Lewis v. United States

¶1dissenting:

¶2I believe that the court was correct in United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975), in concluding that “[i]f defendants may dispense with the right to be represented by counsel altogether, ... it would seem that they may waive the right to have their retained counsel free from conflicts of interest,” and presumably from other charges of ineffectiveness, at least where a knowing and intelligent waiver is made. Moreover, I believe that appellant has a right to counsel of his choice and that the restrictions imposed by the trial court on appellant’s retained counsel rendered that choice meaningless.

¶3There are several rights involved in this case: the defendant’s right to retain and be represented by counsel of his own choice, Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); his right to the effective assistance of counsel, Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); and his right to refuse counsel and to conduct his own defense, provided there is a proper waiver, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). None of these rights are absolute or “preferred”, see Garcia, supra at 276; each in some way may either be circumscribed or waived.

¶4The right of a defendant to be represented by retained counsel of his choice has long been recognized as an essential element of the general right to counsel guaranteed by the Sixth Amendment. Powell v. Alabama, supra at 53, 53 S.Ct. at 58. A defendant, however, may waive his right to counsel and may conduct his own defense if the trial court is satisfied that the waiver is made knowingly and intelligently, and with an awareness of the possible consequences. Faretta, supra at 835, 95 S.Ct. at 2541; Hsu v. United States, D.C.App., 392 A.2d 972, 981-87 (1978).

¶5With respect to the guarantee of effective assistance of counsel, the recent Supreme Court decision in Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717-18, 64 L.Ed.2d 333 (1980), states that, absent objection by a defendant, “trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risks of conflict as may exist.” (Footnote omitted; emphasis added.) The Court noted that attorneys “have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” Id. at 346, 100 S.Ct. at 1717 (footnote omitted). Nevertheless, the fact that a potential violation of such an ethical duty might exist did not impinge on the Court’s recognition that the lawyer and his client might still knowingly risk the consequences of such a conflict. The Fifth Circuit in fact reached the same result in United States v. Garcia, supra.While the Court in Cuylerdealt only with one specific type of ineffective assistance, i. e. the problem of conflict*532ing representation, the same rationale can be applied to the entire array of ineffective assistance problems.

¶6The Court in Cuylerimplicitly recognized that though a defendant may be entitled to counsel of his choice, even if that counsel is ineffective, the fact that the defendant has waived his right will not necessarily release the lawyer from his own obligations under the professional code. If the lawyer does violate those obligations it is not generally within the purview of the court to forestall him — for the court’s primary obligation is to ensure that the defendant’s constitutional right to counsel of his own choosing be protected, at least where it is a choice knowingly and intelligently made. Rather, it is for the appropriate Bar committee to decide whether a lawyer has violated his professional obligation and to take the requisite disciplinary actions. See D.C.App.R. XI, § 4(3).

¶7I base my conclusion that the defendant’s right to counsel of his own choosing may be allowed to predominate over his right to effective assistance on the confluence of several principles. As was enunciated in Faretta, supra at 821, 95 S.Ct. at 2534, “[ujnless the accused has acquiesced in such representation [by certain chosen or appointed counsel], the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” (Emphasis in original.) Directly related is the right of the defendant to structure and direct his defense as he himself chooses. See id. at 819-20, 95 S.Ct. at 2533. In so doing, the defendant may go so far as to choose to represent himself, though “[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.” Id. at 834, 95 S.Ct. at 2540. As Mr. Justice Sutherland stated in Powell v. Alabama, supra at 69, 53 S.Ct. at 64, quoted in Faretta, supraat 833 n.43, 95 S.Ct. at 2540 n.43:

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar With the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.

¶8Obviously, an experienced and skilled practitioner of the law, even though totally unfamiliar with the facts of a given case, will in all likelihood be able to provide far more competent assistance than a defendant would otherwise receive by virtue of his own untutored labors. Particularly with respect to questions of evidentiary admissibility, the propriety of the prosecution’s opening and closing statements, the types and manner of questions to be asked of witnesses on cross-examination, and the requesting of proper jury instructions, the guiding hand of such counsel should prove to be far more effective than the defendant’s own unaided efforts. Since a defendant may constitutionally elect to rely solely upon his own inadequate legal skills in defending himself, there is no reason why he may not elect to retain counsel whose skills — notwithstanding charges of ineffectiveness — are likely to be superior to his own.

¶9In the present case, the defendant was not simply waiving his right to effective assistance of counsel, and thereby attempting to compel the opposite, as the majority suggests in note 7, supra, citing Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). Rather, he is waiving one constitutional prerogative while at the same time attempting to fully exercise another, i. e., the right to counsel of his own choice. Where defendant has chosen to ex*533ercise one constitutional guarantee over another and has done so knowingly and intelligently, and where neither of the two rights is a “preferred” right, I would conclude that it is reversible error for the court to refuse to honor his decision. See Garcia, supra; United States v. Bubar, 567 F.2d 192, 202-04, 203 n.18 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977).

¶10The majority relies heavily on United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978), where the defendant sought reversal of his conviction on the grounds of ineffective assistance of counsel due to a conflict of interest resulting from his attorney’s representation of both the defendant and his codefendant. While the court upheld the trial judge’s refusal to accept the defendant’s waiver of his right to counsel free of conflict of interest, it is clear that the court recognized that a waiver was possible when made “knowingly, intelligently, and with awareness of the likely consequences of the waiver.” Id. at 1181. The court also recognized that absent such a waiver, the attorney would run the risk of violating his ethical obligations:

When cases arise in which the judge finds it impossible to elicit and accept a knowing and intelligent waiver from the defendant, it is the obligation of the attorney concerned, as an officer of the court and subject to its supervisory powers, to withdraw from the case.

… *

Besides breach of the lawyers’ ethical code, there are public interests which impel an attorney’s withdrawal from representing multiple defendants absent a knowing and intelligent waiver. [Id. at 1182 (emphasis added).]

¶11Within the factual confines of that case the court determined that Dolan’s waiver was insufficient. However, the court also acknowledged that its previous decision in United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), “still remains the test on direct appeal or collateral attack for determining the validity of a waiver of the effective assistance of counsel in those situations in which waiver would be proper.” Dolan, supraat 1184 n.12.

¶12Thus, it is clear that the right to retain counsel of one’s choice is central to the Sixth Amendment, and, in some circumstances, that right may predominate over the right to effective assistance. In the present case, however, the restrictions imposed by the trial court on appellant’s retained counsel rendered appellant’s choice meaningless. The court, for example, prohibited, retained counsel from examining jurors or witnesses, from conducting cross-examination, and from making motions or raising objections. Rather, it merely allowed counsel to enter an appearance and to confer with court-appointed counsel.1

¶13I believe what Mr. Justice Frankfurter wrote in Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), ruling that a pro se defendant may waive his right to jury trial without assistance of counsel, is equally pertinent to the present question:

When the administration of the criminal law in the federal courts is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards ..., and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best ad-*534visor for his own needs, is to imprison a man in his privileges and call it the Constitution.