.
[195] G.Decoster's Participation in the Events of the Robbery
[196] There is considerable doubt about what story Decoster was telling when he was first arrested. The dissent states: "Decoster claimed that he was not with [his co-defendants]." Dissent n. 110. Yet in his letter to Judge Waddy filed November 13, 1970, Decoster wrote: "I can prove that I am only guilty of assault by self defense."Seedissent n. 22. And in his letter to his counsel, which Decoster testified he mailedPage 242between May and November, 1970, he admitted his participation in the events of the robbery. Dissent page — of 199 U.S.App.D.C., page 273 of 624 F.2d. These letters obviously contradict the statements of the dissent at n. 110 because if Decoster were "guilty of assault by self defense" he would have had to be in Crump's presence when he assaulted him in "self defense." So to the extent that the dissent relies on any claim by Decoster that he was not with the co-defendants it is of questionable validity.[197] H.Sentencing
[198] The dissent states that the Department of Corrections "clarified Decoster's sentence" because it was allegedly not properly executed.68This confuses the role of trial and appellate counsel and what is referred to as a "clarification" is nothing more than the routine computation of a legally adjudged sentence.[199] The dissent also implies that "counsel's failure to offer any allocution" caused "the trial judge's decision to sentence Decoster to a prison term of 2-8 years while his co-defendants received only probation."69The lesser sentences for the co-defendants, however, were justified by (1) their guilty pleas, and because they did not (2) use narcotics, (3) jump bail, and (4) have a substantial criminal record, as Decoster did.70
[200] I.Reversible Error
[201] The trial court found after an extensive and complete hearing that Decoster's counsel, in putting the Government to its proof, had presented Decoster's only defense and that Decoster had failed to demonstrate any prejudice from his counsel's conduct of his defense. The dissent has failed to demonstrate wherein the trial court's findings and conclusions are clearly erroneous. In material respects, the dissent understates incriminating evidence, seeks to avoid evaluating "the precise effect" of omissions by defense counsel, dissent 26, grossly exaggerates the probative effect of evidence that might favor the defendant, claims impeachment on the basis of immaterial variances, dissent n. 106, indulges in a great deal of unwarranted speculation, grossly misstates my position, dissent n. 102, places unwarranted reliance on dissenting opinions and its prior opinion in this case, goes outside the record, raises new issues, dissent n. 38, 89, 105, refuses to recognize that Decoster was attempting to force his counsel to assert a perjured defense, relies on immaterial and irrelevant evidence, and would rigidly apply erroneous legal theories and arbitraryper seand "automatic reversal" rules, dissent page ___ of 199 U.S.App.D.C., page 293 of 624 F.2d, n. 149. Thus, no reversible error has been shown.[202] J.Changing Judges' Duties
[203] The dissent argues that the "adversary system is . . . in shreds,"71and suggests that trial judges should greatly expand their intervention in the trial of criminal cases, allegedly to protect defendants. This overlooks the rule that a judge's obligation is to see that justice is done —to allparties.The dissent would ignore the rights of the public.[204] K.Extraneous Considerations
[205] Most extraordinarily, the dissent sees merit in a "rule requiringautomatic reversal" in order to "provide the deterrent effect necessary to insure that all defendants — innocent or guilty — receive the effective assistance of counsel" according to the extreme standards of the dissent. It argues: "Reversing convictions [automatically] is likely to have a significantprophylactic effectfor several reasons . . . [among them] . . . frequent reversalsPage 243are likely toattract the attention of the publicand may enhance the likelihood of legislative reform[s]." Dissent page ___ of 199 U.S.App.D.C., page 293 of 624 F.2d and n. 145. (Emphasis added). However, it is fundamental to the proper administration of justice that criminal convictions should only be reversed for legal error and never for the"prophylacticeffect".I cannot agree with the outrageous suggestion that freeing convicted criminals is an appropriate way to go about securing legislation from Congress that conforms to the desires of individual judges.[206] L.Ready for Trial
[207] The dissent finds fault with Decoster's lawyer becauseeven after receiving appellant's letter [stating that he was only guilty of assault by self-defense] counsel was ready to go to trial without having attempted to contact the co-defendants to learn their version of the events on the night of the robbery.72
[208] This criticism is preposterous. Defense counsel had been acting for Decoster since May 30, 1970, and was ready to go to trial in November, 1971: while the record is not clear, it is my analysis that counsel's defense was that Decoster was only fighting not robbing, the victim. The testimony of two accomplices who had pled guilty would obviously not be helpful. The day before trial in 1972 Decoster changed his story and claimed that he was not at the scene of the robbery. On these facts, counsel had no choice but to announce ready for trial. What else could he have done: ask for a continuance and tell the court that he needed extra time because his client was changing his story? Of course not. The trial date had been set after Decoster's long fugitivity and Decoster's attempt to change his story on the eve of a reset trial was no justification for a continuance. No Judge would or should grant a continuance under such circumstances. In short, counsel's difficulties were caused by Decoster's eleventh hour attempt to fabricate an alibi. Counsel simply had to do as well as he could with a bad situation.73The dissent in this complaint thus unsuccessfully scratches in barren ground to find some basis to criticize counsel.
[209] M.Representation of Indigents
[210] The dissent plays the theme fromGriffin v. Illinois,351 U.S. 12,19,76 S.Ct. 585,591,100 L.Ed. 891(1956), that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." But there is nothing in the record to indicate that Decoster's poverty caused him to commit robbery or prevented him from receiving a fair trial.74Increased billions have been spent in recent years to alleviatePage 244poverty, but during this period all forms of crime have soared. And under the Criminal Justice Act most defendants in this court are as well, if not better represented than the Government. Thus, the dissent's reference to poverty is an injudicial appeal to sympathy.[211] Those of us who have been familiar through the years with the massive efforts of the members of the bar to represent indigent defendants, most times without any fee, deny categorically the assertion by the dissent that criminal defendants are poorly served by the bar. Dissent, 2, 6, n. 3, n. 80, n. 89. We specifically resent the inference that appointed counsel scrimp on requesting investigative expense because of an alleged fear that their own fees would thereby be lessened. Dissent n. 80. And the claim that some writers and reports support its position, when it is based on partial statements, is unseemly. For instance, Tague, The Attempt To Improve Criminal Defense Representation, 15 Am. Crim.L.Rev. 109, 131 (1977) is cited, Dissent n. 80. But the statement is ignored that "The relationship that an attorney has with his client and with the court can be further strained if the attorney must be ordered to investigate."Id.at 133.
[212] The dissent purports to be concerned with "equal justice" for the poor. But its myopic view of justice overlooks justice for the public, and for that far larger number of poor Americans who are the victims of crime. It has also been a boon to some defendants who are not only not poor but are extremely wealthy. Illicit drug dealers, many of whom are rolling in illegal wealth, are equal beneficiaries with the poor.75The ease with which a post trial claim of ineffective assistance of counsel can be made is evidenced by the reported claim of Patty Hearst, not normally thought of as poor, that her defense counsel, the famed F. Lee Bailey, had provided her with ineffective assistance.76
[213] It is hardly an exaggeration to say that under the arguments of the dissent, the principle issue in a criminal appeal is whether the accused is poor, rather than whether his guilt was properly determined in a fair trial. Thankfully, this Circuit has now definitively rejected that approach. Neither a rich man nor a poor man has a right to use perjured testimony in his defense. Neither a rich nor a poor defendant has a right to compel his counsel to investigate perjured alibis. And no defendant, be he rich or poor, has a right to have his conviction set aside because his lawyer did not investigate to obtain witnesses who would support a phony defense.
[214] IV. CONCLUSION
[215] While purporting to explore standards for defense counsel in their representation of criminal defendants,Decoster Iwas in fact a bold attempt to shift the burden of proof to the Government. The intolerable results that inevitably follow from such a shift are well illustrated by the position taken by the panel below and the dissent here.
[216] We now repudiate this misguided attempt to change the law and reaffirm the well established rule in this Circuit that the burden of proving prejudice from defense counsel's ineffectiveness rests on the accused. Counsel in this Circuit need not search for non-existent witnesses who might support perjured alibis conjured up by defendants on the eve of trial.
[217] Thus fails the attempt of my dissenting colleagues to create a standard of law that would result in a retrial for an obviously guilty defendant, supposedly because his lawyer's investigation of the crime was not thorough enough, despite the defendant's failure to produce a single witness whoPage 245would testify to a single truthful exculpatory fact. Decoster was found guilty by a jury. The trial judge twice concurred in that judgment. The accused in effect admitted his participation in the robbery and his guilt and on appeal to this court did not contend that his counsel had been ineffective. That claim was initiated by the other members of the original panel. It would be unthinkable for this court to reverse such a conviction because defense counsel failed to investigate every possible fabricated defense.
[220] These considerations summon this opinion, and dictate the general course it will take. I first summarize in brief fashion the position of the court.2Next I set forth my understanding of the test imposed by theSixthAmendment for measuring the sufficiency of the service rendered by counsel for an accused.3I then elucidate my stand on burden of proof of prejudice in ineffective-assistance cases.4Lastly, I explain why I conclude that counsel's performance in this case was constitutionally ineffective but nevertheless was harmless error.5
[221] I. THE COURT'S POSITION
[222] The critical issue we are convened to resolve is the standard appropriately to be utilized in evaluating claims that defense counsel's performance was constitutionally infirm. Early cases in this circuit shunned theSixthAmendment as a source of entitlement to effective aid by a member of the bar.6Relying instead upon the Fifth, those decisions measured counsel's adequacy by the impact of any deficiency on the fairness of the trial;7resultantly, there was concern only if execution of the defense function was so abominable that it rendered the trial "a farce and a mockery of justice."8As late asBruce v.United States9in 1967, this court maintained that while "[t]hese words [were] not to be taken literally," they nevertheless were "a vivid description of the principle that the accused has a heavy burden in showing requisitePage 246unfairness."10And though it is now said thatBruceimplicitly took aSixthAmendment approach to the problem,11theBrucecourt acknowledged no more than that in "rare and extraordinary" instances "an accused may obtain relief . . . if he shows both that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense either in the District Court or on appeal."12That was then the court's concept of the accused's constitutional due, at least where the question was presented by collateral attack upon a conviction.13
[223] As Judge Leventhal's survey of judicially-enunciated formulae for gauging ineffective-assistance claims discloses, every test thus far developed in this and other circuits, however expressed in words, has imposed an initial burden on the defendant to establish that his counsel's performance at trial was abnormally deficient.14Every opinion announced today espouses a standard incorporating that thesis centrally as a hurdle that the defendant must first clear. Judge Leventhal, for a plurality of the court, insists upon proof of "serious incompetency, inefficiency or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer."15Judges Bazelon and MacKinnon would require the defendant to demonstrate, not merely a violation of particular duties, but a "substantial" violation.16I myself believe that the defendant must point to some substantial deviation from a norm of reasonable competence.17Despite the terminological differences in the heft of the showing to be made, each formulation emphasizes that counsel's breach must be serious, and that the defendant bears the onus of making it out.
[224] Perhaps more importantly, the court is agreed that the "gross incompetence" standard ofBruceis dead, and that in my view is how it should be. For nearly four decades the guaranty of competent representation in federal criminal proceedings has had Sixth18as well asFifthAmendment19underpinnings, a verity long calling for a thorough reexamination of this circuit's criteria for proving and assessing asserted violations.Page 247So, while a defendant must show some substantial dereliction in his counsel's performance in order to qualify for relief, the level of the representation required is now considerably higher than it once was. On the other hand, a majority of my colleagues retain in some form the other aspect ofBruce— the defendant's burden of proofvis-a-visresulting prejudice — as a constitutional element in the adjudication of ineffective-assistance contests. A plurality of the court sets the required showing as likely harm; Judge MacKinnon says it should be actual harm.20I am unable to perceive any sound justification for saddling the defendant with the additional obligation of establishing that a demonstrated transgression of his right to effective aid by a lawyer either probably or actually influenced the outcome of his case.
[225] II. THE CONSTITUTIONAL TEST
[226] TheSixthAmendment solemnly proclaims that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."21So plain and potent an injunction obviously demands a great deal more than mere appointment and physical presence of a legal representative. Indeed, it has long been recognized that one accused of crime must be afforded, even apart from theSixthAmendment mandate, a lawyer's help in substance as well as form. InPowell v.Alabama22in 1932, the Supreme Court held that, simply as a matter of due process, it was not enough that counsel for a defendant in a state capital prosecution is "assign[ed] at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case."23And during the nearly half century sincePowellwas decided, it has become increasingly clear that theSixthAmendment entitlement to "assistance of counsel," no less than its due process counterpart, is fully the right toeffectiveassistance of counsel.24
[227] The Supreme Court has never undertaken to delineate the content of the "effective aid" of whichPowellspoke, or to comprehensively define the standard of counsel-aid constitutionally demanded. That might be taken as good reason for believing that the expression is to have its natural and ordinary meaning; in any event, its connotation can hardly be mistaken. Counsel, to be sure, is not required to win the case, but "effective aid" certainly contemplates that counsel will endeavor to pursue a course reasonably calculated to achieve for the accused the most advantageous resolution of the case possible under the circumstances. Equally certain it is that an accused is due more than a lawyer whose performance barely escapes the label "grossly incompetent"Page 248— the standard espoused inBruce.25In my view, "effective" assistance is a call for reasonably competent assistance,26for anything less robs "effective" of far too much of its evident meaning.
[228] That the Supreme Court intends "effective aid" to signify reasonable competence is evident from a number of its decisions. InMcMann v. Richardson,27the Court declared that "defendants . . . are entitled to the effective assistance of competent counsel,"28and that counsel's advice must be "within the range of competence demanded of attorneys in criminal cases."29Moreover, the Court has utilized the term "effective" to zealously guard from outside interference activities of counsel designed to maintain the representation at a wholesome level.30Defense counsel must be free to decide whether and when to put his client on the witness stand.31He must be permitted to present a closing summation.32He must be allowed to confer with his client during an overnight recess.33It would be incongruous for the Court to protect so scrupulously the right to effective assistance when it is endangered by outside tampering but contemporaneously to ignore all but gross incompetence when substantially deficient service is traced directly to shortfalls in counsel's ability or effort.
[229] The farce-and-mockery test of effective assistance, to which the gross-incompetence test is first cousin, is definitely on the wane.34A majority of the federal circuits now have adopted some version of reasonable competence.35With that I agree, and IPage 249cannot improve on theDeCoster Iformulation: "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate."36All of the standard-of-performance rhetoric in today's opinions seems to come down ultimately to essentially this yardstick for measurement of defense counsel's performance.
[230] I perceive no policy consideration sufficiently forceful to persuade me that utilization of this standard bodes ill for either the attorney-client relationship or the adversary system. Reasonable competence is the concept traditionally and universally employed as the measure of the lawyer's civil liability, without apparent untoward effect.37I cannot see how it could take on a destructive propensity merely because the object is reversal of a conviction rather than an assessment of damages.38And even assuming that resort to the familiar doctrine of reasonableness upon judicial evaluation of defense counsel's performance may lead to a modicum of trial-court involvement in defense activities, some policing of counsel's rendition is both necessary and appropriate.39As the Supreme Court has admonished,
if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel . . . . [J]udges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.40
[231] Nor do I have any quarrel with the plurality's position that the criterion for measuring effectiveness of the assistance must preserve counsel's freedom "to make quick judgment,"41and that a "shortfall by defense counsel that is perceptible but is modest . . . is no basis for judicial interposition."42A reasonableness standard is eminently consistent with these concerns, for it is breached only when counsel's conduct deviates so substantially from an acceptable norm as to merit the label "unreasonable." Plainly, neither "quick judgments"Page 250nor "modest shortfalls," merely by reason of their character, are sufficiently off the mark to beckon the hand of the courts.43
[232] Lastly, there is the query on the caliber of counsel's performance in the instant case, and for myself it is enough to give a short answer. Whatever the full range of his constitutional duty to his client,44it is clear that counsel was obligated to conduct a suitable investigation into the facts of the case and to plot the defensive strategy accordingly.45For reasons subsequently appearing, I am satisfied that he did not properly discharge that responsibility,46and on this at least seven members of the court concur.47Where I part company with the majority is the point at which we come to consider whether it was incumbent upon the client to discharge a burden of demonstrating more.
[233] III. THE BURDEN OF PROOF ON PREJUDICE
[234] The burden of proving unconstitutionality is upon him who asserts it.48"That burden," we have said, "extends to production of the facts essential to a determination respecting the constitutional claim."49Resultantly, the defendant who would charge ineffective representation "must," we have added, "set forth evidence upon which the elements of a constitutionallyPage 251deficient performance might properly be found."50We remain divided, however, on the question whether the demonstration incumbent upon the defendant includes a showing that his counsel's allegedly subpar rendition actually or potentially affected the outcome of the case.
[235] A majority of the court considers detriment to the defendant's interests an indispensable ingredient of his constitutional claim, and thus a factor for him to prove. For them, the defendant must establish adversity resulting from the deficient conduct, else there is no infringement of the constitutional right. For Judge Leventhal and subscribers to his opinion, the crucial item is likely prejudice,51for Judge MacKinnon and those who join him, it is actual prejudice.52Judge MacKinnon goes so far as to insist that overwhelming evidence of guilt relieves defense counsel of the duty to conduct any more than minimal investigation on his client's behalf.53
[236] I cannot agree with either of these formulations. Careful review of the caselaw convinces me that the burden-of-proof allocation they direct is an unwarranted distortion of the role that prejudice ordinarily plays in constitutional determinations and an impermissible expansion of the limited function of harmless error. In my view, the defendant establishes a constitutional violation when he makes out a substantial breach of duty by his counsel, and it is then up to the Government to demonstrate lack of ensuing prejudice if it can.
[237] A.The General Role of Prejudice in ConstitutionalAdjudications
[238] InChapman v. California,54the Supreme Court was asked to decide whether a violation of the Federal Constitution can ever be considered innocuous. The Court's response, in essence, was that the answer depends upon the nature of the constitutional entitlement at stake. The Court declared that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error."55The Court refused, however, "to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful."56Rather, said the Court, "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."57Thus an absence of prejudice may or may not be a valid judicial concern when a federal constitutional transgression is under investigation.[239]Chapmanalso addressed the allocation of burden of proof in those instances where harmlessness is entitled to some role. "Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments," the Court cited as an example, "casts on someone other than the person prejudiced by it a burden to show that it was harmless";58[i]t is for that reason," the Court noted, "that the original commonlaw harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment."59And not only is the burden thus to be assigned but, when the asserted error is of constitutional dimension, it is a burdenPage 252of peculiar weight. The rule appropriate, the Court declared, "requir[es] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."60So it was that, for cases wherein harmlessness is a factor at all,61the bottom line was drawn: "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."62
[240]Chapmandid not, of course, speak to the precise question dividing us today — whether the defendant must prove prejudice as an element of his constitutional ineffective-assistance claim. But indubitably implicit inChapmanis the central theme that for a great many constitutional violations — and for perhaps the decided majority — the defendant need not demonstrate harm, either actual or potential, in order to obtain relief. Rather, it may be permissible, but only in some instances, for the Government to attempt to show lack of prejudice, and even then the proof must establish it beyond a reasonable doubt.
[241]Chapmanremains the seminal precedent today,63and obviously it demands two vital inquiries in the case at bar. Is prejudice a legitimate consideration in the assessment of a charge of ineffective assistance of counsel? If so, upon whom rests the burden of proof? Stating the second question somewhat differently, is a showing of threatened or consummated harm from a proven breach of counsel's duties an essential element of the defendant's claim, or is a demonstration of actual harmlessness a matter for the Government to undertake?
[242] Many constitutional errors in criminal trials invoke a per se rule. The constitutional violation triggers spontaneous reversal of an ensuing conviction without any exploration into its real or probable effect upon the trial. Just when that will be the case is a question answerable only upon careful analysis of the nature of the right invaded and its capacity to withstand the inherent fallibility of an investigation into prejudice. From a host of diverse considerations that may deserve attention in the analysis, several come immediately to the fore.
[243] One is the constitutional, statutory or judicial recognition the right has been accorded,64as well as the purpose the right subserves.65Another is the degree of prejudicial propensity of a trespass upon the right.66Still another is the feasibility of anPage 253effort to measure the impact of the constitutional violation upon the outcome of the trial.67Not the least may be an uncompromising policy of deterring repetition of the same unconstitutional conduct in the future.68A modest sampling of Supreme Court decisions will illustrate the interplay of these and other factors.
[244] Conviction by a judge having personally a direct and substantial interest in convicting necessitates reversal "[n]o matter what the evidence was against" the accused because "he had the right to have an impartial judge"69stemming from long-standing judicial realization that a biased tribunal violates fundamental due process.70Conviction by a jury selected through use of discriminatory techniques demands the same result because "[i]t is in the nature of [that evil] that proof of actual harm, or lack of harm, is virtually impossible to adduce," and "there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case."71Inflammatory publicity massively and pervasively surrounding a trial vitiates it without any special showing of consequent harm when "the totality of circumstances" indicates inherent prejudice.72Televising courtroom proceedings in a criminal case has been held violative of due process even absent proof of injury because it is innately harmful,73its adverse effects are too subtle to prove74and the practice has met widespread condemnation.75
[245] Similarly, admission into evidence of a coerced confession requires reversal as the sanction responsive to offensive police activity, irrespective of evidence of guilt dooming any argument that the admission was actually prejudicial.76Committing thePage 254jury to continuous custody by deputy sheriffs who also were the principal prosecution witnesses denies due process "even if it could be assumed that the deputies never did discuss the case directly with any members of the jury," for "it would be blinking reality not to recognize the extreme prejudice inherent in [the] continual association. . . ."77And incorporation of an unconstitutional presumption into the court's instructions to the jury invalidates the verdict even though it is amply sustained by evidence apart from the presumption; the reason is that "[i]n view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be."78And we ourselves have held that denial of the accused's fundamental statutory, quasi-constitutional right to appearpro seis not redeemed by "the subsequent conclusion that [his] practical position [was not] disadvantaged,"79for the right "is designed to safeguard the dignity and autonomy of those whose circumstances or activities have thrust them involuntarily into the criminal process."80
[246] AsChapmanmade clear, however, not every mistake of constitutional magnitude in a criminal trial leads inexorably to reversal. The majority opinion was careful to point out "that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless. . . . "81The concurring opinion similarly noted that "constitutional rights are not fungible goods," and that "[t]he differing values which they represent and protect may make a harmless-error rule appropriate for one type of constitutional error and not for another."82Indeed, the particular violation dealt with inChapman83was held to invoke, not the per se rule of automatic reversal, but the special federal harmless-error rule fashioned in that case for infringements of those constitutional rights that might tolerate it.84It bears repeating, however, that when harmlessness is permitted any sway at all, a much higher-than-normal standard for affirmance obtains: "[B]efore a federal constitutional error can be held harmless, thePage 255court must be able to declare a belief that it was harmless beyond a reasonable doubt."85
[247] SinceChapman'sday, decisions holding constitutional errors harmless are legion.86Usually, they have involved transgressions in the presence of the court,87instances in which assessment of the harm can be made with relative safety.88As the Supreme Court recently remarked,
[i]n the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury.89
[248] It is evident, however, that there are out-of-court contexts in which it is entirely feasible to ascertain whether the accused almost assuredly would have been convicted even absent the cited error.90One such occasion rather clearly is when "the case against [the defendant is] . . . so overwhelming that [the court can] conclude that [the] violation . . . was harmless beyond a reasonable doubt . . . ."91
[249] B.The Role of Prejudice in Right-to-Counsel Cases
[250] Supreme Court decisions on the function of prejudice in right-to-counsel cases reflect essentially the same considerations pertinent in other areas of constitutional error.92Page 256Two factors combine to frequently renderChapman'sspecial harmless-error rule inappropriate. First, entitlement to assistance of counsel is explicitly conferred by theSixthAmendment,93with effectiveness of the assistance as its soul.94Second, harm to the accused's interests is inherent in many denials of the right,95and the scope of consequent injury all too often is not readily identifiable or probable.96[251] Thus, where the defendant had no counsel at all at a critical stage of his trial, automatic reversal of his conviction is usually in order.97That result follows also when counsel became available too late for adequate preparation,98or when he labored under a conflict of interest precluding completely loyal and effective service to his client.99In these instances, harm to the accused is well nigh inescapable,100and intelligent assessment of its range is elusive because the effects of the violation might well permeate the entire trial.101
[252] In some circumstances, however, not even a total lack of counsel necessarily commands these conclusions. Prejudice may not approach the plane of inevitability, or an acceptable judicial appraisal thereof may not be out of reach.102Examples of resortPage 257to the harmless-error rule are to be found when the sole consequence of the violation is the admission of evidence tainted by the absence of counsel at the time of its acquisition. An identification of an unrepresented suspect at a pretrial lineup is legally inadmissible,103as is an in-court identification attributable only to the lineup,104but the use of such an identification does not necessitate reversal if the Government proves its harmlessness beyond a reasonable doubt.105The admission into evidence of a voluntary confession taken from an uncounselled arrestee without constitutionally-required warnings,106or out of the presence of counsel after his appointment,107may similarly be cured,108in both instances, if the error is discrete and its adverse effects measurable. Want of counsel at some other pretrial proceedings — preliminary hearing,109arraignment,110entry of a not-guilty plea111— or even during short periods of the trial itself112may be found to be harmless. In each situation, by reason of the nature of the proceeding or the brevity of counsel's absence, the range of possible negative consequences is limited113and possibly amenable to evaluation.
[253] Impairment of the right to effective assistance of counsel shares the characteristics of other right-to-counsel violations treatable as harmless error. Prejudice may not be invariably a concomitant of counsel's delinquency, or the presence and extent of injury may be susceptible to an acceptablePage 258degree of accurate measurement.114It is worth noting in this connection that in meeting his burden of showing inadequate representation, it is not enough that the defendant merely protest that his counsel was incompetent; he must stake out the shortfalls of which he complains.115This sort of particularization, in turn, supplies the specific points of reference that facilitate the inquiry on prejudice. InChambersv. Maroney,116for example, upon a charge that counsel was inadequate because he was appointed too close to trial to permit preparation, the Supreme Court examined the deficiencies cited and found that in each instance the blunder, if any, was noninjurious.117
[254] I conclude, then, that the right to effective assistance of counsel is amenable to the harmless-error rule. This is not to say, however, that prejudice to the accused, either threatened or consummated, is asine qua nonof the constitutional claim. The defendant must demonstrate a substantial failure by counsel to discharge an important duty, but when he does so I think the claim is sustained although counsel's mistake may be inconsequential — and thus may not incur reversal — because as matters turn out it doubtless did not influence the end result.
[255] C.Allocation of the Burden of Proof on Prejudice
[256] Proof of actual or potential harm is not normally an element of the showing prerequisite to establishing a violation of a right specifically enumerated in the Constitution.118To be sure, prejudice is a factor relevant though not indispensable to a determination respecting observance of theSixthAmendment right to speedy trial;119certainly, too, "in most cases involving claims of due process deprivations . . . a showing of identifiable prejudice to the accused" is required.120But prejudice isPage 259presumed for many due process denials,121and so too it generally is for trespasses on theSixthAmendment right to counsel.122Sometimes, as has been seen, that presumption is conclusive in the sense that any effort to demonstrate an absence of injury-in-fact is totally foreclosed.123And even when the presumption is not fully preclusive, it permits no more than an attempted showing by the accused's adversary that the constitutional transgression was harmless beyond a reasonable doubt.124[257] In no uncertain terms, a positive guaranty of assistance of counsel is enshrined in theSixthAmendment.125It is, I reiterate, unmistakably a pledge of the effective assistance of counsel.126I perceive no reason why that right, like the vast majority of others that the Constitution makes explicit, should not be fully honored upon the usual presumption, as distinguished from proof of prejudice from its denial.
[258] The right we deal with was first articulated by the Supreme Court nearly a half century ago.127It has enjoyed full stature in the Court ever since.128It has been proclaimed with regularity in every federal circuit.129Though sometimes attributed to the exigencies of due process, itsSixthAmendment origin has long been recognized;130though originally construed narrowly,131it has in recent years received increasedPage 260judicial attention and protection.132The implication is that once it is realized that the right to effective assistance of counsel is grounded on the express command of theSixthAmendment as well as encompassed in the generality of the due process concept, no justification for requiring the defendant to prove prejudice is apparent.
[259] Ineffective assistance of counsel has a built-in potential for harm to the client. The right to effective assistance thus shares with most other constitutional guaranties a characteristic which normally obviates any need for proof of prejudice, and sometimes even forecloses consideration of arguments that in the particular situation a denial of the right might have been wholly innocuous.133Indeed, ineffective assistance is not far removed from total lack of assistance, which frequently calls for automatic reversal.134And while the harmless-error rule is in vogue when there was counsel — though inadequate counsel135— the Supreme Court has yet to levy on the defendant a burden of showing that demonstrated incompetence threatened or wrought damage to his cause.136Nothing in the nature of this fundamental constitutional right suggests to me that we should make such an imposition today.137
[260] In sum, I cannot accept the theory that proof of actual or potential harm to the accused is an element of an ineffective-assistancePage 261claim. I think the claim is established by a suitable showing that counsel defaulted on an obligation owed the accused,138and that any asserted lack of injury therefrom is to be treated here just as it normally is in any other instance of curable constitutional error.139This means, of course, that the burden rests upon the Government to prove absence of harm to the accused, and to prove it beyond a reasonable doubt.140
[261] The Leventhal-MacKinnon approach, I submit, confuses two independent questions commonly arising in ineffective-assistance litigation. One is whether defense counsel measured up to the constitutional standard of reasonably competent representation. This entails scrutiny of the quality of the service rendered. The other is whether proven deficiency in counsel's performance clearly lacked adverse impact. The task here is simply to determine whether the error could have contributed in any material way to the result reached in the case. Harm is the focal point of the second; it has no bearing whatever on the first. And harmlessness is a doctrine serving only to avoid needless retrial where, owing to the innocuousness of the violation, the outcome would likely be the same.141
[262] The critical distinction between the defendant's burden to show a constitutional transgression and the Government's burden to demonstrate lack of ensuing prejudice becomes apparent when we look back three years to ourPinkneydecision.142Following a conviction on two drug charges and before sentencing thereon, the Government filed an "allocution memorandum" containing information purporting to link Pinkney with narcotics trafficking and advocating the maximum penalty. After imposition of less severe though stiff sentences, Pinkney moved the District Court to reconsider them, insisting that his counsel had not discussed the Government's memorandum with him and reminding that counsel had not disputed its contents at sentencing. The motion was denied and on appeal we declined to upset that ruling.143We acknowledged the constitutional implications of the asserted breach of duty144but deemed it unimportant because "[t]he record . . . [did] not support the contention that counsel's alleged derelictions frustrated [Pinkney's] opportunity to present his side of the controversy."145We pointed to Pinkney's obligation at this juncture to "set forth evidence upon which the elements of a constitutionally deficient performance might properly be found,"146and we found that Pinkney's motion did not survive this requirement for two reasons. In the first place, he did not verify the deficiency complained of.147Beyond that, after learning of the central allegation of the allocution memorandum, he did not utilize open opportunities to convey to the sentencing judge anything he might have wished to say.148
[263] These omissions are very different from a failure to carry the burden on an issue of prejudice from an established violation.149Page 262Although, we did not reach the question of prejudice inPinkney,150we took pains to explain the distinction:
Our conclusion . . . in no way impinges upon the rule . . . that once a substantial violation of counsel's duties is shown, the Government's burden is to demonstrate lack of prejudice therefrom. . . . In the case before us, we deal only with a procedural prerequisite to a hearing on appellant's assertion that the representation afforded at sentencing fell below the constitutional norm. The essence of appellant's contention is that sentencing counsel deprived him of the opportunity to combat allegations of the Government's allocution memorandum by failing to inform him of the memorandum. . . . Only if the evidentiary elements of that claim had appeared in appellant's motion would he have been entitled to a hearing, and only if evidence offered at a hearing tended to establish the elements would the Government have been summoned to disestablish prejudice. But if, on the other hand, appellant had met these preconditions, the Government would then have encountered the burden of proving that counsel's dereliction did not harm appellant — for example, because the allocution memorandum actually had no effective role in the sentencing process.151
[264] This is the major point of deviation between the position of a majority of the court's members and mine. In my view, the claimant before us needed only to show that his counsel fell substantially short of the standard of reasonable competence; in theirs, threatened or consummated injury therefrom is an additional required part of the showing. I believe the majority err in their approach and denude the constitutional right to effective assistance of counsel of a great deal of the value it was intended to have.
[265] IV. THE PRESENT CASE
[266] Turning now to Decoster's arguments that the assistance furnished by his trial counsel was constitutionally ineffective, I find inescapable the conclusion that counsel failed miserably in responding to his obligation to conduct a reasonably competent investigation into the facts of the case. Prior to trial, as Judge Bazelon studiously recounts,152counsel made no real effort to tap known or likely sources of information, which included codefendants as well as prosecution witnesses. The duty to investigate is vital, and its violation is obviously fraught with danger to the interests of the client.153Here the investigative responsibility was almost wholly unmet, and I cannot view the dereliction as less than appalling.
[267] I am equally convinced, however, that the record firmly establishes the violation as harmless. Two police officers witnessed the robbery in progress. One chased Decoster from the spot the short distance to the hotel lobby wherein he was apprehended, never losing sight of him for so much as a moment. Within minutes the robbery victim, in the presence of both officers, identified Decoster as one of the culprits, as the officers themselves were later to do. Decoster's own testimony aside, no basis for impeaching these witnesses on these vital points surfaces on the record either of the preliminary hearing or the trial.154In sharp contrast, Decoster's alibi, initially feeble, met disaster after he calledPage 263to the stand one of his codefendants only to hear him testify that he saw Decoster in a fight with the victim at the scene of the crime. This is not to say that every prosecutorial presentation in which the evidence is so lopsided may fairly be characterized as overwhelming,155for that appearance may be attributable, at least in part, to counsel's deficiencies. But considering here the Government's direct and positive proof, the number of Government witnesses,156the consistency of their testimony, and the improbability of misinterpretation of the criminal activity or misidentification of the criminal activity or misidentification of Decoster as a participant, I see no reason for supposing that pretrial interviews with these witnesses would have turned up anything but ominous news for the defense.
[268] Counsel's omission to hunt for alibi witnesses was similarly unhurtful. Aside from the clerk on duty in the hotel lobby when Decoster was taken into custody, there is little to indicate that the prospect of locating any such witnesses was better than highly remote. More importantly, I cannot hypothesize any appreciable probability that the jury's verdict would have differed had counsel found someone able to testify that Decoster and the victim drank together at a bar shortly before the robbery occurred, or someone who had seen Decoster enter the hotel lobby shortly after the robbery transpired.157No witness in one or the other place could possibly have established Decoster's absence from the scene of the offense at the instant it was perpetrated. It is clear, of course, that at that point in time Decoster was somewhere between the bar and the lobby, but the question is whether that somewhere was the site of the crime. The most that can be said is that such a witness might have tended weakly and circumstantially to corroborate Decoster's claim that he was not there. But it would blink reality to seriously suggest that, in the face of the Government's powerful eyewitness case, so little would have carried the day.158
[269] I think, then, that in the area of pretrial investigation counsel's performance wasPage 264substantially deficient and therefore constitutionally ineffective. But I believe, too, that in the circumstances counsel's inadequacies were harmless beyond a reasonable doubt.159On that ground, I concur in affirmance of the conviction.
I.
[272] The evolution of the right to the Assistance of Counsel reflects a growing awareness of the barriers faced by the indigent defendant seeking a fair trial, and of the challenge these obstacles pose to our ideal of justice without regard to wealth. By any reckoning, the barriers are formidable. The "street crime" that clogs our courts is bred by poverty and discrimination. It is committed by the dispossessed, the disadvantaged and the alienated of our society — those who most need the advice of a trained advocate. In the words of Justice Sutherland:
Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He requires the guiding hand of counsel at every step in the proceedings against him. . . . If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.2
[273] And the cruel irony, of course, is that the indigent are the very people who are least able to obtain competent representation. For the most part, "you get what you pay for" in legal representation.3Page 265
[274] Only recently have we even recognized that the lack of effective counsel inevitably deprives the poor of the right to a fair trial. For a great many years, the shameful truth was that only the rich could obtain counsel, since only the rich could afford to pay counsel. One hundred and forty-one years after the adoption of the Bill of Rights, the Supreme Court first held, inPowell v. Alabama,4that due process requires the appointment of counsel for an indigent defendant in a capital case. Not untilGideon v. Wainwright,5more than thirty years later, did the Court acknowledge that the "noble ideal" of equal and fair justice could not be realized "if the poor man charged with crime has to face his accusers without a lawyer to assist him."6Only then did the Court extend the right to counsel to all state felony prosecutions. And not until 1972, inArgersinger v. Hamlin,7did the Court affirm the right to counsel in all criminal prosecutions resulting in the deprivation of the accused's liberty.
[275] The Supreme Court's effort to eliminate second-class justice for the poor has not been confined to providing counsel for the indigent.8But the right to counsel is most essential in assuring fair and equal justice,9Page 266for without the conscientious and knowledgeable advice of a trained legal advocate, an accused can secure none of the safeguards of the criminal process intended to protectalldefendants. "The [right to] counsel is often a requisite to the very existence of a fair trial."10To the extent that the indigent defendant receives inadequate representation, markedly inferior to that available to a defendant who can afford "competent and conscientious counsel," a dual system of justice endures.
[276] Inevitably there will be disparities in the quality of representation; some lawyers are simply more able or more conscientious than others. What offends the Constitution, however, is not merely that there are variations in the quality of representation, but that the burden of less effective advocacy falls almost exclusively on a single subclass of society — the poor. In constructing standards for assessing the ineffective assistance of counsel, we must therefore consider not only what measures are necessary to assure a fair trial in the case of any particular defendant. We also must structure our approach to eliminate the gross disparities of representation that make a mockery of our commitment to equal justice. We must institutionalize and enforce standards of attorney competence designed to assure adequate representation foralldefendants.
[277] Because my colleagues in the majority divorce their analysis from the economic and social reality underlying the problem of ineffective assistance of counsel, their decision leaves indigent defendants nothing more than an empty promise in place of theSixthAmendment's commitment to adequate representation for all defendants, rich and poor. At best, the majority's approach might help to rectify a few cases of blatant injustice. But their standards do nothing to help raise the quality of representation provided the poor to a level anywhere approaching that of the more affluent. On the contrary, my colleagues condone callous, back-of-the-hand representation by dismissing the basic duties of competent lawyering as "aspirational." The majority thus provides no incentive or structure to improve the caliber of defense advocacy. By focusing exclusively on the consequences of counsel's dereliction, their approach encourages an attorney who believes that his client is guilty to "cut corners," with little risk that he will be held accountable for the inadequacies of his representation. The majority opinions may say "we don't commend this," or "we don't approve of that," but their bottom line is"Affirmed."
[278] In its holding, the majority turns its back on the evolution in this circuit of the standard for evaluating claims of ineffective assistance.11In the earliest cases, we approached the problem solely from a due process-fundamental fairness viewpoint, requiring a defendant seeking relief to show that the proceedings were a "farce and a mockery of justice."12InBruce v.UnitedPage 267States,13we reconsidered that standard. We explained that the "farce and mockery" requirement was not to be taken literally, but was meant only to demonstrate that in order to obtain relief the accused bears a heavy burden of showing that "there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . .."14Shortly afterBruce,however, we explicitly recognized that the requirement of effective assistance of counsel derives not only from the Due Process Clause, but from theSixthAmendment itself.15Consequently, in our original opinion in this case,United States v. DeCoster(DeCoster I),16this court adopted a standard for direct appeals consistent with theSixthAmendment's "more stringent requirements":17"a defendant is entitled to thereasonably competent assistance of an attorney acting as hisdiligent conscientious advocate."18
[279]DeCoster Irepresented a major advance in this court's recognition of the realities of ineffective assistance. In that case, this court shifted the focus of judicial inquiry away from the prejudice to the defendant in any particular case and toward the task of articulating basic duties counsel owes his client. This approach, for the first time, gave content to what previously had been empty verbal formulations. Even more importantly, it recognized that the very lack of effective trial counsel might preclude a defendant from later establishing prejudice. Thus the court concluded that the only way to assure that every defendant receives a fair trial is to promulgate and enforce standards of adequate representation that apply across-the-board. UnderlyingDeCoster I,therefore, was a commitment to the basic principle that every defendant — rich or poor, innocent or guilty — is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.
II.
[280] Appellant Willie Decoster and two codefendants, Douglas Eley and Earl Taylor, were arrested for the robbery of Roger Crump on the evening of May 29, 1970. Two police officers on plainclothes patrol observed three men accosting Crump in the parking lot of the Golden Gate Bar. When the officers jumped from their car, the robbers fled and were pursued by the police. Officer Box and the victim found Decoster in the lobby of a nearby hotel, the D.C. Annex, where he was immediately arrested and identified by Crump.19
[281] At his trial on November 15, 1971, appellant testified that on the evening of the crime he had been drinking with Crump at the Golden Gate Bar.20Decoster claimed that he left Crump at the bar and walked directly to his hotel, where, while standing by the desk waiting to obtain his room key, he was arrested. One of appellant's allegedPage 268accomplices, Douglas Eley, was also called as a defense witness but his testimony contradicted Decoster's in several respects. Most importantly, on direct examination he claimed to have seen appellant and Crump fighting in the parking lot outside the bar at the time of the alleged robbery. Following the trial, appellant was convicted of armed robbery and sentenced to 2-8 years.21
[282] On appeal, this court was troubled by a number of actions taken by Decoster's court-appointed counsel which, taken together, suggested that Decoster may not have received the effective assistance of counsel. The record showed that on Nov. 4, 1970, several months after appellant's arrest, the trial judge received a letter from Decoster in which he requested new counsel because his attorney was not providing adequate representation.22Decoster charged that although he had been accepted for pretrial custody by the Black Man's Development Center on October 12, defense counsel had not kept his promise to file for bond review.23Appellant also requested a copy of the transcript of his preliminary hearing, which he had been unable to obtain through his attorney.24
[283] Although Decoster's counsel finally filed the requested bond review motion on November 9,25he not only failed to mention that third-party custody had been arranged, but he also filed the motion in the wrong court.26On November 18, the district court advised counsel of his error and continued the motion to await review by the proper court, as required by law.27Again, however, counsel delayed filing; not until DecemberPage 2699, did he file a motion for bond review in the proper court.28
[284] We also noted that events at the beginning of trial raised serious questions about the adequacy of counsel's pretrial preparation and communication with his client. As the trial was about to start, and after counsel had asserted that he was prepared to proceed, appellant himself stepped forward and asked if the court would subpoena his two codefendants,29explaining that he "didn't have a chance" to discuss the matter with his lawyer. Defense counsel then told the court that he had considered the possibility of issuing subpoenas, "except for the fact that we have no address for the other defendants."30The prosecutor immediately volunteered that codefendant Eley was in jail with Decoster;31an address for Taylor was subsequently provided from the court records.32The court thereupon ordered defense counsel to "take care of the situation."33
[285] Moments later, after defense counsel again announced that he was ready for trial, the prosecutor informed the court that the Government had not received any response to its alibi-notice demand. Defense Counsel replied that although he might rely on an alibi defense, no response was needed because the Government had not given the twenty days' notice required by the local rules. The trial judge ordered the defense to provide the names of alibi witnesses anyway, whereupon defense counsel relented and stated, "We will proceed without the alibi witnesses."34
[286] Defense counsel then informed the court that his client wished to waive jury trial. When asked if he was aware that the trialPage 270judge already had heard evidence concerning Decoster's case while presiding over the trial of his codefendants, counsel responded that he was not.35After attempting unsuccessfully to find another judge who could hear the case at such a late date, the trial judge ruled that he could not hear the case himself but would instead preside over a jury trial. Appellant's case thereupon proceeded to trial before a jury.
[287] In the midst of all this confusion, Decoster again complained to the court about his attorney's efforts on his behalf.
THE DEFENDANT: Your Honor, I feel that this case should be continued because this is, I can't get proper representation that I should be getting and too I think I should have an accurate statement of what happened here when the other two defendants was in court.36
[288] Defense counsel then requested to withdraw from the case "because apparently I have caused some dissatisfaction to the defendant. . . ."37The district judge, however, did not inquire into the basis of the defendant's complaints. Instead, after receiving counsel's assurances that he had prepared the case and was ready to go to trial, the court denied the request for a continuance and refused to appoint new counsel.38Page 271
[289] In view of the foregoing, in our original opinion39we remanded for supplementary hearings on the adequacy of trial counsel's representation and granted leave for appellate counsel to move for a new trial. At the hearings on remand,40the district court elicited further information about trial counsel's preparation and his explanations for his actions. Counsel admitted that he had not interviewed the robbery victim or either of the police officers.41He also admitted that he had made no attempt to contact or interview the hotel desk clerk or, for that matter, anyone else at either the D.C. Annex hotel or the Golden Gate bar.42
[290] As for the codefendants, counsel conceded that he had not interviewed Taylor,43but claimed that he had talked with Eley in the cellblock behind the courtroom on thePage 272second day of the trial.44Counsel also admitted that he never obtained a transcript of the preliminary hearing, but stated that since he had conducted most of the cross-examination at that hearing, he saw no need for the transcript.45Moreover, counsel testified that the U.S. Attorney's Office usually makes a copy of the transcript available during discovery. Although he did not specifically remember Decoster's case,46counsel said he assumed that the government's copy had been available and that he had read it.47
[291] In attempting to defend his actions, counsel testified that he had not interviewed any witnesses because, until shortly before trial, appellant had never mentioned any possible alibi witnesses. Counsel explained that, to the best of his recollection, Decoster had continuously maintained that he had joined Crump for a drink in the bar, had left him there, and had just returned to his hotel when he was arrested.48Then, on the eve of trial,49counsel received a letter in which appellant changed his story, allegedPage 273that he had fought with Crump but did not rob him, and asserted that his codefendants would support this version of the offense.50Explaining why he had not interviewed Decoster's codefendants even after receiving this letter, counsel stated that "it was my feeling at that time that any testimony that might be given by either of these defendants might be contradictory to what I had already heard from the Defendant."51Counsel claimed that he did interview Eley after appellant insisted at trial that his codefendants be subpoenaed, and that Eley told him that Decoster was not at the scene of the crime.52Believing that Eley would say this in court, counsel decided to put him on the stand, but Eley instead testified that he saw Decoster and Crump fighting outside the bar.53
[292] Counsel also was asked at the remand hearing to explain the reasons underlying certain "tactical decisions" he had made. He could not recall why the motion for bond review was filed in the wrong court, or why he failed to mention appellant's acceptance by the Black Man's Development Center in the original motion. With respect to the waiver of jury trial, counsel said that although he opposed the idea, he had requested a bench trial at his client's insistence.54Finally, counsel stated that he gave no opening statement because he had felt it to be unnecessary, and not because he had no defense theory at the time the trial started. However, counsel could not recall why he had concluded that an opening statement was unnecessary.55
[293] In its findings on remand, the district court isolated seven56particular acts orPage 274omissions by defense counsel that were alleged to have deprived appellant of the effective assistance of counsel.57With respect to three of the allegations — counsel's waiver of opening statement, his attempt to waive jury trial, and his failure to see that Decoster was given credit for time served as ordered by the sentencing judge58— the district court found no ineffective assistance.59Two other claims — the delay in moving for bond review and the failure to obtain a transcript of the preliminary hearing — were rejected because the court found that the appellant had not been prejudiced by the violations.60On the final two allegations — counsel's failure to interview witnesses and his premature announcement that he was ready for trial — the district court's conclusions can be interpreted as holding either that there was no constitutionalPage 275violation or simply that no prejudice to appellant was shown.61
III.
[294] The analysis of this case should be guided by the principles established inDeCoster I.62We there held that upon showing a substantial violation of any of counsel's specified duties, a defendant establishes that he has been denied effective representation and the burden shifts to the government to demonstrate that the violation did not prejudice the defendant. Thus,DeCoster Iprescribed a three-step inquiry for determining whether a claim of ineffective assistance of counsel warrants reversing a conviction:
1) Did counsel violate one of the articulated duties?
2) Was the violation "substantial" ?
3) Has the government established that no prejudice resulted?
[295] The heart of this approach lies in defining ineffective assistance in terms of thequality of counsel's performance,rather than looking to the effect of counsel's actions on the outcome of the case. If theSixthAmendment is to serve a central role in eliminating second-class justice for the poor, then it must proscribe second-class performances by counsel, whatever the consequences in a particular case. Moreover, by focusing on the quality of representation and providing incentives in all cases for counsel to meet or exceed minimum standards, this approach reduces the likelihood that any particular defendant will be prejudiced by counsel's shortcomings. In this way, courts can safeguard the defendant's rights to a constitutionally adequate trial without engaging in the inherently difficult task of speculating about the precise effect of each error or omission by an attorney. Although the question of prejudice remains part of the court's inquiry, it is distinct from the determination of whether the defendant has received effective assistance. Rather, prejudice is considered only in order to spare defendants, prosecutors and the courts alike a truly futile repetition of the pretrial and trial process.
[296] A.Violation of Articulated Duties
[297] InDeCoster I,this court attempted to give substantive content to theSixthAmendment's mandate by setting forth minimum requirements of competent performance63Page 276The obligations were described as "duties owed by counsel to client,"64and thus were not offered as merely "aspirational" guidelines to which attorneys should strive. Indeed, the duties announced inDeCoster Irepresent the rudiments of competent lawyering guaranteed by theSixthAmendment to every defendant in a criminal proceeding.65[298] The duties set forth inDeCoster Iwere derived from the American Bar Association's Standards for the Defense Function.66These ABA Standards summarize the consensus of the practicing Bar on the crucial elements of defense advocacy in our adversary system. Even though these standards were not intended by their drafters to serve "as criteria for judicial evaluation of effectiveness[,]"67this court noted that "they are certainly relevant guideposts in this largely uncharted area."68Naturally, given the complexities of each case and the constant call for professional discretion, it would be a misguided endeavor to engrave in stone any rules for attorney performance.69Nonetheless, preserving flexibilityPage 277is not incompatible with establishing minimum components of effective assistance, and the ABA Standards give helpful guidance in pursuing both aims.70
[299] InDeCoster Ithis court was sensitive to these concerns and so did not attempt to prescribe categorical standards of attorney performance. Instead, we took pains to note that the articulated duties were "meant as a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance."71We recognized, however, that there were certain tasks, such as the ones we enumerated in our decision, that can never be ignored: conferring with the client without delay and as often as necessary; fully discussing potential strategies and tactical choices; advising the client of his rights and taking all actions necessary to preserve them; and conducting appropriate factual and legal investigations.72I submit that no one can dispute that a reasonably competent lawyer, absent good cause,73would or should do less. Counsel should proceed in the representation of his client under the guidance of these minimal duties, departing only when the particular needs of his client compel a different course of action.
[300] Prominent among the duties of defense counsel is the obligation to "conduct appropriate investigations, both factual and legal, to determine what matter of defense can be developed."74As the Commentary of the ABA Standards stresses, "[I]nvestigation and preparation are the keys to effective representation . . . . It is impossible to overemphasize the importance of appropriate investigation to the effective and fair administration of criminal justice."75
[301] Investigation is crucial for several reasons. First, the proper functioning of our adversary system demands that both sides prepare and organize their case in advancePage 278of trial. There can be no justice where one party to the battle has made no effort to arm itself with the pertinent facts and law.76Second, in a very practical sense, cases are won on the facts. Proper investigation is critical not only in turning up leads and witnesses favorable to the defense, but in allowing counsel to take full advantage of trial tactics such as cross-examination and impeachment of adverse witnesses. And of course, adequate legal investigation is necessary to ensure that all available defenses are raised and that the government is put to its proof.77"[I]t is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation and study of legal points which precede the trial."78
[302] Moreover, the necessity for exhaustive investigation is not limited to its value in preparation for trial. As a leading manual for defense lawyers emphasizes:
"Thefactsare counsel's most important asset not only in arguing before a jury but in every other function counsel performs: seeking advantageous terms of bail, urging the prosecutor to drop or reduce charges, negotiating with him about a plea, urging a favorable sentence recommendation on a probation officer or sentencing disposition on a judge."79
[303] At a minimum, the duty to investigate requires counsel (or his investigator)80toPage 279contact persons whom he has or should have reason to believe were witnesses to the events in question, to seek witnesses in places where he has or should have reason to believe the events occurred, and to conduct these interviews and investigations as promptly as possible, before memories fade or witnesses disappear.81
[304] In the present case, Decoster's attorney did none of these things. Although the failure to interview a particular witness, by itself, may not rise to the level of inadequate assistance, defense counsel's investigation and preparation for this case was so perfunctory that it clearly violated his duties to his client.82The prosecution called three witnesses at trial — Roger Crump and Officers Box and Ehler. Despite the cardinal rule that proper investigation begins with interviews of those witnesses whom the government intends to call,83particularly the arresting and investigating officers,84defense counsel made no attempt to interview any of these witnesses at any time prior to trial. Nor did he request or obtain a transcript of the preliminary hearing where these witnesses testified.85Defense counsel did not even contact and interview Decoster's codefendants, Eley and Taylor, before trial. Nor did he seek or talk to any witnesses at the hotel or bar. In fact, defense counsel made absolutely no effort to discover, contact, or interviewa single witnessprior to trial.86Apparently, he was willing to go to trial without having made any real effort to determine what could be elicited by way of defense or to evaluate the strengths and weaknesses of his client's case.87Page 280
[305] Moreover, defense counsel's violations of the duties owed to his client were not limited to an egregious failure to investigate. There are several indications that counsel did not "confer with his client . . . as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable."88Surely, many of the problems that developed at and just prior to trial could have been eliminated had counsel more fully prepared himself and discussed the case with his client.89In addition, counselPage 281was derelict in his duty to "promptly advise his client of his rights and take all actions necessary to preserve them."90For example, 50 days elapsed from the time appellant was accepted for third-party custody until his attorney filed a proper bond review motion.91Finally, counsel's representation of his client at the sentencing hearing was anything but diligent and conscientious. Despite the critical need for effective advocacy at what "may well be the most important part of the entire proceeding,"92counsel's total contribution at appellant's hearing consisted of the following "allocution":
If the Court please, Counsel is aware that Your Honor has a fully comprehensive a [sic] detailed probation report, and Counsel is aware of the report and would submit based on said report.93
[306] In sum, counsel violated each of the duties enunciated inDeCoster Ias the prerequisites of a reasonably competent performance. Appellant's court-appointed attorney provided the kind of shoddy representation that none of us would tolerate for ourselves — a slovenly, slipshod job, almost totally lacking in preparation, characterized by repeated failures to protect his client's rights and an obvious indifference to his client's fate.
[307] B."Substantial" Violations
[308] Contrary to the intimations of the majority, we do not contend that the slightest departure from a checklist of counsel's duties establishes ineffectiveness and requires reversal.94Since counsel's decisions must be adapted to the complexities of a given case, the proper performance of an attorney's obligations necessarily entails considerable discretion. Moreover, the human animal is too fallible and the task of defense counsel too complex to expect that every action taken by an attorney will prove correct on hindsight. We have repeatedly cautioned that "[t]his court does not sit to second guess strategic and tactical choices made by [defense] counsel."95TheSixthAmendment demands that counsel's conduct be conscientious, reasonable, and informed by adequate investigation and preparation; it does not demand that counsel's performance be flawless.[309] Thus, like the majority, we recognize that counsel's conduct must be evaluated in thePage 282context of a particular case and that not every deviation from a perfect, or even average performance makes out a claim of ineffective assistance. Instead, counsel's violations must be substantial to offend theSixthAmendment right to effective assistance of counsel.96The duties articulated inDeCoster I,like the ABA Standards and the obligations prescribed by the Fourth Circuit inColes v. Peyton,97describe the minimum components of a competent performance and provide the court with an objective basis for assessing the adequacy of representation. A demonstration that counsel has violated one of these duties compels further inquiry into counsel's conduct to determine whether, in this specific case, counsel's departure from the prescribed standards was either "excusable" or "justifiable." The first of these inquiries recognizes that even the most diligent and conscientious attorney may occasionally falter in fulfilling his responsibility; one minor error in an otherwise commendable performance does not automatically render the representation inadequate.98The second inquiry is necessary because the "reasonably competent" attorney must tailor his actions to fit the unique circumstances presented by a given case; some particular situations may justify or even mandate a course of action that transgresses the general list of duties, a list that of necessity was designed to govern defense counsel's conduct in the typical criminal case.
[310] In this case, the frequency and pervasiveness of defense counsel's omissions and failures certainly belie any notion that these actions were isolated and excusable events. The violation in this case was not simply that counsel failed to interview certain named witnesses. The record reveals that counsel conducted almost no investigation whatsoever in the 17 months preceding trial. Consequently, he began trial unaware of what the prosecution witnesses would say and as a result was unable to refute their stories, was ignorant of the possible defenses and witnesses he might present, and was even unsure of his own client's version of the events.
[311] Nor do any special circumstances justify counsel's breach of his obligations. In some cases prudential judgments or tactical considerations may be involved in counsel's decision about whom to interview.99In the present case, however, there simply is noPage 283possible justification for counsel's near-total lack of investigation and preparation.
[312] Defense counsel's failure to investigate cannot be justified on the basis that he felt he was familiar enough with the facts of this case to judge for himself that his client was guilty. To begin with, the assertion that defense counsel had sufficient knowledge of what an investigation would reveal is manifestly unsupportable. From all that appears affirmatively in the record, defense counsel's entire knowledge of the events in question derived solely from two sources: conversations he may have had with his client and his representation of the defendant at the preliminary hearing. As to the former, the record reveals only that appellant and his attorney appeared in court together on six occasions;100counsel presented no evidence on remand on the extent of his communications with his client. As to the latter, the preliminary hearing occurred 17 months before trial, lasted all of 20 minutes and consisted entirely of the testimony of Officer Ehler, who was not even the arresting officer. Thus, defense counsel's total knowledge of the case in fact consisted entirely of two conflicting versions of the events — one from a police officer and the other from his own client.101
[313] Perhaps counsel concluded from this limited information that his client had no alibi defense and was guilty, and that therefore counsel was excused from conducting any investigation.102But the suggestion that a client whose lawyer believes him to be guilty deserves less pretrial investigation is simply wrong. An attorney's duty to investigate is not relieved by his own perception of his client's guilt or innocence.103I can think of nothing more destructive of thePage 284adversary system than to excuse inadequate investigation on the grounds that defense counsel — the accused's only ally in the entire proceedings — disbelieved his client and therefore thought that further inquiry would prove fruitless.104The Constitution entitles a criminal defendant to a trial in court by a jury of his peers — not to a trial by his court-appointed defense counsel.105
[314] In this case, however, court-appointed counsel failed to interview even the prosecution witnesses, ostensibly because he was already "aware" of the main points of their likely testimony. By virtue of his attendance at the preliminary hearing perhaps counsel obtained a good indication of Officer Ehler's likely testimony at trial.106But there can be no justification for counsel'sPage 285failure to interview either complainant Crump or Officer Box, the critical witnesses to the circumstances surrounding the arrest of appellant.107
[315] As for the codefendants Taylor and Eley, the district court concluded that, "[a]s a result of the information the defendant had given him and his knowledge of the prior `guilty' pleas of the co-defendants, [counsel] considered that their testimony might be contradictory to that of the defendant."108My colleagues apparently believe that this finding justifies counsel's failure to interview the codefendants. But counsel's speculations and beliefs are no substitutes for facts. No matter how experienced an attorney is, no matter how astute his predictions of the content of the witnesses' testimony might be, it is inexcusable not to interview such key potential witnesses on the ground that counselfeelsthat their testimony might contradict what the defendant has told him. Counsel's reasoned and informed judgment that a witness' testimony would not aid the defense may justify not calling that witness to testify, but it cannot excuse the failure even to interview him.109
[316] It is true that appellant complicated defense counsel's task when, sometime before trial, he sent counsel a letter suggesting a new version of what happened on the day of his arrest.110Again, however, this has noPage 286bearing on counsel's failure to investigate.111By his own account, counsel did not learn of the self-defense theory until the day before or the day of the trial. Appellant's conflicting stories, therefore, obviously cannot excuse counsel's inaction during the previous seventeen months. If anything, appellant's differing accounts should have emphasized the need for an independent investigation to determine which, if either, version was accurate and could be presented as a defense.112Yet, even after receiving appellant's letter, counsel was ready to go to trial without having attempted to contact the codefendants to learn their version of the events on the night of the robbery.
[317] In the end, the majority's conclusion that appellant was not denied the effective assistance of counsel rests on their perception that the record contains overwhelming evidence of appellant's guilt.113[U]ltimately, "there was a total failure of appellant to show that it was likely that counsel's deficiencies had any effect on the outcome of [the] trial."114The logic of their position seems to be as follows: If the accused was probably guilty, then nothing helpful could have been found even through a properly conducted investigation. Thus, any violation of that duty — no matter how egregious — was inconsequential and hence excusable.115Page 287
[318] Even on its own terms, such reasoning is faulty. It assumes that the value of investigation is measured only by information it yields that will exonerate the defendant. Yet, even if an investigation produces not a scintilla of evidence favorable to the defense — an unlikely hypothesis — appellant still will benefit from a full investigation. One of the essential responsibilities of the defense attorney is to conduct an independent examination of the law and facts so that he can offer his professional evaluation of the strength of the defendant's case.116If this full investigation reveals that a plea of guilty is in the defendant's best interests, then the attorney should so advise his client and explore the possibility of initiating plea discussions with the prosecutor.117It is no secret that in the majority of criminal prosecutions the accused is in fact guilty, notwithstanding any initial protestations of innocence. It is also no secret that the vast majority of criminal prosecutions culminating in conviction are settled through plea bargaining.118Indeed, the Supreme Court has recognized that plea bargaining will remain "an essential component of the administration of justice" in this country until the courts' resources are greatly expanded.119In many cases, therefore, perhaps the most valuable function that defense counsel can perform is to advise the defendant candidly that a thorough investigation — conducted by his own representative and seeking any glimmer of exonerating evidence — has turned up empty. Only then can the defendant truly evaluate his position and make an informed decision whether to plead guilty or whether to continue to assert his innocence at trial.120
[319] More importantly, the majority's position confuses the defendant's burden of showing that counsel's violation was "substantial" with the government's burden of proving that the violation was not "prejudicial." The former entails a forward-looking inquiry into whether defense counsel acted in the manner of a diligent and competent attorney; it asks whether, at the time the events occurred, defense counsel's violationsPage 288of the duties owed to his client were justifiable. In contrast, the inquiry into "prejudice" requires an after-the-fact determination of whether a violation that was admittedly "substantial," nevertheless did not produce adverse consequences for the defendant.
[320] All that the accused must show to establish aSixthAmendment violation is that counsel's acts or omissions were substantial enough to have deprived him of the effective assistance of counsel in his defense. He need not prove that counsel's violations were ultimately harmful in affecting the outcome of his trial.121Quite simply, the inquiry into the adequacy of counsel is distinctfrom the inquiry into guilt or innocence.The Constitution entitles every defendant to counsel who is "an active advocate in behalf of his client."122Where such advocacy is absent, the accused has been denied effective assistance, regardless of his guilt or innocence. The majority opinions nevertheless force the appellant to shoulder the burden of proving that counsel's acts or omissions actually or likely affected the outcome of the trial.123To thus conditionPage 289the right to effective assistance of counsel on the defendant's ability to demonstrate his innocence is to assure that only the constitutional rights of the innocent will be vindicated. Our system of criminal justice does not rest on such a foundation.
[321] Recent Supreme Court decisions affirm that a distinct showing of prejudice is unnecessary to establish aSixthAmendment violation. InGeders v. United States,124for example, the defendant had been ordered not to consult with his attorney during the overnight recess between his direct and cross-examination. The Court of Appeals affirmed the conviction on the grounds that the defendant failed to claim any prejudice from his inability to confer with counsel.125The Supreme Court, however, found that the petitioner had been deprived of hisSixthAmendment right and made no inquiry into whether he had been prejudiced in any way by the trial court's order. That the defendant had been deprived of the assistance of counsel established the constitutional violation; no showing of prejudice was necessary.126
[322] More recently, inHolloway v. Arkansas,127the Court found a violation of theSixthAmendment in the trial court's failure to appoint separate counsel in the face of the defense attorney's assertions that conflicting interests might prevent him from providing effective assistance for each of three codefendants. InHolloway,as inGeders,the petitioners' appeal below had been rejected on the ground that the record demonstrated no actual conflict of interest or prejudice to the defendants. Again, however, the Supreme Court did not inquire into whether the defendants were prejudiced or even into whether trial counsel's claim of possible conflicting interests was valid. Because the trial court failed, in the face of counsel's objections, either to appoint separate counsel or to ascertain whether the risk of conflict of interests was too remote to require such appointment, the defendants were deprived of their right to the effective assistance of counsel.128Upon finding a constitutional violation, the Court then proceeded, in a separate part of itsPage 290opinion, to determine whether reversal of the petitioners' convictions was required.129
[323] C.Was the Substantial Violation Prejudicial?
[324] Having determined in this case that counsel's violation of his duty to his client was substantial,130and that appellant consequently was denied the effective assistance of counsel, we now must consider whether this violation of theSixthAmendment mandates reversing appellant's conviction.131Our inquiry is governed byChapmanPage 291v. California,132in which the Supreme Court concluded that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless . . .."133For these errors, a return to earlier stages in the criminal process would merely be an exercise in futility because the second proceedings would be certain to reach the same result as the first.[325] UnderChapmanthe burden in each case rests squarely on the government to prove beyond a reasonable doubt that an error was harmless before the defendant's conviction can be allowed to stand.134To place the burden on the defendant would require him to establish the likelihood of his innocence. The presumption of innocence135that cloaks the accused cannot be stripped by a conviction obtained in something less than a constitutionally adequate trial.
[326] To satisfy its burden of establishing lack of prejudice, it is not enough for the government simply to point to the evidence of guilt adduced at trial, no matter how overwhelming such evidence may be.136In the first place, "proof of prejudice may well be absent from the record precisely because counsel has been ineffective."137When, as in this case, ineffectiveness is founded upon gross omissions of counsel rather than specificPage 292errors, counsel's violations so permeate the trial that they necessarily cast doubt on the entire adjudicative process.138Even where the consequences of counsel's omissions are less pervasive, it will generally be impossible to know precisely how the proceedings were affected,139and the resulting prejudice will be "incapable of any sort of measurement."140As the Supreme Court has emphasized, "`The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge inPage 293nice calculations as to the amount of prejudice resulting from its denial.'"141
[327] Moreover, "prejudice" to the defendant may take many forms. The likelihood of acquittal at trial is not the only touchstone against which the consequence of counsel's failures is to be measured. The duties of an attorney extend to many areas not necessarily affecting the outcome of trial. As the present case highlights, inadequate investigation and preparation may prejudice the defendant not onlyattrial butbeforetrial — in counsel's inability to offer informed, competent advice on whether to plead guilty and whether to demand a jury trial — as well asaftertrial — in providing ineffective representation at sentencing.142
[328] These principles, in fact, might suggest that a per se rule is appropriate in all cases in which counsel's representation fails to meet the standards of theSixthAmendment.143It may be that the prejudice to the defendant from the denial of effective assistance of counsel is so great, and the likelihood that the government can prove lack of prejudice so small, that reversal should be required whenever a substantial violation of counsel's duties is shown. Indeed, the Supreme Court has frequently emphasized that "the assistance of counsel is among those `constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.'"144And it may be that only a rule requiring automatic reversal can provide the deterrent effect necessary to insure that all defendants — innocent or guilty — receive the effective assistance of counsel.145
[329] Nevertheless, there may be cases — however few — in which the reviewing court can isolate specific deficiencies in counsel's performance and can accurately gauge the consequences of counsel's acts or omissions.146Page 294For example, when a defendant alleges ineffectiveness because his counsel has failed to object to the introduction of arguably inadmissible evidence, the consequences of counsel's violation may readily be measured. There, the government may be able to prove harmlessness either by showing that a suppression motion would not have succeeded (and the evidence would have been admitted anyway),147or by proving that there was no "reasonable possibility that the evidence complained of might have contributed to the conviction."148Similarly, where counsel violates his duties by failing to interview a particular witness, the government may be able to carry its burden by proving, through proffer of the witness' testimony, that the witness had nothing relevant to offer even if he had been interviewed. As these examples demonstrate, in appropriate circumstances, reversing the defendant's conviction may not be required because rectifying counsel's errors could not possibly benefit the defendant.149
[330] On the record before us in the present case, I would conclude that the government has failed to discharge its burden of proving that no adverse consequences resulted from counsel's gross violations of his duties to his client. Several important questions on the matter of prejudice remain unanswered, and in the absence of any evidence on these critical issues, I am unable to find that counsel's violations were "so unimportant and insignificant"150that reversing appellant's conviction would be a futile exercise. No inquiry was made for example, on the relationship between counsel's failure to investigate and DeCoster's decision to go to trial rather than to seek and possibly accept a plea bargain comparable to that of his codefendants.151Nor was there explorationPage 295of whether counsel's failure to offer any allocution at the sentencing hearing had any bearing on the trial judge's decision to sentence Decoster to a prison term of 2-8 years while his codefendants received only probation.152
[331] InDeCoster I,the court expressly stated that reversal would be required, "unless the government, `on which is cast theburden of proof once a violation of these precepts is shown,can establish lack of prejudice thereby.'"153Thus, any doubts about the harmlessness of counsel's violations in this case would ordinarily be resolved against the government, and the case would be reversed and remanded for a new trial. Yet, despite our prior remand, it is not clear that the government was ever required to satisfy its burden of proving that the denial of Decoster's right to the effective assistance of counsel was harmless beyond a reasonable doubt. In ruling on several of appellant's contentions the district court found that counsel had not violated any duty owed to his client. As to these issues, therefore, the question of the prejudicial effect of counsel's conduct was never reached. On several other allegations, the district judge appears to have required appellant to demonstrate that he was prejudiced by counsel's actions in order to establish a constitutional violation. Thus, the government was not put to its proof in establishing harmlessness. Moreover, the initial remand hearing was conducted without benefit of this opinion's elucidation of the principles set forth inDeCoster Igoverning questions of ineffective assistance. I therefore would remand the case to allow the government an opportunity to satisfy its burden of proving harmlessness.
IV
[332] Of course, even reversing Decoster's conviction would not remedy the pervasive problem of ineffective representation of the indigent.154The disparity between representation of the poor and of the well-to-do reflects the larger inequality of riches in our affluent society. The imbalance in the quality of legal assistance provided for the indigent and the wealthy is only one of a host of inequities in our society — inequality of educational opportunity, of jobs, of housing, of health care.
[333] It is not the province of the judiciary to remedy all these inequities. We have neither the means nor the competence to redress all of society's imbalances. We however do have the duty, entrusted to us by the Bill of Rights, to assure that no individual is deprived of liberty by our courts ofPage 296law without a constitutionally adequate trial. We violate this duty when we place our imprimatur of "Equal Justice Under Law" on the incompetent performance of court-appointed counsel in cases like the one before us.155
[334] An appellate court's role is limited. We can promulgate standards that specify the minimum requirements of the constitutionally mandated competent performance. We can closely scrutinize the records of those cases in which effectiveness is at issue, carefully monitoring trial counsel's performance to ensure that the attorney's obligation have been fulfilled.156When substantial violations are uncovered, we can enforce theSixthAmendment's guarantee by vacating the defendant's conviction and remanding for a new trial in which the effective assistance of counsel will be provided.
[335] The real battle for equal justice, however, must be waged in the trenches of the trial courts. Although reversing criminal convictions can have a significant deterrent effect, an appellate court necessarily depends upon the trial courts to implement the standards it announces. No amount of rhetoric from appellate courts can assure indigent defendants effective representation unless trial judges — and ultimately defense counsel themselves — fulfill their responsibilities. The Supreme Court, too, has recognized the duty of the trial court to fulfill theSixthAmendment's promise:
[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and . . . judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their court.157
[336] Because, as this case demonstrates, ineffective representation is often rooted in inadequate preparation, a first step that a trial judge can take is to refuse to allow a trial to begin until he is assured that defense counsel has conducted the necessary factual and legal investigation. The simple question, "Is defense ready?" may be insufficient to provide that assurance. Instead, we should consider formalizing the procedure by which the trial judge is informed about the extent of counsel's preparation.158Before the trial begins — or before a guiltyPage 297plea is accepted159— defense counsel could submit an investigative checklist certifying that he has conducted a complete investigation and reviewing the steps he has taken in pretrial preparation, including what records were obtained, which witnesses were interviewed, when the defendant was consulted, and what motions were filed.160Although a worksheet alone cannot assure that adequate preparation is undertaken, it may reveal gross violations of counsel's obligations; at a minimum, it should heighten defense counsel's sensitivity to the need for adequate investigation and should provide a record of counsel's asserted actions for appeal.
[337] The trial judge's obligation does not end, however, with a determination that counsel is prepared for trial. Whenever during the course of the trial it appears that defense counsel is not properly fulfilling his obligations, the judge must take appropriate action to prevent the deprivation of the defendant's constitutional rights. "It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial."161
[338] My colleagues fear that judicial "inquiry and standards . . . [may] tear the fabric of [our] adversary system."162But forso very many indigent defendants, the adversary system is alreadyin shreds.Indeed, until judges are willing to take the steps necessary to guarantee the indigent defendant "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate,"163we will have an adversary system in name only. The adversary system can "provide salutary protection for the rights of the accused"164only ifPage 298both sides are equally prepared for the courtroom confrontation.165
[339] Some of my colleagues are also concerned that a wide-ranging inquiry into the conduct of defense counsel would transform the role of the trial judge. To emphasize the supposed hazards of such a result, the majority refers to the warning of Judge Prettyman inMitchell v. United States:166
If the trial judge were required, after a trial has been concluded, to judge the validity of the trial by appraising defense decisions,he would also be underan obligation to protect those rights of an accusedas the trial progressed.[Emphasis added]
[340] Yet this is the very role that the Constitution has assigned the trial judge. His is the ultimate responsibility for ensuring that the accused receives a fair trial, with all the attendant safeguards of the Bill of Rights. It is no answer to say that defense counsel will fulfill the function of protecting the accused's interest; the very essence of the defendant's complaint is that he has been denied effective assistance of counsel.167The trial judge simply cannot "stand idly by while the fundamental rights of a criminal defendant are forfeited through the inaction of ill-prepared counsel . . .."168Page 299
[341] However vigilant the judge, the problem of inadequate representation of the indigent cannot be solved by the courts alone. The bench, bar and public must jointly renew our commitment to equal justice.169The bar certainly must increase its efforts to monitor the performances of its members and to take appropriate disciplinary action against those attorneys who fail to fulfill their obligations to their clients.170AdditionalPage 300funding is needed to increase the number of public defender positions and to provide those organizations with better support services. We must increase the compensation of court-appointed counsel to attract high-quality legal talent and to ensure that those who represent the indigent on a regular basis do not have to sacrifice all economic security to perform this vital role. We must reduce the caseloads of both public defenders and court-appointed counsel to manageable levels. And we must establish procedures to insulate appointed counsel from the pressure to curry favor with the judges who appoint them and fix their compensation.
[342] That the ultimate solution does not lie exclusively within the province of the courts does not justify our ignoring the situation nor our accepting it as immutable. The people have bestowed upon the courts a trust: to ensure that the awesome power of the State is not invoked against anyone charged with a crime unless that individual has been afforded all the rights guaranteed by the Constitution. We fail that trust if we sit by silently while countless indigent defendants continue to be deprived of liberty without the effective assistance of counsel.
J. SKELLY WRIGHT, Chief Judge, joined by BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges:
I write only to note that while there is no majority opinion of the court, Judges Bazelon and Robinson and I agree on the two fundamental principles dispositive of this case: (1) The constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant's diligent, conscientious advocate; and (2) where that standard is shown by the defendant not to have been satisfied, the defendant has been denied his constitutional right to counsel and his conviction must be reversed unless the Government proves beyond a reasonable doubt that the ineffective assistance of counsel was harmless.Chapmanv. California,386 U.S. 18,87 S.Ct. 824,17 L.Ed.2d 705(1967).
APPENDIX
Opinion After Remand (Criminal 2002-71).
Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
Dissenting Opinion filed by MacKINNON, Circuit Judge.
BAZELON, Chief Judge:
Appellant was convicted of armed robbery and was sentenced to 2-8 years.1OnPage 301appeal, this courtsua spontenoticed several indications that appellant'ssixthamendment right to the effective assistance of counsel had been violated.United States v. DeCoster,159 U.S.App.D.C. 326, 328-330,487 F.2d 1197,1199-1201(1973). Unwilling to speculate about whether these indications would reveal a failure to provide effective assistance, we remanded the record for supplementation.
Appellant moved in the district court for a new trial. After holding evidentiary hearings and oral argument, the district judge denied the motion. The record has been returned to us, and we find that appellant's conviction must be reversed because hisSixthAmendment rights were infringed.
I
The facts surrounding the offense are set forth in our first opinion and can be briefly summarized. The victim, Roger Crump, testified that on May 27, 1970, his wallet containing $110 was taken by three men, one of whom held a knife. He further testified that while this was occurring, two persons, who he later learned were plain-clothes officers Box and Ehler, jumped out of a car and chased the three men. Because his eyesight was impaired as a result of an automobile accident occurring months after the alleged offense, Crump was unable to identify the appellant at trial. He stated, however, that immediately after the alleged robbery he had identified all three persons who were arrested.
Officers Box and Ehler did identify appellant as one of the persons they had seen robbing the victim. Officer Box also testified that he had chased the appellant into a nearby hotel, the D.C. Annex, where appellant was arrested while standing at the hotel desk. At the hotel, Box stated, Crump had identified appellant. Officer Ehler testified that he had chased, arrested, and searched Earl Taylor and had found a straight razor in his pockets. The wallet and money were never found.
In his own defense, appellant testified that on the afternoon of the crime he had been drinking with Crump at the Golden Gate bar, near the scene of the alleged crime. (Crump admitted having been in the bar but could not recall whether he had seen appellant there.) Appellant claimed that after leaving the bar he had walked to the hotel where he was staying, and was arrested while obtaining his key from the desk clerk. He denied having been with Earl Taylor, and denied even knowing the third alleged robber, Douglas Eley, at the time of the offense. The only other defense witness was Eley; he agreed that appellant and Crump had been together at the bar but stated that he had subsequently seen them fighting outside the bar.
The facts surrounding trial counsel's efforts require a more detailed statement. The appellant was arraigned in the Court of General Sessions on May 30, 1970, and bond was set at $5,000. At that time the lawyer who was to represent appellant at trial was appointed. A preliminary hearing was held on June 8 at which trial counsel represented appellant and did most of the questioning. On the basis of Officer Ehler's testimony, the three defendants were held for the Grand Jury.
After being indicted, the three defendants were arraigned in United States District Court, where appellant's counsel's appointment was reaffirmed. On November 4, appellant wrote to the district judge claiming he was guilty only of "assault by self defence" [sic] and requesting a new lawyer. The only specific charge leveled against counsel was that appellant had been accepted for pretrial custody by the Black Man's Development Center on October 12, and no bond review motion had been filed. On November 9 counsel filed such a motion in district court, but did not mention the acceptance by Black Man's. One week later, appellant filed apro semotion for bond review (which also did not mention Black Man's). On November 18, 1970, the district judge, as required by law,2continued thePage 302motions to await review by the Court of General Sessions, which had originally set the bail. Counsel did not make the motion for review in General Sessions until December 8, and it was denied December 12.
On January 12, 1971, the case was called for trial in district court, but a continuance was granted after the prosecutor indicated Crump was hospitalized following his automobile accident. Two days later, the district judge granted the bond review motion and released appellant to Black Man's. On January 21, 1971, appellant absconded, and shortly thereafter a bench warrant issued. On June 17, trial of the two codefendants commenced, but in the middle of trial they pleaded guilty.
Appellant was rearrested on September 2, 1971, on unrelated charges for which he was ultimately convicted in Superior Court. Trial was set in this case for November 15, 1971. On the day of the trial, appellant asked the court to subpoena the two codefendants, explaining that he had considered the chance" to talk to his lawyer about this. Counsel indicated he had considered the possibility of subpoenas, but did not have the codefendants' addresses. The prosecutor reported that Eley was in jail (where he had been for six weeks);3the court read from the court file the address Earl Taylor had listed at the time of his release on personal recognizance eleven months earlier. That address proved out of date.
After counsel announced he was ready for trial, the prosecutor informed the court that the Government had served an alibi-notice demand and received no response. Defense counsel argued that while he might rely on an alibi, no response was necessary because the Government had not given 20 days notice as required by the local rules. The court decided that although the Government had been dilatory, the names of alibi witnesses should be provided nonetheless. Counsel then announced that he would "proceed without the alibi witnesses."4
Counsel next informed the court that his client wished to be tried without jury. When asked if he had considered the fact that the trial judge already had listened to some of the evidence in the codefendants' trial, counsel stated that he thought their pleas had been entered before any evidence was heard. At this point the defendant requested a continuance because he felt, "I can't get proper representation." Counsel then requested to withdraw because of his client's dissatisfaction, but his motion was denied. Defendant was convicted on November 16 and sentenced March 3, 1972. Our opinion issued October 4, 1973.
This much was clear to us on the original appeal and aroused our concern.5At the hearings on remand, held February 6, 11, and 13, 1974, additional information was elicited concerning counsel's preparation and his explanation for his actions. Counsel admitted that he hadnotinterviewed the victim, at least one and perhaps both ofPage 303the police officers,6anyone at the Golden Gate bar or D.C. Annex Hotel,7or the codefendant Taylor. Counsel claimed that he had interviewed codefendant Eley on the morning of the second day of trial, and that Eley had maintained that appellant was not present during the robbery.8Counsel also admitted he had not obtained a transcript of the preliminary hearing, but stated that he had held several conferences with the prosecutors, and surmised, based on their usual practice, that they had made the transcript available to him and that he had read it.9He also guessed, based on his usual practice, that he had obtained the 251 Form from the police department.
By way of explanation counsel testified that not until shortly before trial had appellant ever mentioned any witnesses, and then just the two codefendants. Counsel further stated that at about the same time he had received a letter from appellant in which appellant admitted he had fought with Crump but denied having robbed him.10The letter indicated that the codefendants would support this claim. Counsel testified that this letter — which was consistent with Decoster's earlier letter to the district judge and with Eley's trial testimony — was the first time appellant had indicated to counsel that appellant had seen Crump after leaving the bar. Until that time, counsel testified, appellant had maintained, as he testified at trial, that he had gone directly to the hotel.11Based on the letter, counsel concluded that the testimony of the codefendants "might be devastating" (presumably to the alibi defense). He nevertheless agreed at trial to subpoena the codefendants, and called Eley after interviewing him and establishing that Eley would support appellant's alibi testimony.12
In denying the new trial request, the district court identified seven acts or omissions by counsel which appellant alleged had deprived him of his right to effective assistance of counsel.13With respect to two allegations — the delay in moving for bond review and the failure to obtain a transcript of the preliminary hearing — the court found that the defendant had not been prejudiced by the violations. With respectPage 304to three other allegations — counsel's attempt to waive jury trial, his waiver of an opening statement, and his failure to see that Lorton Reformatory gave appellant credit for time served as ordered by the sentencing judge — the court found no ineffective assistance. And with respect to the final two allegations — the failure to interview witnesses and counsel's premature announcement that he was ready — the court made findings of fact and several conclusions of law, reprinted in pertinent part in the margin.14These conclusions can be read as either holding that there was no constitutional violation and in any event no prejudice, or simply holding that no prejudice was shown.
II
A.
The benchmarks for adjudicating this case are set forth in our original opinion. InDeCoster Iwe unanimously held that, at least when counsel's performance is challenged on a direct appeal, appellants need not show that "the proceedings were a farce and a mockery of justice"15or that "gross incompetence of counsel . . . has in effect blotted out the essence of a substantial defense."16Rather, following a number of other circuits,17we adopted a more stringent standard:"adefendant is entitled to the reasonably competent assistance ofan attorney acting as his diligent conscientious advocate."159 U.S.App.D.C. at 331,487 F.2d at 1202. Moreover, recognizing that "`reasonably competent assistance' is only a shorthand label, and not subject to ready application," we articulated several duties owed by counsel to a client:In General— Counsel should be guided by the American Bar Association Standards for the Defense Function. . .Page 305Specifically— (1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.
(2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. . . .
(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. . . . [I]n most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research. (Footnotes omitted.)Id.at 332-33,487 F.2d at 1203-04. And we stated that these duties are only "a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance."Id.at 332 n. 23,487 F.2d at 1203n. 23.
The requirements set forth inDeCoster Iare indisputably the minimal components of "reasonably competent assistance." Even so, not every violation of one of the duties warrants reversing a conviction for ineffective assistance. Rather,DeCoster Icontemplates a three step inquiry: did counsel violate one of his articulated duties; was the violation "substantial"; and was the substantial violation "prejudicial."Id.at 333,487 F.2d at 1204.
If all defense attorneys had the dedication, skill and experience of a Clarence Darrow, or if all clients had the sophistication and resources of an Andrew Carnegie, then perhaps the concern embodied inDeCoster Imight be unnecessary. This is not to say that such lawyers always will render, or such clients always receive effective assistance of counsel; the task of criminal representation is too difficult and the human animal too fallible. But in a world of Darrows and Carnegies, perhaps it would be tolerable for judges to assume a more passive role.
We do not live in that kind of world, however. In the real world of criminal justice, the vast majority of defendants lack the means to afford effective representation and/or the sophistication to vindicate their right to it. The governing principle is clear: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."Griffin v. Illinois,351 U.S. 12,19,76 S.Ct. 585,591,100 L.Ed. 891(1956).
B.
"[I]nvestigation and preparation," as the Commentary to the ABA Standards for the Defense Function recognize, "are the keys to effective representation. . . ."
[I]t is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation. . . . The adversary process assumes and its proper functioning demands that both sides have prepared and organized their case in advance of trial.18
Moreover, as the Standards themselves state, the "duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt."19
The duty to investigate is not necessarily fulfilled simply by interviewing those persons whom a client names as defense witnesses;20it demands that counsel "make anPage 306independent examination of the facts, circumstances, pleadings and laws involved. . . ."21Minimally, this requires counsel (or his investigator) to contact persons whom he has or should have reason to believe were witnesses to the events in question; to seek witnesses in places in which he has or should have reason to believe the events occurred; and to conduct these interviews and investigations as promptly after his appointment as is possible, before memories fade or witnesses disappear.22
In this case, according to his own admissions — and the district court's factual findings — neither trial counsel nor an investigator did any of these things. He did not interview codefendant Taylor, and delayed interviewing Eley until the second day of trial.23He did not interview the complainant or the arresting officers, and he failed to search for witnesses at the hotel or the bar. From all that appears in the record, counsel advised his client on whether to go to trial, and then conducted the trial, without making any real effort to determine what could be elicited by way of defense.
The dissent argues at length that counsel knew all along that the codefendants would say the alibi was false, and that appellant had participated in the crime to which they pleaded guilty. There is nothing in counsel's testimony at the hearing on remand, however, to support this conclusion. Instead of evidence, the dissent relies on logic, reasoning that counsel's "decision not to contest the finding of probable cause [at the preliminary hearing] necessarily involved knowledge by defense counsel for Decoster and Taylor (the counsel whose conduct is here in question) that could only have been obtained by prior discussion of the offense with these men and by consultation with Eley or his counsel." Dissent at ___ of 199 U.S.App.D.C., at 319 of 624 F.2d. The circularity of this deduction is transparent: by assuming precisely what is at issue here — namely, that counsel rendered reasonably effective assistance — the dissent is able to spin a web of facts, which, if supported by the record, would at least present a more difficult question. As matters stand, there is no basis for assuming that counsel had discussions with the codefendantsPage 307that he failed to mention at the hearing on remand.
Although counsel conducted no interview, it is possible that special circumstances justify this omission, and that therefore the duty to investigate was not breached. To be sure, there is less need or room for tactical decisions in deciding who not to interview than, for example, in deciding who not to call. But tactical and prudential judgments still may be involved.24and this court does not sit to "second guess"informedjudgments of this sort unless they are manifestly unreasonable.25In this case, however, we find the explanations proffered by counsel or hypothesized by the government lack plausibility.26
1.Codefendants Taylor and Eley.Three arguments are offered by the Government to support the failure to or delay in interviewing the codefendants:
(a) It is argued that the fact that appellant gave his counsel conflicting accounts of the events — the alibi and the claim of a fight — somehow excuses the lack of prompt interviews. While the existence of these conflicts might be relevant were counsel's failure tocallwitnesses at issue, the conflicts can hardly justify the failure tointerview.The defendant did not offer the self-defense claim to his counsel until a day or two before trial, long after the interviews should have been conducted. Moreover, even if defendant had contradicted himself earlier, the importance of careful investigation would have been heightened, rather than lessened, since counsel would have needed to determine which defense could or should have been presented.
(b) The Government argues that locating Taylor would have been a "formidable task" after appellant's flight. But before the flight, from September 1970 to January 1971 when trial was scheduled to begin, Taylor was available in the D.C. Jail. Moreover, one week after appellant was rearrested, and three days before a trial date was set, Taylor was sentenced in district court to probation. It strains credulity to believe that Taylor could not have been found had appellant's counsel contacted Taylor's on-and-off employer who had written a letter on Taylor's behalf prior to sentencing; Taylor's probation officer, with whom the record reveals Taylor was in regular contact at the time of appellant's trial; or perhaps even Taylor's lawyer.
(c) The district court found that not until the day of trial had appellant suggested to his counsel that the codefendants might be helpful to the defense. But counsel knew that the codefendants were alleged to have participated in a robbery with his client, and knew that his client claimed not to have been there. Surely counsel should have realized that the codefendants were at leastpotentialwitnesses in support of the alibi, and they should have been interviewed.Page 308
2.The Government witnesses.The district court found that counsel was justified in not interviewing Officer Ehler because counsel had examined him at the preliminary hearing. We agree. But with respect to Officer Box, the district court noted only that his testimony was "generally consistent with that of Officer Ehler," and with respect to the victim, Crump, that "[t]here was nothing incredible about [his] testimony." Whatever relevance the substance of their trial testimony may have to the question of the effect of the failure to interview, it can hardly provide a tactical justification for not conductingpretrialinterviews.27The government contends that after appellant's flight, interviewing Crump was "impracticable," since he was living in Georgia. But again, the Government ignores the failure to interview for the several months between the time of the offense and the accident, even though the very occurrence of the accident demonstrates the importance of prompt interviews.
3.The desk clerk at the hotel.The district court found no reason to seek out the desk clerk because "[t]here was no dispute as to when the defendant entered the D.C. Annex or when and where he was arrested." However, the trial record reveals that appellant claimed he had walked from the bar to the hotel and into the lobby, while Office Box testified that he had chased appellant. Surely the desk clerk should have been contacted to ascertain whether he saw the appellant enter the hotel or remembered anything relevant about appellant's demeanor while at the desk.
4.Other witnesses.No other potential witnesses were identified by name or job position. Nevertheless, the record reveals two potentially fruitful places for investigation that were not tapped: the hotel lobby and the bar. For the same reasons that the hotel clerk's recollections might have been useful,i. e.,to resolve the dispute as to how appellant reached the hotel, guests or residents who had been in the lobby at the time should have been interviewed. At the very least, the clerk should have been asked for the names of persons he remembered having seen in the lobby. Similarly, appellant testified that persons unknown to him had been in the bar at the same time he was there. Such witnesses could have been helpful if they could have corroborated appellant's claim that he and Crump had been drinking together, or, perhaps, if they had overheard conversation, or seen Crump and appellant leave. Counsel at least could have questioned employees of the bar to see if they had useful information or could supply the names of customers who were at the bar at the time.
In sum, we hold that counsel's failure to interview Taylor, Crump, Officer Box, or the desk clerk; his delay in interviewing Eley; and his failure to seek out witnesses from the hotel or the bar were not supported by tactical considerations, informed or otherwise, and violated the duty to conduct a factual investigation.28Of course, counsel was "under no duty to assist in the fabrication of a defense," as the district court wisely noted. But counselwasunder a duty to investigate whether there was a non-fabricated defense that could be presented. The dissent may well be correct that there were no such defenses available in this case, although it may be significant that the two codefendants pled guilty only to robbery and not armed robbery. ButPage 309even if the dissent is correct, investigation is still necessary not only so that defendants receive informed advice from their counsel and make informed decisions as to whether to go to trial, but also so that lawyers do not unwittingly present perjured testimony,as apparently occurred in this case.Thus, while counsel may have been fully justified in notcallingthe codefendants or any other witnesses, his failure tointerviewthem violated the duty to investigate.
C.
We come then to the question of whether the violation here was "substantial." InDeCoster Iwe had no occasion to define the "substantiality" requirement. Recently, however, inUnited Statesv. Pinkney,177 U.S.App.D.C. 423,543 F.2d 908(1976), we made clear that for a violation to be substantial it must be "consequential," that is, it in some way must have impaired the defense.29Pinkneyalso makes clear that the burden is on the defendant to prove such adverse consequences, since such consequences do not inhere in every violation of theDeCosterprecepts.30
In certain circumstances, however, the acts or omissions of counsel are so likely to have impaired the defense, and yet this consequence would be so difficult to prove, that, in accordance with well-established evidentiary principles,31such an impairment can be presumed.32For example, there is persuasive authority for indulging such a presumption when counsel is not appointed until the eve of trial,33or when counsel has a clear conflict of interest.34Only recently, a unanimous Supreme Court held that a petitioner whose right to effective assistance of counsel was infringed by an order issued during trial barring him from consulting with his attorney overnight between his direct and cross-examination need not demonstrate,or even claim,prejudice.35To use the language of the dissent in the present case, these are all instances in which there is "inherent prejudice" in the nature of the violations. Dissent at ___ of 199 U.S.App.D.C., at 335 of 624 F.2d.Page 310
This case falls squarely within the same category. The violation here — a total failure to conduct factual investigations — makes this case analogous to ones in which counsel is not appointed until immediately before trial. Investigation is so central to the defense function that, except in the most extraordinary circumstances, a gross violation of the duty to investigate will adversely affect a defendant's rights. Furthermore, the violation in this case wasnotsimply that counsel failed to interview certain named witnesses.36Counsel here also failed to promptly determine whether there were additional witnesses to the alleged robbery or to appellant's alleged flight who could have aided the defense. Appellant cannot be expected to show that such an effort would have been fruitful since the very reason such an effort was necessary was that appellant did not know the identity of any such witnesses.37
Finally, we note that even if an investigation would not have produced a scintilla of evidence favorable to the defense — a somewhat unlikely hypothesis — appellant still would have benefited from a full investigation. Had appellant been told by his lawyer that there was no evidence available to support the defense theory, appellant would have been able to make a better informed decision whether to go to trial, or whether to seek a plea agreement comparable to his two codefendants'. Thus, given both the magnitude of counsel's violation and its probable effect,38we conclude that appellant's constitutional right to effective assistance of counsel was violated.
D.
The remaining question is whether a new trial is required.DeCoster Iteaches that once appellant discharges his burden of showing a substantial violation of one of counsel's duties, the burden shifts to the Government to establish that the constitutional violation was harmless. 159 U.S.App.D.C. at 333,487 F.2d at 1204.39DeCoster IPage 311does not address the question of the weight of the burden the Government must bear. But in imposing a burden on the Government, we did cite,id.at 333 n. 34,487 F.2d at 1204n. 34,Chapmanv. California,386 U.S. 18,87 S.Ct. 824,17 L.Ed.2d 705(1967).Chapmanholds that if a defendant's constitutional rights were violated, his conviction must be reversed unless the Government "prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."Id.at 24,87 S.Ct. at 828. This court has previously followedChapmanin determining harmlessnessvel nonin the ineffectiveness context.40If anything,Chapmanshould apply with greater force in ineffectiveness cases, since a finding that a defendant'ssixthamendment right to effective assistance was infringed necessarily casts doubt on the entire adjudicative process. Indeed there is even authority for holding that such violations can never be harmless, on the theory that "[t]he 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."41Although we have rejected that per se approach, we hold that harmlessness must be established beyond a reasonable doubt.
When a defendant, as part of his proof of a constitutional violation, demonstrates the consequences that resulted from counsel's acts or omissions, the Government's burden will be to prove that the injury complained of did not affect the outcome of the proceedings in the trial court. Ordinarily, this will not be an onerous burden: by comparing what the defendant shows should have been produced with the evidence that was adduced at trial, it should be readily apparent whether a reasonable doubt exists as to the effect of the constitutional violation on the outcome.42The burden is placed on the Government simply to emphasize that when such a reasonable doubt exists, a new trial is required.
When, however, the defendant is excused from showing adverse consequences,seepp. ___-___ of 199 U.S.App.D.C., pp. 309-310 of 624 F.2dsupra,allocation of the burden with respect to harmlessness often will be dispositive. In such cases, by hypothesis, it is impossible to know precisely how the defendant was affected by counsel's failures; consequently, it will be most difficult for a defendant to prove prejudice or for the Government to negate it. To avoid effectively penalizing a defendant for his counsel's failures,DeCoster Irequires that in such cases the burden be placed on the Government.
In the instant case, the application of these principles is clear. The Government made no effort to discharge its burden, either by refuting the presumption that adverse consequences resulted from the gross violation of the duty to investigate, or by showing that whatever the consequences they could not have affected the result.43Page 312Accordingly, appellant's conviction must be reversed and the case remanded.44
III
More than six years have elapsed since the alleged offense was committed, and more than four years since defendant was convicted. Of this time, at most only ten months — the time from the date appellant absconded until his retrial — are wholly attributable to the appellant, and during some of that time the complainant was also unavailable. The remainder of the time was consumed by the deliberate workings of the system in the trial court and in this court.
We have recently observed that "delays on appeal are not insulated from the due process clause of theFifthAmendment."45Of course, due process does not require that "careful study" be sacrificed; "the essential ingredient is orderly expedition and not mere speed."46Some delay must be anticipated in precedent-setting cases of this sort, especially since the effective assistance question was not even briefed on the first appeal. Moreover, the price of our insistence on proof concerning counsel's preparation is additional delay while evidencede horsthe record is presented.47
But as we also recently noted, "it would be disingenuous to suggest that the entire time during which a case is under advisement" — or, we might add, on remand — "is consumed in unraveling complex issues. This court, like the District Court, is not free from the problem of calendar backlog."48We daresay that "careful study" in this case did not require 18 months between sentencing and our first opinion, another 18 months until the district court's opinion on remand was filed, or more than a year for this opinion to issue.
Because appellant has already served most, if not all, of his sentence, the Government may elect not to retry appellant. For this reason, we do not decide whether duePage 313process would bar a second trial.49That question must await the district court's determination in the first instance, should such a trial be sought.Reversed.
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