United States v. Willie Decoster, Jr., (Decoster Iii)
D.C. Cir.
This case gives the court en banc the opportunity to present its views on the requirement of effective assistance of counsel in criminal prosecutions, with principal focus on the duty of counsel to make due investigation prior to trial. We conclude that appellant has not made the showing requisite for reversal of his conviction.
A. Proof at Trial
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.
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 the
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.
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.
Decoster’s conviction for aiding and abetting an armed robbery, which resulted in a 2-8 year sentence, is on appeal to this court.
B. Subsequent Proceedings
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 raised su a sponte and directed be presented to the district court on motion for a new trial.
Pursuant to the remand, the motion for new trial was filed November 1, 1973. In February, 1974, District Judge Joseph Wad-dy 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.
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 as Decoster 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.
C. Guiding Principies
The Sixth Amendment 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.
The right to have counsel provided is so fundamental that, like the admission in evidence of a coerced confession,
“Effective” assistance of counsel
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.
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”
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.’ ”
While the reasons for a non-categorical approach were not developed in Agurs, 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.
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.”
Recently, Judge Browning, writing for the Ninth Circuit en banc in Cooper v. Fitzharris,
The task remains of delineating the non-categorical 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 1945 Diggs case
Our 1967 Bruce opinion,
We pause to take note of the formulations adopted by the other circuits. As Justice White has put it, the circuits are in “disarray.”
One prominent formulation appears in the Third Circuit’s 1970 Moore opinion as a standard of “normal competency:” “the exercise of the customary skill and knowledge which normally prevails at the time and place.”
Other circuits have adopted variations on a notion of “reasonable” competence,
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 wrote DeCoster I employed — with some embellishment — the standards for the defense function promulgated by the American Bar Association
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.”
Even those circuits that formulated an apparently categorical approach to these problems have shown restraint in actual application to the specific facts presented. While in Coles v. Peyton
Finally, we find support in the recent 1979 decision of the California Supreme
This brief survey underscores that generalized standards may be little more than a “semantic merry-go-round.”
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 de-fence.63
For the first condition of judicial intervention, Saferian speaks 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 of Bruce. The other condition is more important. Bruce required that the accused show that the deficiency “blotted out the essence of a substantial defense.” But Saferian requires 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 of Bruce.
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.”
Although direct appeal gives more latitude to the court, the difference is likely
The need for a criterion that requires defendant to show at least probable effect on outcome has been identified even by judges seeking to liberalize Sixth Amendment protection.
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 from Agurs, Bruce, Saferian and 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 prompted 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.
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.
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 the
The approach we have outlined is congruent with most of the decisions of this court, including United States v. Pinkney
D. The Duty To Investigate
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.
Some failures to investigate may be so egregious as to command judicial correction without more. In McQueen v. Swenson,
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 1974 Glayborne opinion.
Realistically, a defense attorney develops his case in large part from information supplied by his client. As the Third Circuit indicated in Green,
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
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.
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.”
E. Appellant’s Claims
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.
1. Failure To Interview Potential Witnesses
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.
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.
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.
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.
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.
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.
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.
At the insistence of appellant, Eley was subpoenaed to appear at trial.
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.
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.
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 be
2. Other Claims of Ineffective Assistance
As to appellant’s other claims, the District Court’s findings, while framed in response to the Decoster I mandate, are generally in accord with the principles we have developed in this opinion.
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.
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.
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.
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.
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.
d. Waiver of Opening Statement and Failure To See Sentence Properly Executed. As the District Court found, there is no merit in the claims of ineffectiveness on
F. Conclusion
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.
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.
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.
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.
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As Jan Deutsch has recently noted, it is often in the nature of a dissent to present a political statement.
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.
1. Starting from the ABA Standards Relating to the Defense Function,
Our analytic structure permits reversal in the interest of justice, but without inappropriate rigidity. The claimed deficiency
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.
Judge Bazelon qualifies his formulation by asserting that his “checklist” does not compel automatic reversal, as it applies only if the violation is “substantial.” In DeCoster 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 in Decoster II- — -later vacated by the en banc order— the defendant’s burden was expanded to include a reference to impact. Judge Bazelon stated that Pinkney
Judge Bazelon recognizes that the government can always defend by showing beyond a reasonable doubt that the violation was harmless — a rule prescribed by Chapman
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.
There 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.
4. Judge Bazelon’s premise is that the Sixth Amendment 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. Maroney
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.
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 pro
6. Starting with Bruce
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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 Ba-zelon’s dissent, notably Judge Robinson’s appraisal
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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 Bazel-on’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.
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.
Affirmed.
MacKINNON, Circuit Judge, with whom TAMM and ROBB, Circuit Judges, join, concurring.
This case has a tortuous history. It started with a sua sponte remand from this Court to the District Court for determination of issues that were not raised on appeal and which were not apparent in the record. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [DeCoster I]. I dissented in part. On remand, the trial judge (Waddy, J.) held an extensive hearing. His findings and conclusions did not support the preconceived fears of the majority of the appellate panel that counsel had been ineffective. However, on appeal in a far reaching opinion that attempted to write new law the majority of the panel set aside Judge Waddy’s findings and conclusions and reversed the conviction. United States v. Decoster, 199 U.S.App.D.C. -, 624 F.2d 196 (1976), [Decoster II]. The factual and legal deficiencies of the reversal of Decoster’s conviction by the panel were set forth at length in my dissent, 199 U.S. App.D.C. -, 624 F.2d 196, and that opinion covers a number of points that need not be covered here. The full court subsequently ordered en banc rehearing of the case. Now the court en banc affirms the conviction.
In Judge Leventhal’s plurality opinion, which was prepared after my earlier origi
I. THE BURDEN OF PROOF IN SIXTH AMENDMENT RIGHT TO COUNSEL CASES
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall have the Assistance of Counsel for his defence.”
A. Precedent
1. Before DeCoster I
The early cases in this Circuit held that the Sixth Amendment only established a
The Sixth Amendment, however, guarantees more than the appointment of competent counsel. By its terms, one has a right to “Assistance of Counsel in his defence.” 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’s Sixth Amendment right to “have Assistance of Counsel” is denied. Thus, in Scott 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 the Sixth Amendment as well as from the Fifth.
In addition to applying the Sixth Amendment to the adequate assistance of counsel area, the pre-DeCoster I cases 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.
(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.”
(b) Burden oí Proof. The pre-DeCoster I cases also established that the burden rests on the defendant to show that he did not receive a fair trial. In Bruce 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 that the accused has a heavy burden in showing requisite unfairness. Although the cases are rare and extraordinary, it appears that an accused may obtain relief under 28 U.S.C. § 2255 if he shows 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.
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.
Judge Leventhal in a concurring opinion filed on petition for rehearing in Matthews 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).
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 was actually denied 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.
Judge Fahy’s majority opinion in Matthews, joined by Judge Wright, rested explicitly on United 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. Hammonds was decided in favor of the defendant. But this was because “[ajppellant ha[d] sustained his burden of 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).
burden on the Appellant to establish his claim of ineffective assistance of counsel is heavy. The question ... is whether his representation was so ineffective that appellant was denied a fair trial.
128 U.S.App.D.C. at 333-34, 389 F.2d at 284-85 (citations omitted) (emphasis added).
Finally, in Scott 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 in Bruce ” in a direct appeal case. Scott is significant both because it is a direct appeal case and because it was the first case to acknowledge that inadequate assistance of counsel claims have Sixth Amendment underpinnings. By relying on Bruce, the Scott court held that in the Sixth Amendment context, as well as under the Fifth Amendment, the burden is on the defendant to show prejudice from the acts or omissions of his counsel.
To recapitulate, both the Fifth and the Sixth Amendments are implicated in cases involving alleged ineffectiveness of counsel. The Fifth Amendment is violated if counsel’s performance is so inadequate that defendant is denied a fair trial. The Sixth Amendment 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 I cases indicate that the defendant has the burden of showing that he was prejudiced by his counsel’s inadequacy. The DeCoster I opinion 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.
2. DeCoster I
DeCoster I stated that under the Sixth Amendment 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.
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 a substantial violation of 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 these*225 precepts is shown, can establish lack of prejudice thereby.” Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).
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 in DeCoster I. United States v. Pink-ney, 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.
In Pinkney, appellant alleged inadequate assistance of counsel. The court rejected Pinkney’s claim, holding that a DeCoster I motion is one for a new trial in which the defendant bears the same obligation to show prejudice to his cause as in any other new trial motion:
The vehicle [for raising an inadequate assistance of counsel claim], we said [in DeCoster 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 charging ineffective assistance of counsel must set forth evidence upon which the elements of a constitutionally deficient performance might properly be found.
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.
In summary, under DeCoster I and our prior decisions, the defendant lacks a substantial claim unless he makes out a prima facie case 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.
B. Fifth Amendment Analysis
A defendant’s right to adequate assistance of counsel is derived from both the Fifth and the Sixth Amendments. Therefore, the Supreme Court’s treatment of cases involving purported violations of the Fifth Amendment is relevant. In such cases the Court has required that defendants prove prejudice.
Petitioner has 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.
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. In Murphy, 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.
Similarly, in United 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 whether or not the additional evidence is considered, there is no justification for a new trial.
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.
While Agurs does 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.” The Agurs court indicated that it was concerned with the “justice of the finding of guilt.” 427 U.S. at 112, 96 S.Ct. at 2401.
There will be a few cases in which, because of the inadequacy of counsel, exculpatory evidence is lost. But in light of Fifth Amendment cases like Murphy and Agurs, courts should be wary of declaring certain acts or omissions of counsel, without proof of prejudice, to be per se constitutional violations that in the absence of refutation are sufficient to negate a criminal conviction. Where the Sixth Amendment 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 the Sixth Amendment is all about.
C. Common Law Principles
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.
[ 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.
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;
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 the Fifth Amendment 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 court sua 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 De-eoster bears the burden of proving a prima facie. Sixth Amendment violation which includes a showing of prejudice.
D. Attorney-Client Relationship and the Adversary System
The formula suggested by the dissent for determining when a defendant has not received effective assistance of counsel — presuming prejudice 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.
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. Some
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 in Mitchell 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.
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 a prima fa-cie case of a Sixth Amendment violation, and the burden of proceeding would then be cast on the Government to disprove the prima facie case and failing that the accused would prevail.
E. Sixth Amendment Framework
To summarize, Sixth Amendment right to “assistance of counsel” cases can be divided into two categories: (1) those in which the accused is actually denied the assistance of
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.
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.
To illustrate: suppose defense counsel, as frequently happens in criminal cases, does not call any witnesses.
Applying this test to the instant case, it is clear that Decoster’s Sixth Amendment 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;
More important, there is not a shred of evidence in the record suggesting that De-coster 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.
II. THE DISSENT’S POSITION ON THE BURDEN OF PROOF
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 that
A. Geders v. United States
Geders is easily distinguished from this case. It was not based 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 the actual assistance of counsel during a critical stage of his trial. When a person is actually denied counsel at an important point in his trial, his constitutional right is violated without any further showing of prejudice. This case, which involves an alleged constructive denial of counsel because of the defense lawyer’s ineffectiveness, involves different considerations.
B. Holloway v. Arkansas
In Holloway, 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.”
The facts in Holloway have 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 in Holloway, and dispensed with the requirement that the defendant show it, are plainly inapplicable here.
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:
[Mjost 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.*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.
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.
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. Compare Chapman v. California, supra, [386 U.S.] at 24-26 [87 S.Ct. 824, at 828-829], with Hamling v. United States, 418 U.S. 87, 108 [94 S.Ct. 2887, 2902, 41 L.Ed.2d 590] (1974), and United 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 to refrain from 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 client. 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.
435 U.S. at 490-91, 98 S.Ct. at 1182.
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.
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 defend
In short, while the facts in Holloway (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,”
C. Chapman v. California
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.”
Before the burden of proof shifts to the government under Chapman, whatever prejudice the constitutional error involves must first be established by the claimant. Thus, in Chapman itself, 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 admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless.
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.
D. Chambers v. Maroney
While neither Geders, Holloway, nor Chapman is 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.
Unquestionably, the court should make every effort to effect early appointments of counsel in all cases. But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated appointment, an eviden-tiary hearing must be held to determine whether the defendant has been denied his constitutional right to counsel.
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 in Chambers, 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, Chambers is contrary to the basic contention of the dissent.
III. THE PHILOSOPHY OF THE DISSENT
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 in Decoster 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.
A. Adequacy of Investigation
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.
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.”
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.
3. Policemen. Counsel examined officer Ehler at the preliminary hearing.
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. In
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.
Even now, the dissent and appellant do not and cannot point to any exculpatory evidence that could have been found if De-coster’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.”
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.
B. Duty to Investigate Accused’s Contradictory Statements
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
C. Duty to Investigate for a Guilty Client
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.”
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: counsel ethically cannot assist his client in presenting what the 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,”
D. Bond Review
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.
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 in
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.
E. Decoster as a Fugitive from Justice
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.
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.
F. Avoiding Futile Retrials
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
Decoster was found guilty on clear, uncon-tradicted 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.
G. Decoster’s Participation in the Events of the Robbery
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 defence." See dissent n.22. And in his letter to his counsel, which Decoster testified he mailed
H. Sentencing
The dissent states that the Department of Corrections “clarified Decoster’s sentence” because it was allegedly not properly executed.
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.”
I. Reversible Error
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 arbitrary per se and “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.
J. Changing Judges’ Duties
The dissent argues that the “adversary system is . .in shreds,”
K. Extraneous Considerations
Most extraordinarily, the dissent sees merit in a “rule requiring automatic 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 significant prophylactic effect for several reasons [among them] . . . frequent reversals
L. Ready for Trial
The dissent finds fault with Decoster’s lawyer because
even 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
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.
M. Representation of Indigents
The dissent plays the theme from Griffin 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.
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.
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.
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.
IV. CONCLUSION
While purporting to explore standards for defense counsel in their representation of criminal defendants, Decoster I was 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.
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.
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 who
. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [hereafter referred to as DeCoster /].
. American Bar Association, Project on Standards for Criminal Justice, Standards Relating to the Defense Function (App.Draft 1971) [hereafter referred to as ABA Standards].
. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Id.
. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
. Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
. Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring).
. Id. at 22-24, 87 S.Ct. 824; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
. The term originated in Powell v. Alabama, supra, where the Court held that the trial judge’s failure to make an “effective appointment of counsel,” 287 U.S. at 71, 53 S.Ct. 55, had resulted in the “denial of effective and substantial aid” of counsel, id. at 53, 53 S.Ct. at 58, thereby depriving defendant of due process of law.
. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 69-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173. Indeed, joint representation may afford economies and even enhance the presentation of a defense. See Glasser v. United States, supra, 315 U.S. at 92, 62 S.Ct. at 475 (Frankfurter, J., dissenting) (“Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.”), quoted in Holloway v. Arkansas, supra, 435 U.S. at 482-83, 98 S.Ct. 1173. After all, many cases of multiple defendants (even where each has his own counsel) may involve situations where each would rather be tried alone. But severance is a matter of judicial discretion under Fed.R.Crim.P. 14.
. Holloway v. Arkansas, supra, 435 U.S. at 484-87, 98 S.Ct. 1173.
. See Powell v. Alabama, supra, 287 U.S. at 71, 53 S.Ct. 55.
. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
. Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173, quoting Glasser v. United States, supra, 315 U.S. at 70, 62 S.Ct. 457.
. Tollett v. Henderson, 411 U.S. 258, 264, 93 S.Ct. 1602, 1606, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
. McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. at 1450.
. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
. Id. at 102 n.5, 96 S.Ct. 2392.
. McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).
. 586 F.2d 1325 (9th Cir. 1978).
. Id. at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.
. Id. at 1340 (Hufstedler, J., concurring and dissenting).
. Id. at 1336-37.
. Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669 (1945).
. See Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).
. 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).
. Id. 104 U.S.App.D.C. at 65-66, 259 F.2d at 795-96 (Fahy, J., dissenting).
. Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970); United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970).
. E. g., Beasley v. United States, 491 F.2d 687, 694 (6th Cir. 1974).
. As it happens, the author of Bruce had previously, as appointed counsel in Mitchell, sought to persuade the court to move from Fifth Amendment to Sixth Amendment analysis. See 104 U.S.App.D.C. at 66, 259 F.2d at 796 (Fahy, J., dissenting).
. Maryland v. Marzullo, 435 U.S. 1011, 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White, J., dissenting).
. Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). See also Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (“range of competence demanded of attorneys in criminal cases”).
. Restatement (Second) of Torts § 299A & comment e (1965), cited in Moore v. United States, supra, 432 F.2d at 736 n.24.
. See, e. g., Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978) (“reasonably competent attorney acting as a diligent conscientious advocate”); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) (“customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960) (“counsel reasonably likely to render and rendering reasonably effective assistance”). The MacKenna test has been adopted by the Sixth Circuit. Beasley v. United States, supra, 491 F.2d at 696.
Three circuits continue to adhere to the “farce and mockery” standard. See, e. g., Gillihan v. Rodriguez, 551 F.2d 1182, 1187 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977); Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977); United States v. Madrid Ramirez, 535 F.2d 125, 129 (1st Cir. 1976). The First and Second Circuits, while formally adhering to the “farce and mockery” standard, have in many recent cases concluded that a reevaluation of that test is not necessary because counsel’s alleged deficiencies did not amount to ineffectiveness even under the standard of “reasonable competency.” See, e. g., Rickenbacker v. Warden, supra, 550 F.2d at 66; United States v. Madrid Ramirez, supra, 535 F.2d at 129-30.
. United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.) (Wyzanski, J.), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975).
. Cooper v. Fitzharris, supra, 586 F.2d at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.
. 199 U.S.App.D.C. at-, 624 F.2d at 203.
. DeCoster 1, 159 U.S.App.D.C. at 333, 487 F.2d at 1204; Decoster II, 199 U.S.App.D.C. at -, 624 F.2d at 203.
. ABA Standards, supra note 2, at 11. That the ABA Standards were not conceived as “minimum” standards is highlighted by the fact that both the Special Committee on Standards for the Administration of Justice and the Project on Standards for Criminal Justice originally included the term “Minimum Standards” in their titles. These designations were dropped by vote of the ABA House of Delegates in August 1969. Id. at v.
. Id. at - of 199 U.S.App.D.C., at 203 of 624 F.2d.
. 389 F.2d 224 (4th Cir. 1968).
. 435 F.2d 1089 (4th Cir. 1970).
. United States ex rel. Green v. Rundle, 452 F.2d 232 (3d Cir. 1971).
. United States ex rel. Green v. Rundle, 303 F.Supp. 972 (E.D.Pa.1969), reversed, 452 F.2d 232 (3d Cir. 1971).
. People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (Feb. 22, 1979).
. See text accompanying notes 30-33 supra.
. 23 Cal.3d at 424-25 & n.14, 152 Cal.Rptr. at 738-39 & n.14, 590 P.2d at 865-66 & n.14.
. Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977) (Duniway, J., concurring), vacated, see 586 F.2d 1325 (1978) (en banc).
. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974).
. In our decision to modify Bruce, we have taken into account that the District of Columbia Court of Appeals uses the Bruce standard and language. See, e. g., Fernandez v. United States, 375 A.2d 484, 486-87 (D.C.App.1977); Cooper v. United States, 248 A.2d 826, 827 (D.C.App.1969). However, the change is only from a requirement that defendant show actual effect, required by Bruce, to the “likelihood” test of Saferian, that is in turn subject to prosecution rebuttal to negative prejudice in fact.
As to the content of the effect that defendant must show is likely, whether it be characterized as “blott[ing] out the essence of a substantial defense” or “deprivation of an otherwise available, substantial defense” is a matter of form more than substance.
. Mitchell v. United States, supra, 104 U.S.App.D.C. at 65, 259 F.2d at 795 (Fahy, J., dissenting).
. 28 U.S.C. § 2106 (1976); see Scott v. United States, supra, 138 U.S.App.D.C. at 340, 427 F.2d at 610.
. Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967).
. See, e. g., McNabb v. United States, 318 U.S. 332, 340-41, 63 S.Ct. 608, 87 L.Ed. 819 (1947).
. See Boyd v. Henderson, 555 F.2d 56, 62 n.8 (2d Cir. 1977).
. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (formal violation of Fed.R.Crim.P. 11 provides no basis for collateral attack of conviction based on guilty plea); Davis v. United States, 417 U.S. 333, 345-46 & n.15, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (intervening change in law of circuit at as what constitutes a lawful draft induction order is cognizable under 28 U.S.C. § 2255; conviction for an act the law does not make criminal presents one of the “exceptional circumstances” that “inherently results in a complete miscarriage of justice”); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (failure to permit allocution at sentencing not a “fundamental defect”); see Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S.Ct. 3037, 3044, 49 L.Ed.2d 1067 (1976) (reiterating the “established rule” that “non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings”); Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (collateral attack may not “do service for an appeal”).
. 428 U.S. 465, 491 n.31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Henderson v. Kibbe, 431 U.S. 145, 154 n.13, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Schneckloth v. Bustamonte, 412 U.S. 218, 259-63, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In Stone v. Powell, those concerns were heightened by the special problem of federalism raised by federal challenges to state court judgments. The combination led to denial of collateral relief even for a constitutional claim.
. Scott v. United States, supra, 138 U.S.App.D.C. at 340, 427 F.2d at 610; United States v. Hammonds, supra, 138 U.S.App.D.C. at 169, 425 F.2d at 600.
. See McQueen v. Swenson, supra, 498 F.2d at 220. As to the nature of the government’s burden there may be a distinction depending on the court’s appraisal of the showing by accused. If the court concludes that a constitutional violation has been established, then there is doctrine indicating that the government must show beyond a reasonable doubt that there has been no prejudice in fact. Chapman v. California, supra, Fahy v. Connecticut, supra. See text accompanying notes 11-12 supra. If the showing by the accused causes the court serious misgivings notwithstanding the absence of a constitutional violation, see discussion at text accompanying notes 65-70, supra, the court may be satisfied with a response by the government, that there has not in fact been any injustice, even though this response falls short of a “beyond a reasonable doubt” standard.
. E. g., Mitchell v. United States, supra, 104 U.S.App.D.C. at 65-66, 259 F.2d at 795-96 (Fahy, J., dissenting) (ultimate question is whether the conviction “rests in substantial degree” upon lack of professional skill); Cooper v. Fitzharris, supra, 586 F.2d at 1136-40 (Hufstedler, J., concurring and dissenting); People v. Pope, supra, 23 Cal.3d at 425, 152 Cal.Rptr. at 739, 590 P.2d at 866.
. See Mitchell v. United States, supra, 104 U.S.App.D.C. at 63, 259 F.2d at 793; discussed at text accompanying note 36 supra.
. See Bines, Remedying Ineffective Assistance in Criminal Cases: Departures from Habeas Corpus, 59 Va.L.Rev. 927, 961 (1973).
. 177 U.S.App.D.C. 423, 543 F.2d 908 (1976). In Pinkney, appellant claimed denial of effective assistance of counsel at a sentencing hearing because counsel failed, first, to discuss with him the content of the government’s allocution memorandum and, second, to .object to the government’s allegation in the memorandum that appellant participated in drug traffic in the District of Columbia. We emphasized that appellant had failed to present an affidavit disclosing “evidence portraying the movant’s claim materially and resolutely, and evincing a capability of mounting a serious challenge.” 177 U.S.App.D.C. at 431, 543 F.2d at 916 (emphasis supplied). It was acknowledged that “once a substantial violation of counsel’s duties is shown, the Government’s burden is to demonstrate lack of prejudice therefrom." Id. 177 U.S.App.D.C. at 431-32 n.59, 543 F.2d at 916-917 n.59. But the court said:
Only if the evidentiary elements of [appellant’s claim that counsel’s failure to inform him deprived him of the opportunity to contest the allegations of the government’s memorandum] 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.
Id. In short, the defendant must show that counsel’s alleged deficiencies would probably have affected the outcome before the government has the burden of demonstrating that, in fact, the result would not have been affected.
. 498 F.2d 207 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).
. Id. at 216.
. United States v. Clayborne, 166 U.S.App.D.C. 140, 509 F.2d 473 (1974).
. Id. 166 U.S.App.D.C. at 144, 509 F.2d at 477.
. United States ex rel. Green v. Rundle, 452 F.2d 232, 235 (3d Cir. 1971); discussed at text accompanying notes 56-58 supra.
. 518 F.2d 1245 (7th Cir. 1975).
. Id. at 1246.
. 18 U.S.C. § 3006A(e) (1976) (contemplating ex parte proceeding); United States v. Harris, 542 F.2d 1283, 1314-16 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975); Report of the Committee to Implement the Criminal Justice Act, 36 F.R.D. 285, 290 (1965).
. United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970). Judge Friendly’s comment, although directed to the choice of tactics at trial, has more general application. He said:
Determination of the effectiveness of counsel cannot be divorced from the factual situation with which he is confronted. When, as here, 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. If he simply puts the prosecution to its proof and argues its burden to convince the jury beyond a reasonable doubt, the defendant may think him lacking in aggressiveness, and surely will if conviction occurs. If he decides to flail around and raise a considerable amount of dust, with the inevitable risk that some may settle on his client, the defendant will blame him if the tactic fails, although in the rare event of success the client will rank him with leaders of the bar who have used such methods in some celebrated trials of the past.
. Listed in order of the proceedings in appellant’s case, they are:
(1) Counsel was dilatory in seeking a bond review while appellant was incarcerated for almost five months following his arrest on May 29, 1970;
(2) Counsel failed to obtain a transcript of appellant’s preliminary hearing and failed to employ that transcript to impeach prosecution witnesses at trial;
(3) Counsel failed to interview any potential witnesses prior to trial;
(4) Counsel announced “ready” for trial at a time when he did not know whether or not he would present alibi witnesses and before he had fully developed his defense;
(5) Counsel offered to waive jury trial and to permit appellant to be tried before the court when the court had heard a part of the evidence in connection with the guilty pleas of the two co-defendants;
*211 (6) Counsel failed to make an opening statement; and
(7) Counsel failed to see that appellant’s sentence was properly executed, in that he failed to see that appellant was given credit for time served.
Appellant also alleges that he was denied the effective assistance of counsel because of counsel’s failure to object to appellant’s appearing before the jury in prison clothing. This objection was not asserted below, and therefore is not properly before this court.
. See Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Liddy, 166 U.S.App.D.C. 95, 109, 509 F.2d 428, 442 (1974).
. While incarcerated after his arrest, appellant did allege, in a letter to Judge Waddy protesting his continued confinement and the failure of counsel to file a bond review motion, that he had been defending himself from an assault by Crump. This claim is consistent with that he made in a letter to his attorney shortly before trial. There is no indication that the attorney was ever aware of the contents of this letter, or that appellant made similar representations to him prior to the letter to counsel mentioned above. At the remand hearing, appellant admitted this latter self-defense claim was a fabrication.
. Taylor could not be located.
. Appellant attacks counsel’s filing of the bond review motion in an incorrect court, the District Court, rather than the correct court, General Sessions. While we do not commend this error, some confusion was “understandable,” as the government’s lawyer commented at the remand hearing.
. See Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) (ineffectiveness in filing notice of appeal warrants only remedy of opportunity to file appeal).
. See note 93 and accompanying text supra.
. Deutsch, Law as Metaphor: A Structural Analysis of Legal Process, 66 Geo.L.J. 1339, 1342 (1978).
. See note 2 supra.
. Dissenting opinion of Bazelon, J., at-of 199 U.S.App.D.C., at 276 of 624 F.2d.
. ABA Standards, supra note 2, at 11; see text accompanying notes 52-53 supra.
. Although Judge Hufstedler dissented from the imposition of a strict prejudice requirement in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), she recognized that considerations of effect on outcome where pertinent to determining whether a defendant had been denied the effective assistance of counsel. Id. at 1340; see text accompanying notes 32-33 supra. And the Supreme Court of California, while adopting a standard similar to that of DeCoster I, still imposed on defendant the burden of showing that counsel’s failures had resulted “in the withdrawal of a potentially meritorious defense.” People v. Pope, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 739, 590 P.2d 859, 866 (1979); see text accompanying notes 59-61 supra.
. See dissenting opinion of Bazelon, J., at ---of 199 U.S.App.D.C., at 288-289 of 624 F.2d.
. United States v. Pinkney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976).
. Decoster II, 199 U.S.App.D.C. at----, 624 F.2d at 308-309. He observed, 199 U.S.App.D.C. at---, 624 F.2d at 309-310, that impairment could be presumed where “acts or omissions of [defense] counsel are . . . likely to have impaired the defense” and yet consequence would be difficult to prove. These words - could be viewed as suggesting an approach not unlike our own opinion, except that the likely effect is based not on an inquiry in context, but is established by the nature of the violation (described as a “total failure to conduct factual investigations,” 199 U.S.App.D.C. at -, 624 F.2d at 310).
. Dissenting opinion of Bazelon, J., at-of 199 U.S.App.D.C., at 282 of 624 F.2d.
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see text accompanying notes 22-23 supra.
. See dissenting opinion of Bazelon, J., at ---of 199 U.S.App.D.C., at 289-290 of 624 F.2d, citing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see text accompanying notes 27-28 supra.
. W. Hurst, Law and Social Process in United States History 165 (1972) (1959 Cooley Lectures, U. Michigan).
. Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973).
. This flexibility in remedies on direct appeal found its roots in Bruce’s recognition, building on the case of Dyer v. United States, 126 U.S. App.D.C. 312, 379 F.2d 89 (1967), that relief may be justified by a lesser showing on direct appeal than on collateral attack. See text accompanying notes 65-73 supra.
. Opinion of Robinson, J., at-n.44, of 199 U.S.App.D.C., at 250 n.44 of 624 F.2d.
. See, e. g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The importance of counsel’s function to the effective operation of our adversary system is unquestioned. The Supreme Court stated in Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976):
Our cases recognize that the role of counsel is important precisely because [the ordinary] defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.
Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942), is to the same effect:
The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power. Among those guarantees is the right granted by the Sixth Amendment to an accused in a criminal proceeding in a federal court “to have the Assistance of Counsel for his defense.” “This is one of the safeguards * * * deemed necessary to insure fundamental human rights of life and liberty,” and a federal court cannot constitutionally deprive an accused, whose life or liberty is at stake, of the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 462, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 [(1938)].
. This rule applies in almost every case. Exceptions may perhaps be in order in the few cases in which the prosecutor somehow has easier access than the defendant to relevant information. See I.C., infra.
. See, e. g., Diggs v. Welch, 80 U.S.App.D.C. 5, 6-7, 148 F.2d 667, 668-69 (1945); Jones v. Huff, 80 U.S.App.D.C. 254, 255, 152 F.2d 14, 15 (1945).
. The panel was composed of Chief Judge Ba-zelon and Judge Leventhal and issued per cu-riam.
. See cases cited at note 3 supra.
. In addition to this circuit, seven other circuits — the Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth — have rejected the farce and mockery test as a standard that must be met in determining inadequate assistance of counsel. In Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970), the Third Circuit stated:
|T]he standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.
This standard was reaffirmed in United States v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976), where the court added:
[I]t is clear from our decisions that it is the particular facts of each case which determine whether the attorney in question has provided the constitutionally required effective assistance of counsel.
In Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) the Fourth Circuit expressly rejected the farce and mockery test and adopted a normal competence standard: “Was the defense counsel’s representation within the range of competence demanded of attorneys in criminal cases?” The Fifth Circuit has adopted the following standard: whether the attorney was “reasonably likely to render and [rendering] reasonably effective [assistance.]” United States v. Gray, 565 F.2d 881, 887 (5th Cir. 1978); Mason v. Balcom, 531 F.2d 717, 724 (5th Cir. 1976); Burston v. Caldwell, 506 F.2d 24 (5th Cir.), cert. denied, 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480 (1975). The Sixth Circuit has adopted the same standard as the Fifth Circuit. United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975), cert. denied, 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104 (1976); Maglaya v. Buchkoe, 515 F.2d 265, 269 (6th Cir. 1975); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). In United States v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109, the Seventh Circuit stated:
In this Circuit a petitioner asserting a lack of effective assistance of counsel in a criminal case must prove that his counsel’s performance did not meet “a minimum stan*220 dard of professional representation.” [citations omitted].
This standard was reaffirmed in United States v. Brugger, 549 F.2d 2, 4 (7th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 919, 53 L.Ed.2d 231 (1977), and in United States v. Krohn, 560 F.2d 293, 297 (7th Cir.), cert. denied, 434 U.S. 895, 98 S.Ct. 275, 54 L.Ed.2d 185 (1977). The Eight Circuit in United States v. Malone, 558 F.2d 435, 438 (8th Cir. 1977), articulated its standard this way:
It is established in this Circuit that a defendant is denied effective assistance of counsel if his trial counsel “does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Pinnell v. Cauthron, 540 F.2d 938, 939 (8th Cir. 1976).
The Ninth Circuit has adopted a “reasonably competent and effective representation” standard similar to that approved in the Fifth and Sixth Circuits. Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (en banc).
Thus, a majority of the circuits have rejected the farce and mockery test as a minimal standard.
Three circuits — the First, Second, and Tenth — have retained the farce and mockery test. In United States v. Ramirez, 535 F.2d 125, 129-30 (1st Cir. 1976), the First Circuit stated:
Ineffective counsel in this circuit means representation such as to make a mockery, a sham or a farce of the trial. While we have considered adopting a more lenient standard requiring “reasonably competent assistance of counsel”, [citations omitted], . . . appellant’s contentions do not approach a violation of either standard.
Thus, the First Circuit leaves open the possibility of adopting a different standard. See also Dunker v. Vinzant, 505 F.2d 503 (1st Cir. 1974). The Second Circuit has been more certain in its support of the farce and mockery test. In United States v. Yanishefsky, 500 F.2d 1327, 1333 (2d Cir. 1974), the court stated:
The current standard of ineffective assistance of counsel in this circuit is that in order to be of constitutional dimensions the representation [must] be so “woefully inadequate ‘as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.’ ” [citations omitted].
The court explicitly declined to adopt any other standard. 500 F.2d at 1333 n. 2. Similarly, the Second Circuit declined to reconsider its position in Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62, 66 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977), and it reaffirmed directly the farce and mockery test in LiPuma v. Commissioner, Department of Corrections, 560 F.2d 84, 90-91 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977). The Tenth Circuit also continues to apply the farce and mockery test. United States v. Larsen, 525 F.2d 444, 449 (10th Cir. 1975), cert. denied, 423 U.S. 1075, 96 S.Ct. 859, 47 L.Ed.2d 85 (1976).
. Judge Leventhal stated:
[A] more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for new trial either by the District Court or by this court on direct appeal.
126 U.S.App.D.C. at 340, 379 F.2d at 117.
. The context in which the challenge is raised may affect the factual showing that is required to satisfy the standard.
. The quality of the defense in Hammonds presents an interesting contrast to the representation involved here. In Hammonds, the efforts of defense counsel were grossly inadequate. The court delineated an array of failures:
appellant specifies trial counsel’s failure to (1) appear at the arraignment, (2) conduct any voir dire examination of the jury, (3) make any opening statement to the jury, (4) cross-examine two of the four Government witnesses, with only slight cross-examination of the other two witnesses (a total of five questions) and (5) request any jury instructions, including in particular an instruction on lesser-included offenses. In addition to counsel’s alleged deficiencies in the trial itself, appellant refers to counsel’s failure to make any pretrial motions, including a motion for pretrial release, and his declining at the court’s invitation to speak to the question of bond after conviction or to speak on appellant’s behalf at the sentencing.
Counsel for appellant in this court suggests that trial counsel in his closing argument should at least have mentioned the presumption of innocence and the requirement that all essential elements of the offenses be proved beyond a reasonable doubt; that he should have pointed out to the jury the evidence which could lead to a conclusion that appellant lacked the requisite intent and also the absence of evidence establishing that a person was present in the house at the time of appellant’s entry. Appellant’s counsel suggests further that while admitting that appellant could not provide the jury with a complete explanation of his presence in the house, trial counsel could have offered one or more hypotheses of what might have happened*222 138 U.S.App.D.C. at 172, 425 F.2d at 603. Here, on the other hand, counsel’s major shortcoming was supposedly his failure to investigate alibis and defenses that he had good reason to believe were untrue.
. The dissent relies heavily on DeCoster I, which it acknowledges “shifted the focus of judicial inquiry away from the prejudice to the defendant . . . and toward the task of articulating basic duties counsel owes his client.” Dissent--of 199 U.S.App.D.C., 267 of 624 F.2d. While conceding that the prece-dential value of DeCoster I is “in question” (dissent n. 62), the dissent contends that it is more relevant than the pre-DeCoster I case because those cases are grounded in the Fifth rather than the Sixth Amendment. Dissent n. 121. The dissent’s distinction is erroneous. Scott, supra at - of 199 U.S.App.D.C., at 222 of 624 F.2d, was explicitly decided under the Sixth rather than the Fifth Amendment. The court stated:
What is involved here is the Sixth Amendment. The Sixth Amendment has overlapping but more stringent standards than the Fifth Amendment as is clear from other contexts. Compare, for example, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) with Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The appropriate standard for ineffective assistance of counsel, set forth in Bruce, supra, is whether gross incompetence blotted out the essence of a substantial defense.
138 U.S.App.D.C. at 340, 427 F.2d at 610.
. The DeCoster I guidelines were as follows:
In General —Counsel should be guided by the American Bar Association Standards for the Defense Function. They represent the legal profession’s own articulation of guidelines for the defense of criminal cases.
Specifically — (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. Many rights can only be protected by prompt legal action. The Supreme Court has, for example, recognized the attorney’s role in protecting the client’s privilege*223 against self-incrimination. Miranda v. Arizona, 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), and rights at a line-up, United States v. Wade, 388 U.S. 218, 227, [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967). Counsel should also be concerned with the accused’s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence. (3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in 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.
. In Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978), the Fourth Circuit recently came to the same conclusion. Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), had imposed specific requirements for counsel’s preparation of his client’s defense. In adopting a “normal competency” approach, see note 6 supra, the court stated:
While the normal competency standard does not purport to list the things counsel should or should not do, it does not preclude resorting to specifics for ascertaining the “range of competence demanded of attorneys in criminal cases.” . . . We adhere to [the list of duties in Coles ] for it is a definitive, objective description of the competency normally demanded of counsel in certain aspects of their service.
The normal competency standard is necessarily broad and flexible because it is designed to encompass many different factual situations and circumstances. Consequently, its fair and effective administration rests primarily on the district judges. .
In exercising its discretion, a trial court may refer to other sources to determine the normal competency of the bar. Among these are precedent from state and federal courts, state bar canons, the American Bar Association Standards Relating to the Defense Function [App. Draft 1971], and in some instances, expert testimony on the particular conduct at issue. These, of course, do not supplant the test that we have prescribed, but they can aid in objectively ascertaining the range of competency normally expected of attorneys practicing criminal law.
. For example, DeCoster I stated, inter alia, that “[c]ounsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed.” 159 U.S.App.D.C. at 333, 487 F.2d at 1204. Obviously, what is an “appropriate investigation” varies with each particular case. The range of this responsibility to determine what investigation was necessary varies greatly from case to case; but whatever that duty might be, it must be a reflection of the general duty — to render reasonably competent assistance when acting as a diligent, conscientious advocate — as applied to the particular case.
. Thus, when the accused admits his guilt to his attorney, or when the lawyer knows from other evidence that the evidence of guilt is overwhelming, or that his client is telling an untruthful story, a more limited investigation may be sufficient, whereas in another case it would not.
. These standards are intended as guides for conduct of lawyers and as the basis for disciplinary action, not as criteria for judicial evaluation of the effectiveness of counsel to determine the validity of a conviction; they may or may not be relevant in such judicial evaluation of the effectiveness of counsel, depending upon ail the circumstances.
American Bar Association Project on Standards for Criminal Justice, Standards Relating
As to the danger of using the guidelines as mandatory standards to be applied in determining the validity of criminal convictions, note the chambers opinion of Justice Blackmun in Nebraska Press Assn. v. Stuart, 432 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975), where the Justice commented on the Nebraska trial court’s adoption of the Nebraska Bar-Press Guidelines for Disclosure and Reporting of Information Relating to Imminent or Pending Criminal Litigation:
Without rehearsing the description of those Guidelines set forth in my prior opinion, it is evident that they constitute a “voluntary code” which was not intended to be mandatory. Indeed, the word “guidelines” itself so indicates. They are merely suggestive and, accordingly, are necessarily vague.
432 U.S. at 1330, 96 S.Ct. at 254. The ABA Standards contain the same caveat.
Consider also the statement of Judge Harold Medina of the Second Circuit, which was made on November 20, 1976 and concerned the use by some judges of the American Bar Association’s guidelines on fair trial and free press: “Judge after judge and court after court took these voluntary guidelines and turned them into a piece of concrete.” New York Times, Nov. 21, 1976, p. 62, c. 3. Courts and lawyers should not make that error with respect to the American Bar Association Standards for the Defense Function referred to in DeCoster I. Mere failure to adhere to such guidelines does not amount to a constitutional violation.
Justice Kaplan of the Supreme Judicial Court of Massachusetts made this point quite well in his oft-quoted opinion in Commonwealth v. Saferian, 366 Mass. 89, 95, 315 N.E.2d 878, 882-83 (1974):
The decided cases try to express or approximate in varying forms of words a general standard for determining whether “assistance of counsel” has been provided an accused person within the meaning of the Sixth Amendment. It has been said that the standard is not met where inadequacy of counsel has turned the proceedings into “a farce and a mockery,” or has created “an apparency instead of the reality of contest and trial.” Some cases call for “counsel reasonably likely to render and rendering reasonably effective assistance.” Still others speak of situations where “the attorney has in effect blotted out the substance of a defense.” But 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 defence, [emphasis added.]
This well states my view that the failure to comply with the duty must be a “substantial violation ” as DeCoster I noted, or gross incompetence with substantial prejudice as set forth in Bruce and Scott. Thus, in Sixth Amendment cases, the defendant must produce evidence showing a direct inference of substantial prejudice to the constitutional right of the accused to the assistance of counsel, or such prejudice to his Sixth Amendment right may be shown indirectly by evidence that he was denied the essence of a fair trial, i. e., prejudice actual or inherent. Thus the mere showing of some inadequacy in complying with any list of duties, i. e., as stated by DeCoster I, does not necessarily satisfy the requirement to show prejudice and thereby shift the burden of proceeding. The inadequacy of counsel must, by proof of “gross incompetence” (Bruce and Scott) in his performance or substantial impact on the result, be shown to constitute a “substantial violation.” See DeCoster I. What is required is a showing that the violation itself, or the violation when added to the consequences, was so prejudicial to defendant’s constitutional right, as to effectively deny him the assistance of counsel that the constitution requires.
. Judge Robinson’s footnote 58 in Pinkney cited four cases: Newsome v. Smyth, 261 F.2d 452 (4th Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 883, 3 L.Ed.2d 837 (1959); United States v. Frame, 454 F.2d 1136 (9th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972); United States v. Norman, 402 F.2d 73 (9th Cir.), cert. denied, 397 U.S. 938, 90 S.Ct. 949, 25 L.Ed.2d 119 (1970); and Dansby v. United States, 291 F.Supp. 790 (S.D.N.Y.1968).
While Newsome was based in part on an application of the farce and mockery test, which we reject as other than an expression that substantial unfair prejudice must be shown, that decision clearly reflects the view that the defendant is expected to demonstrate some sort of prejudice:
[Petitioner] attacks the sufficiency of his personally selected counsel, who conducted his defense in the original trial, principally because his counsel failed to have the prisoner take the witness stand and did not specify the grounds of his motion to set aside the verdict. He also contends that he should have been granted additional time, after the verdict, in which to produce additional witnesses in his behalf, but he did not identify the prospective witnesses or suggest the nature of the testimony he hoped to obtain. Clearly these contentions are without merit. . . Obviously, it cannot be said that counsel’s determination as a matter of trial tactics, not to put his client upon the witness stand, under these circumstances, converts the trial into a farce or a mockery of justice. Indeed, it may be the wise, or even the only prudent, course to take. Having had a full trial, the defendant clearly is not entitled to a retrial upon the basis of an unsupported statement that he would like additional time to produce unidentified witnesses whose possible testimony was not disclosed.
261 F.2d at 454 (emphasis added).
Frame flatly states:
Turning to the merits, we hold that the motion for new trial was properly denied. No showing was made of possible prejudice from the alleged confíict. See Davidson v. Cupp, 446 F.2d 642 (9th Cir. 1971), and cases cited.
454 F.2d at 1138 (emphasis added).
Norman states that the facts there alleged for a new trial were insufficient because “that fact would not have undermined the Government’s case in the least.” 402 F.2d at 78. In other words, the defendant failed to sustain his burden of demonstrating prejudice.
Dansby is perhaps the most explicit of all these cases in its statement:
Motions for a new trial are not favored and should be granted only with great caution. The burden of proving the necessity for a new trial is on the petitioner. He must satisfy the court that the jury might have reached a different result without the challenged testimony, or that had the subsequent testimony been presented at the trial it would have “probably” produced a different result.
. 177 U.S.App.D.C. at 431, 543 F.2d at 916; quoted supra at 17.
. While all the circuits have addressed the question of the standard for the duty owed by counsel to the criminal defendant, see note 6 supra, fewer circuits have addressed the question of the proper procedure for determining when a violation occurs, cf. note 24 infra. Yet the circuits seem to be in accord that the burden to show inadequacy of counsel rests upon the defendant.
For example, the Seventh Circuit, in an opinion by then-Judge Stevens, in Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975) stated:
Whenever we are asked to consider a charge that counsel has failed to discharge his professional responsibilities, we start with a presumption that he was conscious of his duties to his clients and that he sought conscientiously to discharge those duties. The burden of demonstrating the contrary is on his former clients, [emphasis added.]
Accord, United States v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976) (“a petitioner must prove ” (emphasis added; see note 6 supra )).
The Third Circuit stated in United States v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976):
The burden is on petitioner to demonstrate that the representation provided him by counsel was constitutionally inadequate. United States v. Hines, 470 F.2d 225, 231 (3d Cir. 1972); United States v. Varga, 449 F.2d 1280, 1281 (3d Cir. 1971).
The Tenth Circuit still follows the farce and mockery test, and that Circuit places the burden on the defendant as well. In United States v. Baca, 451 F.2d 1112, 1114 (10th Cir. 1971), the court stated:
The burden on an appellant to establish a claim of ineffective assistance of counsel is a heavy one; he must show that due to his lawyer’s ineptness the trial was a farce, a sham, or a mockery of justice, [emphasis added.]
The Eighth Circuit stated in Brown v. Swen-son, 487 F.2d 1236, 1240 (8th Cir. 1973) as follows:
It is well established that in order to show a basis for relief on the ground of ineffective assistance of counsel the appellant must show actions of his lawyer which would constitute such conscious conduct as to render pretextual the attorney’s legal obligation to fairly represent the appellant and circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client, [emphasis added.]
McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974) agreed in different terms:
We recognize that there is and should be a presumption that counsel is competent, which must be overcome by the petitioner in order for an ineffective assistance of counsel claim to lie. [emphasis added].
The Second Circuit, still follows a farce and mockery standard and clearly places a heavy burden upon the appellant. United States v. Yanishefsky, 500 F.2d 1327, 1334 (2d Cir. 1974):
Upon careful examination of the record reflecting the character of the “resultant proceedings,” . . . and of appellant’s specific allegations, we find that taken individually and collectively, . . . they fail to meet the “stringent standards to be met to show inadequacy of counsel” .
The Fifth Circuit stated in Burston v. Caldwell, 506 F.2d 24, 28 (5th Cir. 1975), quoting Tyler v. Beto, 391 F.2d 993 (5th Cir. 1973), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574, that the petitioner has a “heavy burden” to establish ineffective assistance of counsel. The Ninth Circuit also appears to be in accord with these decisions, Cooper v. Fitzharris, 586 F.2d 1325, 1331, 1333 (9th Cir. 1978) (en banc), see n. 29, infra.
Thus it appears that our approach is consistent with the predominant view in the other circuits.
. See Estes v. State of Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 1632-1633, 14 L.Ed.2d 543 (1965) (“in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused.”)
. Accord: Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976) (“the ultimate question of guilt or innocence . . . should be the central concern in a criminal proceeding.”).
. Cf. IX Wigmore on Evidence § 2486, at 274-76 (3d ed. 1940):
It is often said that the burden is upon the party having in form the affirmative allegation. But this is not an invariable test. .
*228 It is sometimes said that it is upon the party to whose case the fact is essential
[In other cases] the burden of proving a fact is said to be put on the party who presumably has peculiar means of knowledge enabling him to prove its falsity if it is false.
The truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations. .
There are merely specific rules for specific classes of cases, resting for their ultimate basis upon broad reasons of experience and fairness.
. Decoster is a criminal appeal case, but, as we have held, it is not a denial of due process to place on a defendant the burden of proving a claim that is separate from the elements of the crime charged. United States v. Greene, 160 U.S.App.D.C. 21, 31-32, 489 F.2d 1145, 1155-56 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1977). As Justice Holmes remarked in Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 374, 72 L.Ed. 632 (1928):
It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the Government.
. Access to the facts was complicated by delay since Decoster was tried in 1971, yet the hearing on adequacy of assistance of counsel was not held until February 6, 1974.
. Our refusal to relieve defendant from the burden of proving prejudice, through the device of presuming it, is supported by Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a case with strong Sixth Amendment overtones. In Tollett, the Court announced a standard to determine when a criminal defendant who pleads guilty on the advice of counsel is entitled to federal collateral relief on proof of an independent constitutional defect in the prior proceedings (there, the method of selecting the indicting grand jury):
In order to obtain his release on federal habeas under these circumstances, respondent must not only establish the unconstitutional discrimination in selection of grand jurors, he must also establish that his attorney’s advice to plead guilty without having made inquiry into the composition of the grand jury rendered that advice outside the “range of competence demanded of attorneys in criminal cases.”
411 U.S. at 268, 93 S.Ct. at 1608-1609 (emphasis added). The Court also stated:
If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not “within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, [397 U.S. 759], at 771 [, 90 S.Ct. 1441 at 1449, 25 L.Ed.2d 763],
411 U.S. at 266, 93 S.Ct. at 1608 (emphasis added). Unlike Murphy and Agurs which are Fifth Amendment cases, McMann is specifically concerned with Sixth Amendment rights. The Court stated that the competence demanded of attorneys devolves from the Sixth Amendment:
Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel. Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution*230 is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.
397 U.S. at 770-71, 90 S.Ct. at 1448-1449 (emphasis added). The reference to McMann in Tollett makes clear that the Supreme Court in some circumstances involving alleged Sixth Amendment violations approves of placing the burden to demonstrate the incompetence of counsel on the defendant. There is no indication in Tollett that the defendant should be relieved of this burden by presuming incompetence of counsel in certain situations except those obvious instances where unfair prejudice to his constitutional right can be directly inferred from the evidence. Thus, Tollett suggests that presumptions of prejudice merely from the acts of omissions of counsel in the conduct of the defense should not be indulged.
While the procedure advocated here is consistent with the Supreme Court’s decisions, it differs in certain respects from that adopted in other circuits. For example, in McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974), writ dismissed, 425 F.Supp. 373 (E.D.Mo.1976), rev’d and remanded, 560 F.2d 959 (8th Cir. 1977), the court discussed the precepts that govern the procedure for determining violations of the right to the adequate assistance of counsel in the Eighth Circuit. In that case Judge Bright stated that the burden is on the defendant to substantiate a claim of inadequate assistance — a proposition with which we agree:
We recognize that there is and should be a presumption that counsel is competent, which must be overcome by the petitioner in order for an ineffective assistance of counsel claim to lie.
498 F.2d at 216. The opinion further stated that evaluation of a habeas corpus petition alleging inadequate assistance of counsel is a two-step process: first, determining whether there has been the violation of a duty owed by a defense attorney to his client; and second, determining whether that failure prejudiced the defense. 498 F.2d at 218. We agree that inadequate assistance analysis has several components: the defendant, unless the violation and the substantial unfair prejudice to his constitutional right are apparent on the face of the record, must demonstrate (1) the existence of a duty owed him by his counsel, and (2) a substantial violation of that duty (3) which results in substantial unfair prejudice to his case and thence to his right. However, Judge Bright appears to be of opinion that a very limited investigation would constitute a constitutional violation, and that determining the existence of prejudice was in effect determining whether the constitutional error was harmless under Chapman. Id. It is our view that the constitutional violation is not made out until the defendant has carried his complete burden; at that point in inadequate assistance cases, the analysis is over and the harmless error doctrine does not apply. Applying the Chapman test to an inadequate assistance case requires that the court deem the denial of adequate assistance “nonsubstantial,” since the Chapman harmless error doctrine, by its own terms, does not apply to “constitutional errors that ‘affect substantial rights’ of a party.” 386 U.S. at 23, 87 S.Ct. at 828.
It is important to recognize, however, the similarities between our approach and that adopted by the Eighth Circuit. Judge Bright’s conclusion in McQueen summarizes that circuit’s procedure as follows:
What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt.
498 F.2d at 220. What we are saying in this case is that, unless the violation and substantial unfair prejudice is apparent to the court on the record, appellants must shoulder the initial burden and make a prima facie showing of all the elements of the burden we have outlined above. Then the burden of proceeding shifts to the Government to rebut this showing. After these showings, a new trial is not warranted unless the court determines that on the whole record it appears that the defendant has met his burden.
. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Gideon was charged with a non-capital felony. His request for court appointed counsel was denied because Florida law only permitted appointment of counsel for indigents in capital cases. The Supreme Court reversed Gideon’s conviction, holding that his constitutional right to the assistance of counsel had been denied.
. 425 U.S. 80, 91, 96 S.Ct. 1330, 1337, 47 L.Ed.2d 592 (1976) (“an order preventing petitioner from consulting his counsel 'about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment”).
. 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The trial court’s refusal to permit final argument in a non-jury case was held to be a violation of the Sixth Amendment.
. Chief Justice Burger wrote for the Court in Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978):
[Tjhis Court has concluded 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.” Chapman v. California, supra, 386 U.S., at 23, [87 S.Ct. 824, at 827]. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792 , 9 L.Ed.2d 799] (1963); Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] (1961); White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] (1963).
See Matthews v. United States, 145 U.S.App. D.C. 323, 332, 449 F.2d 985, 994 (1971) (Leven-thal, J., concurring).
The dissent asserts that the distinction between “actual” and “constructive” denials of the assistance of counsel is a “verbal formalism [that] simply does not correspond to the reality of ineffective assistance.” Dissent, n. 129. It contends that since an accused has a right to the effective, as well as the actual, assistance of counsel, cases involving an allegedly inadequate performance by defense counsel (e. g. failure to cross-examine certain witnesses; failure to make an opening statement) must be treated the same as cases in which the defendant did not have a lawyer or the lawyer was prevented from assisting his client in material ways (e. g. prevented from cross-examining witnesses or making an opening statement). Id. I disagree.
There is an obvious difference between cases in which counsel is present and able to exercise his judgment to use a certain tactic vel non, such as to cross-examine a witness, and cases in which the lawyer is denied the right to exercise that professional judgment which is basic to his representation. The Sixth Amendment right to have the assistance of counsel is primarily the right to have the benefit of a lawyer’s judgment at all stages of a criminal trial. Cf. Mitchell, supra at---of 199 U.S.App. D.C., at 229-230 of 624 F.2d. If that right is denied, then reversal is required without any further independent showing of prejudice. Holloway, supra. In addition the Supreme Court has applied a judicial gloss on the Sixth Amendment, holding that one’s right to the assistance of counsel may be held to be denied when defense counsel is ineffective. McMann v. Richardson, supra, 397 U.S. 771 n. 14, 90 S.Ct. 1441. The dissent contends that because additional prejudice need not be shown in cases where there is an actual denial of counsel, it follows that prejudice is not an element of ineffectiveness cases either. Therefore the dissent argues that the only question is “whether defense counsel acted in the manner of a diligent and competent attorney . . Dissent -of 199 U.S.App.D.C., 287 of 624 F.2d.
But determining whether counsel has been “effective ” raises different questions than an inquiry into whether the assistance of counsel was actually denied. While the language of the Sixth Amendment focuses on whether an accused had “the Assistance of Counsel” at all, the judicial gloss is concerned with whether counsel was “effective” or “ineffective.” And this may involve questions of degree. It is
. See cases cited supra at-to- of 199 U.S.App.D.C. at 219 to 226 of 624 F.2d. See also the recent decision in Cooper v. Fitzharris, 586 F.2d 1325, 1331 (9th Cir. 1978) (en banc), in which the court stated:
When the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial . relief will be granted only if it appears that the defendant was prejudiced by counsel’s conduct.
. In a great many criminal cases, the best, if not the only defense, is merely putting the government to its proof and attempting to convince the jury that the charge has not been proved beyond a reasonable doubt.
. Judge Craven, dissenting in Coles v. Peyton, 389 F.2d 224, 230 (1968), hit the nub of the problem squarely:
I think the correct rule is that the burden of showing lack of prejudice falls on the state when, but only when, the petitioner has shown a set of facts that demonstrate prejudice to his defense, inherently or otherwise.
(Emphasis in original). Thus, Judge Craven expressed his agreement with the view that the initial burden to show prejudice falls on the defendant, and the Government has nothing to rebut — and certainly no burden to proceed— until the defendant fulfills this burden. It is significant that the Fourth Circuit in Jackson v. Cox, 435 F.2d 1089, 1093 (1970) declined to apply the rule in Coles, which had presumed the existence of prejudice, to a case with facts very similar to the instant case.
This analysis is consistent with United States v. Pinkney, 177 U.S.App.D.C. 423, 431-32 n. 59, 543 F.2d 908, 916-17 n. 59 (1976), where Judge Robinson stated:
Only if the evidentiary elements of that claim [of inadequate assistance of counsel] 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.
. Where the conduct of trial counsel is questioned, since his professional standing is directly involved, he should be permitted to participate as a third party in that proceeding on an equal basis with the Government.
. Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). See Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Trial counsel attributed his knowledge to the fact that he had conferences with the prosecutors and that he conducted the preliminary hearing for all three defendants. Tr., Feb. 6, 1974, at 34-35; Tr., Feb. 11, 1974, at 12-14.
. Findings and Conclusions, at 6, 10.
. Tr., Feb. 11, 1974, at 11-14.
. ' Tr., Feb. 11, 1974, at 11, 12-14.
. Tr., Feb. 6, 1974, at 34; Tr., Feb. 11, 1974, at 12-13.
. Tr., Feb. 6, 1974, at 24-25. Appellant prepared a handwritten letter to counsel, which counsel testified was received by him either the day of, one day before, or two days before trial, id. at 24, which was held on November 15-16, 1971. Decoster testified that he wrote the letter during three weeks of September 1971 when he was confined at the jail (Tr. Feb. 6, 1974, 59-60). Later he changed his testimony and stated that he wrote the letter between May and November 1970 (id. 60-61). Thus, the precise date cannot be fixed and both appellant and counsel in the passage of time since the event have a valid excuse for not remembering the precise date. If the letter was written between May and November, 1970, as Decoster testified, his counsel had this admission of his involvement at a very early date. The view that the letter was sent at this time is corroborated by the fact that Decoster made a similar statement in a letter to Judge Waddy dated November 4, 1970. Decoster’s letter to his counsel, Government Exhibit # 2, was as follows:
200. 19th st. S.E.
Wash., D.C.
Dear Sir:
As I tried to call you before, but couldn’t make contact, I decided to write again. Its important I see you, as you are my lawyer and I don’t have ways of fighting my case without you. To get to the point, I want to file assault charges against my accuse [sic] victim. I think I have as much right as he has, at least I’m entitle [sic] to it. If they can charge me with robbery while fighting, I think I have as much right as him, and can do the same. As for Elley [sic] & Taylor my accuse [sic] partners they can testify their role. Elley [sic] came to my aide [sic] when the victim stuck his hand in his pocket & Taylor was just standing on the sidewalk. I hope you can do something about this as soon as you get this letter. Please let me know something. If he can be free so can I. Willie Decoster
Dorm D.C.D.C. 162743
This letter clearly admits Decoster’s participation in the robbery with his “accusejdj partners.” The letter is ample justification for counsel not to look for alibi witnesses.
Appellant also sent a handwritten note to Judge Waddy, which was received by him on November 4, 1970 and filed on November 13, 1970. See Tr., Feb. 6, 1974, at 62. This letter follows without corrections (emphasis added): Honorable Judge Waddy,
I am an Inmate of D.C. Jail who has been incarcerated for five month on a charge that has been change from robbery to arm robbery. The motive for this letter is to request from the court another lawyer because I’ve been misrepresented for five month with my present lawyer . . Also I would like to protect myself and family which consist of nine more younger than I am, which are barely being supported because my father is the only capable one. The rest is trying to get something I miss. Education. Being an*234 individual of limited education its only natural for me to protect my innocence and with the transcript from my hearing which I cannot obtain because of illegal counseling. I can prove that I am only guilty of assault by self defence. But the court says I must wait until Jan. 12, 1971 at my trial to prove my innocence which I think is unconstitutional because there is no evidence or witness of robbery. I was accepted by Blackman Development Center on Oct. 12, but my lawyer hadn’t file a motion for bond review. So there was another one of his promise of what he would do. So Your Honor it would be a pleasure if I could speak to you in behave of this case and the way its been handled for the last five month. It could not be explain in writing so I ask this opportunity for a lawyer and justice. I would be to happy if you would consider this letter soon as possible.
Both of these written notes completely contradict the testimony Decoster gave on the stand (Tr., Nov. 16, 1971, at 30-34). The statements in the letter prove his participation in the events constituting the robbery and the falsity of any claim of alibi. His testimony in court is also contradicted by the testimony of all the witnesses, including his accomplice Eley. In the hearing on remand, Decoster reiterated his trial testimony of November 16, 1971 that he was not at the scene (Tr., Feb. 6, 1974, at 65-68). But in so doing, he stated his letter to his counsel was a fabrication (Id. at 71). He also testified on remand, in contradiction to his trial testimony, that he had never seen Eley before he was arrested (Id. at 65), and he claimed that Eley’s testimony at trial was fabricated (Id. at 71).
. He represented Decoster and Taylor, and Eley’s counsel asked no questions.
. Tr., Mar. 3, 1972 (sentencing), at 3-4:
THE COURT: . . the Court has received a long letter from the Defendant, himself, stating that he has learned the error of his ways and that he has found out that he was fooling with the wrong crowd, and that he had been using drugs and he now knows that the use of drugs could lead only to death or jail, neither one of which is acceptable to him.
Mr. DeCoster, do you have something you want to say on your own behalf?
DEFENDANT: I just wanted the Court to know that I was sincere in writing this letter. I feel like I can be — well, I know I can be rehabilitated which I have did on my part in having to come to face the facts. It just seems like, you know — well, really, I left home when I was at an early age and I didn’t have that much confidence and I just hooked up in the wrong places and in the wrong ways. But now I believe that I can — I know that given an opportunity that I can help my family as well as myself. So I ask this Court upon sentencing me to consider this.
. Judge Robinson also takes this position, but unlike my dissenting colleagues, he concludes that the Government has met its burden of proof.
. See n. 10, supra.
. Dissent n. 143.
. 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 590 (1976).
. 435 U.S. 475, 98 S.Ct. 1891, 32 L.Ed.2d 358 (1978).
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Dissent - of 199 U.S.App.D.C., 289 of 624 F.2d.
. See page - of 199 U.S.App.D.C., page 231 of 624 F.2d, supra.
. 435 U.S. at 488, 98 S.Ct. at 1181.
. An example of this, from my own experience as United States Attorney, is a case that is unreported (except possibly in its disbarment aspect) which involved a lawyer representing several defendants who entered guilty pleas on his advice. It subsequently appeared that the lawyer had drawn a false indictment against a more affluent brother of one of the defendants in an effort to improve his attorney’s fee by “taking care” of that charge. Upon this showing of his lack of fidelity as a lawyer, and without more, the court set aside the judgments of conviction on the guilty pleas. Thereafter the defendants were tried and convicted and the lawyer was disbarred. In my view, setting aside the original convictions was fully justified because the defendants in that case were denied the assistance of counsel who possessed the fidelity required of all lawyers. Complete fidelity of a lawyer to his client is an essential element of the existence of the relationship. The defendants were thus denied the assistance of such counsel as the Constitution requires. The harm to the defendants resulted from the demonstrated lack of that fundamental good moral character required of all lawyers. This prejudice went directly to their constitutional right and there was no necessity to prove any prejudice or harm to any particular defense that they might have had.
. See Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978) (en banc).
. Dissent - of 199 U.S.App.D.C., 289 of 624 F.2d.
. Id. page 199 of U.S.App.D.C., page 291 of 624 F.2d.
. I have already discussed Supreme Court opinions that are inconsistent with the dissent’s position. E. g. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (See page - of 199 U.S.App.D.C., page 226-227 of 624 F.2d, supra); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (n. 20, supra); and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (n. 24, supra ).
. In his first trial, the defendant was represented by a lawyer from the Legal Aid Society of Allegheny County, which was appointed as his counsel. In his second trial, he was represented by another lawyer from the Legal Aid ^Society.
. Similarly, it conflicts with the thesis of Judge Robinson’s concurring opinion.
The dissent attempts to garner hidden support from Chambers, but nothing therein can be construed as “tacit approval of [a] presumption-of-prejudice rule . . . Dissent n. 140, cf. 399 U.S. at 53-54, 90 S.Ct. 1975. Chambers also specifically rejects arbitrary per se and automatic reversal rules to which the dissent leans. Dissent, page - of 199 U.S. App.D.C., page 293 of 624 F.2d and n. 149.
. Tr. (Feb. 6, 1974) 72.
. Officer Ehler testified: “Mr. Decoster and Mr. Ely had a hold of the subject, the complainant. One of them was yoking him, I didn’t know which one it was at the time, but — and they were removing something from his pockets.” Tr., Preliminary Hearing (June 8, 1970) 5-6 (emphasis added).
. Dissent n. 107.
. Id.
. See pages---of 199 U.S.App.D.C., pages 232-234 of 624 F.2d, supra.
. Dissent page-of 199 U.S.App.D.C., page 286 of 624 F.2d.
The dissent overstates the conflict between the police officer’s testimony and Decoster’s story, Dissent page - of 199 U.S.App.D.C., page 283 of 624 F.2d. Given Decoster’s letters to his judge and attorney any conflict with police testimony was minimal — whether with his accomplices who pled guilty he assaulted Crump either in self defense or to rob him.
The dissent predicates some of its criticism of defense counsel on the ground that he “disbelieved his client and therefore thought that further inquiry would prove fruitless.” Dissent page - of 199 U.S.App.D.C., page 284 of 624 F.2d. However, it was believing Decoster’s statements in his letters that he was present and assaulted Crump in self defense that would reduce the need for an extensive investigation. (Decoster’s statement in his letter to the judge in November, 1970 that he was present at the robbery casts doubt on the dissent’s assertion “that Decoster claimed he was not with them [his co-defendants],” cf. Dissent n. 110). The testimony of the police officer and the guilty pleas of Decoster’s co-defendants also led to the same result. Thus, this case cannot be compared to the case referred to by the dissent at n. 105.
. Id. page--of 199 U.S.App.D.C., page 283 of 624 F.2d.
The dissent speculates about the reasons for what it considers an inadequate number of investigations by appointed defense counsel, n. 80, without reflecting on the number of investigations in cases where defendants hire their own counsel. As to the reasons, these most likely lie in the admitted fact (Dissent, page-of 199 U.S.App.D.C., page 287 of 624 F.2d) that most defendants are guilty and they are the best witnesses to the relevant events.
. See page - of 199 U.S.App.D.C., page 240 of 624 F.2d, supra.
. Tr., Sentencing (March 3, 1972) 2-3.
. Dissent page-of 199 U.S.App.D.C., page 275 of 624 F.2d.
. Id. n. 58.
. Id. page -of 199 U.S.App.D.C., page 295 of 624 F.2d.
. See United States v. Roberts, 199 U.S.App.D.C. -, 600 F.2d 815 (D.C.Cir. 1979) (Statement on Suggestion for Rehearing en banc by MacKinnon, J.), and Tr., Sentencing (March 3, 1972) 3-4.
. Dissent - of 199 U.S.App.D.C., page 297 of 624 F.2d.
. Id. page - of 199 U.S.App.D.C., page 267 of 624 F.2d.
. In my view one error of counsel alleged by the dissent, his decision to waive his opening statement, was good strategy. In light of De-coster’s inability to adhere to a single story, counsel could not be sure what story his client would choose to assert at trial. Under these circumstances, making an opening statement could have caused serious harm to defendant’s case. For instance, had counsel stated that Eley would testify to an alibi, Eley’s testimony that Decoster was present at the scene of the robbery would have caused even greater damage to appellant’s case than actually occurred. Therefore, with the accused changing his story, the position taken by counsel (as the district court found) was an exercise of good judgment. Counsel’s decision to waive his opening statement certainly did not constitute a breach of duty to Decoster.
. The dissent presents a false picture when it implies that indigent defendants in felony cases went unrepresented in most courts until recently. For many years in most courts in the nation, lawyers gave free legal representation to accused felons who could not afford counsel, and the lawyers were completely uncompensated for such time consuming duties. Such service to indigent defendants was considered to be an obligation of all lawyers. Many jurisdictions also provided paid public defenders. The cases that have held that counsel is required in major criminal cases dealt with isolated courts that did not follow the general national practice. E. g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1930); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See Mayer, The Lawyers 163 (1966).
. E. g., United States v. Davis, 183 U.S.App.D.C. 162, 175, 562 F.2d 681, 694 (1977); United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426 (1974), rev’d 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); United States v. Lee, 165 U.S.App.D.C. 50, 64-69, 506 F.2d 111, 125-30 (1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975); United States v. Moore, 158 U.S.App.D.C. 375, 496, 486 F.2d 1139, 1260 (en banc), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973).
. Washington Star, August 9, 1978.
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