Hastie, Chief Judge, and Maris and Adams, Circuit Judges. Maris, Circuit Judge (dissenting).
William Fairfax Washington was indicted on four counts of armed robbery and receiving stolen goods, and one count of burglary. On December 19, 1959, after waiving a jury trial, he was tried, found guilty by a judge, and sentenced to four concurrent ten to twenty year terms on the armed robbery charges, and to a consecutive term of two and one half to five years for burglary. No direct appeal was taken.*fn1
Washington filed a habeas corpus petition in the Pennsylvania state court on September 22, 1964. After the lower courts denied Washington any relief, the Pennsylvania Supreme Court reviewed Washington's claims of ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1964). The Supreme Court vacated the burglary sentence because, as Justice Roberts wrote in the majority opinion, Washington was "deprived of effective assistance of counsel" as to that charge. The basis of this conclusion was counsel's failure to object to the admission of a confession which Washington contended was "the product of unconstitutional police action".
Washington filed a habeas corpus petition in the District Court alleging he was denied effective assistance of counsel for the entire trial -- the armed robbery charges*fn2 as well as the burglary charge. Judge Marsh denied the petition. United States ex rel. Washington v. Maroney, 294 F. Supp. 1402 (W.D.Pa.1968). This appeal followed.*fn3
Judge Marsh said this case was not one where there was "hasty or late appointment of a defense lawyer" or one "where a late appointment of counsel is 'inherently prejudicial'". (294 F. Supp. at 1404, 1406). He thereupon concluded that Washington "receive[d] the effective aid and assistance of counsel as to the robbery charges."*fn4
At his trial on all five counts, Washington was represented by George E. Loebig, Esquire, of Allegheny County Legal Aid Society. Legal Aid's first association with Washington was on November 27, 1959, when a social worker, Mrs. Beach, visited him in jail, and made notes on certain Legal Aid forms. Mrs. Beach expressed the thought that Washington's parents should be able to retain private counsel. She notified his parents accordingly, and also suggested that they obtain character witnesses. However, there is no evidence regarding any attempt on the part of anyone to retain such counsel. On December 10, 1959, the day of Washington's trial, Mr. Loebig appeared in court where he saw Washington for the first time. No other lawyer had previously communicated with Washington.
Washington testified that he saw Mr. Loebig for about "one moment" before the trial began. In the evidentiary hearing held in the District Court, Mr. Loebig stated that he did not "recall this defendant and this case at all". After reviewing the record and noting the waiver of a jury trial, Mr. Loebig said that although he could not recall, he could "speculate" that "it would take five to ten minutes to explain the procedure to sign a non-jury waiver", and that "a probability [or] a speculation" was that he may have spent "a half-hour". In view of Mr. Loebig's clear testimony that "[he] did not recall the case at all", the record does not support the finding by the District Court that Mr. Loebig consulted with Washington for a half-hour. The most favorable interpretation of the record from the standpoint of the prosecution would, at best, support the conclusion that from one to ten minutes were spent in conference -- most of the time probably discussing waiver of a jury trial.
This brief encounter between Washington and counsel took place in open court while another proceeding was in progress. It was in no respect a private discussion, but was a hurried, whispered meeting in an atmosphere where a genuine opportunity for disclosure of information or a discussion of defense was impossible. There is not one scintilla of evidence in the record that the attorney was able to obtain any information in the brief meeting that would be useful at trial, or that he discussed any strategy for the defense of this serious case in which Washington had always pleaded not guilty. Indeed, there is no indication in the record of any preparation whatsoever by the attorney.
Although there is evidence that Mrs. Beach obtained information from Washington regarding the facts of the crime, the testimony fails to support the finding of the District Court that counsel consulted the file prepared by Mrs. Beach. In fact the record is to the contrary. Mrs. Beach's report contained a notation that Washington wished to retract his confession to the burglary charge because he gave it as a result of police coercion. Loebig's failure to object to the admission of Washington's statement at trial would indicate that he was unaware of Mrs. Beach's notes. Loebig himself testified that he had "no recollection" of time spent reviewing the file, although "it was [his] practice to sometimes look over the cases".
Mrs. Beach saw Washington on November 27th, thirteen days before the trial, but Legal Aid did not then act in the capacity of legal counsel to Washington.*fn5 It is clear that no attorney communicated with Washington before the day of his trial. Mrs. Beach's investigation was geared principally toward a determination whether Washington could afford counsel, and not toward preparing a defense. This situation is therefore not akin to one in which a Legal Aid or Defender's Association is designated as counsel and one attorney investigates or researches the case and another attorney then meets the defendant in court to try it.*fn6 We express no view regarding such situation.
As early as Powell v. Alabama, when Mr. Justice Sutherland said that the duty to appoint counsel is "not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case", the United States Supreme Court recognized that mere designation of counsel does not fulfill a defendant's Sixth Amendment right to counsel. 287 U.S. 45, 71, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Whether counsel is appointed or retained, a defendant has the right to have effective aid. This may not be possible where counsel is not given reasonable time to prepare the case. As the Supreme Court emphasized in Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 322, 84 L. Ed. 377 (1940), "the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel". This Court has emphasized that there is a difference between technical representation and meaningful assistance. United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969).
Although no court has ruled that late appointment of counsel conclusively indicates a denial of the right to effective assistance of counsel, courts consider late appointment in conjunction with the particular nature of the case when deciding if a defendant's right has been in fact denied. See United States ex rel. Mathis v. Rundle, 394 F.2d 748, 750-751 (3d Cir. 1968); United States ex rel. Chambers v. Maroney, 408 F.2d 1186, 1188-1189 (3d Cir. 1969), aff'd 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d Cir. 1961). In United States v. Helwig, 159 F.2d 616 (3d Cir. 1947), where counsel for a defendant was appointed "one minute" before trial, this Court reversed the conviction saying ...