Angarano v. United States

329 A.2d 453

• Court: District of Columbia Court of Appeals
• Decided: December 2, 1974
• Docket: 7006, 7140, 7168, 7312 and 7435
• Status: Published

Opinions

HARRIS, Associate Judge,

with whom REILLY, Chief Judge, NEBEKER and YEAGLEY, Associate Judges, and PAIR, Associate Judge, Retired, concur:

Reconsideration en banc has been sought of the decision of the division of the court in these cases (which have not been consolidated but which have been considered together for the convenience of the court and the parties). Angarano v. United States, D.C.App., 312 A.2d 295 (1973). The motion is denied. In light of the dissenting views expressed by our brothers Gallagher and Kern, the position of the majority should be stated briefly with respect to three aspects of these cases.

I. The Brief of the District of Columbia Bar

One concomitant of the extensive District of Columbia court reorganization decreed by Congress in 1970.was the creation by this court of what is generally referred to as a unified bar. Acting under the authority of D.C. Code 1973, § 11-2501, this court adopted a number of rules, one of which made membership in the District of Columbia Bar compulsory for all lawyers admitted to practice in this jurisdiction. This is in contrast to the nature of the long-established Bar Association of the District of Columbia (and a number of other bar associations in this jurisdiction), in which membership is voluntary.

The Public Defender Service (PDS) sought reconsideration en banc of the division’s decision. Amicus curiae briefs were tendered on behalf of both the District of Columbia Bar and the Bar Association of the District of Columbia.² The government, represented by attorneys who themselves are obliged to be members of the unified bar, vigorously opposed the filing of the brief tendered on behalf of the District of Columbia Bar, contending that the unified bar “may not, consistently with the First and Fifth Amendments, and without creating significant issues of conflict of interests, take partisan positions upon matters being litigated in the District of Columbia courts to which it is not a party.” ³

There is no doubt that the constitutional problems presented by the submission, of an amicus brief purportedly expressing the position of the total membership of a compulsory bar on a question to be decided by this court are serious ones. See, e. g., Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961), particularly the dissenting opinions of Mr. Justice Black and Mr. Justice Douglas at pp. 865 and 877, 81 S.Ct. 1826, 6 L.Ed.2d 1191, respectively. In considering the petition for reconsideration en banc in this case, a majority of the court concluded that it is unnecessary to resolve those problems now. Accordingly, it was decided to accept the brief as one filed on behalf of the Board of Governors of the unified bar. The constitutional issues concerning the filing of a brief supposedly representing the position of the entire bar are ancillary to the basic question now before us, and our decision to refrain from resolving them at this time was neither abstruse nor unique.⁴ See, e. g., United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971).

II. The Procedural Posture of the Case

Our dissenting colleagues express the thought that the majority has “ignored” our court’s Rule 40 in denying the petition for reconsideration en banc. In fact, as would be expected, Rule 40 was considered carefully by the majority. In our view, the dissenting statements reflect a reluctance to accept a procedural concept which the majority considers to be an indispensable aspect of the proper functioning of an appellate court.

In Smith v. United States, our No. 6980, one PDS attorney filed a 30-page brief on the merits of the appeal, presenting a number of issues. None related to the possible ineffectiveness of trial counsel, who had been another member of the PDS staff. On June 1, 1973, the government filed its brief on the merits. On July 9, 1973, a third PDS attorney filed a motion for leave to withdraw. Exclusive of a few citations, the entire text of that motion was as follows: “Counsel for appellant is compelled to respectfully request leave to withdraw from and have new counsel appointed to this case due to ethical considerations.”

Reference to the citations in that motion indicated that the new PDS appellate attorney felt that trial counsel may have been ineffective to the point of depriving the appellant of his constitutional rights (although the motion itself did not so state). The motion was considered by a division of the court consisting of Judges Fielding, Kern, and Gallagher. On July 26, 1973, Judges Kern and Gallagher voted to grant the motion. Judge Fickling dissented. Leave to withdraw was granted by means of a simple, typed order. The division’s intended disposition of the motion was not circulated to the other members of the court, and no opinion was written setting forth the reasoning of the two judges who voted to grant the motion. While that particular division did dispose of the narrow question before it, in no sense did its action constitute a “decision” of the court within the contemplation of either M. A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971), or our Rule 40(c). More specifically, the perfunctory ruling on the motion in the Smith case could not and did not bind future divisions which might be asked to decide similar motions.

Meanwhile, the separate motions to withdraw in the five cases now before us came on for consideration before a division composed of Chief Judge Reilly and Judges Kelly and Nebeker. Concerned by the rash of PDS motions to withdraw as appellate counsel based upon apparent assertions of ineffectiveness of PDS trial counsel, the new division concluded that a decision should be promulgated. A draft opinion was written and circulated by the majority to the full court, with Judge Kelly dissenting. The opinion duly became adopted, issued, and published. Thenceforth, that decision — Angarano v. United States, supra — constituted a part of the body of law in this jurisdiction, absent rejection by a majority of the court en banc or reversal by the Supreme Court. See, e. g., Robinson v. United States, 106 U.S.App.D.C. 325, 272 F.2d 554 (1959).

We have no doubt of the sincerity of the views expressed by PDS, the Bar Association, the Board of Governors of the District of Columbia Bar, and our dissenting colleagues. However, a majority of the court en banc considers the standard set forth in Angarano to be correct. With the heavy demands which are being made upon our time, it would be pointless — indeed wasteful — for the court to go en banc to achieve the same result which the majority already considers a division to have reached correctly. Hence, the prior decision of the court (as supplemented by this opinion) remains controlling as a result of the denial of the petition for reconsideration en banc.

III. The Merits of the Withdrawal Issue

A few basic comments are appropriate as to what is truly at issue in these cases. It seems to us, in effect, that PDS and the two bar organizations are discussing apples, the majority is discussing oranges, and the dissenters are discussing tangerines. The positions of PDS, the majority, and the dissenters may be characterized succinctly as follows:⁵ (1) PDS contends that “in the absence of evidence of bad faith,” counsel should be permitted to withdraw upon the naked assertion “that he is in a conflict situation arising from a duty to pursue a nonfrivolous claim of ineffectiveness against a fellow member of his law firm or agency”. (2) The division opinion in Angaraño includes the following two statements: “The threshold is certainly higher in such cases than nonfrivolity. * * * We think the better test is the one applied [in the trial court] when determining the necessity for a hearing on a collateral attack asserting ineffective assistance of counsel. That is — does the contention, if true, entitle the pleader to relief; or, is a prima facie case of constitutional ineffectiveness apparent?” 312 A.2d at 298 (citations omitted). “Again, we state that ... an attack upon trial counsel is not a device to be used on appeal except in the most severe cases of glaring ineptitude.” 312 A.2d at 300. (3) The dissenters take a middle-ground position, rejecting the PDS position but stopping short of the majority’s view: “. . . it is our view that when appellate counsel finds himself in this [ethical] predicament he need only advise the court of the nature of his close relationship with trial counsel . . . and state in general terms the issue, such as, asserted failure to call an important defense witness without tactical justification. In other words, to make a good faith showing it is enough to identify a ‘legitimate issue’ giving rise to the claim, which of course automatically excludes anything frivolous or insubstantial.” Opinion of Judge Gallagher at 474— 475, infra.

It thus is seen that the ultimate positions of the majority and the minority are not far apart. The question is not whether PDS may be permitted to withdraw at the appellate level if a real question exists as to whether alleged ineffectiveness of a PDS trial attorney may have reached constitutional proportions. See Thompson v. United States, D.C.App., 307 A.2d 764, 766-767 (1973). If such a conflict of interest does exist, most assuredly leave to withdraw should and would be granted. What PDS seeks is carte blanche to withdraw from the appellate handling of any case which was tried by another of its attorneys, simply by stating that “ethical considerations” are present. That position is rejected by all members of the court. The majority goes on from there to conclude that we have an obligation to satisfy ourselves that a prima facie case of constitutional ineffectiveness exists before granting leave to withdraw.⁶ Cf. Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Beyond question, none of the majority envisions having a PDS appellate attorney attack a PDS trial attorney through arguing constitutional ineffectiveness of counsel. In considering these problems, it must be borne in mind that few claims of ineffectiveness may be raised properly on a direct appeal from a conviction. Appellate courts are bound by the confines of the records before them, and the vast majority of ineffectiveness questions must be raised initially in the trial court through a collateral attack advanced pursuant to D.C. Code 1973, § 23-110 [or, depending upon the circumstances, under Superior Court Criminal Rules 32(e) or 33].⁷ See United States v. Mandello, 426 F.2d 1021, 1022-1023 (4th Cir. 1970); cf. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).⁸ The correctness of proceeding in such a fashion readily is acknowledged by the minority. See Opinion of Judge Gallagher at 473, infra.

To be sure, in any collateral attack advanced in the trial court under § 23-110 which is based upon allegations of ineffectiveness, if the trial court concludes that a hearing should be held, a non-PDS attorney should be appointed if the original trial counsel was with that agency. See, e. g., People v. Smith, 37 Ill.2d 622, 230 N.E. 2d 169 (1967). Yet that proposition, obvious as it is, is not what the court has dealt with in these cases. In the decision which we now decline to reconsider en banc, the court did not deal directly with the type of showing which should be made by PDS in the trial court to seek to have new counsel appointed to raise an ineffectiveness issue at that level. What the court did say is that we feel obliged to receive an adequate specific showing that a prima facie ineffectiveness issue exists before we (1) will grant leave to withdraw, and (2) will appoint new counsel (who then would decide whether to assert such an issue in this court or to seek collateral relief in the trial court).⁹ Further, irrespective of this court’s treatment of a particular case, there is no bar to appointed appellate counsel’s going to the trial court to point out the possible need for a hearing on an ineffectiveness question.

In an earlier pleading herein, PDS stated that its Board of Trustees “strongly recommended that the Public Defender Service seek leave to withdraw from the specific cases, and that to avoid any prejudice to the specific clients the cases not be discussed in any detail.” The contention that the disclosure which we hold to be necessary would prejudice a client strikes us as illusory. After all, if an ineffectiveness question ultimately is to be considered and decided by the court, a full presentation must be made by someone at some point. We can understand the apparent desire of PDS not to be required to say anything which might suggest a particularly poor performance by any member of its able staff, but we cannot accept the argument that a limited preliminary disclosure to a motions division would prejudice an appellant’s rights.

Petition for reconsideration en banc denied.

2 . The two briefs are quite similar; both are attributable principally to the same attorney. One draft apparently was ratified by the Board of Directors of the Bar Association; a slightly different draft apparently was ratified by the Board of Governors of the unified bar.

3 . No referendum of the unified bar’s membership was conducted on the questions presented. There is no indication that anyone other than the members of the Board of Governors considered the brief, or that anyone other than parties to the proceedings even knew that an amicus brief had been tendered for filing.

The government took no position on the merits of the PDS motions to withdraw, which prompts comment by the minority. See Opinion of Judge Gallagher at 459, n. 3 and 464, infra. The government’s silence on that question was to be expected; the identity of a defendant’s counsel is of no concern to the government.

4 .Indeed, after discussing at some length his belief that the Board of Governors of the unified bar properly may file an amicus brief on behalf of the entire membership, our brother Gallagher acknowledges that: “It would be imprudent to consider here the constitutional claim on the merits . . . .” Opinion of Judge Gallagher at 462, infra.

5 . The two bar organization briefs contain recitations of various ethical concepts with which we are in full agreement, but the briefs stop somewhat short of recommending a specific standard as to the showing which should be made to warrant granting leave to withdraw. Their general tenor, however, is supportive of the position of PDS.

6 . In no sense do we impute any bad faith to PDS. See Opinion of Judge Gallagher at 468, infra. Rather, our position is that “good faith” and a “prima facie showing” are, in a setting such as this, essentially identical twins.

7 . For purposes of a collateral attack on a conviction, § 23-130 of the D.C.Code is virtually indistinguishable from 28 U.S.C. § 2255 (1970).

8 . See also Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967); United States v. Fisher, 477 F.2d 300 (4th Cir. 1973); United States v. Davis, 436 F.2d 679 (10th Cir. 1971); Dyer v. United States, 126 U.S.App.D.C. 312, 315, 379 F.2d 89, 92 (1967) (Bastian, J., dissenting).

9 . Of interest is this court’s recent opinion in Shelton v. United States, D.C.App., 323 A. 2d 717 (1974). The division of the court which decided it included two members of the minority in this case. There appellate counsel in part argued his own ineffectiveness as trial counsel. The court stated that such a “conflict should be avoided” and noted that in such a situation, counsel properly should seek leave to withdraw. Id. at 718. Nonetheless, the court did not find it necessary to appoint new counsel, and readily resolved the ineffectiveness issue on its merits. (This reference to Bhelton is merely factual, and is not intended in any way to encourage appointed appellate counsel to argue tlieir own ineffectiveness at trial.)