United States v Decoster (con't)

*327 THE BURDEN TO DEMONSTRATE PREJUDICE

The facts of this case prove, and the majority opinion does not disprove, that a truthful defense would not have resulted from any further investigation. This conclusion is compelled by appellant's subsequent admission of guilt. In addition to the lack of any substantial factual basis for the majority opinion concluding that lack of prejudice was not shown, the majority also contorted and changed the law. The linchpin of the majority reasoning is:

DeCoster I teaches that once appellant discharges his burden of showing a substantial violation of one of counsel's duties, the burden shifts to the Government to establish that the constitutional violation was harmless. (Emphasis added)

Majority opinion, p. ___ of 199 U.S.App. D.C., p. 310 of 624 F.2d. From this quotation one can see how quickly the "guidelines" are converted into "duties" and result in almost instantaneous "constitutional violation[s]." What the majority does is to make a failure to comply with some feature of the guidelines into a prima facie constitutional violation. The "substantial violation" which triggered this quick metamorphosis, according to the majority was the ". . . total failure to conduct (Id. p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d) . . . a full investigation . . . to support the defense theory [the alibi defense presented at trial] . . . (Id. p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d)."[10]

The purported reasoning for placing the burden of proof on the Government, which DeCoster Iasserts, and which the majority attempt to apply here for the first time, lends neither justification nor support to the rule. In attempting to support a new rule shifting the burden of proof the majority opinion in stages: (1) utterly ignores the settled case law in this circuit, ignoring particularly the wisdom of Judges Prettyman and Leventhal and of Judge (now Chief Justice) Burger, (2) overlooks controlling principles on burden of proof which have been set by the Supreme Court and which are anchored in the common law, (3) cites two erroneous perceptions of judicial process as support for the rule, and (4) creates unnecessary constitutional conflicts involving the sixth amendment right to an adversary trial, the independence of counsel under the sixth amendment, the separation of powers, and waiver of the fifth amendment protection against self-incrimination.[11] 328*328 These points are discussed in turn. They are very important in this case because the majority opinion has not been able to answer any of them.

I. THE INCORRECT RULE AND THE CORRECT RESTATEMENT

In DeCoster I the majority attempted to relieve future criminal defendants in most situations of all responsibility whatsoever to show prejudice in an ineffectiveness of counsel claim. 487 F.2d at 1204. To accomplish this end, some guidelines for conduct of counsel were proposed, and the opinion states:

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 precepts is shown, can establish lack of prejudice thereby." Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.1968) [cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968)].

Id., footnote omitted.

Thus by DeCoster I, proof on the entire issue of prejudice in future cases, where any one of the asserted standards is violated, is placed upon the Government, to prove the negative — "lack of prejudice." Why should the Government be required to prove this when its conduct has not been improper, when the evidence, if it exists, to support the charge, is peculiarly available to the accused, and particularly when the alleged inadequate representation was partially caused by the defendant? The majority contends that this should be done in all cases in order to avoid penalizing a defendant for his counsel's failures. However, it is not penalizing the defendant where he is required to prove that he was substantially prejudiced by his counsel's improper representation.

In my dissent in DeCoster I I concurred generally in the standards of performance for defense counsel outlined in the majority opinion only on the assumption that they would act as general guidelines, and took issue with the stated attempt to shift the burden of proof of prejudice in future cases. The rule as attempted to be applied here is pernicious and should not be accorded a foothold.

My view is that under the law of this circuit the burden of proving prejudice is clearly upon the criminal defendant in most cases, and as stated by Judge Craven in his dissent in Coles, supra,

the burden of showing [proceeding to show] 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.

389 F.2d at 230 (emphasis in original). The assertion in the majority opinion that, "This case falls squarely within the [inherent prejudice cases] . . . " ignores the facts here present. This is not a case where counsel had insufficient time to consult with the defendant,[12] where there was an obvious conflict of interest,[13] or where the court denied the defendant his right to confer with his counsel.[14] Here, every alleged failing relates to a subjective decision made with sufficient time, without conflict of interest 329*329 and with ample opportunity to consult. Prejudice is not inherent or obvious and must be proved. It is too much to say that any given omission or act universally entails prejudice. Each defendant on the facts of his own case, except in exceptional circumstances must show actual prejudice to his cause. Such evidence, if it exists, is normally more available to him than to the Government and he should carry through and prove his case rather than having the burden shifted to the Government on a mere showing of some slight effect on his defense, as the majority holds.

II. THE SETTLED CASE LAW IN THIS CIRCUIT

A. The Cases of this Circuit and the Reasoning of DeCoster I

The crux of DeCoster I is its threshold attempt to justify reopening the question of whether or not a defendant must show prejudice in making an ineffectiveness of counsel claim. The opinion does this by deliberately interweaving a wholly separate issue. The separate issue is the desirability of some standards by which to gauge performance of counsel. This all takes place at 177 U.S.App.D.C. 330-331, 487 F.2d 1201-02:

The first major ineffectiveness case in this Circuit was Jones v. Huff, 80 U.S. App.D.C. 254, 152 F.2d 14 (1945). Applying a due process-fundamental fairness approach, we held the standard to be whether counsel's incompetence rendered the trial a "farce and a mockery." In Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967), we reconsidered Jones and held that the "farce and mockery" language was "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." The rule announced in Bruce required a defendant to prove:

both that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . . [126 U.S. App.D.C. at 339-340], 379 F.2d at 116-117.

In Bruce, the claim of ineffective assistance arose on collateral attack. In several cases since then, when the ineffectiveness issue was raised on direct appeal, the court has silently ignored the Bruce requirement that the defendant has a "heavy burden" to show prejudice, implying that a different test was applicable on direct appeal. United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970); Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971). Indeed, in Bruce itself the court pointed out that "a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for a 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; accord Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970). Since these decisions leave uncertain the correct standard to be applied when the question of ineffectiveness is raised on direct appeal, we now address that issue.

(Emphasis added, footnotes omitted.)

This circuit has not departed from the rule that the defendant must show prejudice. The law on that point is not "uncertain." It was only the question of standards for the performance of defense counsel that was open. Bruce was written by Judge Leventhal. Although a collateral attack case, it expressly held that defendants must show prejudice:

But that services were rendered and that there is not the flavor of gross inattention to a client's interest does not necessarily dispose of the case. 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. Turning to the question of prejudice, we find the record barren of any substantial showing on this crucial point. Appellant made a bare assertion of innocence, but he has not come forward with any evidence that his admissions to Judge Sirica are not accurate.

330*330 126 U.S.App.D.C. at 344, 379 F.2d at 121 (emphasis added). Later, in Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971), a direct appeal case, Judge Leventhal, concurring, 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 (emphasis added.) More importantly, the disposition in Matthews rested explicitly and squarely on United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970), a direct appeal case. In Matthews, Judge Fahy, writing for himself and Judge Wright, stated:

The petition of appellant Matthews for rehearing has led us to reconsider our affirmance of his convictions. In United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970), involving a similar problem of ineffective assistance of counsel, the court reversed Hammonds' convictions because of constitutional error there found. In that case as in this the conduct of the same counsel was involved, and the same kind of casual summation to the jury occurred. Moreover, the evidence of guilt in Hammonds was no less strong than the evidence of guilt in Matthews' case.

145 U.S.App.D.C. at 330, 449 F.2d at 992. Hammonds, a direct appeal case, expressly follows the earlier case law in this circuit, which holds that the defendant must show prejudice:

At the outset we recognize that cases involving ineffective assistance of counsel "raise questions of extreme difficulty in the administration of justice." Jones v. Huff, 80 U.S.App.D.C. 254 [255], 152 F.2d 14, 15 (1945). "The 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." Harried v. United States, 128 U.S.App.D.C. 330 [333-334], 389 F.2d 281, 284-285 (1967). However, it requires a less "powerful showing of inadequacy" to sustain appellant's burden on direct appeal than is required on collateral attack. Bruce v. United States, 126 U.S.App.D.C. 336, 340, 379 F.2d 113, 117 (1967).

United States v. Hammonds, 138 U.S.App. D.C. at 169, 425 F.2d at 600 (emphasis added, footnote omitted). Hammonds concludes:

Appellant has sustained his burden of establishing his claim that he was deprived of his constitutional right to effective assistance of counsel.

Id. at 173, 425 F.2d at 604.

Although defendant's burden in these direct appeal cases is less than the burden in collateral attacks, the defendant must nevertheless show prejudice. That has never been in question. The test reproduced supra from Hammonds relies on Harried, and of course Hammonds in turn governed Matthews. Harried was a direct appeal case. In Harried, then-Judge Burger wrote:

The burden on the Appellant to establish his claim of ineffective assistance of counsel is heavy. See Bruce v. United States [126 U.S.App.D.C. 336], 379 F.2d 113 (1967); 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).

128 U.S.App.D.C. at 333-334, 389 F.2d at 284-85 (emphasis added). In setting this test, theHarried excerpt relied on Mitchell, in which Judge Prettyman, writing for himself and then-Judge Burger, wrote:

331*331 A convicted person cannot bring about a judicial hearing upon and determination of the trial competence of defense counsel by making allegations which, either on their face or after initial testing for verity, fail to indicate a lack of skill so great that the accused in realistic fact had not a fair trial. An accused cannot bring about a judicial evaluation of the quality of a defense; he is entitled only to allege and show that the proceeding was not a fair trial.

104 U.S.App.D.C. at 63-64, 259 F.2d at 793-94 (emphasis added). Although Mitchell is a collateral attack case, it is obvious from Hammonds, Matthews, and Harried and the foregoing language in Mitchell and Bruce both indicate that the burden is on the defendant to show prejudice in direct appeals as well. Such burden extends to all effectiveness of counsel claims. We made this clear in our approval of the action of the District of Columbia Court of Appeals inScott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970):

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.

Moreover, in case of direct appeal the reviewing court takes action appropriate in the interest of justice, even though the problem would not rise to the constitutional dimensions necessary to undo a final judgment on collateral attack. Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967); seeBruce, 126 U.S. App.D.C. at 340, 379 F.2d at 117.

However, the opinion of the District of Columbia Court of Appeals reveals both that it was aware of the standard in Bruce and that it sought to apply that standard to the facts of this case.

138 U.S.App.D.C. at 340, 427 F.2d at 610.

Hammonds, Matthews, Harried, Bruce, and Mitchell are the law in this circuit. They have not been overruled. They continue to be cited with favor, as for example, by Judge Robinson inUnited States v. Holiday, 157 U.S.App.D.C. 140, 142 n. 5, 482 F.2d 729, 731 n. 5 (1973). Other examples of recent favorable citation are by Judge Wright in United States v. DeLoach, 164 U.S.App.D.C. 116, 120, 504 F.2d 185, 189 (1974), and Judge Bazelon in United States v. Butler, 164 U.S.App.D.C. 151, 155, 504 F.2d 220, 224 (1974).

The majority's insinuation that there is uncertainty in the law of this circuit as to whether or not a defendant must show prejudice in effectiveness of counsel cases thus amounts to a gross misstatement. It accordingly becomes clear that the majority opinion is attempting to change the settled case law in this circuit with no reference whatever to the precedents that must properly be overruled before that can be effectively accomplished. Two judges alone cannot do that. An en banc court is the only vehicle to accomplish that end.[15] Thus the majority opinion in its attempt for the first time to create a new burden of proof rule in this circuit, contrary to our settled case law, is acting in excess of its authority and its opinion on that point is a nullity. Its attempt to change the rule need not be followed. The majority opinion in no way denies this point.

The majority "incorrectly [interprets] the constitutional requirement of due process" as our panel did when Agurs was before it. 332*332 Thereafter the Supreme Court in Agurs held that the failure of counsel to obtain the criminal record of the murder victim does not demonstrate ineffectiveness because such evidence would not create a reasonable doubt of guilt. 427 U.S. at 102 n. 5, 96 S.Ct. 2392. The same is true here. There is no showing or claim that any truthful evidence exists that would create a reasonable doubt of guilt. Certainly the fabricated alibi does not meet the due process standard. The reversal here is thus contrary to Agurs, supra.

It is true that some statement of standards for a lawyer's professional work are helpful here, and the foregoing cases support that proposition. But the same cases are the direct case law in this circuit for the proposition that the burden is on the defendant to show prejudice. The cases cited supra leave no uncertainty on that point.

There is incontrovertible reasoning in our case law that DeCoster I blindly attempts to ignore. The majority in DeCoster I predicated its statement on burden of proof with illogic that callously disregards the trust of the reader and the principles of stare decisis. And the assertions in the majority opinion that this is a dissenting opinion and so was Judge Craven's opinion in Coles, supra, are not an adequate refutation of the reasoning which those opinions embody.

An eloquent rejection of the factual reasoning of the majority here and of the proposition that the burden is on the Government, and not the movant, to show prejudice is found in United States v. Pinkney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976). In Pinkney, Judge Robinson, with Judges Wright and C. Stanley Blair concurring, examines a set of alleged errors and omissions of counsel, which are of the same nature as those alleged in this case, namely, failure to discuss a material matter with his client, or to inquire whether certain asserted "grave allegations of the Governments allocution memorandum were true" (at 428, 429, 543 F.2d at 913, 914). The opinion by Judge Robinson nevertheless rejects Pinkney's claim of ineffective assistance of counsel, flatly holding that a DeCoster I motion is a motion 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.

1. The Facts and Reasoning of Pinkney

In Pinkney, appellant, convicted of distributing heroin, claimed ineffective assistance of counsel at sentencing:

The Government's allocution memorandum was served on appellant's counsel a week ahead of sentencing, but appellant asserts that counsel never discussed the contents of the memorandum with him. He also complains of counsel's failure to dispute the allegation, made in the memorandum, that appellant was a party to the District's drug traffic.

At 428, 543 F.2d at 913 (footnotes omitted).

Judge Robinson introduces his ratio decidendi by surveying certain preliminary factors:

As previously stated, a motion for resentencing charging ineffective assistance of counsel when appellant was sentenced was rejected by the District Court, but we perceive no basis upon which that ruling could now be upset. In the first place, since appellant did not prosecute an appeal from the ruling on the motion, our jurisdiction to entertain the point is, to say the least, not clear. And, in view of the sentencing judge's specification of his reasons for denying the motion, it is equally unclear whether the allocution memorandum played a significant part in the sentencing decision. We need not pass on these aspects of the case, however, because for even additional reasons the District Court must be affirmed.

Id. at 430, 543 F.2d at 915 (emphasis added) (footnotes omitted).

It should be noted that, although uncertain as to the extent of the trial court's reliance on the allocution, the Pinkney court itself relied significantly on the allocution:

The evidence adduced at appellant's trial strongly indicated that he was engaged333*333 in wholesaling narcotics. And, the information conveyed by the Government's allocution memorandum cast appellant in that role positively.

Id. at 427, 543 F.2d at 912 (emphasis added) (footnote omitted).

We refer not only to profitable drug-selling reflected by the trial transcript and the Government's allocution memorandum but also to a statement by appellant, communicated to the court in the presentence report, indicating that he was receiving $80 per week in unemployment compensation when the alleged offenses transpired.

Id. at 428 n. 30, 543 F.2d at 913 n. 30 (emphasis added).

Judge Robinson then goes on to present his ratio decidendi:

Our DeCoster decision plainly envisioned a motion bolstered by affidavit at its key points, an expectation emanating from the procedural vehicle which DeCosterpressed into service as a record-implementing device. The vehicle, we said, 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.

Appellant's motion did not meet these wholesome requirements. There was no affidavit supporting the motion, nor was the motion otherwise verified. There was only the bare statement that sentencing counsel did not confer with appellant on the charge in the Government's allocution memorandum that appellant was a cog in the local drug-distributing machinery. The absence of substantiation therefor is the better assessed in conjunction with appellant's failure to raise the claim in his postsentence letter to the sentencing judge, and in his present counsel's unexplained omission to advance it earlier than he did. Moreover, while insisting upon a further opportunity to dispute the drug-involvement allegations of the Government's memorandum, appellant's motion gave no indication as to the evidence, if any, by which he would undertake an effort at refutation.

Id. at 431-432, 543 F.2d at 916-917 (emphasis added) (footnotes omitted).

2. Counsel's Performance in Pinkney

The glaring fact in the foregoing extract from Pinkney is that both appellant and counsel failed to timely advance the claim of ineffective assistance, and that, in filing the motion, counsel failed to supply the court with particulars. The Pinkney majority declines to conform to the temper of DeCoster I and find that the untimely and insufficient filing is itself ineffective assistance of counsel.

But under the highly suppositive reasoning of the majority in this case, the potential revelations on remand and the untimely motion of counsel a fortiori require the simple remedy of inquiry on remand. Reversal was not in issue in Pinkney — simply a remand to find out the substance of a pleaded claim. In DeCoster I, of course, there was no claim at all. This court raised the issue of effective assistance sua sponte. Supra, pp. ___-___ of 199 U.S.App. D.C., pp. 300-301 of 624 F.2d. If this court can allow the appellate speculation indulged in this case to requirereversal, then certainly possible revelations as to Pinkney's participation in District of Columbia drug traffic could be sought on a remand.

Given the indistinguishable factual posture of Pinkney and of this case, the obvious recourse for the Pinkney court was to invoke the hearing remedy of DeCoster I, thereby compelling the government to prove that Pinkney was not prejudiced by the alleged omissions of counsel.

But Judge Robinson forthrightly abjures the type of speculation that the majority here calls for:

334*334 As an appellate court, our adjudicatory authority extends only to questions amply grounded in the record.

Id. at 430, 543 F.2d at 915 (emphasis added) (footnote omitted). The coup de grace to the mode of fanciful factual analysis which Judge Bazelon's opinion would hereby seek to impose is that the refusal of the court in Pinkney to set aside the conviction turned on the conclusion —

"that counsel's alleged derelictions [had not] frustrated appellant's opportunity to present his side of the controversy," id. at 429, 543 F.2d at 914.

3. The Burden of Defendant to Show Prejudice

The crux of Judge Robinson's Pinkney analysis is his holding that an ineffective assistance of counsel claim is a motion for a new trial and is subject to the settled legal standards for such motions:

The vehicle [for relief in ineffective assistance of counsel cases], we said, was a motion for a new trial . . . . An essential characteristic of such a motion is a disclosure of evidence portraying the movant's claim materially . . . evincing a capability of mounting a serious challenge.

Id. at 431, 543 F.2d at 916.

Each of the cases cited for this proposition unambiguously requires that defendant show prejudice in his motion. Judge Robinson cites:

Newsome v. Smyth, 261 F.2d 452, 454 (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, 1138 (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, 78 (9th Cir.1968), cert. denied, 397 U.S. 938, 90 S.Ct. 949, 25 L.Ed.2d 119 (1970); Dansby v. United States, 291 F.Supp. 790, 794 (S.D.N.Y.1968).

Id. at n. 58.

In Dansby we find:

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.

291 F.Supp. at 794 (emphasis added) (footnote omitted). My colleagues completely gloss over these requirements.

Norman states that a factual basis there alleged for a new trial is insufficient because ". . . that fact would not have undermined the Government's case in the least." 402 F.2d at 78. Neither would the fabricated defense which the majority contends Decoster's counsel was required to investigate.

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 conflict. SeeDavidson v. Cupp, 446 F.2d 642 (9th Cir. 1971), and cases cited.

454 F.2d at 1138 (emphasis added). Nor does the majority point to any prejudice to Decoster here.

Newsome tells us:

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.

In his footnote 59, Judge Robinson notes:

Our conclusion in this regard in no way impinges upon the rule, which we readily reaffirm, that once a substantial violation of counsel's duties is shown, the Government's burden is to demonstrate lack of prejudice therefrom.

(Emphasis added). But he omits mention of absolving defendant of the initial duty to showprejudice — because no such absolution is possible. To show a "substantial violation of counsel's duties," prejudice must be shown — otherwise the violation would not be substantial. By its own presentation 335*335 of the cases Pinkney reiterates that defendant must showprejudice before any obligation of going forward can fall upon the Government. That is the issue in the present case. The remand proceeding is not in issue, and the value of the ABA standards for conduct of counsel is not in issue, nor is the issue the standard announced inDeCoster I as to the duty of counsel to furnish reasonably adequate assistance to the accused. The issue is simply whether this court honors the settled case law that the movants for a new trial must show prejudice.

The validity of Judge Robinson's analysis is unassailable. In DeCoster cases, defendant lacks a "substantial" claim and one that is "consequential," unless the defendant first show substantial prejudice. Whether one calls it harm or prejudice, the result is the same and the burden rests initially upon the defendant to prove prejudice. That is the clear holding of all the cases in this court and this does not amount to an acceptance of DeCoster I or II (Majority op. p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d). As in all cases, if the proponent proves his case, prejudice here, the burden of proceeding then shifts to the other party to disprove that fact — but not before prejudice has been proved. To the extent that the majority in DeCoster would absolve the defendant from the initial obligation to prove prejudice it does not conform to the law as stated heretofore and hereafter.

III. PRINCIPLES CONTROLLING THE ALLOCATION OF BURDEN OF PROOF ON PREJUDICE

The settled law in this circuit on the responsibility of defendant to show prejudice in effectiveness of counsel cases reflects controlling principles enunciated by the Supreme Court and anchored in the common law.

A. Principles Set by the Supreme Court

The majority in DeCoster I adopts the legally unsupported assertion in Coles v. Peyton that once certain acts or omissions by counsel are shown, the case for ineffective assistance of counsel must prevail unless the Government, "on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby." 389 F.2d at 226, 159 U.S.App.D.C. at 333, 487 F.2d at 1204 (emphasis added).[16]

This assertion conflicts with the rule evident in holdings by the Supreme Court. 336*336 For example, defendant must show prejudice in claims based on the sixth amendment right to an impartial jury and the fifth amendment right to due process. Exceptions to the rule of showing actual prejudice are made in those instances in which defendant shows that he is the victim of acts that are inherently prejudicial, as opposed to acts that are actually prejudicial. A factor to be considered also is whether the Government in any way participated in causing the counsel to be ineffective. But regardless of whether it is actual or inherent prejudice that is alleged, it isdefendant who must show prejudice. In Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2038, 44 L.Ed.2d 589 (1975), the Court held:

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.

(Emphasis added). The allocation of the burden of proof in Murphy poses the same questions that are raised by the DeCoster I majority. It is true that the burden in Murphy requires a defendant to bear a fact-producing responsibility in his own cause. 159 U.S.App.D.C. at 333, 487 F.2d at 1204. Also, it is true that circumstances can be described in which the alleged infringement of the right obscures the evidence of the infringement itself. Id. But the general rule stands. The courts can provide counsel to defendant to uncover prejudice, no matter how obscured, but it is defendant who must show prejudice. With regard to the sixth amendment issue of effectiveness of counsel, there is no possible reason for holding that the rule that defendant show prejudice mysteriously discontinues.

Thus, the majority in DeCoster I and here must be assuming that prejudice to the defendant is inherent in the acts or omissions proposed as guidelines in assessing counsel's performance. Neither in DeCoster I nor here has there been a showing of inherent prejudice, much less actual prejudice. The position of the majority must be that violation of their precepts constitutes inherent prejudice in any case whatsoever, as occurred in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), where there was no representation at all.

The analysis thus devolves into the question of whether "substantial" deviation from the majority's precepts, 159 U.S.App. D.C. at 333, 487 F.2d at 1204, ipso facto rises to the level of the fundamental constitutional deprivation inherent in, say, complete denial of the assistance of counsel. In a phrase, is deviation from the precepts equivalent to inherent prejudice? If it is not, then prejudice, actual or inherent, must be shown by each defendant on the facts of the defendant's own case.

The precepts listed in DeCoster I are:

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 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 337*337 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.

159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04 (footnotes omitted).

The very generality of these standards prevents their use as conclusive indicators of constitutional prejudice for each and every effectiveness of counsel case. Their relation to prejudice to a defendant's cause turns on the facts of the case in question. The majority inDeCoster I reminds us, with regard to the ABA standards incorporated into the foregoing precepts:

While the Standards claim that they are not intended "as criteria for judicial evaluation of effectiveness," [citation omitted], they certainly are relevant guideposts in this largely uncharted area.

159 U.S.App.D.C. at 332 n. 25, 487 F.2d at 1203 n. 25 (emphasis added). This is one of the mistakes the majority makes. They now place more weight on the standards than their authors intended them to bear. As here, they attempt to have them serve as much more than "relevant guideposts."[17]

The key to ineffectiveness of counsel, per the majority in DeCoster I is "substantial" violation of the precepts. Now we are told here in DeCoster II that "substantial" means "consequential" (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 309 of 624 F.2d). What an exercise in elementary semantics. What my colleagues are trying to do is to skate around the "prejudicial" requirement and make it appear as though they have invented a new standard. But their discovery in reality merely adds up to a failure to recognize that when they are talking about "substantial" and "consequential" they are doing nothing more than describing essential ingredients of "prejudice." To have prejudice the causative factor must be "substantial" and sufficiently related to the result in a causal relationship so that the result may correctly be considered 338*338 a consequence of that factor, i.e., "consequential." Actually, "substantial" and "consequential" in the abstract, and divorced from "prejudice," as my colleagues apparently try to isolate them, are meaningless. They are merely adjectives standing alone. Error that is just "substantial" and not "prejudicial" is of no moment. And error that is "consequential" (and what error is not a consequence of some causative factor?), without being prejudicial, is immaterial. Thus, to be relevant at all, the neglect must be of sufficient substance so that it may be found to be both a consequence of the alleged failure and prejudicial.

The facts here, as well as in Coles, show that a great deal turns on the actual facts of each case. The factors discussed supra at pp. ___-___ of 199 U.S.App.D.C., pp. 314-321 of 624 F.2d and in Judge Craven's review of the facts in Coles, 389 F.2d at 228-30, demonstrate that the facts of neither case admit of a summary finding of prejudice. Substance requires prejudice that is consequential, and the majority here cannot beg the question by legislating a new task for the prosecution. The terms "substantial" and "consequential" are an admission by theDeCoster I majority that the effectiveness question and the meaning of the majority's own precepts must be settled on a case-by-case basis, on the facts of each case. Since that is so, it is true that the precepts are not universally dispositive factors, such as providing counsel in the first place, that foreclose any need to show prejudice. Therefore, the case here falls into that category identified by the Supreme Court as requiring defendant to show either actual or inherent prejudice. It follows immediately that Judge Craven's rule in Coles is correct:

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.

389 F.2d at 230 (latter emphasis added).

B. The Application of Chapman v. California

This sets in stark relief the majority's manipulation of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The majority write:

Chapman holds that if a defendant's constitutional rights were violated, his conviction must be reversed unless the Government "prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." . . . we hold that harmlessness be established beyond a reasonable doubt.

Majority opinion, p. ___ of 199 U.S.App. D.C., p. 311 of 624 F.2d (emphasis added). ButChapman was dealing with a claim of harmless error after a substantial constitutional violation had been found. Here, the existence of constitutional error is the issue, and the majority has presented neither facts nor law to establish that any constitutional right of defendant has been violated at all, particularly his sixth amendment counsel right.

What the majority does here is skip the requirement that the defendant first prove a substantial constitutional violation and, upon the appellate court's sua sponte assertion that the ABA standards were not conformed to, imposes upon the Government the unprecedented burden to prove beyond a reasonable doubt that the assumed error was harmless. The defendant should first be required to prove a constitutional violation that substantially prejudiced him. In factChapman specifically refused to hold "that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed [to be] harmful." 386 U.S. at 21-22, 87 S.Ct. at 827. The majority opinion relies upon the statement in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967)

that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

But in holding that this rule is applicable here the majority opinion does not fairly consider the hesitating and qualifying steps that Justice Black took before he made that remark, and which may fairly be considered 339*339 as qualifying that statement. The Chapman opinion concludes:

There is little, if any, difference between our statement in Fahy v. Connecticut,375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 about "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction" and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

386 U.S. at 24, 87 S.Ct. at 828. So, while the earlier statement is clearly appropriate where a constitutional violation is clear, the Fahy qualification is more appropriate to situations, such as exists here, where the existence, extent and effect of the alleged constitutional violation have not been proved. Applying the Fahy refinement to the facts here would require proof by the defendant that "there is a reasonable possibility that the [alleged inadequate representation] . . . might have contributed to the conviction . . . ." The defendant made no such claim and in view of the jury's guilty verdict, his admission of facts in his letter to his lawyer (n. 7, supra), and the clear implications from his in-court statement when he was sentenced (p. 24, 87 S.Ct. p. 828supra), his guilt is certain beyond all doubt — not just a reasonable doubt. Thus, there is no "reasonable possibility that the [alleged inadequate assistance of counsel] . . . might have contributed to the conviction" — unless of course one would advocate the sporting theory of justice in which perjury might prevail and an acquittal be thereby obtained. But, as Justice Douglas remarked in Brady v. Maryland, 373 U.S. 83, 90, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), this is not a permissible consideration. Thus, even if it be assumed, or presumed, that "federal constitutional error" existed, the harmless error standard of Chapman has been satisfied.

C. Principles of the Common Law

This circuit has recently succinctly stated the common law on burden of proof in civil cases:

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. 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.

Nader v. Allegheny Airlines, Inc., 167 U.S. App.D.C. 350, 361, 512 F.2d 527, 538 (1975), rev'd on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976) (citations omitted).Decoster is a criminal 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 a 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 (1974). Thus, the common law fact-finding principles in Nader govern this case.

The comparison with Nader is illuminating. In Decoster the person asserting the claim is also the person with the access to practically all the important facts that are relevant to proving prejudice. In Decoster the twin policies of placing the burden of proof on the person pressing the claim and of placing the burden of proof on the person with particular access to the facts are both satisfied by holding that Decoster is required first to show prejudice.

There is no conflict in the common law principles here. Those principles direct that defendant make a showing of prejudice. Moreover, the Supreme Court has set constitutional standards that require defendant here to show prejudice. The relevance of these principles to this case was stated in the dissenting opinions in DeCoster I and in Coles. In DeCoster I my dissent stated:

In addition, I do not concur in the conclusion that the burden in such cases to prove non-prejudice shifts to the Government. Such proof is usually more within the ability of the accused, if such evidence exists at all, and it would place an unfair burden on the Government to impose that task upon it. For instance 340*340the accused could frustrate the Government's effort in many instances merely by claiming his privilege against disclosing some facts on the ground that they might incriminate him.

159 U.S.App.D.C. at 334, 487 F.2d at 1205. And in Coles Judge Craven wrote:

Switching the burden of proof does not make these startling defenses true but it does put upon the state the exceedingly awkward, if not unbearable, burden of proving the negative. And it is not suggested that the state can prove the negative of such matters more easily than petitioner can prove the positive — the usual reason for switching the burden. Nor do these matters, in my opinion, fall within the category of constitutional defects that must be deemed inherently prejudicial because (1) we intuitively sense prejudice, and (2) the extent of it is simply not practicably susceptible to proof, such as (a) failure to have counsel assigned, (b) appointment of counsel followed immediately by trial, (c) division of responsibility among an entire bar (what's everyone's responsibility is no one's responsibility). Except in such situations, and others of like kind, it is still true that "in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused." Estes v. State of Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 1632, 1633, 14 L.Ed.2d 543 (1965).

389 F.2d at 230 (footnotes omitted).

Where the Supreme Court has set constitutional standards that require defendant here to show prejudice, and where the common law fact-finding rules direct the same result, it is obviously incorrect to relieve defendant of the responsibility to show prejudice, particularly when the proof of that fact, if it exists, is peculiarly available to him.

IV. THE PURPORTED JUSTIFICATION IN DeCOSTER I FOR SHIFTING THE BURDEN OF PROOF

In attempting to justify placing the burden of proof on the Government in certain casesDeCoster I states:

Two factors justify this requirement. First, in our constitutionally prescribed adversary system the burden is on the government to prove guilt. A requirement that the defendant show prejudice, on the other hand, shifts the burden to him and makes him establish the likelihood of his innocence. It is no answer to say that the appellant has already had a trial in which the government was put to its proof because the heart of his complaint is that the absence of the effective assistance of counsel has deprived him of a full adversary trial. (Emphasis added). [Thus, the majority, in the proceeding which is supposed to determine whether counsel has been effective, switches the traditional burden of proof, in advance of a determination of that issue, on the ground that what the "complaint" only alleges has already been proved. This perversion of logic by an appellate court is unbelievable.]

Second, proof of prejudice may well be absent from the record precisely because counsel has been ineffective. For example, when counsel fails to conduct an investigation, the record may not indicate which witnesses he could have called, or defenses he could have raised.

159 U.S.App.D.C. at 333, 487 F.2d at 1204 (footnote omitted).

With respect to both these points the obvious truth is that a defendant is entitled to engage counsel, or obtain court-appointed counsel in direct appeal cases (the very cases on which my colleagues bottom their analysis) to develop whatever facts may lie in his favor. The fact of earlier constitutional ineffectiveness of counsel can only follow from the fact of prejudice to defendant's cause. If the consequences of the performance of his counsel do not indicate substantial injury to defendant, he is not to obtain redress. The constitutional requirement of reasonably adequate counsel is not to be used as a shield for criminal behavior.

V. THE CONSTITUTIONAL CONFLICTS

The rule in DeCoster I causes constitutional conflicts which are unnecessary and which should therefore be avoided.

341*341 A. The Conflicts

DeCoster I states that it is based explicitly on concern for the adversary process:

Consistent with this recognition the Court has continued to repeat that the purpose of counsel is to "preserve the adversary process" and that counsel must act "in the role of an active advocate in behalf of his client."

159 U.S.App.D.C. at 331, 487 F.2d at 1202 (footnotes omitted).

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.

Id. at 333, 487 F.2d at 1204 (footnote omitted).

Two factors justify this requirement. First, in our constitutionally prescribed adversary system the burden is on the government to prove guilt. . . . It is no answer to say that the appellant has already had a trial in which the government was put to its proof because the heart of his complaint is that the absence of the effective assistance of counsel has deprived him of a full adversary trial.

Id.

It is necessary to be explicit and realistic about what would happen to the adversary process if the burden of proof were shifted to the Government as DeCoster I suggests and as the majority here attempts. As the government loses cases through an inability to meet the generally unfair burden of being required to prove a negative "lack of prejudice," prosecutors will increasingly, and justifiably, attempt to protect guilty verdicts by seeking to monitor the decisions and activities of defense counsel in order to build a record showing why certain decisions were proper. The majority opinion encourages, if it does not require, that prosecutors look over the shoulder of defense counsel in all his activities. They will also be required to tailor their prosecutions so that they will not eventually be forced to bear an extremely difficult burden of proving a negative with respect to the conduct of an opposing counsel. In certain trial situations it is highly likely that the prosecutor might, at times, move the court to alter a defense lawyer's decisions. This would inevitably interfere with the right of both parties, the Government and the defendant, to a truly adversary trial.

As Judge Prettyman wrote in Mitchell, with respect to the burden the DeCoster I type of rule would place on a judge:

Moreover the 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.

259 F.2d at 793. Since this is true with respect to judicial supervision of defense counsel, it is a fortiori true of prosecutorial supervision or surveillance of defense counsel. The majority assert that they will not "second guess" defense counsel (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 307 of 624 F.2d), but then they do exactly that when they reject a reasonable interpretation of his actions (id., nn. 5, 23) and resolve all speculative doubts against him with extravagant adverse conclusions (id., n. 23, pp. ___-___ of 199 U.S.App.D.C., pp. 307-309 of 624 F.2d).

Placing the burden on the Government to prove that the defendant's counsel was not ineffective or inadequate wars with the sixth amendment right to an adversary trial, and for that reason the attempt to shift the burden cannot be sustained. Moreover, DeCoster I is also inconsistent facially: in seeking to assure the effectiveness of counsel, it undermines the very freedom of action 342*342 on which such counsel relies. To the extent that the majority opinion in this case holds that defense counsel must investigate to support a fabricated, untruthful defense against counsel's conscience and better judgment, it strikes at the lawyer's independence and integrity. These qualities must be preserved if we are to have a truly adversary system and a practicing bar with a high standard of ethics.

No lawyer should ever be required to investigate to support a fabricated defense. In his 1975 Sonnett Lecture at Fordham University, Justice Widgery encapsulated what is properly required of an advocate:

[T]he trial lawyer must be . . . independent in mind and in fact — he must be able to do what his conscience tells him is right without fear of antagonizing the court or being overborne by his client. Finally, he must have integrity in the pursuit of justice, recognizing his responsibility to the court and his opponent, and rejecting alike the desire to win at all costs and the temptation to take an unfair advantage of such pieces of forensic luck which come his way.[18]

There are many inherent difficulties that would arise if the burden of proof were placed on the Government to prove that defense counsel did not inadequately represent a defendant. First of all, preparation to assume that burden would require the prosecutor to order an investigation into what for the prosecution has heretofore in most instances been a completely prohibited area — the confidential relationship between a criminal defendant and his counsel — and it would be the Government's investigative arm, the FBI or the police,[19] that would be ordered to make the necessary investigation. While there may be cases where an FBI or police investigation into a lawyer's representation of a defendant in a criminal case would be appropriate, as where defense counsel allegedly committed some criminal offense in his representation of his client, if the burden of disproving prejudice were shifted to the prosecution, as my colleagues would compel, the majority of such investigations would be required to probe in depth into confidential communications and relations between the defendant and his lawyer. A particular target of such investigations would be admissions and statements as to guilt that the defendant may have made to his lawyer. Can defense disclose these privileged communications? In such an inquiry the interests of former defense counsel would then become adverse to those of his former client. Any evidence the lawyer may have been furnished by his client, or otherwise obtained while he was representing the accused, which bore on the question of guilt, would be fairly producible if the defendant was attacking his counsel.

But what of a situation, such as we have here, where two appellate judges raised the issue without informing the defendant or advising him of the privileged disclosures that might be compelled? If the defendant made the motion he would open the door to such inquiry by the prosecutor, the defendant himself would always be a prime target for interrogation, and his exercise of his fifth amendment rights might conflict with an adequate investigation — as possibly in this case — where it appears that appellant apparently committed perjury in the trial of the case.[20] Defense counsel himself might face the same hazard. If the entire relationship between the defendant and his counsel were not thus opened up for searching investigation and interrogation, then the effect of the rule here sought to be applied by the majority would be to shift the burden of proof away from the side that is normally in the best position to produce the most relevant evidence (the defendant) and to deny or seriously restrict the Government in its access to what in 343*343 most cases would be the best evidence to meet the burden that is being placed upon it. Such result would be grossly unfair, as it would in a great many cases place practically an impossible burden on the Government. It would impose a penalty on the Government for the alleged deficiencies of counsel for the accused.

Thus both the accused and his counsel, if they do not exercise the fifth amendment guarantee against self-incrimination, would be thoroughly interrogated by the Government investigators and, upon a proper showing, the papers and records of accused and counsel could be subpoenaed,[21] search warrants could obviously be issued for relevant evidence, and wiretaps possibly authorized by court order. Evidence thus obtained would be used in an attempt to sustain the unfair burden of proof to disprove prejudice that my colleagues would place on the Government, and might be used as the basis for additional prosecutions of either the defendant or his lawyer, or both, or to add strength to the Government's case if a retrial eventuated.

It seems apparent that the majority has not fully thought through some of the consequences of their attempt to shift the burden of proof to the prosecutor in these cases. Instead, they leave those problems to the future. This is the same siren song that we have heard before with disastrous results. It is my belief that a judge who presents a program to radically change the law in an important particular should demonstrate that his proposal would work fairly and reasonably in actual practice. My colleagues dissent from this principle.

To require the Government in a post hoc (second guessing) proceeding to justify the legal activities of defense counsel would require Government investigators to go to extreme and unreasonable ends. The original and subsequent investigative suggestions made by the majority here prove this point (supra, n. 1).

The situation here would become typical and appellate defense counsel would be found "ineffective", in this Court, if they did not pursue the largely unreasonable second-guessing speculative patterns which my colleagues have conjured up in this case. And what we have seen here is only the beginning of this defense, the effect of which is to try the defense lawyerin a second trial.

Once the accused is convicted, the practice would be for a friendly appellate court to exercise its imagination as to speculative witnesses and defenses. If the lawyer is "convicted" in the second trial, then there would ordinarily be a third trial to retry the accused if the case against him were not dismissed. If the pattern the majority here would establish became the applicable rule of law, practically every guilty defendant would have a second defense — post trial — based on speculative evidence, imaginary witnesses, and other excursions into fantasy. Long-established rules imposing the burden of proof on the contending party would be violated. A proposed rule fraught with such dire consequences should not be imposed. If such were the law, defending accused criminals in the jurisdiction of this appellate court would be a hazardous occupation insofar as one's professional reputation were concerned. In the district court we already have had one libel case for $2 million arising out of an accusation by subsequent appellate counsel that prior defense counsel had ineffectively represented his client at trial.

This is not to say that a defendant in an appropriate case has no relief. He does. The trial judge can appoint new counsel for defendant. The judge, in supervising the trial, can and should provide defendant with competent counsel. But when this court attempts to transfer to the prosecution the responsibility for, and burden of, proving that the performance of defense 344*344counsel did not prejudice defendant, as the majority here attempts to do,[22] an even greater constitutional violation is established, for the rule would shift a constitutional obligation which cannot be shifted:

Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel.

Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942) (emphasis added).

The executive branch is the prosecutor. While it must be solicitous of the rights of defendants, it is not defense counsel, and this court cannot shift to the executive branch that which is fundamentally the constitutional duty of the judiciary. The judiciary can appoint counsel to represent defendants, and the legislature can provide for the appointment and payment of counsel for indigents in order to provide defense lawyers. But, unless the Government is somehow involved in the inadequate performance of defense counsel, it is the defense lawyersselected by the defendants or appointed by the court who must develop and carry the proof of showing the inadequacy of predecessor counsel. The adversary system by its very nature does not permit the placement of that obligation upon the prosecutor. The United States attorney cannot be both prosecutor and defense counsel, and the complexity of the oversight problem makes it undesirable that he be so charged in every case, upon pain of reversing convictions of admittedly guilty defendants.

Finally, if the majority here persist in burdening the prosecution with the complete inquiry on prejudice, then, given the legitimate investigative steps the prosecution must then undertake, defendant's act of invoking a claim of ineffective assistance of counsel may constitute a waiver of defendant's fifth amendment guarantee against self-incrimination and of the confidentiality of his attorney-client relationship. The Supreme Court has recently reminded us that such privileges can be waived, and in so doing reminded us of the importance of the very independence of adversary counsel that the majority here so fervently undermines. In Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1974), the Court, in holding that an attorney could not be held in contempt for advising his client to exercise his guarantee against self-incrimination wrote:

A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. If performance of a lawyer's duty to advise a client that a privilege is available exposes a lawyer to the threat of contempt for giving honest advice it is hardly debatable that some advocates may lose their zeal for forthrightness and independence.

419 U.S. at 466, 95 S.Ct. at 595 (footnotes omitted). The Court goes on 419 U.S. at 467-68, 95 S.Ct. at 596, to quote Mr. Chief Justice Fuller, speaking for the Court in In re Watts, 190 U.S. 1, 29, 23 S.Ct. 718, 47 L.Ed. 933 (1903):

In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment. The preservation of the independence of the bar is too vital to the 345*345 due administration of justice to allow of the application of any other general rule.

(Emphasis added.)

B. The Conflicts Are Unnecessary

There are cases in which certain constitutional guarantees conflict with others. In this case the majority seeks to create and apply a burden of proof rule that sets the right to adequate assistance of counsel against the adversary guarantees of the sixth amendment, the independence of counsel, the sanctity of the attorney-client relationship as protected by the sixth amendment, the separation of powers, and the defendant's fifth amendment guarantees against self-incrimination.

Adjudication among these conflicting constitutional provisions should not be undertaken where it is unnecessary to do so. Ashwander v. Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The conflicts in DeCoster are needless. They should, and easily can, be avoided by keeping the burden to show prejudice on defendant and using successor counsel to assist defendant in carrying the burden in normal cases.

CONCLUSION

The rule switching the burden of proof that the majority attempted to fashion in DeCoster I, and to apply here, must be repudiated. The law in this circuit clearly places the burden of proving prejudice upon the defendant. Bruce v. United States, Mitchell v. United States, Harried v. United States, United States v. Hammond, Matthews v. United States, supra. It is also highly unreasonable to force this circuit to embark on a regular practice of requiring defense counsel to function as investigators and search for non-existent witnesses to support fabricated defenses that are conjured up by defendants on the day of trial. Judge Craven's dissent inColes, which is in accord with the case law in this circuit, sets forth the proper rule, and it is supported by cited judicial authority, which is not true of the majority opinion in that case.

DeCoster I represents a bold attempt to change the law on the burden of proof under the guise of exploring the subject of standards for counsel. The ABA standards speak for themselves. Their strength does not depend on being reprinted in the F.2d reporters, and it is specious to attempt to justify the change in the law by referring to the poverty of most criminal defendants (Majority opinion, p. ___ of 199 U.S.App. D.C., p. 305 of 624 F.2d). There is nothing here to indicate that Decoster's financial condition in any way caused him not to receive a fair trial and so the poverty argument is an injudicial appeal to passion and prejudice. Today, under the Criminal Justice Act, most defendants are as well, if not better, represented than the Government. Moreover, the interests of the poor lie on both the defense and the people's — the government's — sides in criminal cases.[23] The burden of proof dictum in DeCoster I should therefore be rejected entirely, and the underlying conviction affirmed. To 346*346 switch the burden of proof scorns both the law and logic. To do so in the manner the majority suggests in effect collapses the standard into the remedy.

For the foregoing reasons, from this attempt, without any showing of prejudice, and without producing a single witness that would testify to a single fact that would be beneficial to Decoster, to set aside the jury's finding of guilty, which was concurred in twice by the trial judge, and admitted by the accused appellant, I respectfully dissent. It is unthinkable for this court to require counsel at the outset of a criminal trial to investigate every possible defense that might be fabricated.

[*] See 598 F.2d 311.

[*] Panel opinion of Judge Bazelon and panel dissent of Judge MacKinnon in Decoster II appear as an appendix,see page 300.

[1] United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [hereafter referred to as DeCoster I].

[2] American Bar Association, Project on Standards for Criminal Justice, Standards Relating to the Defense Function (App.Draft 1971) [hereafter referred to as ABA Standards].

[3] Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

[4] Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

[5] Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).

[6] Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

[7] Id.

[8] 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).

[9] Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).

[10] Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

[11] Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring).

[12] 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).

[13] 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.

[14] Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).

[15] Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).

[16] Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).

[17] Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

[18] 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).

[19] 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.

[20] Holloway v. Arkansas, supra, 435 U.S. at 484-87, 98 S.Ct. 1173.

[21] See Powell v. Alabama, supra, 287 U.S. at 71, 53 S.Ct. 55.

[22] Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

[23] Id. at 54, 90 S.Ct. at 1982-1983.

[24] 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.

[25] 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).

[26] McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. at 1450.

[27] United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

[28] Id. at 102 n.5, 96 S.Ct. 2392.

[29] McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).

[30] 586 F.2d 1325 (9th Cir. 1978).

[31] Id. at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.

[32] Id. at 1340 (Hufstedler, J., concurring and dissenting).

[33] Id. at 1336-37.

[34] Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669 (1945).

[35] See Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).

[36] 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).

[37] Id. 104 U.S.App.D.C. at 65-66, 259 F.2d at 795-96 (Fahy, J., dissenting).

[38] Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).

[39] 126 U.S.App.D.C. at 339-40, 379 F.2d at 116-17.

[40] 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).

[41] E. g., Beasley v. United States, 491 F.2d 687, 694 (6th Cir. 1974).

[42] 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).

[43] Maryland v. Marzullo, 435 U.S. 1011, 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White, J., dissenting).

[44] 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").

[45] Restatement (Second) of Torts § 299A & comment e (1965), cited in Moore v. United States, supra, 432 F.2d at 736 n.24.

[46] 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.

[47] 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).

[48] Cooper v. Fitzharris, supra, 586 F.2d at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.

[49] 159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04.

[50] 199 U.S.App.D.C. at ___, 624 F.2d at 203.

[51] DeCoster I, 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.

[52] 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.

[53] Id. at ___ of 199 U.S.App.D.C., at 203 of 624 F.2d.

[54] 389 F.2d 224 (4th Cir. 1968).

[55] 435 F.2d 1089 (4th Cir. 1970).

[56] United States ex rel. Green v. Rundle, 452 F.2d 232 (3d Cir. 1971).

[57] United States ex rel. Green v. Rundle, 303 F.Supp. 972 (E.D.Pa.1969), reversed, 452 F.2d 232 (3d Cir. 1971).

[58] 452 F.2d at 235.

[59] People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (Feb. 22, 1979).

[60] See text accompanying notes 30-33 supra.

[61] 23 Cal.3d at 424-25 & n.14, 152 Cal.Rptr. at 738-39 & n.14, 590 P.2d at 865-66 & n.14.

[62] Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977) (Duniway, J., concurring), vacated, see 586 F.2d 1325 (1978) (en banc).

[63] Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974).

[64] 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.

[65] Mitchell v. United States, supra, 104 U.S. App.D.C. at 65, 259 F.2d at 795 (Fahy, J., dissenting).

[66] 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.

[67] Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967).

[68] 126 U.S.App.D.C. at 340, 379 F.2d at 117.

[69] See, e. g., McNabb v. United States, 318 U.S. 332, 340-41, 63 S.Ct. 608, 87 L.Ed. 819 (1947).

[70] See Boyd v. Henderson, 555 F.2d 56, 62 n.8 (2d Cir. 1977).

[71] 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").

[72] 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.

[73] 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.

[74] 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.

[75] 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.

[76] 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.

[77] See Bines, Remedying Ineffective Assistance in Criminal Cases: Departures from Habeas Corpus, 59 Va.L.Rev. 927, 961 (1973).

[78] 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.

[79] 498 F.2d 207 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).

[80] Id. at 216.

[81] United States v. Clayborne, 166 U.S.App. D.C. 140, 509 F.2d 473 (1974).

[82] Id. 166 U.S.App.D.C. at 144, 509 F.2d at 477.

[83] United States ex rel. Green v. Rundle, 452 F.2d 232, 235 (3d Cir. 1971); discussed at text accompanying notes 56-58 supra.

[84] 518 F.2d 1245 (7th Cir. 1975).

[85] Id. at 1246.

[86] 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).

[87] 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.

[88] 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;

(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.

[89] 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).

[90] 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.

[91] Taylor could not be located.

[92] 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.

[93] 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).

[94] See note 93 and accompanying text supra.

[95] Deutsch, Law as Metaphor: A Structural Analysis of Legal Process, 66 Geo.L.J. 1339, 1342 (1978).

[96] See note 2 supra.

[97] Dissenting opinion of Bazelon, J., at ___ of 199 U.S.App.D.C., at 276 of 624 F.2d.

[98] ABA Standards, supra note 2, at 11; see text accompanying notes 52-53 supra.

[99] 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.

[100] See dissenting opinion of Bazelon, J., at ___-___ of 199 U.S.App.D.C., at 288-289 of 624 F.2d.

[101] United States v. Pinkney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976).

[102] 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).

[103] Dissenting opinion of Bazelon, J., at ___ of 199 U.S.App.D.C., at 282 of 624 F.2d.

[104] Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

[105] 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see text accompanying notes 22-23 supra.

[106] See dissenting opinion of Bazelon, J., at ___-___ of 199 U.S.App.D.C., at 289-290 of 624 F.2d, citingHolloway 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).

[107] 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.

[108] W. Hurst, Law and Social Process in United States History 165 (1972) (1959 Cooley Lectures, U. Michigan).

[109] Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).

[110] United States v. DeCoster, 159 U.S.App. D.C. 326, 487 F.2d 1197 (1973).

[111] 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.

[112] Opinion of Robinson, J., at ___ n.44, of 199 U.S.App.D.C., at 250 n.44 of 624 F.2d.

[1] 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)].

[2] 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.

[3] 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).

[4] The panel was composed of Chief Judge Bazelon and Judge Leventhal and issued per curiam.

[5] See cases cited at note 3 supra.

[6] 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 standard 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).

[7] 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.

[8] The context in which the challenge is raised may affect the factual showing that is required to satisfy the standard.

[9] 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 . . .. 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.

[10] 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 precedential 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.

[11] 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 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.

159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04.

[12] 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.

561 F.2d at 544-45.

[13] 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.

[14] 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.

[15] 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 all the circumstances.

American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function 11 (Approved Draft, 1971), § 1.1(f).

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 Inoted, 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 byDeCoster 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.

[16] 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 conflict. 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.

291 F.Supp. at 794.

[17] 177 U.S.App.D.C. at 431, 543 F.2d at 916; quoted supra at 17.

[18] 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. Swenson, 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.

[19] 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.")

[20] 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.").

[21] 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. . .

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.

[22] 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.

[23] 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.

[24] 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 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.

[25] 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.

[26] 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").

[27] 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.

[28] 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):

[T]his 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) (Leventhal, 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 plain from a glance at any dictionary that when the Court used the term "ineffective" it was concerned with the impact that counsel's alleged failure may have on the trial. "Ineffective" means, "not producing the desired effect." Webster's New World Dictionary of the American Language (College Edition, 1968). If the Supreme Court had intended the one-dimensional inquiry proposed by the dissent it could have focused solely on competence or performance. Its use of the term "ineffective" is consistent with the view adopted by this and the plurality opinion that prejudice is an element of an accused's constitutional claim of ineffectiveness. Thus, the distinction that is drawn here between cases involving "actual" and "constructive" denials of the assistance of counsel is valid — it rests on the difference between the right explicitly granted in the Constitution and the different formulation of the right created by a judicial gloss on the Constitutional provision.

[29] 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.

[30] 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.

[31] 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.

[32] 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.

[33] 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).

[34] 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.

[35] Findings and Conclusions, at 6, 10.

[36] Tr., Feb. 11, 1974, at 11-14.

[37] Tr., Feb. 11, 1974, at 11, 12-14.

[38] Tr., Feb. 6, 1974, at 34; Tr., Feb. 11, 1974, at 12-13.

[39] 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 "accuse[d] 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 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).

[40] He represented Decoster and Taylor, and Eley's counsel asked no questions.

[41] 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.

[42] Judge Robinson also takes this position, but unlike my dissenting colleagues, he concludes that the Government has met its burden of proof.

[43] See n. 10, supra.

[44] Dissent n. 143.

[45] 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 590 (1976).

[46] 435 U.S. 475, 98 S.Ct. 1891, 32 L.Ed.2d 358 (1978).

[47] 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

[48] Dissent ___ of 199 U.S.App.D.C., 289 of 624 F.2d.

[49] See page ___ of 199 U.S.App.D.C., page 231 of 624 F.2d, supra.

[50] 435 U.S. at 488, 98 S.Ct. at 1181.

[51] 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.

[52] See Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978) (en banc).

[53] Dissent ___ of 199 U.S.App.D.C., 289 of 624 F.2d.

[54] Id. page 199 of U.S.App.D.C., page 291 of 624 F.2d.

[55] 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).

[56] 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.

[57] 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.

[58] Tr. (Feb. 6, 1974) 72.

[59] 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).

[60] Dissent n. 107.

[61] Id.

[62] See pages ___-___ of 199 U.S.App.D.C., pages 232-234 of 624 F.2d, supra.

[63] 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.

[64] 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.

[65] See page ___ of 199 U.S.App.D.C., page 240 of 624 F.2d, supra.

[66] Tr., Sentencing (March 3, 1972) 2-3.

[67] Dissent page ___ of 199 U.S.App.D.C., page 275 of 624 F.2d.

[68] Id. n. 58.

[69] Id. page ___ of 199 U.S.App.D.C., page 295 of 624 F.2d.

[70] 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.

[71] Dissent ___ of 199 U.S.App.D.C., page 297 of 624 F.2d.

[72] Id. page ___ of 199 U.S.App.D.C., page 267 of 624 F.2d.

[73] In my view one error of counsel alleged by the dissent, his decision to waive his opening statement, was good strategy. In light of Decoster'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.

[74] 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).

[75] 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).

[76] Washington Star, August 9, 1978.

[1] Leventhal Opinion (Op.), 199 U.S.App.D.C. at ___, 624 F.2d at 199; MacKinnon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 217.

[2] See Part I infra.

[3] See Part II infra.

[4] See Part III infra.

[5] See Part IV infra.

[6] This trend commenced three decades ago in Diggs v. Welch, 80 U.S.App.D.C. 5, 6-7, 148 F.2d 667, 668-669,cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). For other cases of similar bent, see note 8 infra.

[7] See Diggs v. Welch, supra note 6, 80 U.S.App. D.C. at 7, 148 F.2d at 669; Jones v. Huff, 80 U.S.App.D.C. 254, 255, 152 F.2d 14, 15 (1945).

[8] Diggs v. Welch, supra note 6, 80 U.S.App. D.C. at 7, 148 F.2d at 669. See United States v. Hammonds, 138 U.S.App.D.C. 166, 169-170, 425 F.2d 597, 600-601 (1970); Harried v. United States, 128 U.S.App.D.C. 330, 333-334, 389 F.2d 281, 284-285 (1967); Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958); Jones v. Huff, supra note 7, 80 U.S.App.D.C. at 255, 152 F.2d at 15.

[9] 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).

[10] Id. at 339, 379 F.2d at 116.

[11] Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 204.

[12] United States v. Bruce, supra note 9, 126 U.S.App.D.C. at 339-340, 379 F.2d at 116-117 (footnote omitted).

[13] Unlike the case before us, Bruce was an appeal from denial of a motion pursuant to 28 U.S.C. § 2255 (1976). The Bruce court observed that "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," but felt that "[i]t would not be fruitful to attempt further delineation of the applicable standard by reference to generalities . .." Id. at 340, 379 F.2d at 117 (footnotes omitted).

[14] See Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 203-206.

[15] Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 206-207.

[16] Bazelon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 264; MacKinnon Op., 199 U.S.App. D.C. at ___, 624 F.2d at 217.

[17] Part III infra.

[18] Holloway v. Arkansas, 435 U.S. 475, 481-484, 490, 98 S.Ct. 1173, 1177-1179, 1182, 55 L.Ed.2d 426, 433-434, 438 (1978) (appointment of single counsel for three defendants, without investigation of counsel's representations that a conflict of interest existed, violates Sixth Amendment right to effective assistance);McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1448-1449, 25 L.Ed.2d 763, 773 (1970)("defendants facing felony charges are entitled to the effective assistance of competent counsel. . . . [I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel," citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)); Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 468, 86 L.Ed. 680, 702 (1942) (defendant has right to "effective assistance of counsel, guaranteed by the Sixth Amendment"); United States v. Hurt, 177 U.S. App.D.C. 15, 18, 543 F.2d 162, 165 (1976); Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970).

[19] E. g., Powell v. Alabama, 287 U.S. 45, 68-72, 53 S.Ct. 55, 63-65, 77 L.Ed. 158, 170-172 (1932) (right to effective assistance of counsel in state trials guaranteed by the Due Process Clause of the Fourteenth Amendment).

[20] Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 206; MacKinnon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 213.

[21] United States Const. amend. VI.

[22] Supra note 19.

[23] 287 U.S. at 71, 53 S.Ct. at 65, 77 L.Ed. at 172.

[24] Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 ("[t]he mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters"); Geders v. United States, 425 U.S. 80, 88-91, 96 S.Ct. 1330, 1335-1337, 47 L.Ed.2d 592, 599-601 (1976) (Sixth Amendment confers right to assistance and guidance of counsel; defendant cannot constitutionally be prevented from consulting with his attorney during an overnight recess); McMann v. Richardson, supra note 18, 397 U.S. at 770-771, 90 S.Ct. at 1448-1449, 25 L.Ed.2d at 773 (defendants have a right to effective assistance of competent counsel); Glasser v. United States, supranote 18, 315 U.S. at 75-76, 62 S.Ct. at 467-468, 86 L.Ed. at 702 (under Sixth Amendment, defendant is entitled to "the benefit of the undivided assistance of counsel of his own choice. . . Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel's effectiveness"). See alsoAvery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377, 379 (1940) (state cannot "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. The Constitution's guaranty of assistance of counsel cannot be satisfied by mere formal appointment").

[25] See text supra at note 12.

[26] E. g., United States v. DeCoster (DeCoster I), 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973).

[27] Supra note 18.

[28] 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.

[29] Id.

[30] See cases cited infra notes 31-33.

[31] Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972); Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).

[32] Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).

[33] Geders v. United States, supra note 24.

[34] Only three circuits continue to utilize the farce-and-mockery test. United States v. Wright, 573 F.2d 681, 683-684 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978) (ineffective assistance of counsel means presentation that makes a mockery, sham or farce of trial); United States v. Bubar, 567 F.2d 192, 202 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 171 (1977) (assistance not ineffective unless purported representation by counsel made trial farce and mockery of justice); United States v. Riebold, 557 F.2d 697, 703 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977) (representation competent unless perfunctory, in bad faith, sham, or pretense). Both the First and the Second Circuits have, however, recently adverted to the higher reasonable-competence standard without expressly overruling earlier farce-and-mockery language. See United States v. Wright, supra, 573 F.2d at 684 (even under higher standard of "reasonably effective assistance," defendant's counsel provided effective assistance); United States v. Williams, 575 F.2d 388, 393 (2d Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 134, 58 L.Ed.2d 141 (1978) (performance of counsel did not make proceedings farce or mockery, nor did it fall below standard of reasonably competent attorney acting as diligent, conscientious advocate); United States v. Tolliver, 569 F.2d 724, 731 (2d Cir. 1978) (defense counsel's conduct easily met even the more liberal standard that defendant is entitled to reasonably effective assistance of attorney acting as diligent, conscientious advocate).

[35] See Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (defendant entitled to counsel exercising level of skill and knowledge customary to the time and place of representation); Marzullo v. Maryland, 561 F.2d 540, 543-544 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (representation must be "within the range of competence demanded of attorneys in criminal cases"); United States v. Carter, 566 F.2d 1265, 1272 (5th Cir.), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978) (standard for evaluating defense counsel is whether defendant received "reasonably effective assistance"); United States v. Yelardy, 567 F.2d 863, 866 (6th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978) (assistance of counsel not ineffective when advice is "within the range of competence demanded of attorney in criminal cases");Monteer v. Benson, 574 F.2d 447, 450 (8th Cir. 1978) (defendant entitled to the "exercise [of] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances"); Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (defendant entitled to reasonably competent and effective representation). Although the Seventh Circuit does not employ the farce-and-mockery test, it subscribes to a standard that appears to fall somewhere between farce and mockery and reasonably effective assistance. SeeUnited States ex rel. Rooney v. Housewright, 568 F.2d 516, 525-526 (7th Cir. 1977) (attorney must "exhibit[] a minimum degree of professional competency").

[36] DeCoster I, supra note 26, 159 U.S.App.D.C. at 331, 487 F.2d at 1202.

[37] See, e. g., National Sav. Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed. 621, 622 (1880) (attorney is bound to act with "a proper degree of skill, and with reasonable care and to the best of his knowledge"); Wilcox v. Plummer,29 U.S. (4 Pet.) 172, 180, 7 L.Ed. 821, 824 (1830) (attorney is impliedly bound "to act diligently and skillfully" in the conduct of his client's case); Dorf v. Relles, 355 F.2d 488, 492 (7th Cir. 1966) (attorney owes to client "good faith and reasonable skill and diligence in the prosecution of the case"); Palmer v. Nissen, 256 F.Supp. 497, 501 (D.Me.1966) (attorney is bound to execute business in his profession entrusted to his care with a reasonable degree of care, skill and dispatch); Transamerica Ins. Co. v. Keown, 451 F.Supp. 397, 402 (D.N.J. 1978)(attorney's "standard of care is measured by the knowledge and skill ordinarily possessed and exercised by others in the profession"); Davis v. Associated Indem. Corp., 56 F.Supp. 541, 543 (M.D.Pa.1944) (attorney "must give such attention to his duties, and to the interests of his client, as ordinary prudence demands, or members of the profession usually bestow"). See generally W. Prosser, Torts, § 32 at 161-165 (4th ed. 1971).

[38] I cite the civil counterpart of the ineffective assistance claim in criminal litigation simply to make the point stated in text. In a civil action for damages, of course, the burden is upon the plaintiff to prove injury flowing from the lawyer's breach of duty, see generally W. Prosser, Torts, § 328A at 149 (4th ed. 1971), and the analogy is lost at this point. See Part III infra.

[39] Bazelon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 297.

[40] McMann v. Richardson, supra note 18, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.

[41] Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 208.

[42] Id.

[43] "A retrospective examination of a lawyer's representation to determine whether it was free from any error would exact a higher measure of competency than the prevailing standard. Perfection is hardly attainable and certainly is not the general rule, especially in professional work where intuitive judgments and spontaneous decisions are often required in varying circumstances. The artistry of the advocate is difficult to judge retrospectively because the elements influencing judgment usually cannot be captured on the record. The kaleidoscopic range of possibilities often seems limitless, and it is proverbial that the finest ideas emerge on the way back from the courthouse. The advocate's work, therefore, is not readily capable of later audit like a bookkeeper's. Of course, not all the activity of the advocate has this highly subjective quality. It is possible to examine the sufficiency of his preparation and the adequacy of his knowledge of the relevant law. Review may disclose failures at the trial. All these are matters which will inform the judgment on a retrospective inquiry whether counsel adequately performed his duty. But since what is required is normal and not exceptional representation, there is room for the realization that it would be difficult to find a case where even the ablest and most experienced trial lawyer would be completely satisfied after a searching re-examination of his conduct of a case." Moore v. United States, supra note 35, 432 F.2d at 736-737. See also Bazelon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 276.

[44] Judge Bazelon has "attempted to give substantive content to the Sixth Amendment's mandate by setting forth [the] minimum requirements of [a] competent performance" in the form of "duties . . . derived from the American Bar Association's Standards for the Defense Function." Bazelon Op., 199 U.S.App. D.C. at ___, 624 F.2d at 275. While I would look to these standards as indications of contemporary thought on what a competent performance should offer, I share the plurality's difficulties respecting their use for much more. See Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 223. Reasonable competence, I think, must retain the degree of flexibility characteristic of most constitutional tests. Judges undoubtedly have enough of a feel to say with confidence that particular activities must enter at a reasonable level of quality into any performance to be deemed effective. Beyond that, in my view, the precise content of effective counsel-assistance must steadily evolve through the traditional and ongoing process of constitutional interpretation in given concrete contexts. In any event, I perceive no need to venture beyond the case before us, and for me the outcome on duty to investigate is decisive. See Part IV infra, and note 159.

[45] See Part III infra.

[46] See Part IV infra.

[47] See Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 212; Bazelon Op., 199 U.S. App.D.C. at ___, 624 F.2d at 279. But see MacKinnon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 232.

[48] See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752, 766 (1976); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351, 358 (1973); Goldblatt v. Town of Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130, 135 (1962);Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435, 1448 (1960).

[49] United States v. Canty, 152 U.S.App.D.C. 103, 110, 469 F.2d 114, 121 (1972).

[50] United States v. Pinkney, 177 U.S.App.D.C. 423, 431, 543 F.2d 908, 916 (1976).

[51] Leventhal Op., 199 U.S.App.D.C. at ___, 624 F.2d at 207.

[52] MacKinnon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 232.

[53] Id. at ___, 624 F.2d at 233.

[54] 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

[55] Id. at 23, 87 S.Ct. at 827-828, 17 L.Ed.2d at 710 (footnote omitted). See also Harrington v. California, 395 U.S. 250, 251, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284, 286 (1969).

[56] Chapman v. California, supra note 54, 386 U.S. at 21, 87 S.Ct. at 827, 17 L.Ed.2d at 709.

[57] Id. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.

[58] Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.

[59] Id., citing 1 J. Wigmore, § 21 (3d ed. 1940).

[60] Chapman v. California, supra note 54, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710. For this the Court found support in its earlier decision in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963).

[61] See text supra at note 55.

[62] Chapman v. California, supra note 54, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711. See alsoHarrington v. California, supra note 55, 395 U.S. at 251, 89 S.Ct. at 1727, 23 L.Ed.2d at 286.

[63] See Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 (citingChapman v. California, supra note 54).

[64] See Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 130 (1976) (citing overwhelming judicial recognition of accused's right not to be compelled to go to trial in prison clothing); Estes v. Texas, 381 U.S. 532, 544, 85 S.Ct. 1628, 1633-1634, 14 L.Ed.2d 543, 551 (1965) (noting that 48 states and the Federal Rules have proscribed the use of television in the courtroom); Peters v. Kiff, 407 U.S. 493, 501-503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83, 93-94 (1972) (adverting to long history of constitutional protection from actually or potentially biased tribunal); Johnson v. Zerbst, 304 U.S. 458, 467-468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468 (1938) (citing explicit guaranty of right to counsel in Sixth Amendment).

[65] See Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 2186-2187, 33 L.Ed.2d 101, 110-111 (1972);United States v. Dougherty, 154 U.S.App.D.C. 76, 91, 473 F.2d 1113, 1128 (1972).

[66] See Estelle v. Williams, supra note 64, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L.Ed.2d at 130 (trial of defendant in prison attire inherently prejudicial; actual harm need not be shown); Barker v. Wingo, supra note 65, 405 U.S. at 521, 532, 92 S.Ct. at 2187, 2193, 33 L.Ed.2d at 111-112, 118 (violation of right to speedy trial not inherently prejudicial; actual injury must be shown); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114, 116-117 (1961) (absence of counsel on entry of guilty plea inherently prejudicial; actual prejudice need not be shown); Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1632-1636, 14 L.Ed.2d at 550-554 (use of television in courtroom inherently prejudicial; actual prejudice need not be shown); Turner v. Louisiana, 379 U.S. 466, 473-474, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429-430 (1965) (no need to consider actual effects of close contact between jurors and prosecution witnesses because association inherently prejudicial); Rideau v. Louisiana, 373 U.S. 723, 726-727, 83 S.Ct. 1417, 1419-1420, 10 L.Ed.2d 663, 665-666 (1963) (televising defendant in act of confessing crime inherently prejudicial; actual prejudice need not be shown); Williams v. Kaiser, 323 U.S. 471, 475-476, 65 S.Ct. 363, 366, 89 L.Ed. 398, 402 (1945) (absence of attorney at entry of guilty plea inherently prejudicial; actual prejudice need not be shown).

[67] See Peters v. Kiff, supra note 64, 407 U.S. at 503-504, 92 S.Ct. at 2169, 33 L.Ed.2d at 94-95 (proof of harm from verdict of unconstitutionally selected jury impossible to adduce); Estes v. Texas, supra note 64, 381 U.S. at 544-545, 85 S.Ct. at 1633-1634, 14 L.Ed.2d at 551 (harmful effects from televised trial too subtle to prove).

[68] See note 76 infra and accompanying text.

[69] Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 759 (1927).

[70] Id. at 522-531, 47 S.Ct. at 441-444, 71 L.Ed. at 754-758.

[71] Peters v. Kiff, supra note 64, 407 U.S. at 504, 92 S.Ct. at 2169, 33 L.Ed.2d at 94-95. In Taylor v. Louisiana,419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court, holding that the Sixth Amendment guaranty of an impartial jury encompasses the right to a jury drawn from both the male and female populations, reversed a conviction reached by an unconstitutionally drawn jury without even discussing the relevance of prejudice. Id. at 526-538, 95 S.Ct. at 695-702, 42 L.Ed.2d at 695-703; see id. at 538-543, 95 S.Ct. at 702-704, 42 L.Ed.2d at 703-705 (dissenting opinion).

[72] Sheppard v. Maxwell, 384 U.S. 333, 351-353, 363, 86 S.Ct. 1507, 1516-1517, 1522, 16 L.Ed.2d 600, 614, 621 (1966).

[73] Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1632-1636, 14 L.Ed.2d at 550-554.

[74] Id. at 544, 85 S.Ct. at 1633, 14 L.Ed.2d at 551.

[75] Id.

[76] Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 279-280, 4 L.Ed.2d 242, 248 (1960) ("in cases involving involuntary confessions, [the] Court enforces the strongly felt attitude of our society that important human values are sacrificed when an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. . . [A] complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, [the] Court terms involuntary . . . .") (citations omitted); Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265, 1270 (1959) ("[t]he abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves"); Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183, 190-191 (1952) ("[u]se of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. . . . Coerced confessions offend the community's sense of fair play and decency"). Reversal is automatic despite the presence of other evidence leaving little doubt of the truth of what was confessed. E. g., Haynes v. Washington, 373 U.S. 503, 518, 83 S.Ct. 1336, 1345, 10 L.Ed.2d 513, 523 (1963); Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 922, 9 L.Ed.2d 922, 928 (1963);Rochin v. California, supra.

[77] Turner v. Louisiana, supra note 66, 379 U.S. at 473, 85 S.Ct. at 550, 13 L.Ed.2d at 429.

[78] Bollenbach v. United States, 326 U.S. 607, 615, 66 S.Ct. 402, 406, 90 L.Ed. 350, 356 (1946).

[79] United States v. Dougherty, supra note 65, 154 U.S.App.D.C. at 91, 473 F.2d at 1128.

[80] Id.

[81] Chapman v. California, supra note 54, 386 U.S. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.

[82] Id. at 44, 87 S.Ct. at 838, 17 L.Ed.2d at 722.

[83] Prosecutorial comment on the defendants' failures to testify and an instruction authorizing the jury to draw adverse inferences from those failures, practices condemned in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

[84] Chapman v. California, supra note 54, 386 U.S. at 22-26, 87 S.Ct. at 827-829, 17 L.Ed.2d at 707-711.

[85] Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711.

[86] See Brown v. United States, 411 U.S. 223, 230-232, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215 (1973)(statement submitted into evidence in contravention of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); error deemed harmless); Schneble v. Florida, 405 U.S. 427, 430-432, 92 S.Ct. 1056, 1059-1060, 31 L.Ed.2d 340, 344-345 (1972) (Bruton violation harmless error); Harrington v. California, supra note 55, 395 U.S. at 251-254, 89 S.Ct. at 1727, 23 L.Ed.2d at 286 (Bruton violation harmless error); Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 803 (1968) (admission of evidence seized in transgression of Fourth Amendment evaluated under Chapman harmless-error test); Fontaine v. California, 390 U.S. 593, 596, 88 S.Ct. 1229, 1231, 20 L.Ed.2d 154, 157 (1968) (comments on defendant's failure to take the witness stand — an infringement of his constitutional privilege against self-incrimination, see note 83 supra — viewed under Chapman harmless-error test); United States v. Alston, 179 U.S.App.D.C. 129, 130, 551 F.2d 315, 316 (1976) (erroneous burden-of-proof instruction dealt with under Chapman harmless-error test); United States v. Pinkney, 179 U.S.App.D.C. 282, 285-286, 551 F.2d 1241, 1244-1245 (1976) (erroneous burden-of-proof instruction addressed under Chapman harmless-error test); United States v. Liddy, 177 U.S.App.D.C. 1, 7-8, 542 F.2d 76, 82-83 (1976) (merits of claims of violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and deprivation of Sixth Amendment right to compulsory process not reached because error if any was harmless); United States v. Scott, 174 U.S.App.D.C. 96, 98-99, 529 F.2d 338, 340-341 (1975)(erroneous burden-of-proof instruction harmless beyond a reasonable doubt); United States v. Liddy, 166 U.S.App.D.C. 95, 111-112, 509 F.2d 428, 444-445 (1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975) (admission of evidence that accused retained attorney and instruction permitting adverse inference to be drawn therefrom "raises Sixth Amendment problems under Griffin," supra note 83; even assuming constitutional violation, error was harmless under Chapman); United States v. Lindsay, 165 U.S.App.D.C. 105, 113, 506 F.2d 166, 174 (1974) (admission of unconstitutionally seized evidence assessed under Chapman harmless-error test).

[87] The harmless error test is most commonly applied in cases in which the asserted constitutional violation takes the form of receipt of inadmissible evidence, erroneous jury instructions or improper comments by the prosecutor. See cases cited supra note 86.

[88] Error consisting of a specific trial occurrence differs readily from pervasive error in the form of a biased tribunal, prejudicial publicity or complete lack of counsel. Compare cases cited supra note 86 with text supra at notes 64-80.

[89] Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438.

[90] See notes 103-113 infra and accompanying text.

[91] Harrington v. California, supra note 55, 395 U.S. at 254, 89 S.Ct. at 1728, 23 L.Ed.2d at 287.

[92] See Holloway v. Arkansas, supra note 18, 435 U.S. at 487-491, 98 S.Ct. at 1180-1182, 55 L.Ed.2d at 436-438;Herring v. New York, supra note 32, 422 U.S. at 865, 95 S.Ct. at 2556-2557, 45 L.Ed.2d at 602; Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at 837, 17 L.Ed.2d at 721 (concurring opinion); Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117; Glasser v. United States, supranote 18, 315 U.S. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 706.

[93] See text supra at note 21; Johnson v. Zerbst, supra note 64, 304 U.S. at 467-468, 58 S.Ct. at 1024, 82 L.Ed. at 1468.

[94] See notes 21-36 supra and accompanying text.

[95] Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at 837, 17 L.Ed.2d at 721 (concurring opinion);Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117 ("[o]nly the presence of counsel could have enabled [the] presence of counsel could have enabled [the] accused to know all the defenses available to him and to plead intelligently"); Williams v. Kaiser, supra note 66, 323 U.S. at 475-476, 65 S.Ct. at 366, 89 L.Ed. at 402 ("[a] layman is usually no match for the skilled prosecutor whom he confronts in the courtroom. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment").

[96] Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117 ("the degree of prejudice [from absence of counsel at arraignment] can never be known"); Williams v. Kaiser, supra note 66, 323 U.S. at 475, 65 S.Ct. at 366, 89 L.Ed. at 402 ("we cannot know the degree of prejudice which the denial of counsel caused"); Glasser v. United States, supra note 18, 315 U.S. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 702 ("[t]o determine the precise degree of prejudice sustained by [the defendant] as a result of [appointed counsel's conflict of interest] is at once difficult and unnecessary").

[97] See, e. g., Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at 837, 17 L.Ed.2d at 721; Gideon v. Wainwright, supra note 18, 372 U.S. at 336-338, 345, 83 S.Ct. at 793, 797, 9 L.Ed.2d at 800, 806; Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117; Williams v. Kaiser, supra note 66, 323 U.S. at 475-476, 65 S.Ct. at 366, 89 L.Ed. at 402; White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193, 194 (1963).

[98] Powell v. Alabama, supra note 19, 287 U.S. at 71-72, 53 S.Ct. at 65, 77 L.Ed. at 171-172.

[99] Holloway v. Arkansas, supra note 18, 435 U.S. at 481-484, 490, 98 S.Ct. at 1177-1179, 1182, 55 L.Ed.2d at 433-434, 438; Glasser v. United States, supra note 18, 315 U.S. at 76, 62 S.Ct. at 468, 86 L.Ed. at 702.

[100] See note 95 supra.

[101] See note 96 supra.

[102] See Milton v. Wainwright, 407 U.S. 371, 377-378, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1, 6-7 (1972) (alleged Fifth and Sixth Amendment infractions not reached because error, if any, was harmless); Coleman v. Alabama,399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387, 397-398 (1970) (case remanded to determine whether denial of right to counsel at preliminary hearing was harmless error); United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967) (case remanded to ascertain impact of lack of counsel at lineup). See also Anderson v. United States, 122 U.S. App.D.C. 277, 279, 352 F.2d 945, 947 (1965) (absence of counsel at arraignment harmless because record "affirmatively shows that no prejudice resulted"); In re DiBella, 518 F.2d 955, 959 (2d Cir. 1975) (exclusion of counsel from reading of grand jury minutes during contempt proceedings harmless where client was allowed to repeat substance to counsel and exact phraseology was not possibly important); United States v. Crowley, 529 F.2d 1066, 1070-1071 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976) (denial of counsel at hearing on motion to withdraw guilty plea harmless under the circumstances).

[103] Gilbert v. California, 388 U.S. 263, 269-273, 87 S.Ct. 1951, 1954-1957, 18 L.Ed.2d 1178, 1184-1187 (1967). See also Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).

[104] United States v. Wade, supra note 102, 388 U.S. at 223-242, 87 S.Ct. at 1930-1940, 18 L.Ed.2d at 1155-1166.

[105] Moore v. Illinois, supra note 103, 434 U.S. at 232, 98 S.Ct. at 466, 54 L.Ed.2d at 263 (case remanded for determination of whether admission of evidence of identification of unrepresented accused at preliminary hearing was harmless error); Gilbert v. California, supra note 102, 388 U.S. at 274, 87 S.Ct. at 1957, 18 L.Ed.2d at 1187(case remanded for inquiry into degree of harm from introduction of evidence of pretrial identification of unrepresented suspect at lineup); United States v. Wade, supra note 102, 388 U.S. at 242, 87 S.Ct. at 1940, 18 L.Ed.2d at 1166 (case remanded for ascertainment of impact on in-court identification of prior identification of unrepresented suspect at pretrial lineup).

[106] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[107] See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

[108] Milton v. Wainwright, supra note 102, 407 U.S. at 375-378, 92 S.Ct. at 2177-2178, 33 L.Ed.2d at 5-7 (merits of alleged Massiah violation not reached because error, if any, harmless); United States v. Cheung Kin Ping, 555 F.2d 1069, 1076-1077 (2d Cir. 1977) (use of defendant's incriminating statements inadmissible under Mirandaharmless error because evidence was merely cumulative).

[109] See Coleman v. Alabama, supra note 102, 399 U.S. at 10-11, 90 S.Ct. at 2003-2004, 26 L.Ed.2d at 397-398. But see White v. Maryland, supra note 97.

[110] See Anderson v. United States, supra note 102. But see Hamilton v. Alabama, supra note 66.

[111] See United States v. Crowley, supra note 102; McGill v. United States, 121 U.S.App.D.C. 179, 180-182, 348 F.2d 791, 792-794 (1965).

[112] See In re DiBella, supra note 102; United States v. Calabro, 467 F.2d 973, 988-989 (1972), cert. denied,410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973) (counsel's absence because of illness during jury deliberations and return of verdict harmless).

[113] In another context, the Supreme Court has observed that "`lack of counsel at a preliminary hearing involves less danger to "the integrity of the truth-determining process at trial" than the omission of counsel at the trial itself or on appeal. Such danger is not ordinarily greater, we consider, at a preliminary hearing at which the accused is unrepresented than at a pretrial line-up or at an interrogation conducted without presence of an attorney.'" Adams v. Illinois, 405 U.S. 278, 283, 92 S.Ct. 916, 919, 31 L.Ed.2d 202, 208 (1972), quoting People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, 494 (1970), in turn quoting Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1204 (1967).

[114] See United States ex rel. Chambers v. Maroney, 408 F.2d 1186, 1194 (3d Cir. 1969), aff'd, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Twiford v. Peyton, 372 F.2d 670, 673 (4th Cir. 1967);Martin v. Commonwealth of Virginia, 365 F.2d 549, 551-552 (4th Cir. 1966).

[115] See United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 430-432, 543 F.2d at 915-917.

[116] Supra note 114.

[117] 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429-430.

[118] See, e. g., Dickey v. Florida, 398 U.S. 30, 54, 90 S.Ct. 1564, 1577, 26 L.Ed.2d 26, 41-42 (1970) ("[w]ithin the context of Sixth Amendment rights, the defendant generally does not have to show that he was prejudiced by the denial of counsel, confrontation, public trial, and impartial jury, knowledge of the charges against him, trial in the district where the crime was committed, or compulsory process"); Chapman v. California, supra note 54, 386 U.S. at 42-44, 87 S.Ct. at 836-837, 17 L.Ed.2d at 720-721 (concurring opinion) (citing numerous cases requiring automatic reversal for violations of Fifth and Sixth Amendment rights); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (defendant claiming violations of Fourth Amendment rights need only show that evidence has been seized without a properly-issued warrant and without the justification of an exception to the warrant requirement); Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674, 683 (1934) (some "constitutional privileges or immunities may be conferred so explicitly as to leave no room for an inquiry whether prejudice to a defendant has been wrought through their denial"). See also text supra at notes 54-64.

[119] Barker v. Wingo, supra note 65, 407 U.S. at 521, 532, 92 S.Ct. at 2187, 2193, 33 L.Ed.2d at 111-112. Extraordinary treatment is accorded the speedy trial right because it "is generically different from any of the other rights enshrined in the Constitution for the protection of the accused." Id. at 519, 92 S.Ct. at 2186, 33 L.Ed.2d at 110. First, "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Id. at 519, 92 S.Ct. at 2186, 33 L.Ed.2d at 110-111. Second, "deprivation of the right may work to the accused's advantage." Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111. Third, "the right to speedy trial is a more vague concept than other procedural rights." Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 112. Finally, unlike many other protections that can be safeguarded through exclusion of tainted evidence or reversal for a new trial, the only remedy for a speedy-trial violation is dismissal of the charge. Id. at 522, 92 S.Ct. at 2188, 33 L.Ed.2d at 112.

[120] Estes v. Texas, supra note 64, 381 U.S. at 542, 85 S.Ct. at 1632-1633, 14 L.Ed.2d at 550. See also United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 352 (1976); Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2038, 44 L.Ed.2d 589, 596-597 (1975).

[121] See Estelle v. Williams, supra note 64, 425 U.S. at 503-506, 96 S.Ct. at 1692-1694, 48 L.Ed.2d at 130-131;Peters v. Kiff, supra note 64, 407 U.S. at 501-502, 92 S.Ct. at 2168-2169, 33 L.Ed.2d at 93-95; Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1636-1638, 14 L.Ed.2d at 550-554; Turner v. Louisiana, supranote 66, 379 U.S. at 473-474, 85 S.Ct. at 550, 13 L.Ed.2d at 429-430; Rideau v. Louisiana, supra note 66, 373 U.S. at 726-727, 83 S.Ct. at 1419-1420, 10 L.Ed.2d at 665-666; In re Murchison, 349 U.S. 133, 136-139, 75 S.Ct. 623, 625-627, 99 L.Ed. 942, 946-948 (1955); Tumey v. Ohio, supra note 69, 273 U.S. at 532, 535, 47 S.Ct. at 444, 445, 71 L.Ed. at 758, 759.

[122] Although for some violations of the Sixth Amendment right to counsel the Government is permitted to show defensively a lack of prejudice, see notes 102-113 supra and accompanying text, the defendant nevertheless is not required to make an affirmative showing of prejudice in order to establish his constitutional claim. See Dickey v. Florida, supra note 118.

[123] See notes 55, 63-80, 92-102 supra and accompanying text.

[124] See text supra at note 62.

[125] See text supra at note 21.

[126] See notes 18, 21-36 supra and accompanying text.

[127] Powell v. Alabama, supra note 19, 287 U.S. at 68-72, 53 S.Ct. at 63-65, 77 L.Ed. at 170-172.

[128] See notes 18, 19 supra. For a recent instance, see Holloway v. Arkansas, supra note 18, 435 U.S. at 481-484, 98 S.Ct. at 1177-1179, 55 L.Ed.2d at 433-434.

[129] See, e. g., United States v. Hurt, 177 U.S.App.D.C. 15, 18, 543 F.2d 162, 165 (1976); Diggs v. Welch, supranote 6, 80 U.S.App.D.C. at 6-7, 148 F.2d at 668-669; Leventhal v. Gavin, 421 F.2d 270, 272-273 (1st Cir.), cert. denied, 398 U.S. 941, 90 S.Ct. 1857, 26 L.Ed.2d 277 (1970); United States v. Bubar, supra note 34, 567 F.2d at 201-202; United States v. Wight, 176 F.2d 376, 379-380 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976); Wood v. Zahradnick, 578 F.2d 980, 982 (4th Cir. 1978); Jones v. Cunningham, 297 F.2d 851, 854-855 (4th Cir. 1962); United States v. Alvarez, 580 F.2d 1251, 1254-1255 (5th Cir. 1978); Collingsworth v. Mayo, 173 F.2d 695, 697 (5th Cir. 1949); Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1978); United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1057 (7th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977); United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-981 (7th Cir. 1948); Beran v. United States, 580 F.2d 324, 326 (8th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); Taylor v. United States, 282 F.2d 16, 20 (8th Cir. 1960); Farrow v. United States, 580 F.2d 1339, 1361 (9th Cir. 1978); Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963); United States v. Riebold, supra note 34, 557 F.2d at 702-703; Williams v. Cox, 350 F.2d 847, 849 (10th Cir. 1965).

[130] See text supra at notes 6-19.

[131] See notes 6-13 supra and accompanying text.

[132] See notes 34-35 supra and accompanying text.

[133] See notes 63-80, 93-101 supra and accompanying text.

[134] See text supra at notes 92-101.

[135] See text supra at notes 116-117.

[136] In Chambers v. Maroney, supra note 114, the Supreme Court addressed a contention that the assistance furnished by counsel for the accused at his second trial — an attorney different from his representative at the first trial — was ineffective owing to tardiness in the appointment of second-trial counsel. 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429-430. The Court of Appeals for the Third Circuit had found that the accused had not been prejudiced, United States ex rel. Chambers v. Maroney, supra note 114, and the Supreme Court agreed, stating that "the claim of prejudice from the substitution of counsel was without substantial basis." 399 U.S. at 54, 90 S.Ct. at 1982, 26 L.Ed.2d at 430 (footnote omitted). That statement cannot be taken as support for the proposition that the defendant bears the onus of proving prejudice. The Court of Appeals subscribed to the legal thesis "that the belated appointment of counsel is inherently prejudicial and makes out a prima facie case of denial of effective counsel, with the burden of proving absence of prejudice shifted to the prosecuting authorities," 408 F.2d at 1189-1190, and the court's sole concern was whether that burden had been met. Id. at 1188-1196. The Court of Appeals concluded that the record contained "`adequate affirmative proof' to rebut the prima facie presumption of prejudice from the belated appointment of counsel." Id. at 1195, quoting Fields v. Peyton, 375 F.2d 624, 628 (4th Cir. 1967) (footnote omitted). It was to that holding that the Supreme Court spoke, and which it affirmed. See 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429-430.

[137] Nor am I persuaded that this imposition becomes necessary on the ground that evidence bearing vitally on the impact of counsel's inadequate performance usually is solely in the defendant's possession. See Leventhal Op., ___ U.S.App.D.C. at ___, 624 F.2d at 208; MacKinnon Op., ___ U.S.App.D.C. at ___, 624 F.2d at 228. This argument overlooks the distinction between establishing substantially deficient representation, and identifying the effect of the deficiency on the outcome of the case. It is indeed the defendant's lot to delineate his counsel's departure from the constitutional norm. See text supra at notes 41-43. In so doing, the defendant may have to show just what his counsel should have done differently on the facts as he derived them from the defendant and other sources known only to him, and to this extent it may well be true that the evidence is exclusively in his hands. But that is the defendant's concern, not the Government's at all; and once counsel's deficiencies have been documented, resolution of an issue of injury to the defendant's interests does not require peculiar reference to evidence controlled by the defendant. That is accomplished instead by viewing the proven shortfalls in the context of events as they unfolded at trial. Sometimes it will necessitate an investigation into leads or witnesses neglected by defense counsel in order to ascertain what a proper investigation might have turned up and what effect any evidence thereby unearthed might have had at trial. There is no reason for assuming that with respect to these activities the accused is any better situated than the Government, and there is ample basis for believing that ofttimes his position will be relatively worse.

[138] See notes 41-43 supra and accompanying text.

[139] See notes 118-124 supra and accompanying text.

[140] See text supra at notes 54-62.

[141] See Chapman v. California, supra note 54, 386 U.S. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.

[142] United States v. Pinkney, supra note 50.

[143] 177 U.S.App.D.C. at 428-432, 543 F.2d at 913-917.

[144] Id. at 429, 543 F.2d at 914.

[145] Id.

[146] Id. at 431, 543 F.2d at 916 (footnotes omitted).

[147] Id. at 432, 543 F.2d at 917.

[148] Id. at 429-430, 543 F.2d at 914-915.

[149] The statement in the opinion that the "motion gave no indication as to the evidence, if any, by which [Pinkney] would undertake an effort at refutation" was directed solely at Pinkney's "insist[ence] upon a further opportunity to dispute the drug-involvement allegations of the Government's memorandum . . . ." Id. at 432, 543 F.2d at 917.

[150] Contrary to suggestions in other opinions, Leventhal Op., 199 U.S.App.D.C. at ___ n.75, 624 F.2d at 208 n.75; MacKinnon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 225. Pinkney never arrived at the stage at which prejudice might have become a subject of inquiry. Since Pinkney did not surmount the hurdle of suitably alleging a violation, there was no occasion to consider whether it was harmful to the outcome on sentencing.

[151] United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 431-432 n. 59, 543 F.2d at 916-917 n. 59(citation omitted).

[152] Bazelon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 279.

[153] See Judge Bazelon's excellent discussion on this point. Bazelon Op., 199 U.S.App.D.C. at ___, 624 F.2d at 278.

[154] I am mindful that the victim could not identify Decoster at trial, but that was because — after the robbery and before trial — the victim had sustained an accident impairing his vision.

[155] See Chapman v. California, supra note 54, 386 U.S. at 23, 87 S.Ct. at 827, 17 L.Ed.2d at 710 ("[t]he California constitutional [harmless error] rule . . . perhaps over emphasi[zes] . . . the court's view of `overwhelming evidence'. . . ."

[156] The victim, Trial Transcript (Tr.) (Nov. 15, 1972) 32, 41, 43, and the arresting officer, Tr. (Nov. 15, 1972) 39-41, as well as the arresting officer's partner, Tr. (Nov. 16, 1972) 12, all identified Decoster as one of the robbers.

[157] Decoster testified that he met the victim at a bar, had a drink with him, then left and returned directly to his hotel. Tr. (Nov. 16, 1972) 29-35.

[158] See Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review,13 Colum. J. of L. & Soc. Prob. 1, 83 (1977) ("a failure to interview one of several government witnesses can be shown to have been harmless when the witness' subsequent testimony was not significant"). Judge Bazelon in dissent urges that counsel's inadequate pretrial investigation deprived Decoster of informed guidance on whether to plead guilty, and advances this as an example of prejudice. Bazelon Op., 199 U.S.App.D.C. at ___, ___- ___, 624 F.2d at 292, 294-295. I am unable to agree. While it is possible to speculate that counsel failed to consult or improperly advised his client on pleading guilty, Decoster has never advanced that contention nor is there any foundation in the record for it. Aside from the difficulty that the point is not properly before us, it encounters also a far more formidable barrier. A question of harm to the accused from ineffective assistance of his counsel is not reached unless and until the accused has established both the fact and the substantiality of counsel's asserted violation. This means that the accused must delineate all essential circumstances in support of his claim when it it is readily within his power to do so. United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 430-432, 543 F.2d at 915-917; text supra at notes 142-151. Moreover, in the context of omitted or incompetent advice on a guilty plea, the required demonstration on substantiality necessitates at the threshold a showing that the accused was at least amenable to such a plea. It is a known phenomenon that some defendants in criminal cases disdain the very thought of pleading guilty, and in this instance we are left completely in the dark as to whether Decoster would willingly have entertained and seriously considered a plea, or whether instead he would have insisted upon his right to a trial.

[159] I see no need to address Decoster's remaining complaints of ineffective assistance since they also, for identical reasons, would succumb to the doctrine of harmless error.

[1] Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).

[2] Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932).

[3] Despite recent expressions of concern over lawyer incompetence, see note 169 infra, the problem is not simply that there are too few good attorneys, but that competent legal representation in the United States is grossly maldistributed. There is no dearth of competent counsel for the rich in our society. But no one can say that the same is true for the indigent. The inadequate representation received by the poor is universally recognized and is well documented by the numerous studies and commentary cited below. Nor is the problem of ineffective assistance limited to those who are technically "indigent" and are provided counsel by the court. Those who can scrape together a few dollars to hire their own attorney can retain an attorney who, for a modest fee, will generally provide "modest" services — plea negotiations and pro forma representation with little investigation, preparation or concern for their client's cause. Most indigent defendants, of course, must accept whomever the court appoints to represent them. And although the commitment and competence of court-appointed counsel has improved markedly over recent years, particularly with the development of public defender systems, its effectiveness is still handicapped by unmanageable caseloads, insufficient support services, inexperience in criminal trial practice, lack of independence from the judiciary that controls the appointments and fixes compensation, and inadequate levels of funding and fee schedules.

On the subject of indigent representation, see generally American Bar Association Project on Minimum Standards for Criminal Justice, Providing Defense Services (App. Draft 1968); American Bar Association Standing Committee on Legal Aid and Indigent Defendants, The Center for Defense Services: A Draft Discussion Proposal for the Establishment of a Nonprofit Corporation to Strengthen Indigent Defense Services (Feb. 1978 Draft) [hereinafter cited as The Center for Defense Services]; Boston University Center for Criminal Justice, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin (S. Krantz ed. 1976); L. Downie, Justice Denied (1971); National Legal Aid & Defender Ass'n, The Other Face of Justice (1973); Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 Yale L.J. 1179 (1975); Bazelon, The Defective Assistance of Counsel, 42 U.Cinn.L.Rev. 1 (1973); Bazelon, The Realities of Gideon and Argersinger, 64 Geo.L.J. 811 (1976); Wice & Suwak, Current Realities of Public Defender Programs: A National Survey and Analysis, 10 Crim.L.Bull. 161 (1974); Note,Providing Counsel for the Indigent Accused: The Criminal Justice Act 12 Am.Crim.L.Rev. 789 (1975).

With specific reference to the District of Columbia, see generally H. Subin, Criminal Justice in a Metropolitan Court (1966); Comm. of the D.C. Bar on Effective Representation of Indigents in Criminal Cases, Report on the Appointed Counsel Program in the District of Columbia Courts (Dec. 1973); Joint Comm. of the Judicial Conf. of the D.C. Cir. and the D.C. Bar (Unified), Report on Criminal Defense Services in the District of Columbia (Austern-Rezneck Report) (April 1975); Report of the Comm. on Complaints of Ineffective Assistance of Counsel (Wolf Committee Report) (June 1977); Washington Pretrial Justice Program, Report on Disposition of Complaints Against Attorneys Appointed Under the Criminal Justice Act in D.C. Superior Court (Feb. 1977).

These studies document time and again that it is primarily the indigent and the poor who suffer at the hands of incompetent counsel. I am unaware of a single decision or opinion that acknowledges this basic reality underlying the problem of ineffective assistance.

[4] 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

[5] 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

[6] Id. at 344, 83 S.Ct. at 796-797.

[7] 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).

[8] See, e. g., Mayer v. Chicago, 404 U.S. 189, 198, 92 S.Ct. 410, 416, 30 L.Ed.2d 372 (1971) (indigent convicted of offense punishable only by fine "cannot be denied a `record of sufficient completeness' to permit proper consideration of his claims"); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (indigent unable to pay fine cannot be incarcerated to satisfy offense punishable only by fine); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (incarceration of indigent unable to pay fine cannot exceed maximum statutory period); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (per curiam) (right to free transcript of preliminary hearing); Long v. District of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (per curiam)(right to free transcript on collateral appeal); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (right to free transcript on direct appeal); Smith v. Bennet, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)(waiver of filing fees for state post-conviction proceedings); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) (state cannot require indigent to pay filing fee before permitting appeal); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (right to free transcript on appeal for indigents).

[9] "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. . ." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

[10] Argersinger v. Hamlin, supra, 407 U.S. at 31, 92 S.Ct. at 2009. Accord, Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978) ("In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.").

[11] Despite numerous opportunities, the Supreme Court has never directly confronted the fundamental question of the proper standards and procedures for evaluating challenges to the effectiveness of counsel. See Maryland v. Marzullo, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White, J., with Rehnquist, J., dissenting from denial of certiorari). The Court has come closest to addressing the issue of ineffective assistance in the context of a prisoner's collateral attack on the voluntariness of his guilty plea. In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), for example, the Court stated that a petitioner seeking relief on that ground must demonstrate that the advice of counsel was not "within the range of competence demanded of attorneys in criminal cases." Id. at 771, 90 S.Ct. at 1449, accord, Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). But the Court has yet to determine the minimum standard of attorney competence required by the Sixth Amendment's guarantee of effective assistance of counsel.

[12] Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669, cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945); see, e. g., Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).

[13] 126 U.S.App.D.C. 336, 379 F.2d 113 (1962).

[14] Id. at 339-340, 379 F.2d at 116-17. In Bruce, the claim of ineffective assistance arose on collateral attack. We noted that "a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for a new trial either by the District Court or by this court on direct appeal." Id. at 340, 379 F.2d at 117.

[15] Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970) (per curiam).

[16] 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). In the subsequent opinions of this court the spelling of appellant's name has been corrected to "Dec oster," rather than "DeC oster." References in this opinion toDeCoster I, however, will retain the spelling used in that opinion.

[17] See Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc).

[18] DeCoster I, 159 U.S.App.D.C. at 331, 487 F.2d at 1202 (emphasis in original).

[19] Decoster's codefendants also were apprehended near the scene of the crime and were identified subsequently at the police station.

[20] Crump admitted having had a drink with someone in the bar just before the robbery occurred, but could not specifically remember whether he had met Decoster.

[21] Decoster was also convicted of assault with a dangerous weapon and received a sentence concurrent when his armed robbery sentence. Trial counsel failed to challenge the legality of this concurrent sentence. On the original appeal in this case, the assault conviction was vacated as a lesser included offense of armed robbery arising from the same act or transaction. DeCoster I, 159 U.S.App.D.C. at 328, 487 F.2d at 1199 n. 2.

[22] The letter, which was filed in the district court on November 13, 1970, reads as follows:

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 individual of limited education its only natural for me to protect by 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.

Yours truly, Willie Decoster, Jr.

The district court took no action on Decoster's letter and apparently made no inquiry into the substance of the charges against his attorney. See note 38 infra.

[23] Appellant had been incarcerated because he was unable to meet the $5,000 bond set for him, and not because he was deemed to pose a danger to the community. Compare 18 U.S.C. § 3146 with 18 U.S.C. § 3148.

[24] Defense counsel never did obtain a copy of the preliminary hearing. See pp. ___-___ of 199 U.S.App.D.C., pp. 271-272 of 624 F.2d infra.

[25] Apparently out of exasperation with his lawyer's inaction, Decoster, coincidentally, prepared his own pro semotion for bond review that same day. Appellant's motion was filed with the district court on November 16, 1970.

[26] Defense counsel filed the motion in U.S. District Court. It should have been filed in the D.C. Court of General Sessions, which had originally set bail.

[27] See 18 U.S.C. §§ 3146(d) & 3147; Grimes v. United States, 129 U.S.App.D.C. 308, 394 F.2d 933 (1967).

[28] In this bond review motion, counsel did indicate that the Black Man's Development Center was receptive to third-party custody. That statement, however, was the only change from the motion originally filed in the District Court a month earlier. The motion was denied by the Court of General Sessions on December 12, but the District Court granted the motion and released appellant to the Black Man's Development Center on Jan. 14, 1971, two days after a continuance was granted in appellant's trial at the prosecution's request.

[29] Decoster's codefendants had been tried five months earlier. They both pleaded guilty in the middle of their trial to one count of robbery, received suspended sentences of 18 months to 5 years, and were placed on 5-years probation.

[30] Transcript of Nov. 15, 1971 (Tr. I) at 5.

[31] Eley was committed to the D.C. Jail on November 3, 1971, pursuant to a bench warrant for probation violation issued on October 8, 1971.

[32] Taylor's address was found from a personal recognizance release form filed with the court 11 months earlier. This address proved to be out of date, however, and the belated effort to locate him was unsuccessful.

[33] Despite the trial court's directive, counsel initially was willing to wait until "later in the day" to prepare the subpoenas. Only when the trial judge pointed out that the subpoenas could be processed during the trial preliminaries did counsel move to have them prepared. Tr. I at 9-10. Even then, however, the subpoenas were not issued until after the first day of the two-day trial.

[34] The following colloquy occurred:

[U.S. ATTORNEY]: There was a notice filed under Rule 87 of the Local Rules, Your Honor, an alibi notice demand, to which the government has not yet received a response so I take it from that that there is no alibi defense in this case.

[DEFENSE COUNSEL]: If the court please, . . . I feel this motion at this time should be denied because we have not had the time under the statute to comply with the demand as made by the rules.

THE COURT: Well do you intend to rely on alibi?

[DEFENSE COUNSEL]: We may.

* * * * * *

THE COURT: Well you did announce ready for trial, [counsel], and if you are going to rely on an alibi then you must know the witnesses that you are going to use as alibi witnesses. You announced ready.

[DEFENSE COUNSEL]: If the Court please —

THE COURT: Look, I am not forgiving [the U.S. Attorney] for not filing his motion under Rule 87 timely, but nevertheless it seems to me that if you have your witnesses ready for trial there seems to be no reason why you shouldn't be able to give him the names of the people you intend to call as alibi witnesses at this time.

[DEFENSE COUNSEL]: We will proceed without the alibi witnesses. We will consider we don't have alibi witnesses.

Tr. I at 6-8.

[35] Tr. I at 13. Decoster's codefendants pleaded guilty after the prosecution had presented its case. The district judge not only presided over the codefendant's trial, but also read the probation office reports on the codefendants prior to sentencing them in September, 1971. Tr. I at 18.

[36] Tr. I at 15.

[37] Tr. I at 16. In urging the appointment of new counsel, defense counsel explained:

[DEFENSE COUNSEL]: If the court please, counsel has been in this position prior to this time where the defendant has become unhappy with counsel. Over many years in the practice of law before this court I know this situation comes up, but I do think this is perhaps an unusual dissatisfaction with counsel . . . . I feel if Your Honor would permit me to withdraw and appoint another counsel in the case for whom the defendant may have a greater regard or with whom he would have more rapport, it would be to his best interests in the long run in the appellate procedures.

Tr. I at 19.

[38] THE COURT: But I haven't found any grounds for relieving you of your assignment, [counsel]. You tell me you have prepared the case.

[DEFENSE COUNSEL]: Right. I am ready to go forward.

THE COURT: You are ready to go forward.

Id. Although appellant has not challenged his conviction on this basis, it is firmly established that when the defendant makes a pretrial challenge to the adequacy of counsel's representation, the trial court is obligated to inquire into the substance of the defendant's allegations. See, e.g., United States v. Woods, 487 F.2d 1218, 1220 n.2 (5th Cir. 1973) (trial court has responsibility to make inquiry of defendant and appointed counsel concerning defendant's claim of lack of preparation); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (reversible error for trial judge not to conduct thorough inquiry into source and factual basis of defendant's complaint; error held harmless because defendant's claim later shown to be insubstantial); Sawicki v. Johnson, 475 F.2d 183, 184 (6th Cir. 1973) (per curiam) (thorough investigation of defendant's allegations required); United States v. Morrissey, 461 F.2d 666, 669-70 & n.6 (2d Cir. 1972) (perfunctory inquiry into truth and scope of defendant's allegations, without more, constitutes reversible error; held harmless because defendant's claims were either invalid or cured by subsequent actions of attorney and judge); United States v. Seale, 461 F.2d 345, 359-60 (7th Cir. 1972) (failure to inquire into basis of defendant's dissatisfaction with counsel is abuse of discretion); Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (trial court obligated to conduct inquiry necessary to ease defendant's "dissatisfaction, distrust, and concern" for adequacy of court-appointed counsel's representation);Monroe v. United States, 389 A.2d 811 (D.C.App.1978) (Sixth Amendment imposes affirmative duty on trial court to conduct inquiry into defendant's pretrial allegations of counsel's lack of ability or preparedness; inquiry must be on record and findings of fact must be sufficient to permit meaningful appellate review). In Brown v. United States,105 U.S.App.D.C. 77, 264 F.2d 363 (en banc), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959),this court considered the scope of the trial judge's obligation to inquire into the defendant's objection to counsel. In his concurrence, Chief Justice (then Judge) Burger summarized the grounds of common agreement between the majority and dissenting opinions:

[W]hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client's objection to counsel and should withhold a ruling until reasons are made known.

Id., 105 U.S.App.D.C. at 83, 264 F.2d at 369 (Burger, J., concurring). See also United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir. 1975); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); Farrell v. United States, 391 A.2d 755 (D.C.App.1978).

Trial court inquiry into the basis of the defendant's objections is, of course, consistent with the Supreme Court's admonition that "judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases . . . ." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Moreover, an investigation into the substance of the defendant's complaint at the time it is first tendered obviates several of the difficulties appellate courts may later encounter when undertaking such inquiry. Only the trial court can conduct a full evidentiary hearing to explore the substantiality of the defendant's allegations. When the defendant charges that counsel is unprepared for trial, counsel's investigative efforts can be ascertained and evaluated without reference to subsequent developments and later-acquired knowledge. Unlike postconviction appellate review, this inquiry is not clouded by the possibility that the defendant's claim may have been motivated simply by his conviction at trial. And pretrial scrutiny of the defendant's charges not only reduces the likelihood of a postconviction ineffective assistance claim. It also creates a record that reviewing courts can rely upon when an ineffectiveness claim is raised on appeal.

More importantly, a thorough inquiry at this stage of the proceedings allows the trial court to take preventive action in those cases where the defendant's objections prove to be wellfounded. Ineffective defense advocacy can be deterred at the outset, thereby preventing Sixth Amendment deprivations and maintaining the integrity of the adversary system. Finally, the pretrial inquiry serves interests of judicial economy by helping to eliminate any deficiencies in the representation of counsel before the resources of the judicial system have been invested in a full-blown trial.

[39] Decoster I, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973).

[40] Hearings on appellant's motion for a new trial were held before Judge Waddy on February 6, 11, and 13, 1974.

[41] Remand Transcript, Feb. 6, 1974 (R.Tr. I) at 42; District Court Findings of Fact and Conclusions of Law on Remand, April 23, 1975 (Findings) at 8-9. The two officers and the complainant were the prosecution's only witnesses at trial. Crump, the victim, testified that three men accosted him on the night of the robbery; one assailant yoked him from behind, another rummaged through his pockets and removed his wallet containing $110, and the third stood a few feet in front of him holding a knife. When shown a knife by the prosecutor, Crump could not identify it, but said that it looked like the one used in the robbery. Because Crump's eyesight and memory had been damaged in an automobile accident shortly after the robbery, he was unable to identify Decoster at trial or provide further details. He did remember, however, that on the night of the robbery he had identified all three of the men who had been arrested.

At trial Officer Box identified Decoster as the man he had seen going through Crump's pockets and testified that he had chased appellant into the D.C. Annex, never losing sight of him. Box also stated that he had not observed a weapon being used during the robbery. The second police officer, Officer Ehler, also identified Decoster as the man rummaging through Crump's pockets. He said that he had chased, arrested and searched Earl Taylor, the lookout, and had found a straight razor in his pocket. Ehler made no mention of having seen a weapon during the crime, however. Ehler also testified that although all three men were searched at the time of the arrest, the items alleged to have been stolen were never recovered.

[42] R.Tr. I at 44.

[43] R.Tr. I at 37.

[44] Counsel testified, however, that he had no notes of his conference with Eley. R.Tr. I at 39. And the remand hearings produced conflicting testimony on whether Eley had been interviewed. Eley and Decoster, who were together at the time counsel claimed to have interviewed Eley, both remembered counsel having visited the cellblock. But appellant did not recall that Eley had been interviewed, id. at 64-65, 72, and Eley denied ever having spoken to counsel before trial, Remand Transcript, Feb. 13, 1974 (R.Tr. III) at 82-84. The district court, without elaborating, found Eley's testimony "incredible" and credited that of trial counsel. Findings at 14.

[45] R.Tr. I at 34. Only one witness, Officer Ehler, testified at the preliminary hearing, held 17 months before trial. Counsel testified that he noticed no discrepancy between Ehler's testimony at trial and at the preliminary hearing, R.Tr. I at 35, 41. At least one significant contradiction did exist, however. See note 106 infra.

[46] Counsel remembered having conferences with one of the government prosecutors handling Decoster's case, Daniel Toomey, and suggested that Toomey might have shown him a copy of the transcript. R.Tr. I at 40. But the preliminary hearing transcript was not even ordered by the U.S. Attorney's Office until after Toomey had handed the case over to another prosecutor. Remand Transcript, Feb. 11, 1974 (R.Tr. II) at 11, 19.

[47] Counsel similarly assumed that, following his usual practice, he had obtained appellant's arrest record at the police department, although again he could not state definitely that he had done so in appellant's case. Counsel could not find a copy of the arrest record in his files, however. R.Tr. I at 46-47.

The two U.S. Attorneys who had handled Decoster's case were also called as witnesses. Although neither could remember any particular conference with defense counsel about appellant's case, both did testify that they had frequently discussed counsel's cases with him. R.Tr. II at 10, 17-18. One prosecutor stated further that counsel's usual practice on many afternoons was to jump "in and out" of the prosecutors' offices to speak informally to them regarding discovery. Id. at 13. This prosecutor also confirmed that his files showed that Decoster's preliminary hearing transcript had been ordered on October 29, 1971, id. at 12, and that it was his practice to show the transcript to a defense attorney whenever it was requested. Id. at 12, 13.

Since the remand hearings were held over two years after Decoster's trial, it is not surprising that none of the attorneys involved could recall from memory whether any discovery was conducted. What is surprising, if not shocking, is that none of the participants had any notation in their files of any discovery having been made; indeed, none of the participants appear to have maintained any records of the pretrial discussions and exchanges of information in appellant's case. If only as a matter of good officekeeping, defense counsel should have recorded exactly when and what he saw of the prosecutor's files. And certainly it is not unreasonable to expect the prosecutor to note in his own records that certain information was made available to defense counsel. But because no records were kept by either party, the only evidence of counsel's discovery efforts consists of vague recollections and tentative testimony about the attorneys' "usual practice" in such cases. When the attorneys involved may be handling up to 300 different cases in a year, see note 89 infra, reliance on such testimony to support a finding that full discovery was conducted in any specific case seems particularly inappropriate.

[48] This was the substance of appellant's testimony at trial, as well.

[49] The exact date on which counsel received Decoster's letter is the subject of considerable dispute. Counsel claimed to have received the letter "either the day, or two, before trial, or on the date of trial [November 15, 1971]." R.Tr. I at 24. Although the letter was not dated, it indicates that it was sent from the D.C. Jail dormitory, in which Decoster had been confined from June to November, 1970, and then again for three weeks in September, 1971. Appellant did not remember writing any letters during his second period in the dormitory, and thought he might have written the letter sometime from May to November, 1970. Id. at 58-61. Despite Decoster's testimony and the address on the letter, the district court apparently credited counsel's recollection of when he had received it. SeeFindings at 12.

[50] This "self-defense" version is consistent with appellant's letter to the district judge in November, 1970, seenote 22 supra, and with Eley's testimony at trial. The letter's account, however, differs from appellant's own testimony at trial. When confronted with this contradiction at the remand hearings, Decoster reaffirmed his trial testimony and claimed that the letter was a fabrication. R.Tr. I at 70-71.

[51] R.Tr. I at 29.

[52] Counsel was unaccompanied when he interviewed Eley and counsel obtained no written statement from Eley. In fact, counsel testified that he did not even take notes of the conference. Thus, we have only the conflicting testimony of defense counsel, Eley, and Decoster as to what occurred. See note 44 supra.

[53] Ironically, counsel noted at the remand hearing that "[i]t's a cardinal rule with defense counsel that they never put on a witness unless they know what a witness is going to say and I would never have put on Eley unless I knew what he was going to say." R.Tr. I at 40.

At trial, counsel made no effort to bring to the court's attention the apparent conflict between Eley's proposed and actual testimony. This failure suggests either that, contrary to counsel's claim in the remand hearing, R.Tr. I at 40, counsel never obtained assurances from Eley as to his testimony, or that counsel negligently failed to impeach Eley's damaging testimony at trial.

[54] At the remand hearings, counsel said that he believed he had advised appellant of the consequences of requesting trial by the same judge who had heard evidence against his codefendants. R.Tr. I at 37.

[55] R.Tr. I at 45-46.

[56] Appellant's brief presses one additional claim: counsel's failure to object to the defendant's appearance before the jury in jail clothes. It is firmly established that an accused cannot, over his objection, be compelled to go to trial in prison clothing. See, e.g., Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976);Gaito v. Brierley, 485 F.2d 86 (3rd Cir. 1973); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Hernandez v. Beto,443 F.2d 634 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); cf. United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975). See alsoAmerican Bar Association Project on Minimum Standards for Criminal Justice, Trial by Jury § 4.1(b) (Approved Draft 1968). Forcing the accused to appear in jail clothes not only violates his due process right to the presumption of innocence, but also implicates the equal protection guarantee because it generally operates only against those who cannot post bail prior to trial. See Estelle v. Williams, supra, 425 U.S. at 503-06, 96 S.Ct. 1691. Because the Supreme Court has held that "the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation," id. at 512-13, 96 S.Ct. at 1697 the need for counsel to safeguard his client's rights by voicing objection at trial is imperative. Appellate counsel, however, did not raise this issue before the district court in his motion for a new trial. Consequently, the record is barren of what considerations, if any, underlay trial counsel's "decision" not to object. Although we cannot speculate on why trial counsel failed to object, his inaction on this matter certainly reflects the tenor of his general performance in this case.

[57] The district judge pointed to these seven allegations (as does the majority here) and treated them essentially as if each was asserted to be an independent event constituting ineffective assistance in and of itself. This is not the nature of appellant's claim. By isolating specific examples of counsel's alleged ineffectiveness, and then dismissing each of these breaches as either excusable or inconsequential, the trial judge and my colleagues totally ignore their aggregate effect on the quality of counsel's performance. This case does not present a series of isolated omissions and failures by counsel; it is a picture of pervasive indifference and incompetent representation — only some of which is visible in the record and manifested in the specific allegations brought by appellate counsel.

[58] At the remand hearings, appellant alleged that trial counsel had been deficient in not ensuring that Decoster's sentence was properly executed. (Appellant had not been given credit for the time he spent in custody prior to trial. As a result of a motion filed on June 19, 1972 in the district court by appellate counsel appointed by this court, the Department of Corrections clarified Decoster's sentence and credited him with the time previously served.) On April 23, 1975, in announcing its Findings, the district court rejected this sentencing-failure claim on the ground that counsel's representation of the defendant had been completed at the time this issue arose. Findings at 17. See Local Rule 2-3(a)(2), United States District Court for the District of Columbia.

[59] The district court labeled the waiver of opening argument "an informed tactical judgment on the part of defense counsel." Findings at 17. The court also found that it was the defendant who demanded to be tried by the court despite counsel's "inclinations" to have a jury trial. Id. at 15. Curiously, my colleagues find appellant's claim on this ground to be "frivolous" because he was in fact tried by a jury. But the point is that Decoster did not want a jury trial. Had counsel known prior to the morning of trial that the district judge would be forced to disqualify himself, successful arrangements might have been made to have Decoster's case heard by a different judge — and without a jury, as Decoster had requested.

The majority relies upon our great admiration and respect for the late Judge Waddy — which is shared by all the members of this court — to speculate that the appellant wanted Judge Waddy to hear the case with or without a jury, notwithstanding his participation in the earlier trial of appellant's codefendants. But the record shows only that appellant asked to be tried without a jury, and there is no indication whatsoever that he particularly wanted his trial to be before Judge Waddy. In fact, even after counsel requested that Judge Waddy disqualify himself, the defense reasserted its desire to be tried without a jury, thus indicating that a trial without a jury was its primary, if not only, concern. Tr. I at 13-14.

[60] The district court concluded that although counsel was "dilatory" in filing the motion and "erred" in filing it in the wrong court, his actions "did not, in the slightest degree, 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." Id.at 6. The district court also found that counsel knew what the transcript contained from his representation of Decoster at the preliminary hearing. Further, the court did not find any substantial variation between Ehler's testimony at the hearing and at trial. Id. at 7-8. But see note 106 infra.

[61] With respect to these allegations, the court concluded:

1. * * *

[T]his Court finds that while the proper and prudent course for [counsel] was to have interviewed the complaining witness, the police officers and the co-defendants prior to announcing "Ready", his failure to do so in this particular case does not add up to ineffective assistance of counsel warranting a new trial.

2. While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as might have been possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof. And in light of Decoster's posture and attitude during the course of these proceedings, this Court cannot say that defense counsel substantially violated any one of the duties owed to his client.

* * * * * *

3. Further, considering the record in toto, while it might appear that defense counsel was less than a "diligent conscientious advocate," the weight of the government's case at trial and supported on the hearing on remand convinces this Court that Decoster was not prejudiced thereby and not denied the "reasonably competent assistance of an attorney" under the circumstances.

Id. at 19-20.

[62] 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). Although the division of this court in today's decision places our previous ruling in DeCoster I in question, a majority of the court today explicitly reaffirms the standard adopted in that opinion: a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. See Statement of Wright, C. J.; Opinion of MacKinnon, J. at p. ___ of 199 U.S.App.D.C., at p. 222 of 624 F.2d & n.11. Cf. People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) (adoptingDeCoster I formulation). Where today's decision departs from DeCoster I is in the consequences that are held to flow from counsel's violation of a duty to his client. Regardless of the future vitality of DeCoster I as precedent within this Circuit, however, I continue to believe that the principles and analysis in that opinion should govern our approach in this and other ineffectiveness claims.

[63] DeCoster I articulated the following duties owed by counsel to a client:

In General — Counsel should be guided by the American Bar Association Standards for the Defense Function. . . .

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. . . .

(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. . . . [I]n 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.

159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04 (footnotes omitted.)

[64] DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203.

[65] The duties set forth in DeCoster I are similar to those promulgated by the Fourth Circuit in Coles v. Peyton,389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968):

Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.

[66] American Bar Association Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function (App.Draft 1971) [Defense Function Standards hereinafter cited as ABA Standards]. The ABA House of Delegates approved the second edition of the Defense Function standards on February 12, 1979. The new edition reflects the work of the ABA, its consultants, and representatives from approximately fifty nationwide groups interested in the improvement of American criminal justice. See Foreword to American Bar Association Standards Relating to the Administration of Criminal Justice, Prosecution and Defense Function (2d ed., approved draft without commentary 1979). By adopting the second edition of the Defense Function standards, with only one deletion from the first edition, both the ABA Standing Committee on Association Standards for Criminal Justice and the ABA House of Delegates have reaffirmed the continued validity of these standards as a "national norm" for measuring the effectiveness of counsel. See Hodson, Revising the Criminal Justice Standards, 64 A.B.A.J. 986, 987 (1978).

[67] ABA Standards at § 1.1(f) (2d ed. at § 4-1.1(f)) (cited in DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203 n.25).

[68] DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203 n.25.

[69] The courtroom performance of an attorney, for example, ordinarily involves many tactical and strategic judgments that are not subject to categorical prescriptions. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Tasks such as juror voir dire, witness selection, evidentiary objections, direct and cross-examination, opening and closing argument, and preparation of jury instructions may often be handled differently; what is reasonable in one case may be questionable in a different factual setting.

[70] Judge MacKinnon correctly notes that the Advisory Committee that authored the ABA Standards did not propose them "as a set of per se rules applicable to post-conviction procedures." ABA Standards at 11. As the Committee explained, "[t]he standards have been drawn with their primary impact on the conduct of prosecutors and defense counsel in mind. The larger considerations involved in a determination of whether the conduct of a prosecutor or defense lawyer was such that a conviction should be overturned are beyond the scope of the Committee's work." Id. The Committee did suggest, however, that its recommendations might prove useful "in providing a yardstick for the evaluation of the effectiveness of a lawyer's conduct when it is called into question by an attack on the validity of a conviction because of his performance." Id. at 10.

Moreover, the Committee stressed that its proposals would contribute nothing to the administration of justice if viewed as "mere paper standards." Noting that the Bar and judiciary had long been woefully lax in adequately enforcing appropriate standards of professional and ethical conduct, the Committee warned that "departures from authoritative professional standards" should no longer be tolerated. Id. In this regard, it is significant that the ABA characterized its proposals as "standards" rather than "guidelines."

[71] 159 U.S.App.D.C. at 333 n.23, 487 F.2d at 1203 n.23.

[72] In United States v. Pinkney, 179 U.S.App.D.C. 282, 290, 551 F.2d 1241, 1249 (1976), this court recognized that "[i]n order to properly fulfill his responsibilities, counsel's energies and resources should be directed as fully to the dispositional phase of the proceedings as to pretrial preparation and courtroom advocacy." Accordingly, we extended DeCoster I by setting forth minimum standards for effective representation at sentencing. Specifically, we imposed upon counsel the duty to familiarize himself with all sentencing reports in advance of the sentencing hearing, as well as the duty to confer with his client during the presentence period in order to keep the client fully informed and to ascertain his views of the dispositional alternatives and their implications. Id., 179 U.S.App.D.C. at 290-91, 551 F.2d at 1249-50. See United States v. Martin, 154 U.S.App.D.C. 359, 370-72, 475 F.2d 943, 954-56 (1973) (Bazelon, C. J., dissenting); ABA Standards § 8.1 (2d ed. § 4-8.1) (Sentencing). See alsoGadsden v. United States, 223 F.2d 627, 630 (1955) ("The right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution."), cert. denied, Hines v. United States, 350 U.S. 949, 76 S.Ct. 324, 100 L.Ed. 827 (1956).

[73] See Part IIIB, infra.

[74] DeCoster I, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.

[75] ABA Standards at 225. See ABA Standards § 4.1 (2d ed. § 4-4.1) (Duty to Investigate).

[76] See ABA Standards at 224 ("In our system of justice a trial is not an inquiry to expose previously unknown facts.").

[77] See United States v. Ash, 413 U.S. 300, 316-17, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), quoting United States v. Bennett, 409 F.2d 888 (2d Cir.), cert. denied, [Haywood v. United States; Jessey v. United States], 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969).

[78] ABA Standards at 224. See Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970) (en banc) ("[R]epresentation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance.").

[79] A. Amsterdam, B. Segal & M. Miller, Trial Manual for the Defense of Criminal Cases § 106 (3d ed. 1976) (emphasis added).

[80] Congress has recognized the critical importance of adequate pretrial investigation through the adoption of the Criminal Justice Act. That Act provides that:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

18 U.S.C. § 3006A(e)(1) (1976). The statute has been interpreted to authorize payments in those circumstances "in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them." United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973). Accord, United States v. Theriault, 440 F.2d 713, 717 (5th Cir. 1971) (Wisdom, J., concurring), on appeal after remand, 474 F.2d 359 (per curiam), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973). See also Mason v. State of Arizona, 504 F.2d 1345, 1354 (9th Cir. 1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975) ("a state court should probably view with considerable liberality a motion for such pre-trial assistance"); United States v. Tate, 419 F.2d 131, 132 (6th Cir. 1969) ("Congressional purpose in adopting this statute was to seek to place indigent defendants as nearly as may be on a level of equality with nonindigent defendants in the defense of criminal cases"); Pye,The Administration of Criminal Justice, 66 Colum.L.Rev. 286, 291 (1966) (describing the investigative provisions of the CJA as one of the Act's chief purposes).

Despite the availability of CJA funds both for hiring independent investigators and for compensating counsel who perform such services themselves, few court-appointed counsel make use of the Act to support investigations on behalf of their clients. In fiscal year 1975, for example, the D.C. Superior Court issued CJA orders appointing counsel in 12,130 adult cases (felonies and misdemeanors) and 5,167 juvenile cases. Yet payments were made to investigators in only 109 adult and 13 juvenile cases. (The Public Defender Service, which has a fulltime investigative staff, handled an additional 212 investigations for court-appointed counsel.) In 1976, the figures were comparable: of 13, 536 adult and 5,337 juvenile cases, investigative payments were made in 386 and 255 cases, respectively (with the Public Defender Service providing aid in an additional 156 cases).

One explanation for the infrequency with which court-appointed counsel request investigative expenses is their fear, often reinforced by comments from trial judges, that any money spent on such services will eventually be subtracted from the remuneration the attorneys themselves would otherwise receive. See Tague, The Attempt to Improve Criminal Defense Representation, 15 Am.Crim.L.Rev. 109, 131 (1977); Austern-Rezneck Report, supranote 3, at 45. Moreover, the Criminal Justice Act itself, by compensating attorneys at rates of $30 per hour for time expended in court and only $20 per hour for out-of-court time, provides a disincentive for counsel to perform their own investigatory work. See 18 U.S.C. § 3006A(d)(1) (1976).

[81] See generally G. Shadoan, Law and Tactics in Federal Criminal Cases 7 (1964); Young Lawyers Section, D.C. Bar Ass'n, 11th Annual Criminal Practice Institute — Trial Manual §§ 2.1, 2.12 (1974).

[82] While the majority properly notes that the Constitution contains no mandate that counsel "leave not the smallest stone unturned," Opinion of Leventhal, J., at ___ of 199 U.S.App.D.C., at 210 of 624 F.2d, Decoster's attorney did not turn over even the largest boulder.

[83] "[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." DeCoster I, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.

[84] See A. Amsterdam, B. Segal & M. Miller, supra note 79, § 95.

[85] Despite the obvious value of a transcript of appellant's preliminary hearing for use in impeaching the prosecution's witnesses, see, e. g., id. §§ 132, 144, counsel ignored his client's requests and did not even take the simple step of obtaining a copy. See pp. ___-___ of 199 U.S.App.D.C., pp. 271-272 of 624 F.2d, supra. Yet, acquiring the ability to impeach government witnesses is particularly crucial when, as the district court here observed, "the only defense available . . . was putting the government to its proof." Findings at 19. See note 106infra.

[86] Judge MacKinnon notes that there was no assurance that the prosecution witnesses would have consented to interviews by defense counsel. Opinion of MacKinnon, J., at ___ of 199 U.S.App.D.C., at 238 of 624 F.2d. Unfortunately, due to counsel's failure even to attempt to obtain interviews, we will never know whether permission would have been granted. (Of course, witnesses — particularly police officers — are the property of neither the prosecution nor the defense, and as citizens they have a moral, if not legal, obligation to talk to defense counsel in order to prevent an unfair trial. Cf. Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966) (prosecutor's advice to witnesses not to talk to anyone unless he was present was unprofessional and denied defendant a fair trial)). But the issue before us is not whether these witnesses would have spoken to counsel upon request, but whether counsel who makes no effort to interview critical prosecution witnesses should be considered to be providing effective assistance to his client.

[87] Further support for the inference that counsel had not even formulated a coherent defense strategy is found in the events that occurred at the outset of trial: the confusion over whether an alibi defense would be presented, the belated efforts to subpoena appellant's codefendants, the offer to waive jury trial, and the failure to make an opening statement. At best, these episodes reflect the futile attempts of a defense attorney to cope with an unfortunate predicament brought about by his own inadequate preparation. At worst, they represent the visible tip of an iceberg of inexcusable attorney failures and oversights.

[88] DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203. Counsel's duty to confer with his client also includes the obligation to "discuss fully potential strategies and tactical choices . . . ." Id. See ABA Standards § 3.8 (2d ed. § 4-3.8) (Duty to Keep Client Informed).

Although the inquiry on remand focused on counsel's investigative efforts, two particular revelations indicate that communications between counsel and appellant were minimal. First, at the outset of trial, Decoster requested the court to subpoena his codefendants, explaining that he "didn't have a chance" to talk to his lawyer about this crucial matter of the witnesses that the defense expected to call. See p. ___ of 199 U.S.App.D.C., p. 269 of 624 F.2d supra. Cf. ABA Standards § 5.2(b) (2d ed. § 4-5.2(b)) ("The decisions on what witnesses to call . . . are the exclusive province of the lawyer after consultation with his client.") (emphasis added).

Further, the letter that Decoster sent his attorney sometime before trial opened with the following sentences: "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." Supplementary Brief and Appendices for Appellee, at 48. At the remand hearings, counsel indicated that he had no specific recollection of when he last saw appellant before trial, but suggested that he "might have had contact with him within the week before, ten days before." R.Tr. I at 44. Appellant gave no testimony on this issue.

[89] Counsel's failure to investigate and confer with his client more frequently may have resulted from his inability to devote sufficient time to each of his cases. The records of the Administrative Office of the United States Courts reveal that in 1972, the year that Decoster went to trial, his attorney received payments under the Criminal Justice Act totalling $51,098.47 for handling 284 different cases — more than one case for every working day. This total, of course, does not include any criminal and civil cases that Decoster's attorney may have handled on a retained basis. Compare ABA Standards § 1.2(d) (2d ed. § 4-1.2(d)) ("A lawyer should not accept more employment than he can discharge within . . . the limits of his capacity to give each client effective representation.").

Unfortunately, many court-appointed counsel maintain unmanageable caseloads, in part because a high-volume business is required to compensate for low fee schedules under the CJA. See, e. g., United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970) (court-appointed attorneys were carrying from 600 to 800 cases per year, and often handled 40 to 50 cases a day); Colson v. Smith, 315 F.Supp. 179 (N.D.Ga.1970), aff'd, 438 F.2d 1075 (5th Cir. 1971) (petitioner's court-appointed counsel was handling approximately 5,000 criminal cases a year); Austern-Rezneck Report, supra note 3, at 11 (eleven D.C. attorneys frequently mentioned as either incompetent or uninterested and overloaded with cases were appointed to a total of 657 felonies, 576 serious misdemeanors, and 60 less serious misdemeanors in one year; one handled 113 felonies and 86 serious misdemeanors; another had 136 felonies and 50 serious misdemeanors); Report on Appointed Counsel Program in D.C. Courts, supra note 3, at 15-17 (in many felonies, less than 10 hours is expended on entire case; some attorneys are handling over 200 felonies per year).

Similar caseload problems often impair the ability of public defender organizations to provide effective assistance.See generally The Center for Defense Services, supra note 3, at 21-23; 4 National Institute of Law Enforcement and Criminal Justice (LEAA), The National Manpower Survey of the Criminal Justice System: Courts 22-24 (1978); NLADA, The Other Face of Justice 29 (1973). In the District of Columbia, the Public Defender Service has attempted to ensure that the quality of its representation does not suffer because of overloaded calendars by adopting limits on the number of cases that any attorney may carry. See Austern-Rezneck Report, supra note 3, at 99-100 (setting maximum of 30 open cases per attorney at any time, 20 in an active posture, and expecting that no attorney will close more than 120 criminal cases annually); id. at 122-23 (recommending similar maximum caseload standards for all CJA counsel). Cf. Wallace v. Kern, 392 F.Supp. 834, 848-49 (E.D.N.Y.) (Legal Aid Society's caseload too high to allow for effective assistance of counsel; Legal Aid enjoined from accepting additional cases until average attorney caseload falls below 40), vacated on jurisdictional grounds, 481 F.2d 621 (2d Cir. 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974); Wagner, Colorado Defenders Fight Excessive Caseload, 6 Nat'l Legal Aid & Defender Ass'n Washington Memo 1 (October 1977) (Colorado public defenders refused further appointments because of case overload; judge agreed to assign cases to private counsel until caseload becomes manageable).

[90] DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203. One of the rights that can be protected only by prompt legal action is "the accused's right to be released from custody pending trial." Id.

[91] Counsel's failure to see that Decoster properly received credit for the 310 days he had been incarcerated prior to his trial on the instant offense is also noteworthy — not because it constituted a specific violation of a duty owed to appellant, but because it illustrates the indifference of counsel to his client's rights.

[92] United States v. Pinkney, supra note 72, 179 U.S.App.D.C. at 290, 551 F.2d at 1249. See generally, American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures (App. Draft 1968).

[93] Sentencing Transcript, March 3, 1972, at 3.

[94] Indeed, our position is that a finding of ineffective assistance need not automatically require the reversal of an appellant's conviction. See notes 121 & 131 infra.

[95] DeCoster I, 159 U.S.App.D.C. at 330, 487 F.2d at 1201. See, e. g., United States v. Moore, 174 U.S.App.D.C. 113, 529 F.2d 355 (1976); United States v. Brown, 155 U.S.App.D.C. 177, 179, 476 F.2d 933, 935 (1973) (per curiam); Campbell v. United States, 126 U.S.App.D.C. 250, 251, 377 F.2d 135, 136 (1966). By the same token, we have also stressed that "when counsel's choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel." DeCoster I, 159 U.S.App.D.C. at 330, 487 F.2d at 1201.

[96] Even absent a showing of substantial violation under the Sixth Amendment, the due process clause of the Fifth Amendment guarantees defendants protection against prejudicial errors by their counsel. See note 121 infra.

[97] 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). See note 65supra. The duties enumerated in Coles have recently been reaffirmed by the Fourth Circuit as "a definitive, objective description of the competency normally demanded of counsel in certain aspects of their service."Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978).

[98] This does not mean, of course, that a defendant has no recourse for minor attorney errors not amounting to ineffective assistance. But where counsel's error amounts to no more than an isolated misstep in an otherwise reasonably competent performance, there are nonconstitutional doctrines other than ineffective assistance that are better suited to protect the interests of the defendant. For example, a reviewing court's authority to notice "[p]lain errors or defects affecting substantial rights," Fed.R.Crim.P. 52(b), permits this court to address and rectify attorney errors that arise during the course of the trial proceedings, particularly omissions such as the failure to move for the suppression of inadmissible evidence. Under 28 U.S.C. § 2106 (1976), federal appellate courts are empowered to fashion any remedy that is "just under the circumstances." Cf. Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967) (reversing conviction on basis of "misgivings" about counsel's performance without finding any constitutional violation). And in our supervisory function, we have the responsibility to preserve the orderly functioning of the trial courts and the obligation to protect the rights of the accused. SeeMcNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). Thus, at least on direct appeal, these doctrines provide ample authority to remedy those errors of trial counsel that may not rise to the level of constitutional violations.

[99] See United States v. Clayborne, 166 U.S.App.D.C. 140, 509 F.2d 473 (1974) (failure to interview witness justified because client had been in frequent contact with witness).

[100] Findings at 6, 10. Judge MacKinnon refers to these contacts between the defendant and his attorney as "interviews," Opinion of MacKinnon, J., at p. ___ of 199 U.S.App.D.C., at p. 233 of 624 F.2d, but the district court found only that counsel had appeared with appellant in court on six occasions prior to trial. When at trial appellant accused counsel of inadequate representation, counsel asserted that he had conferred regularly with his client. As noted previously, however, the record contains several indications that communications between appellant and counsel were minimal at best. See note 88 supra.

[101] Judge MacKinnon suggests that counsel acquired further knowledge of the case from the government's file and the grand jury testimony. Opinion of MacKinnon, J., at ___ of 199 U.S.App.D.C., at 233 of 624 F.2d. Although it was not established that counsel ever availed himself of the opportunity to examine these materials, even full access to the government file is no substitute for personal interview and investigation. Surely, one cannot believe that the prosecutor will ask — and record the answers to — all or even most of the questions that defense counsel would want answered in preparing the defense.

[102] Judge MacKinnon apparently would go one step further and require an attorney to refrain from investigation if he believes his client to be guilty. Opinion of MacKinnon, J., at ___-___ of 199 U.S.App.D.C., at 239-240 of 624 F.2d. Judge MacKinnon points to the ethical standards of the legal profession that prohibit an attorney from assisting a client who wishes to present false testimony. He also cites Justice (then Judge) Stevens' statement that when a defendant admits guilt to his attorney, the attorney has no duty to search for a witness who might testify falsely. Id. at ___ of 199 U.S.App.D.C., at 239 of 624 F.2d. See Opinion of Leventhal, J., at ___-___ of 199 U.S.App.D.C., at 209-210 of 624 F.2d (citing passage in full).

But an attorney's duty not to present perjured testimony is not a mandate to abjure investigation on behalf of his client, as appears to have happened here. In our adversary system it is not the attorney's role to prejudge the guilt or innocence of his client. And, even in those cases where a defendant admits guilt to his attorney, the attorney must conscientiously gather information to protect the defendant's interests at all stages of the criminal process.See note 103 and pp. ___-___ of 199 U.S.App.D.C., pp. 286-289 of 624 F.2d infra.

[103] Indeed, a lawyer's complete, independent investigation is so vital a component of effective representation that even the defendant's confidential admission of guilt does not affect the obligation and scope of counsel's duty to investigate. The ABA Standards explicitly state that "[t]he duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty." ABA Standards § 4.1 (2d ed. § 4-4.1). Whether the client decides to plead guilty or to go to trial, investigation is essential in fulfilling the lawyer's role of raising mitigating factors and obtaining the most favorable disposition for the defendant in the contexts of pretrial release, charging and plea negotiations, argument to the jury, and sentencing. See ABA Standards at 227.

[104] Such attitudes can only exacerbate what is already a serious problem of defendant mistrust of court-appointed counsel. See, e. g., J. Casper, American Criminal Justice: The Defendant's Perspective 106-15 (1972); ABA Standards at 197-98; Wice & Suwak, supra note 3, at 171.

[105] The dangers that can result from excusing counsel's inadequate representation on the ground that his client's "guilt is obvious" are vividly illustrated by a series of events occurring shortly after appellant's trial involving the same attorney whose performance is challenged in the present case. In December 1971, Decoster's lawyer was appointed to represent another indigent defendant, Samuel A. Saunders, who was accused of purse snatching. (D.D.C., Cr. No. 2004-71). The victim, an elderly woman who owned a restaurant near Saunders' residence, saw Saunders some five and a half weeks after the robbery, called the police, and had him arrested. Although the Bail Agency recommended release with third-party custody, bond was set for Saunders at $5,000. Decoster's lawyer filed no motion for bond reduction or review; as a result, Saunders remained incarcerated through the trial and appellate stages. Memorandum of Points and Authorities in Support of Defendant's Motion for Release Pending New Trial at 2, United States v. Saunders (D.D.C. Cr. No. 2004-71).

Saunders, who spent over 9 years in an institution for the mentally retarded and is half-blind, id., maintained that he was innocent and that he had been working on the day of the robbery. Trial Transcript of March 2, 1972 (Tr.), at 90, 92. Decoster's lawyer evidently did not believe him; as in the present case, the lawyer apparently conducted no investigation whatsoever. At trial, Saunders' entire defense consisted of his own testimony. Counsel offered no opening statement. On direct examination, he elicited a statement from Saunders that he had not stolen the purse. Id. at 81. Decoster's lawyer made no attempt to develop the defense beyond this single denial. On cross-examination, counsel sat silently as Saunders became increasingly confused about whether each question of the U.S. Attorney referred to the day of the robbery or the day of his arrest. Id. at 84-90. Nor did counsel attempt to clarify matters on redirect, despite the prosecutor's use of this confusion to imply that Saunders was lying. The most critical dereliction, however, was the lawyer's failure to pursue either in redirect examination or through post-trial investigation, Saunders' assertion during cross-examination that he had been working for the D.C. Employment Service on the day of the robbery and that "they will verify that date." Id. at 91.

Not surprisingly, Saunders was convicted and sentenced to 2-6 years. Fortunately, this court appointed a conscientious attorney to represent Saunders on appeal. This lawyer, after reading the transcript of the trial, was disturbed by Saunders' protestations of innocence, and she had her secretary call the U.S. Employment Service. The labor office checked their records for the date of the robbery and found indisputable documentary proof that Saunders had been working on a Washington Star delivery truck on that day and was nowhere near the scene of the crime. Defendant's Motion for New Trial with Supporting Affidavits and Memorandum of Points and Authorities in Support Thereof. The district court granted a motion for a new trial based on the newly-discovered evidence and the charges against Saunders were dismissed. In the meantime, Saunders had spent a year in jail for a crime he had not committed.

Saunders, of course, could demonstrate prejudice, even under the majority's proposed analyses. But there are undoubtedly countless other indigent defendants, like Decoster himself, who are represented with the same callous indifference by court-appointed trial counsel, and who are not fortunate enough to have indisputable evidence, preserved in documentary form, attesting to the prejudice they have suffered. Even if many of these defendants are "probably guilty," they deserve the effective services of a lawyer who is a "conscientious advocate in their behalf." And we can achieve this end only by assuring that counsel fulfills the minimum obligations of a competent attorney without regard to his — or our — subjective beliefs about the defendant's guilt.

[106] There can be no similar excuse, however, for counsel's failure to obtain the transcript of Ehler's testimony at the preliminary hearing. Had counsel done so, he might have been able to turn the officer's testimony to appellant's advantage, by noting the discrepancies between Ehler's testimony at trial and at the preliminary hearing. Although the district court did not find "any substantial variation" in Ehler's testimony, there was one glaring inconsistency. At trial, Ehler identified Decoster as the assailant who went through Crump's pockets. Trial Transcript, Nov. 16, 1971 (Tr. II), at 12. Yet at the preliminary hearing almost a year and a half earlier, Ehler stated that he did not know which of the attackers was holding Crump and which was rummaging through his pockets. Preliminary Hearing Transcript, June 8, 1970 (P.T.), at 8. Although the identity of the assailant responsible for seizing Crump's wallet is legally immaterial, the obvious and unexplainable discrepancy in Ehler's testimony could have been valuable in impeaching the officer's credibility.

Officer Ehler also testified at the preliminary hearing that he had seen Earl Taylor acting as a lookout in the robbery; Ehler did not mention that Taylor had a weapon. Yet at trial, counsel made no attempt to explore the seeming inconsistency between Ehler's version of the events and that of Crump, who, despite having lost his memory in an automobile accident, stated that Taylor had held a knife on him. Tr. I at 30. In this regard, it might also have been significant that appellant's codefendants pleaded guilty to robbery, rather than armed robbery, and received significantly lighter sentences than Decoster.

[107] Also, had counsel investigated the scene of the crime, he might have been able to discover whether it was in fact possible, as Officer Box testified, that the pursuing officer could have followed Decoster from the parking lot and into the hotel lobby without ever losing sight of him.

The majority would excuse counsel's failure to interview other possible witnesses as well. It is said that the "abstract possibility" that the desk clerk or other possible witnesses at the hotel or bar might have provided useful testimony "is not only speculative but remote in the extreme." Opinion of Leventhal, J., at p. ___ of 199 U.S.App.D.C., at p. 211 of 624 F.2d. My colleagues may be correct that no material information could be elicited from such an investigation. On the other hand, it is also possible that the desk clerk was away from his post and had seen appellant enter the lobby. Similarly, he might have confirmed that appellant's demeanor clearly indicated that he had not been running for any length of time before entering the hotel. These differing conjectures simply prove the main point: Counsel should have investigated and interviewed potential witnesses to determine what they had to offer, so that neither he — nor we — would be compelled to speculate, post hoc, as to what the witnesses would have said.

[108] Findings at 19.

[109] Cf. Stokes v. Peyton, 437 F.2d 131, 137 (4th Cir. 1970) (failure to interview cannot be justified by attorney's belief that testimony would not help).

[110] The district court and majority opinions emphasize that prior to the letter, appellant had not suggested that his codefendants might be valuable defense witnesses. It is true, of course, that defense counsel often must rely upon his client as a primary source of information, particularly if an alibi defense is alleged and the defendant claims to have been elsewhere. But defense counsel's duty is to conduct an independent investigation; he cannot limit himself to interviewing only those whom the defendant affirmatively requests to be contacted. Defense counsel knew that Decoster's codefendants allegedly participated in the robbery and that Decoster claimed that he was not with them. This certainly should have alerted counsel to the need to contact them. Furthermore, even after appellant told counsel by letter that his codefendants would support his version of the events, counsel made no effort to contact them. It was Decoster himself who insisted at trial that they be subpoenaed and interviewed.

[111] In many cases, courts have found ineffective assistance without even inquiring into the communications between counsel and client. A lawyer's failure to uncover exculpatory evidence that should have been found, or more generally, his failure to make a thorough investigation, has been found to constitute ineffective assistance.See, e. g., McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974);Johns v. Perini, 462 F.2d 1308 (6th Cir.), cert. denied, 409 U.S. 1049, 93 S.Ct. 519, 34 L.Ed.2d 501 (1972);Pennington v. Beto, 437 F.2d 1281 (5th Cir. 1971); Andrews v. United States, 403 F.2d 341 (9th Cir. 1968); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963); McLaughlin v. Royster, 346 F.Supp. 297 (E.D.Va.1972); Kott v. Green, 303 F.Supp. 821 (N.D.Ohio 1968); Goodwin v. Swenson, 287 F.Supp. 166 (W.D.Mo.1968); Smotherman v. Beto, 276 F.Supp. 579 (N.D. Tex.1967).

[112] Contrary to the assertion by other members of this court that imposing a duty to investigate in this case would be equivalent to requiring counsel to assist the accused in fabricating a defense, investigation is critical for the very reason that it will prevent lawyers from unwittingly presenting perjured testimony, as apparently occurred in this case. Counsel is of course under no duty to fabricate defenses, but a lawyer does have an obligation to make reasonable inquiry into whether any valid defenses do exist. See Jones v. Cunningham, 313 F.2d 347, 353 (4th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 42, 11 L.Ed.2d 63 (1963). Moreover, counsel can discover whether the testimony of his client or a witness is truthful only by conducting a complete, independent investigation.

[113] In addition to the evidence in the trial record, Judge MacKinnon suggests there is evidence that prior to his sentencing, Decoster in effect admitted his guilt in a letter to the trial judge. Opinion of MacKinnon, J., at ___ of 199 U.S.App.D.C., at 234 of 624 F.2d. Although we do not know what DeCoster said in that letter, it would be a mistake to place too much significance on appellant's representations at sentencing. Even those defendants who are convinced of their innocence are reluctant to press their contentions before the court at that time out of fear that they will receive a lengthier sentence if they do not accept responsibility and show remorse for their conduct.See Tague, supra note 80, at 123 n.82. Cf. United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (defendant's apparent truthfulness while testifying on his own behalf is probative of his attitudes towards society and prospects for rehabilitation and hence relevant to sentencing).

[114] Opinion of Leventhal, J., at ___ of 199 U.S.App.D.C., at 214 of 624 F.2d. Accord, Opinion of MacKinnon, J., at ___ & ___ of 199 U.S.App.D.C., at 234 & 242 of 624 F.2d.

[115] In discussing the scope of a proper investigation, for example, Judge Leventhal refers to the requirement that information alleged to have been overlooked must be material to the defense. Opinion of Leventhal, J., at ___, ___ of 199 U.S.App.D.C., at 210, 211, of 624 F.2d. (With this general proposition I can agree, although I suspect that in application, my interpretation of what information is material would differ from the majority's.) Yet in assessing Decoster's claim that counsel failed to conduct an adequate investigation, Judge Leventhal repeatedly requires the appellant to show not that certain information was material, but that it likely would have affected the outcome. E.g., Opinion of Leventhal, J., at ___- ___ of 199 U.S.App.D.C., at 212-213 of 624 F.2d. Thus, if appellant was guilty, his lawyer need have conducted no investigation.

Although an inquiry into the effect on outcome — however broadly that term is defined — may be a relevant factor in the question of reversal, it should not bear on the effectiveness of the attorney's performance. See note 131 infra.

[116] "Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered." Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948). See ABA Standards § 5.1(a) (2d ed. § 4-5.1(b)) ("After informing himself fully on the facts and the law, the lawyer should advise the accused with complete candor concerning all aspects of the case, including his candid estimate of the probable outcome.").

[117] See ABA Standards § 6.1(b) (2d ed. § 4-6.1(b)) (Duty to Explore Disposition Without Trial).

[118] See Brady v. United States, 397 U.S. 742, 752 n.10, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969) (reporting estimates that between 90% and 95% of all criminal convictions are by pleas of guilty).

[119] Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Burger, C. J.).

[120] The present case highlights the importance of conducting a prompt and thorough investigation. Although no inquiry was made on remand into counsel's role, if any, in advising appellant on seeking a plea bargain, the record does reveal that the possibility of a plea was raised at some time during the proceedings. R.Tr. I, at 15-16, 18. In light of the utter lack of investigation conducted by defense counsel, and the apparent unfamiliarity of counsel with the circumstances of the offense and the background of his client, there must be serious doubt that he could have offered his client competent advice regarding the acceptance of a possible plea bargain. There must be serious doubt, as well, whether counsel could have capably negotiated with the prosecution on his client's behalf.

[121] Separating the inquiry into the adequacy of counsel's performance from that of prejudice to the defendant reflects the distinction between the Sixth Amendment right to the effective assistance of counsel and the Fifth Amendment right to a fair trial. Although demonstrating a likelihood of prejudice may be required to make out a due process claim under the Fifth Amendment, it should be clear that prejudice is not an element that must be shown in establishing a violation of the Sixth Amendment. See, e. g., Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc) ("[T]he ultimate issue is not whether a defendant was prejudiced by his counsel's act or omission, but whether counsel's performance was at the level of normal competency."). Indeed, this distinction between the Fifth and Sixth Amendment sources of the right to effective assistance was the basis for this circuit's rejection of the due process "farce and mockery" test in favor of the "reasonably competent assistance" standard. See pp. ___-___ of 199 U.S.App.D.C., pp. 266-267 of 624 F.2d supra.

Judge MacKinnon's reliance on the line of Fifth Amendment cases to support his view that the defendant must prove "unfair prejudice" is thus misplaced. See Opinion of MacKinnon, J. at ___-___ of 199 U.S.App.D.C., at 226-227 of 624 F.2d. Similarly inapposite are those pre-DeCoster I cases in our circuit — e. g., Mitchell, Bruce, Hammonds, Matthews, Harried, Scott — in which, consistent with the Fifth Amendment, the defendant bore the burden of demonstrating that he had been denied a fair trial. The defendant's due process rights under the Fifth Amendment are simply not coextensive with the Sixth Amendment right to the effective assistance of counsel.

[122] Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

[123] The majority opinions read United States v. Pinkney, 543 F.2d 908 (1976), as requiring the defendant not only to show a substantial breach of counsel's duties but also to demonstrate that the violation affected the proceedings' outcome. The case does not so hold. In fact, Judge Robinson's opinion in Pinkney carefully distinguished between the appellant's burden of showing a substantial violation and the government's burden of proving lack of prejudice to the outcome. Pinkney simply held that as a procedural prerequisite to an evidentiary hearing on a motion for a new trial, id., 177 U.S.App.D.C. at 431, 543 F.2d at 916 n.59, the appellant "must set forth evidence upon which the elements of a constitutionally deficient performance might properly be found." Id.,177 U.S.App.D.C. at 431, 543 F.2d at 916. Further, "only if evidence offered at a hearing tended to establish the elements would the Government have been summoned to disestablish prejudice." Id., 177 U.S.App.D.C. at 431, 543 F.2d at 916 n.59. In the present case, appellant has established the elements of a Constitutional violation by demonstrating an unjustifiable violation of counsel's duty to investigate. In Pinkney, where there was no claim of inadequate investigation, counsel's failure to refute the government's sentencing allocution could have amounted to ineffective assistance only if counsel had failed to discuss the allegations with his client or if counsel had known of information contradicting the government's allegations but had failed to bring that information to the court's attention. The petitioner was denied relief because the record contained no evidence to support either hypothesis, not because the petitioner had failed to show prejudice.

Indeed, the only reference in Pinkney to prejudice to the outcome is contained in footnote 59, where the court explicitly stated:

Our conclusion in this regard in no way impinges upon the rule, which we readily reaffirm, that once a substantial violation of counsel's duties is shown, the Government's burden is to demonstrate lack of prejudice therefrom. . . . [I]f . . appellant had met these preconditions [i. e., had offered evidence tending to establish that counsel had failed to inform him of the Government's allocution memorandum], the Government would then have encountered the burden of proving that counsel's dereliction did not harm appellant — for example, because the allocution memorandum actually had no effective role in the sentencing process.

Id.

[124] 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

[125] Id. at 85-86, 96 S.Ct. 1330.

[126] Judge Leventhal apparently seeks to distinguish Geders on the ground that counsel's effectiveness had been impeded by "direct state interference," whereas in the instant case, counsel's performance is "untrammelled and unimpaired" by state action. See Opinion of Leventhal, J., at ___ & ___ of 199 U.S.App.D.C., at 201 & 202 of 624 F.2d. The issue, however, is not whether the state is to be blamed for counsel's actions, but whether the defendant's constitutional rights were violated. The Sixth Amendment entitles the accused to the effective assistance of counsel. From the defendant's perspective, it is difficult to see how the cause of counsel's derelictions could bear any relationship to the prejudicial effect on the defendant's interests. Of what possible significance is it to a defendant whether his counsel fails to present closing argument because the court denies him that opportunity, see Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), or because he foregoes it in order to avoid a parking ticket? See United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1973).

Moreover, it is difficult to perceive a rational basis for partitioning the continuum of ineffective assistance cases on the basis of governmental "structural or procedural impediments." State action permeates the entire criminal process. It is the state that formulates and prosecutes the charges against the accused. It is the state that provides the forum for the defendant's trial and sets the rules that govern those proceedings. It is the state that punishes the convicted offender for his wrongdoing. And, most critically for the indigent defendant, it is the state that provides the assistance of counsel so indispensable to the fair administration of our adversary system of criminal justice. If counsel's conduct has deprived the defendant of his constitutional rights, then it is the state's responsibility, through the courts, to vindicate those rights.

[127] 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).

[128] Id. at 484, 98 S.Ct. 1173.

[129] Judge MacKinnon attempts to account for these and other cases in which the defendant is not required to demonstrate prejudice, see, e. g., Herring v. New York, supra, by characterizing them as cases in which the accused has "actually" been denied the assistance of counsel. Opinion of MacKinnon, J., at ___ of 199 U.S.App.D.C., at 229 of 624 F.2d. Geders, for example, is interpreted as a case in which, for the period of the overnight recess, the defendant was denied the "actual" assistance of counsel; Holloway is described as a case in which the petitioners were denied "full representation" by counsel. In these situations, Judge MacKinnon explains, the denial of the "actual assistance of counsel" is apparent on the face of the record and further prejudice is not required. In those cases in which counsel has merely provided inadequate assistance, however, the defendant must prove that counsel's assistance was so ineffective as to constitute the equivalent of non-assistance of counsel. The distinction contained in Judge MacKinnon's verbal formalism simply does not correspond to the reality of ineffective assistance. Judge MacKinnon nowhere explains why a defendant whose counsel cannot consult with him overnight has been denied the "actual" assistance of counsel, while Decoster's counsel, who declined to consult with Decoster at all, was providing "actual assistance." Nor does Judge MacKinnon explain when "full representation" has been denied, much less when such denial is apparent.

I submit that anytime the record reveals that counsel has substantially violated the duties owed to his client, the denial of the "active" assistance of counsel is apparent. The Sixth Amendment demands more than placing a warm body with a law degree next to the defendant. "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, supra, 397 U.S. at 771, n.14, 90 S.Ct. at 1449, n.14. "The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee . . . ."Holloway v. Arkansas, 435 U.S. at 490, 98 S.Ct. at 1182. A defendant is no less harmed when counsel is present but fails to perform the duties owed to his client than when counsel is absent altogether. I fail to see how a defendant is any more damaged by the failure to have an opportunity to consult with counsel during one overnight recess in a ten-day trial than by the near-total failure of his attorney to investigate and consult with him prior to trial. See Cooper v. Fitzharris, 586 F.2d 1325, 1338 (9th Cir. 1978) (en banc) (Hufstedler, J., with Ely & Hug, JJ., concurring and dissenting) ("It makes little sense to distinguish between cases where counsel is denied and cases where counsel is incompetent because representation by incompetent counsel may be little or not better than no representation at all."). In either case, the defendant has been denied the effective assistance of counsel; and in neither case does the Sixth Amendment violation hinge on a showing of prejudice.

[130] A majority of the members of this court today agree that counsel's performance was at least subject to serious question, if not condemnation. See Opinion of Robinson, J., at ___ of 199 U.S.App.D.C., at 262 of 624 F.2d; Opinion of Leventhal, J., at ___ of 199 U.S.App.D.C., at 211 of 624 F.2d. And the trial judge on remand also indicated that he had serious misgivings about counsel's performance. Findings at 20.

[131] This approach clearly separates the question of whether the appellant's Sixth Amendment rights were violated from the question of prejudice. See note 121 supra. This distinction is critical because it recognizes that even in those cases where a new trial is not required because the defendant was not prejudiced, counsel's performance may still have been ineffective. It thus allows courts to identify and brand as ineffective any conduct falling below the minimum standards of competent lawyering, without regard to the client's guilt or innocence. This determination should help deter defense counsel from violating the duties owed to their clients. Cf. Opinion of Robinson, J., at ___ of 199 U.S.App.D.C., at 253 of 624 F.2d.

This Circuit's early "farce and mockery" test and Bruce's "gross incompetence blotting out a substantial defense" test failed to recognize this distinction between counsel's ineffectiveness and prejudice to the defendant. Indeed, I now recognize an oversight in DeCoster I, which coalesced these questions when it stated that if "a defendant shows a substantial violation . . . he has been denied effective representation unless the government . . . `can establish lack of prejudice thereby.'" 159 U.S.App.D.C. at 333, 487 F.2d at 1204 (emphasis added). Instead, the analysis of ineffective assistance should recognize that the question of attorney performance is distinct from the issue of prejudice to the defendant. Cf. McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974) (evaluation of habeas petition alleging ineffective assistance is two-step process: first, determining whether there has been failure to perform some duty owed by defense counsel to his client and, second, determining whether the constitutional error prejudiced the defense); Moore v. United States, supra note 17, 432 F.2d at 737 ("This standard [of normal competency] also makes it clear that the ultimate issue is not whether a defendant was prejudiced by his counsel's acts or omission, but whether counsel's performance was at the level of normal competency.").

[132] 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

[133] Id. at 22, 87 S.Ct. at 827. Prior to Chapman, the Supreme Court had indicated that constitutional violations could never be harmless. See id. at 42-45, 87 S.Ct. 824 (Stewart, J., concurring).

[134] Id. at 23-24, 87 S.Ct. 824; Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). This principle is consistent with the constitutional mandate that the government must prove guilt of a criminal offense beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Just as a trier-of-fact must find guilt beyond a reasonable doubt, an appellate court must be no less certain that a constitutional violation did not affect the proceedings below.

The reasonable doubt rule is animated by the twin concerns of maintaining an accurate balance between prosecutor and defendant by compensating for systematic flaws in a decision-making process acknowledged to be imperfect, and of introducing a deliberate imbalance into the process consistent with "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, supra, 397 U.S. at 372, 90 S.Ct. at 1077 (Harlan, J., concurring). See Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1306-07 (1977). When we know that an error has been introduced into the adversary adjudicative process through the ineffectiveness of counsel, the justification for tilting the scales toward the defendant is even stronger than when the likelihood of error is merely speculative. See United States v. Burton, 189 U.S.App.D.C. 327, 355, 584 F.2d 485, 513 n.91 (1978) (Robinson, J., dissenting).

[135] See Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) (presumption of innocence "axiomatic," "elementary," and "foundation" of administration of criminal law).

[136] Determining harmlessness by focusing on whether the jury's verdict is supported by overwhelming evidence is questionable quite apart from the special problems of its application in the ineffectiveness context. First, such an approach usurps the jury's function to a far greater degree than one that focuses the appellate court's inquiry on an examination of the nature and effect of the error. Second, lower courts' findings of harmlessness under an overwhelming evidence test are less subject to consistent and even-handed appellate review. Finally, the overwhelming evidence test is contrary to the principle that constitutional protection is due all citizens, the guilty as well as the innocent. See Field, Assessing the Harmlessness of Federal Constitutional Error — A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15, 33 (1976).

[137] DeCoster I, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.

[138] In Holloway v. Arkansas, supra, the Supreme Court explained in the context of a joint representation case why a determination of the prejudice resulting from counsel's omissions could be founded upon nothing more than impermissible speculation:

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. . . . 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 (citations omitted) (emphasis added).

[139] One of the dangers of attempting to assess the harmlessness of a constitutional error by looking to the evidence of guilt at trial is that counsel's ineffectiveness may have so distorted the record that the record is an unreliable indicator of the defendant's guilt. And, as noted in United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3rd Cir. 1970), changes in circumstances since the time of trial may also make it difficult for the court to determine the presence or absence of prejudice.

[140] United States v. Hurt, 177 U.S.App.D.C. 15, 21, 543 F.2d 162, 168 (1976). The likelihood that counsel's omissions will have impaired the defense, combined with the difficulty of proving that fact, have led several other circuits to presume the existence of prejudice in certain situations. See, e. g., United States ex rel. Green v. Rundle, supra, 434 F.2d at 1115; Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). Such a presumption is often created when counsel is not appointed until the eve of trial.See, e. g., Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. denied, Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967).

In United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968), the Third Circuit established the rule that belated appointment of counsel was inherently prejudicial and makes out a prima facie case of ineffective assistance, shifting the burden of proving the absence of prejudice to the prosecuting authorities. This rule was applied subsequently in United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (3d Cir. 1969). There the court rejected a habeas petitioner's claim of ineffective assistance because the record contained adequate affirmative proof that there was no prejudice. On appeal, the Supreme Court affirmed appellant's conviction, noting that it was "not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . ." Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). Although the Third Circuit later jettisoned its presumption-of-prejudice rule because it was no longer needed to effectuate prompt appointments within the circuit, Moore v. United States, supra note 17, it is significant that the Supreme Court left the rule undisturbed in Chambers. See Garland v. Cox, supra, 472 F.2d at 878 (maintaining presumption of prejudice as best way to serve "our notions of justice and fair play").

Judge MacKinnon's opinion draws heavily upon the Supreme Court's language in Chambers to support his view that "a mere breach of duty to an accused is not a constitutional violation [requiring reversal] unless the defendantproves that he was prejudiced." Opinion of MacKinnon, J., at ___ of ___ U.S.App.D.C., at 238 of 624 F.2d (emphasis added). But Chambers merely held that late appointment vel non did not require reversal. The Court's opinion is silent on the issue of who bears the burden of demonstrating the existence or absence of prejudice. Indeed, in its tacit approval of the lower court's presumption-of-prejudice rule, Chambers is plainly consistent with the approach prescribed in this opinion: once the defendant has shown a substantial violation of counsel's duties, the government must rebut the presumption of prejudice by proving that the error was harmless.

[141] Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978), quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

[142] Where counsel's inadequate investigation has prevented him from properly advising his client on pretrial matters, the defendant should receive not only a new trial but also an opportunity to engage in plea discussions after discussing the matter fully with informed, competent counsel. In contrast, the appropriate remedy for violations that affect only sentencing is to remand for resentencing rather than a new trial. See United States v. Pinkney, supra note 72, 179 U.S.App.D.C. at 289 n.49, 551 F.2d at 1248 n.49.

[143] See, e. g., Cooper v. Fitzharris, supra note 129, 586 F.2d 1325, 1334-42 (Hufstedler, J., dissenting);Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). Judge Hufstedler's dissenting opinion in Cooper does not recognize, as Judge Leventhal implies, that effect on outcome should be pertinent in determining whether a defendant has been denied the effective assistance of counsel. See Opinion of Leventhal, J., at ___, ___ of 199 U.S.App.D.C., at 203, 205 of 624 F.2d. Rather, Judge Hufstedler merely acknowledges the obvious: the potential prejudicial impact of an alleged attorney error may be relevant in assessing the adequacy of representation simply because the greater the impact, the more likely it is that counsel deviated from his obligations. But as Judge Hufstedler clearly states: "This does not mean that prejudice must be shown to demonstrate that counsel was constitutionally ineffective." Cooper v. Fitzharris, supra, 586 F.2d at 1340. Particularly significant in this regard is her observation: "Some courts have confused the inquiry into whether attorney errors were significant enough to constitute ineffective counsel with the question of whether ineffectiveness of counsel affected the outcome of the case." Id. at 1340 n.18.

[144] Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978), quoting Chapman v. California, supra, 386 U.S. at 23, 87 S.Ct. 824.

[145] Reversing convictions is likely to have a significant prophylactic effect for several reasons. First, to the extent that trial judges and prosecutors can prevent ineffectiveness from tainting a plea or conviction, they will be encouraged to do so. Second, insofar as ineffectiveness results from indifferent or incompetent lawyers, they will be less likely to receive appointments. Third, in those jurisdictions where ineffectiveness results largely from the unmanageable caseloads of appointed counsel and public defenders, judges will be discouraged from overburdening them. Finally, frequent reversals are likely to attract the attention of the public and may enhance the likelihood of legislative reform. See Part IV, infra.

[146] In the present case, for example, it may be possible to determine the effect of counsel's failure to familiarize himself with the preliminary hearing testimony. If the government could prove that there were no significant discrepancies between Officer Ehler's testimony at trial and at the preliminary hearing, but see note 106 supra,then it would be in a position to show that counsel's failure to obtain the transcript could not have prejudiced Decoster.