UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Wright and MacKinnon, Circuit Judges, and Davis,* Judge, United States Court of Claims. MacKinnon, Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DAVIS
Appellant Joslin was indicted, in February 1968, on nine charges of housebreaking and three of grand larceny. *fn1 In March 1968 he pleaded not guilty. The case came on for trial on April 8, 1969. At that time he pleaded guilty to two of the twelve counts (chosen by the prosecutor). These were numbers 6 and 8 concerning entry into the dwellings of Lloyd Symington and Frank Doyle (respectively) with intent to steal. The court questioned the defendant along the lines established by Rule 11, F.R.Crim.Proc., and the 1959 Resolution of the Judges of the District Court for the District of Columbia (see Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964), and was satisfied with the inquiry. *fn2 Sentence was deferred.
The very next day, April 9th, Joslin wrote the judge a handwritten letter saying, among other things, that he had not committed the Symington housebreaking, and that he had pleaded guilty the day before only because he was "tired of this long drawn out affair" and of his failure to obtain release because of the delay in prosecution. *fn3 On April 30th he wrote another letter to the judge which he commenced by stating that "in view of all the facts of this case I am hereby at present standing by my last decision of entering a plea of not-guilty to the charges."
The District Court correctly treated these letters as a motion to withdraw the guilty pleas, and set an oral hearing (for May 16, 1969) on the request. The nature of that brief "hearing" (6 1/2 pages of transcript) forms the crux of our decision to remand the case. The defendant spoke, as did the prosecutor and the appointed defense counsel, but no testimony was taken and there was insufficient inquiry into pertinent factual matters. For the reasons which we now spell out, we are satisfied from the transcript, and the other materials properly available to us on this appeal, that appellant did not have the adequate assistance of counsel and that relevant matters should have been brought out and considered, but were not because of the character of the proceeding.
The transcript of the hearing shows indisputably that the only person who spoke in favor of withdrawal of the plea was appellant himself. His appointed attorney (not counsel on this appeal) spoke, in effect, against grant of the motion, as did the Assistant United States Attorney. In this connection, Joslin's prior relations with his then attorney (the second of three successive appointed counsel in the District Court) are important. This lawyer was appointed, after the first counsel left the area, shortly before appellant's original plea of not guilty in March 1968. In December 1968, the attorney, who had been in communication with Joslin, wrote him that he would shortly file motions to suppress evidence and to dismiss for want of a speedy trial. These motions were never filed, but appellant seems to have believed (prior to his guilty pleas) that at least a motion with respect to speedy trial was filed in March 1969 and soon rejected. As indicated above (note 3, supra), Joslin himself filed pro se, in March 1969, a habeas corpus petition, alleging both the illegal seizure of evidence and denial of speedy trial. The reason why he filed this paper pro se is not clear. But he did state at the hearing on May 16th that, when the case came on for trial on April 8th, he had not seen his counsel "in the year or so he had the case", and that on that day they talked for only about half-an-hour before the case was called. (The attorney did not contradict this statement.) In his first letter of April 9th to the judge after pleading guilty, appellant referred to "a talk with my attorney" before the plea, and "Because of the way he felt about not being able to win the case" appellant agreed to plead guilty to two counts (as originally proposed by an Assistant United States Attorney two years previously); the letter also referred to the attorney's brushing off the delay in the case as "just as much my fault" (with which the letter said appellant did not agree) and to the attorney's failing to mention appellant's habeas corpus petition for release on the ground of denial of a speedy trial. Apparently being informed of this communication to the judge, the attorney wrote Joslin (on April 20th) that "I am astonished by the contents of your letters", indicating that appellant could withdraw his plea to the Symington housebreaking if he pled guilty to some other count. The attorney added that he felt the habeas corpus matter was not his responsibility.
Appellant's second letter to the judge (dated April 30, 1969) expressly asked the judge to dismiss the attorney and to allow appellant "to have an attorney from the Legal Aid Office. Regardless of what [the attorney] may state to the Court or myself, I am sure of late he has not been acting in my best interest. The only time he has conferred with me on the case during the year or more he has been on the case, was just before I appeared before you on April 8, 1969." There was enclosed a copy of the lawyer's letter to appellant of April 20th (discussed supra).
From these materials it should have been clear to the court, before the hearing on May 16th, that Joslin's relations with his lawyer were strained, at best, and that there was a good chance that the attorney could not, or would not, represent him adequately on the withdrawal motion. This was confirmed from the outset of the hearing. The court first turned to appellant and asked him why he wanted to change his pleas. His response began by saying that he felt "my attorney kind of hurried me in this thing." *fn4 He then gave the reasons why he thought he should be allowed to withdraw his pleas: -- he had not in fact committed the Symington offense; he was "confused" by the long delay in trying the case and by his being in custody much of the time; he had spent a considerable part of this period at St. Elizabeth's Hospital and at least one doctor there told him he was incompetent.
The prosecution responded to these arguments, and then appointed defense counsel made a statement recounting his own connection with the case, and ending:
I was prepared to go to trial on this case on the date it was in Court. I had sufficient knowledge and sufficient background of the facts in the case to have been ready for trial. I was ready to go to trial on that date. As I indicated to Mr. Joslin on the date that he entered his plea of guilty, the Government was still willing -- somewhat reluctantly -- to allow him to enter a plea to two counts of housebreaking. I asked which two counts they wanted and indicated those to Mr. Joslin and he thereafter entered a plea. Mr. Joslin has signed numerous confessions and the letters are available. He has been advised of his rights by counsel, the Federal Bureau of Investigation and the Metropolitan Police Department. He has been formally advised by me. I feel there is a substantial barrier between us and I feel I can no longer represent him.
This statement was not merely neutral on the withdrawal issue; in substance it argued against Joslin. Immediately after it was made, the court denied the motion to withdraw and relieved defense counsel, stating that new counsel would be selected for sentencing.
Since the proceeding on May 16th was an integral part of the "criminal prosecution", appellant was, of course, entitled to counsel on his request to alter his guilty pleas. See, e.g., Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). He did not, however, have that assistance. Appointed counsel was technically still the defense lawyer during the hearing, not being relieved until its close, but he did not assume that role; on the contrary he made points against his client and said nothing to support withdrawal of the pleas. It is irrelevant that Joslin was allowed to speak freely himself, or that he made his own arguments in favor of his position. The right to counsel is premised on the fundamental postulate that defendants -- even articulate, stable, and intelligent ones -- need the guiding hand of counsel at every critical stage. See Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Here, counsel could undoubtedly have made a better case for withdrawal of the pleas, at least as to the Symington count, than appellant did for himself. *fn5
There was still another defect in the hearing which likewise calls for remand. At least two issues arose which called for investigation, but no adequate inquiry was undertaken. One matter was appellant's insistence that he was innocent of the Symington charge. This avowal appeared to have some color (as Joslin pointed out in his first letter to the judge) since, when he was released from custody to tour the Northwest section of Washington with the police in order to point out houses he had burglarized, he did not designate the Symington house. His explanation of how he came to be charged with that offense was that he hinted to the police about that episode only because in one of the other houses he had seen a credit card with Senator Symington's name, *fn6 and that he learned the actual details of the Symington burglary from the police and the FBI. The prosecution merely answered, at the hearing, that appellant had "at a later time confessed to the Simmons [sic] burglary." We think that, in these circumstances, the court should not have concluded, without further investigation, that the avowal of innocence was mala fide, especially since the appellant made this ...