Van Dusen, Aldisert and Stahl, Circuit Judges.
In this case we come to grips with a familiar phrase: "every defendant in a criminal proceeding is entitled to have counsel of his own choice". This is a lay expression, albeit often articulated by those trained in the law*fn1 as a paraphrase of the Sixth Amendment: "In all criminal prosecutions, the accused shall * * have the Assistance of Counsel for his defense."
We must decide whether the Sixth and Fourteenth Amendments command an absolute right to a particular counsel for a particular trial at a particular time.
The relator was arrested on June 2, 1966, and appeared at a preliminary hearing on June 4, at which time he was represented by private counsel. After he was indicted by the grand jury, his case came on for trial on August 29, at which time the Commonwealth appeared with its witnesses and was prepared to go to trial. The defendant, however, reported that he could not proceed because he did not have counsel.
Upon ascertaining that the defendant had been represented by Attorney A. Charles Peruto at the preliminary hearing, the court summoned Mr. Peruto to the courtroom. The attorney reported that although he had represented the defendant at the preliminary hearing, he had entered no appearance as counsel for the defendant in the court proceedings. He stated unequivocally that he did not represent the defendant and that he had no intention of doing so. Because of the defendant's insistence that he desired private counsel, the court postponed the trial until September 28 to afford him an additional thirty days to obtain counsel of his choice. At the same time the court ordered the Voluntary Defender to file an appearance for the defendant and to be ready to proceed on the September date in the event the defendant was not successful in his attempt to retain private counsel.
The appointed day came and the case was called for trial. The Commonwealth again was ready to proceed. Still without private counsel but represented by the Voluntary Defender, the defendant requested a continuance of one day to obtain notes of the testimony adduced at the preliminary hearing. Two days passed. On September 30, the case was again called, at which time the Commonwealth was ready to proceed for the third time. Speaking through the Voluntary Defender, the defendant again requested a continuance, stating that he did not desire representation by the Voluntary Defender and insisted upon retaining private counsel. The motion was denied; the court ordered the Voluntary Defender to sit with the defendant at counsel table and the trial began.*fn2 Thereupon, the defendant elected to proceed non-jury.
At the noon recess, Attorney Milton Leidner appeared in the courtroom and informed the court: "The mother of Harry Carey was at my office and as a result of conversation I told her I would enter my appearance and represent him. I subsequently went on trial and in my absence she did bring a check into the office and it is a good check." He said that he had not filed his appearance, but he was prepared to do so: "If the case is continued, yes. I cannot try it now. I am already on trial." The court then announced that "this case is continued until Monday morning at 10 A.M." Mr. Leidner interjected that he had another case listed for the same day. The court refused to continue the trial any later than Monday. Mr. Leidner then said, "I will withdraw my appearance and refund the retainer which I didn't receive but only placed it in my drawer." The trial then proceeded to a conclusion; the defendant was found guilty.
After exhausting state remedies, Carey filed a petition for federal habeas corpus relief alleging a denial of due process. The writ was granted and the Commonwealth has appealed.
We begin with the premise that the right to counsel is a vital ingredient in the scheme of due process, tracing its paternity to the landmark case of Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), which held that the Sixth Amendment right to the assistance of counsel was one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment, and therefore extended to those accused of state offenses, at least in capital cases.
Even before Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) extended this protection to a broader class of state defendants, there had begun a process of judicial refinement of a concept that the representation of counsel, per se, would not necessarily satisfy all the requirements of due process. Thus, in Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1962), the Court held that representation of co-defendants by otherwise competent counsel in the face of information that the interests of the defendants might be in conflict, would not satisfy Sixth Amendment requirements.
A tangential reference to the quality of legal assistance was made by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In that case, counsel had advised his client that an appeal following conviction would be fruitless. Emphasizing the necessity that indigent defendants who rely upon appointed counsel must be afforded the same protection as "the rich man", the Court said: "The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." 386 U.S. at 744, 87 S. Ct. at 1400.
To insure more than perfunctory compliance with this constitutional mandate, the federal courts have exhibited a willingness to examine the effectiveness of counsel, where it is genuinely in issue. Although the decisions articulate no precise mechanical standards, proceeding of necessity on a case-by-case method, it is generally held that a constitutional question is presented if counsel's performance was so incompetent or ...