[270] BAZELON, Circuit Judge, with whom J. SKELLY WRIGHT, Chief Judge, joins, dissenting:

Willie Decoster was denied the effective assistance of counsel guaranteed by the Sixth Amendment because he could not afford to hire a competent and conscientious attorney. His plight is an indictment of our system of criminal justice, which promises "Equal Justice Under Law," but delivers only "Justice for Those Who Can Afford It." Though purporting to address the problem of ineffective assistance, the majority's decision ignores the sordid reality that the kind of slovenly, indifferent representation provided Willie Decoster is uniquely the fate allotted to the poor. Underlying the majority's antiseptic verbal formulations is a disturbing tolerance for a criminal justice system that consistently provides less protection and less dignity for the indigent. I cannot accept a system that conditions a defendant's right to a fair trial on his ability to pay for it. Like Justice Black, I believe that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." The Constitution forbids it. Morality condemns it. I dissent.

I.

The evolution of the right to the Assistance of Counsel reflects a growing awareness of the barriers faced by the indigent defendant seeking a fair trial, and of the challenge these obstacles pose to our ideal of justice without regard to wealth. By any reckoning, the barriers are formidable. The "street crime" that clogs our courts is bred by poverty and discrimination. It is committed by the dispossessed, the disadvantaged and the alienated of our society — those who most need the advice of a trained advocate. In the words of Justice Sutherland:

Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He requires the guiding hand of counsel at every step in the proceedings against him. . . . If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.

And the cruel irony, of course, is that the indigent are the very people who are least able to obtain competent representation. For the most part, "you get what you pay for" in legal representation.

Only recently have we even recognized that the lack of effective counsel inevitably deprives the poor of the right to a fair trial. For a great many years, the shameful truth was that only the rich could obtain counsel, since only the rich could afford to pay counsel. One hundred and forty-one years after the adoption of the Bill of Rights, the Supreme Court first held, in Powell v. Alabama, that due process requires the appointment of counsel for an indigent defendant in a capital case. Not until Gideon v. Wainwright, more than thirty years later, did the Court acknowledge that the "noble ideal" of equal and fair justice could not be realized "if the poor man charged with crime has to face his accusers without a lawyer to assist him." Only then did the Court extend the right to counsel to all state felony prosecutions. And not until 1972, in Argersinger v. Hamlin, did the Court affirm the right to counsel in all criminal prosecutions resulting in the deprivation of the accused's liberty.

The Supreme Court's effort to eliminate second-class justice for the poor has not been confined to providing counsel for the indigent. But the right to counsel is most essential in assuring fair and equal justice, for without the conscientious and knowledgeable advice of a trained legal advocate, an accused can secure none of the safeguards of the criminal process intended to protect all defendants. "The [right to] counsel is often a requisite to the very existence of a fair trial." To the extent that the indigent defendant receives inadequate representation, markedly inferior to that available to a defendant who can afford "competent and conscientious counsel," a dual system of justice endures.

Inevitably there will be disparities in the quality of representation; some lawyers are simply more able or more conscientious than others. What offends the Constitution, however, is not merely that there are variations in the quality of representation, but that the burden of less effective advocacy falls almost exclusively on a single subclass of society — the poor. In constructing standards for assessing the ineffective assistance of counsel, we must therefore consider not only what measures are necessary to assure a fair trial in the case of any particular defendant. We also must structure our approach to eliminate the gross disparities of representation that make a mockery of our commitment to equal justice. We must institutionalize and enforce standards of attorney competence designed to assure adequate representation for all defendants.

Because my colleagues in the majority divorce their analysis from the economic and social reality underlying the problem of ineffective assistance of counsel, their decision leaves indigent defendants nothing more than an empty promise in place of the Sixth Amendment's commitment to adequate representation for all defendants, rich and poor. At best, the majority's approach might help to rectify a few cases of blatant injustice. But their standards do nothing to help raise the quality of representation provided the poor to a level anywhere approaching that of the more affluent. On the contrary, my colleagues condone callous, back-of-the-hand representation by dismissing the basic duties of competent lawyering as "aspirational." The majority thus provides no incentive or structure to improve the caliber of defense advocacy. By focusing exclusively on the consequences of counsel's dereliction, their approach encourages an attorney who believes that his client is guilty to "cut corners," with little risk that he will be held accountable for the inadequacies of his representation. The majority opinions may say "we don't commend this," or "we don't approve of that," but their bottom line is "Affirmed."

In its holding, the majority turns its back on the evolution in this circuit of the standard for evaluating claims of ineffective assistance. In the earliest cases, we approached the problem solely from a due process-fundamental fairness viewpoint, requiring a defendant seeking relief to show that the proceedings were a "farce and a mockery of justice." In Bruce v. United States, we reconsidered that standard. We explained that the "farce and mockery" requirement was not to be taken literally, but was meant only to demonstrate that in order to obtain relief the accused bears a heavy burden of showing that "there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . .." Shortly after Bruce, however, we explicitly recognized that the requirement of effective assistance of counsel derives not only from the Due Process Clause, but from the Sixth Amendment itself. Consequently, in our original opinion in this case, United States v. DeCoster (DeCoster I), this court adopted a standard for direct appeals consistent with the Sixth Amendment's "more stringent requirements": "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate."

DeCoster I represented a major advance in this court's recognition of the realities of ineffective assistance. In that case, this court shifted the focus of judicial inquiry away from the prejudice to the defendant in any particular case and toward the task of articulating basic duties counsel owes his client. This approach, for the first time, gave content to what previously had been empty verbal formulations. Even more importantly, it recognized that the very lack of effective trial counsel might preclude a defendant from later establishing prejudice. Thus the court concluded that the only way to assure that every defendant receives a fair trial is to promulgate and enforce standards of adequate representation that apply across-the-board. Underlying DeCoster I, therefore, was a commitment to the basic principle that every defendant — rich or poor, innocent or guilty — is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.

II.

Appellant Willie Decoster and two codefendants, Douglas Eley and Earl Taylor, were arrested for the robbery of Roger Crump on the evening of May 29, 1970. Two police officers on plainclothes patrol observed three men accosting Crump in the parking lot of the Golden Gate Bar. When the officers jumped from their car, the robbers fled and were pursued by the police. Officer Box and the victim found Decoster in the lobby of a nearby hotel, the D.C. Annex, where he was immediately arrested and identified by Crump.

At his trial on November 15, 1971, appellant testified that on the evening of the crime he had been drinking with Crump at the Golden Gate Bar. Decoster claimed that he left Crump at the bar and walked directly to his hotel, where, while standing by the desk waiting to obtain his room key, he was arrested. One of appellant's alleged accomplices, Douglas Eley, was also called as a defense witness but his testimony contradicted Decoster's in several respects. Most importantly, on direct examination he claimed to have seen appellant and Crump fighting in the parking lot outside the bar at the time of the alleged robbery. Following the trial, appellant was convicted of armed robbery and sentenced to 2-8 years.

On appeal, this court was troubled by a number of actions taken by Decoster's court-appointed counsel which, taken together, suggested that Decoster may not have received the effective assistance of counsel. The record showed that on Nov. 4, 1970, several months after appellant's arrest, the trial judge received a letter from Decoster in which he requested new counsel because his attorney was not providing adequate representation. Decoster charged that although he had been accepted for pretrial custody by the Black Man's Development Center on October 12, defense counsel had not kept his promise to file for bond review. Appellant also requested a copy of the transcript of his preliminary hearing, which he had been unable to obtain through his attorney.

Although Decoster's counsel finally filed the requested bond review motion on November 9, he not only failed to mention that third-party custody had been arranged, but he also filed the motion in the wrong court. On November 18, the district court advised counsel of his error and continued the motion to await review by the proper court, as required by law. Again, however, counsel delayed filing; not until December 9, did he file a motion for bond review in the proper court.

We also noted that events at the beginning of trial raised serious questions about the adequacy of counsel's pretrial preparation and communication with his client. As the trial was about to start, and after counsel had asserted that he was prepared to proceed, appellant himself stepped forward and asked if the court would subpoena his two codefendants, explaining that he "didn't have a chance" to discuss the matter with his lawyer. Defense counsel then told the court that he had considered the possibility of issuing subpoenas, "except for the fact that we have no address for the other defendants." The prosecutor immediately volunteered that codefendant Eley was in jail with Decoster; an address for Taylor was subsequently provided from the court records. The court thereupon ordered defense counsel to "take care of the situation."

Moments later, after defense counsel again announced that he was ready for trial, the prosecutor informed the court that the Government had not received any response to its alibi-notice demand. Defense Counsel replied that although he might rely on an alibi defense, no response was needed because the Government had not given the twenty days' notice required by the local rules. The trial judge ordered the defense to provide the names of alibi witnesses anyway, whereupon defense counsel relented and stated, "We will proceed without the alibi witnesses."

Defense counsel then informed the court that his client wished to waive jury trial. When asked if he was aware that the trial judge already had heard evidence concerning Decoster's case while presiding over the trial of his codefendants, counsel responded that he was not. After attempting unsuccessfully to find another judge who could hear the case at such a late date, the trial judge ruled that he could not hear the case himself but would instead preside over a jury trial. Appellant's case thereupon proceeded to trial before a jury.

In the midst of all this confusion, Decoster again complained to the court about his attorney's efforts on his behalf.

THE DEFENDANT: Your Honor, I feel that this case should be continued because this is, I can't get proper representation that I should be getting and too I think I should have an accurate statement of what happened here when the other two defendants was in court.

Defense counsel then requested to withdraw from the case "because apparently I have caused some dissatisfaction to the defendant. . . ." The district judge, however, did not inquire into the basis of the defendant's complaints. Instead, after receiving counsel's assurances that he had prepared the case and was ready to go to trial, the court denied the request for a continuance and refused to appoint new counsel.

In view of the foregoing, in our original opinion we remanded for supplementary hearings on the adequacy of trial counsel's representation and granted leave for appellate counsel to move for a new trial. At the hearings on remand, the district court elicited further information about trial counsel's preparation and his explanations for his actions. Counsel admitted that he had not interviewed the robbery victim or either of the police officers. He also admitted that he had made no attempt to contact or interview the hotel desk clerk or, for that matter, anyone else at either the D.C. Annex hotel or the Golden Gate bar.

As for the codefendants, counsel conceded that he had not interviewed Taylor, but claimed that he had talked with Eley in the cellblock behind the courtroom on the second day of the trial. Counsel also admitted that he never obtained a transcript of the preliminary hearing, but stated that since he had conducted most of the cross-examination at that hearing, he saw no need for the transcript. Moreover, counsel testified that the U.S. Attorney's Office usually makes a copy of the transcript available during discovery. Although he did not specifically remember Decoster's case, counsel said he assumed that the government's copy had been available and that he had read it.

In attempting to defend his actions, counsel testified that he had not interviewed any witnesses because, until shortly before trial, appellant had never mentioned any possible alibi witnesses. Counsel explained that, to the best of his recollection, Decoster had continuously maintained that he had joined Crump for a drink in the bar, had left him there, and had just returned to his hotel when he was arrested. Then, on the eve of trial, counsel received a letter in which appellant changed his story, alleged that he had fought with Crump but did not rob him, and asserted that his codefendants would support this version of the offense. Explaining why he had not interviewed Decoster's codefendants even after receiving this letter, counsel stated that "it was my feeling at that time that any testimony that might be given by either of these defendants might be contradictory to what I had already heard from the Defendant." Counsel claimed that he did interview Eley after appellant insisted at trial that his codefendants be subpoenaed, and that Eley told him that Decoster was not at the scene of the crime. Believing that Eley would say this in court, counsel decided to put him on the stand, but Eley instead testified that he saw Decoster and Crump fighting outside the bar.

Counsel also was asked at the remand hearing to explain the reasons underlying certain "tactical decisions" he had made. He could not recall why the motion for bond review was filed in the wrong court, or why he failed to mention appellant's acceptance by the Black Man's Development Center in the original motion. With respect to the waiver of jury trial, counsel said that although he opposed the idea, he had requested a bench trial at his client's insistence. Finally, counsel stated that he gave no opening statement because he had felt it to be unnecessary, and not because he had no defense theory at the time the trial started. However, counsel could not recall why he had concluded that an opening statement was unnecessary.

In its findings on remand, the district court isolated seven particular acts or omissions by defense counsel that were alleged to have deprived appellant of the effective assistance of counsel. With respect to three of the allegations — counsel's waiver of opening statement, his attempt to waive jury trial, and his failure to see that Decoster was given credit for time served as ordered by the sentencing judge — the district court found no ineffective assistance. Two other claims — the delay in moving for bond review and the failure to obtain a transcript of the preliminary hearing — were rejected because the court found that the appellant had not been prejudiced by the violations. On the final two allegations — counsel's failure to interview witnesses and his premature announcement that he was ready for trial — the district court's conclusions can be interpreted as holding either that there was no constitutional violation or simply that no prejudice to appellant was shown.

III.

The analysis of this case should be guided by the principles established in DeCoster I. We there held that upon showing a substantial violation of any of counsel's specified duties, a defendant establishes that he has been denied effective representation and the burden shifts to the government to demonstrate that the violation did not prejudice the defendant. Thus, DeCoster I prescribed a three-step inquiry for determining whether a claim of ineffective assistance of counsel warrants reversing a conviction:

1) Did counsel violate one of the articulated duties?

2) Was the violation "substantial" ?

3) Has the government established that no prejudice resulted?

The heart of this approach lies in defining ineffective assistance in terms of the quality of counsel's performance, rather than looking to the effect of counsel's actions on the outcome of the case. If the Sixth Amendment is to serve a central role in eliminating second-class justice for the poor, then it must proscribe second-class performances by counsel, whatever the consequences in a particular case. Moreover, by focusing on the quality of representation and providing incentives in all cases for counsel to meet or exceed minimum standards, this approach reduces the likelihood that any particular defendant will be prejudiced by counsel's shortcomings. In this way, courts can safeguard the defendant's rights to a constitutionally adequate trial without engaging in the inherently difficult task of speculating about the precise effect of each error or omission by an attorney. Although the question of prejudice remains part of the court's inquiry, it is distinct from the determination of whether the defendant has received effective assistance. Rather, prejudice is considered only in order to spare defendants, prosecutors and the courts alike a truly futile repetition of the pretrial and trial process.

A. Violation of Articulated Duties

In DeCoster I, this court attempted to give substantive content to the Sixth Amendment's mandate by setting forth minimum requirements of competent performance The obligations were described as "duties owed by counsel to client," and thus were not offered as merely "aspirational" guidelines to which attorneys should strive. Indeed, the duties announced in DeCoster I represent the rudiments of competent lawyering guaranteed by the Sixth Amendment to every defendant in a criminal proceeding.

The duties set forth in DeCoster I were derived from the American Bar Association's Standards for the Defense Function. These ABA Standards summarize the consensus of the practicing Bar on the crucial elements of defense advocacy in our adversary system. Even though these standards were not intended by their drafters to serve "as criteria for judicial evaluation of effectiveness[,]" this court noted that "they are certainly relevant guideposts in this largely uncharted area." Naturally, given the complexities of each case and the constant call for professional discretion, it would be a misguided endeavor to engrave in stone any rules for attorney performance. Nonetheless, preserving flexibility is not incompatible with establishing minimum components of effective assistance, and the ABA Standards give helpful guidance in pursuing both aims.

In DeCoster I this court was sensitive to these concerns and so did not attempt to prescribe categorical standards of attorney performance. Instead, we took pains to note that the articulated duties were "meant as a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance." We recognized, however, that there were certain tasks, such as the ones we enumerated in our decision, that can never be ignored: conferring with the client without delay and as often as necessary; fully discussing potential strategies and tactical choices; advising the client of his rights and taking all actions necessary to preserve them; and conducting appropriate factual and legal investigations. I submit that no one can dispute that a reasonably competent lawyer, absent good cause, would or should do less. Counsel should proceed in the representation of his client under the guidance of these minimal duties, departing only when the particular needs of his client compel a different course of action.

Prominent among the duties of defense counsel is the obligation to "conduct appropriate investigations, both factual and legal, to determine what matter of defense can be developed." As the Commentary of the ABA Standards stresses, "[I]nvestigation and preparation are the keys to effective representation . . . . It is impossible to overemphasize the importance of appropriate investigation to the effective and fair administration of criminal justice."

Investigation is crucial for several reasons. First, the proper functioning of our adversary system demands that both sides prepare and organize their case in advance of trial. There can be no justice where one party to the battle has made no effort to arm itself with the pertinent facts and law. Second, in a very practical sense, cases are won on the facts. Proper investigation is critical not only in turning up leads and witnesses favorable to the defense, but in allowing counsel to take full advantage of trial tactics such as cross-examination and impeachment of adverse witnesses. And of course, adequate legal investigation is necessary to ensure that all available defenses are raised and that the government is put to its proof. "[I]t is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation and study of legal points which precede the trial."

Moreover, the necessity for exhaustive investigation is not limited to its value in preparation for trial. As a leading manual for defense lawyers emphasizes:

"The facts are counsel's most important asset not only in arguing before a jury but in every other function counsel performs: seeking advantageous terms of bail, urging the prosecutor to drop or reduce charges, negotiating with him about a plea, urging a favorable sentence recommendation on a probation officer or sentencing disposition on a judge."

At a minimum, the duty to investigate requires counsel (or his investigator) to contact persons whom he has or should have reason to believe were witnesses to the events in question, to seek witnesses in places where he has or should have reason to believe the events occurred, and to conduct these interviews and investigations as promptly as possible, before memories fade or witnesses disappear.

In the present case, Decoster's attorney did none of these things. Although the failure to interview a particular witness, by itself, may not rise to the level of inadequate assistance, defense counsel's investigation and preparation for this case was so perfunctory that it clearly violated his duties to his client. The prosecution called three witnesses at trial — Roger Crump and Officers Box and Ehler. Despite the cardinal rule that proper investigation begins with interviews of those witnesses whom the government intends to call, particularly the arresting and investigating officers, defense counsel made no attempt to interview any of these witnesses at any time prior to trial. Nor did he request or obtain a transcript of the preliminary hearing where these witnesses testified. Defense counsel did not even contact and interview Decoster's codefendants, Eley and Taylor, before trial. Nor did he seek or talk to any witnesses at the hotel or bar. In fact, defense counsel made absolutely no effort to discover, contact, or interview a single witness prior to trial. Apparently, he was willing to go to trial without having made any real effort to determine what could be elicited by way of defense or to evaluate the strengths and weaknesses of his client's case.

Moreover, defense counsel's violations of the duties owed to his client were not limited to an egregious failure to investigate. There are several indications that counsel did not "confer with his client . . . as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable." Surely, many of the problems that developed at and just prior to trial could have been eliminated had counsel more fully prepared himself and discussed the case with his client. In addition, counsel was derelict in his duty to "promptly advise his client of his rights and take all actions necessary to preserve them." For example, 50 days elapsed from the time appellant was accepted for third-party custody until his attorney filed a proper bond review motion. Finally, counsel's representation of his client at the sentencing hearing was anything but diligent and conscientious. Despite the critical need for effective advocacy at what "may well be the most important part of the entire proceeding," counsel's total contribution at appellant's hearing consisted of the following "allocution":

If the Court please, Counsel is aware that Your Honor has a fully comprehensive a [sic] detailed probation report, and Counsel is aware of the report and would submit based on said report.

In sum, counsel violated each of the duties enunciated in DeCoster I as the prerequisites of a reasonably competent performance. Appellant's court-appointed attorney provided the kind of shoddy representation that none of us would tolerate for ourselves — a slovenly, slipshod job, almost totally lacking in preparation, characterized by repeated failures to protect his client's rights and an obvious indifference to his client's fate.

B. "Substantial" Violations

Contrary to the intimations of the majority, we do not contend that the slightest departure from a checklist of counsel's duties establishes ineffectiveness and requires reversal. Since counsel's decisions must be adapted to the complexities of a given case, the proper performance of an attorney's obligations necessarily entails considerable discretion. Moreover, the human animal is too fallible and the task of defense counsel too complex to expect that every action taken by an attorney will prove correct on hindsight. We have repeatedly cautioned that "[t]his court does not sit to second guess strategic and tactical choices made by [defense] counsel." The Sixth Amendment demands that counsel's conduct be conscientious, reasonable, and informed by adequate investigation and preparation; it does not demand that counsel's performance be flawless.

Thus, like the majority, we recognize that counsel's conduct must be evaluated in the context of a particular case and that not every deviation from a perfect, or even average performance makes out a claim of ineffective assistance. Instead, counsel's violations must be substantial to offend the Sixth Amendment right to effective assistance of counsel. The duties articulated in DeCoster I, like the ABA Standards and the obligations prescribed by the Fourth Circuit in Coles v. Peyton, describe the minimum components of a competent performance and provide the court with an objective basis for assessing the adequacy of representation. A demonstration that counsel has violated one of these duties compels further inquiry into counsel's conduct to determine whether, in this specific case, counsel's departure from the prescribed standards was either "excusable" or "justifiable." The first of these inquiries recognizes that even the most diligent and conscientious attorney may occasionally falter in fulfilling his responsibility; one minor error in an otherwise commendable performance does not automatically render the representation inadequate. The second inquiry is necessary because the "reasonably competent" attorney must tailor his actions to fit the unique circumstances presented by a given case; some particular situations may justify or even mandate a course of action that transgresses the general list of duties, a list that of necessity was designed to govern defense counsel's conduct in the typical criminal case.

In this case, the frequency and pervasiveness of defense counsel's omissions and failures certainly belie any notion that these actions were isolated and excusable events. The violation in this case was not simply that counsel failed to interview certain named witnesses. The record reveals that counsel conducted almost no investigation whatsoever in the 17 months preceding trial. Consequently, he began trial unaware of what the prosecution witnesses would say and as a result was unable to refute their stories, was ignorant of the possible defenses and witnesses he might present, and was even unsure of his own client's version of the events.

Nor do any special circumstances justify counsel's breach of his obligations. In some cases prudential judgments or tactical considerations may be involved in counsel's decision about whom to interview. In the present case, however, there simply is no possible justification for counsel's near-total lack of investigation and preparation.

Defense counsel's failure to investigate cannot be justified on the basis that he felt he was familiar enough with the facts of this case to judge for himself that his client was guilty. To begin with, the assertion that defense counsel had sufficient knowledge of what an investigation would reveal is manifestly unsupportable. From all that appears affirmatively in the record, defense counsel's entire knowledge of the events in question derived solely from two sources: conversations he may have had with his client and his representation of the defendant at the preliminary hearing. As to the former, the record reveals only that appellant and his attorney appeared in court together on six occasions; counsel presented no evidence on remand on the extent of his communications with his client. As to the latter, the preliminary hearing occurred 17 months before trial, lasted all of 20 minutes and consisted entirely of the testimony of Officer Ehler, who was not even the arresting officer. Thus, defense counsel's total knowledge of the case in fact consisted entirely of two conflicting versions of the events — one from a police officer and the other from his own client.

Perhaps counsel concluded from this limited information that his client had no alibi defense and was guilty, and that therefore counsel was excused from conducting any investigation. But the suggestion that a client whose lawyer believes him to be guilty deserves less pretrial investigation is simply wrong. An attorney's duty to investigate is not relieved by his own perception of his client's guilt or innocence. I can think of nothing more destructive of the adversary system than to excuse inadequate investigation on the grounds that defense counsel — the accused's only ally in the entire proceedings — disbelieved his client and therefore thought that further inquiry would prove fruitless. The Constitution entitles a criminal defendant to a trial in court by a jury of his peers — not to a trial by his court-appointed defense counsel.

In this case, however, court-appointed counsel failed to interview even the prosecution witnesses, ostensibly because he was already "aware" of the main points of their likely testimony. By virtue of his attendance at the preliminary hearing perhaps counsel obtained a good indication of Officer Ehler's likely testimony at trial. But there can be no justification for counsel's failure to interview either complainant Crump or Officer Box, the critical witnesses to the circumstances surrounding the arrest of appellant.

As for the codefendants Taylor and Eley, the district court concluded that, "[a]s a result of the information the defendant had given him and his knowledge of the prior 'guilty' pleas of the co-defendants, [counsel] considered that their testimony might be contradictory to that of the defendant." My colleagues apparently believe that this finding justifies counsel's failure to interview the codefendants. But counsel's speculations and beliefs are no substitutes for facts. No matter how experienced an attorney is, no matter how astute his predictions of the content of the witnesses' testimony might be, it is inexcusable not to interview such key potential witnesses on the ground that counsel feels that their testimony might contradict what the defendant has told him. Counsel's reasoned and informed judgment that a witness' testimony would not aid the defense may justify not calling that witness to testify, but it cannot excuse the failure even to interview him.

It is true that appellant complicated defense counsel's task when, sometime before trial, he sent counsel a letter suggesting a new version of what happened on the day of his arrest. Again, however, this has no bearing on counsel's failure to investigate. By his own account, counsel did not learn of the self-defense theory until the day before or the day of the trial. Appellant's conflicting stories, therefore, obviously cannot excuse counsel's inaction during the previous seventeen months. If anything, appellant's differing accounts should have emphasized the need for an independent investigation to determine which, if either, version was accurate and could be presented as a defense. Yet, even after receiving appellant's letter, counsel was ready to go to trial without having attempted to contact the codefendants to learn their version of the events on the night of the robbery.

In the end, the majority's conclusion that appellant was not denied the effective assistance of counsel rests on their perception that the record contains overwhelming evidence of appellant's guilt. [U]ltimately, "there was a total failure of appellant to show that it was likely that counsel's deficiencies had any effect on the outcome of [the] trial." The logic of their position seems to be as follows: If the accused was probably guilty, then nothing helpful could have been found even through a properly conducted investigation. Thus, any violation of that duty — no matter how egregious — was inconsequential and hence excusable.

Even on its own terms, such reasoning is faulty. It assumes that the value of investigation is measured only by information it yields that will exonerate the defendant. Yet, even if an investigation produces not a scintilla of evidence favorable to the defense — an unlikely hypothesis — appellant still will benefit from a full investigation. One of the essential responsibilities of the defense attorney is to conduct an independent examination of the law and facts so that he can offer his professional evaluation of the strength of the defendant's case. If this full investigation reveals that a plea of guilty is in the defendant's best interests, then the attorney should so advise his client and explore the possibility of initiating plea discussions with the prosecutor. It is no secret that in the majority of criminal prosecutions the accused is in fact guilty, notwithstanding any initial protestations of innocence. It is also no secret that the vast majority of criminal prosecutions culminating in conviction are settled through plea bargaining. Indeed, the Supreme Court has recognized that plea bargaining will remain "an essential component of the administration of justice" in this country until the courts' resources are greatly expanded. In many cases, therefore, perhaps the most valuable function that defense counsel can perform is to advise the defendant candidly that a thorough investigation — conducted by his own representative and seeking any glimmer of exonerating evidence — has turned up empty. Only then can the defendant truly evaluate his position and make an informed decision whether to plead guilty or whether to continue to assert his innocence at trial.

More importantly, the majority's position confuses the defendant's burden of showing that counsel's violation was "substantial" with the government's burden of proving that the violation was not "prejudicial." The former entails a forward-looking inquiry into whether defense counsel acted in the manner of a diligent and competent attorney; it asks whether, at the time the events occurred, defense counsel's violations of the duties owed to his client were justifiable. In contrast, the inquiry into "prejudice" requires an after-the-fact determination of whether a violation that was admittedly "substantial," nevertheless did not produce adverse consequences for the defendant.

All that the accused must show to establish a Sixth Amendment violation is that counsel's acts or omissions were substantial enough to have deprived him of the effective assistance of counsel in his defense. He need not prove that counsel's violations were ultimately harmful in affecting the outcome of his trial. Quite simply, the inquiry into the adequacy of counsel is distinct from the inquiry into guilt or innocence. The Constitution entitles every defendant to counsel who is "an active advocate in behalf of his client." Where such advocacy is absent, the accused has been denied effective assistance, regardless of his guilt or innocence. The majority opinions nevertheless force the appellant to shoulder the burden of proving that counsel's acts or omissions actually or likely affected the outcome of the trial. To thus condition the right to effective assistance of counsel on the defendant's ability to demonstrate his innocence is to assure that only the constitutional rights of the innocent will be vindicated. Our system of criminal justice does not rest on such a foundation.

Recent Supreme Court decisions affirm that a distinct showing of prejudice is unnecessary to establish a Sixth Amendment violation. In Geders v. United States, for example, the defendant had been ordered not to consult with his attorney during the overnight recess between his direct and cross-examination. The Court of Appeals affirmed the conviction on the grounds that the defendant failed to claim any prejudice from his inability to confer with counsel. The Supreme Court, however, found that the petitioner had been deprived of his Sixth Amendment right and made no inquiry into whether he had been prejudiced in any way by the trial court's order. That the defendant had been deprived of the assistance of counsel established the constitutional violation; no showing of prejudice was necessary.

More recently, in Holloway v. Arkansas, the Court found a violation of the Sixth Amendment in the trial court's failure to appoint separate counsel in the face of the defense attorney's assertions that conflicting interests might prevent him from providing effective assistance for each of three codefendants. In Holloway, as in Geders, the petitioners' appeal below had been rejected on the ground that the record demonstrated no actual conflict of interest or prejudice to the defendants. Again, however, the Supreme Court did not inquire into whether the defendants were prejudiced or even into whether trial counsel's claim of possible conflicting interests was valid. Because the trial court failed, in the face of counsel's objections, either to appoint separate counsel or to ascertain whether the risk of conflict of interests was too remote to require such appointment, the defendants were deprived of their right to the effective assistance of counsel. Upon finding a constitutional violation, the Court then proceeded, in a separate part of its opinion, to determine whether reversal of the petitioners' convictions was required.

C. Was the Substantial Violation Prejudicial?

Having determined in this case that counsel's violation of his duty to his client was substantial, and that appellant consequently was denied the effective assistance of counsel, we now must consider whether this violation of the Sixth Amendment mandates reversing appellant's conviction. Our inquiry is governed by Chapman v. California, in which the Supreme Court concluded that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless . . .." For these errors, a return to earlier stages in the criminal process would merely be an exercise in futility because the second proceedings would be certain to reach the same result as the first.

Under Chapman the burden in each case rests squarely on the government to prove beyond a reasonable doubt that an error was harmless before the defendant's conviction can be allowed to stand. To place the burden on the defendant would require him to establish the likelihood of his innocence. The presumption of innocence that cloaks the accused cannot be stripped by a conviction obtained in something less than a constitutionally adequate trial.

To satisfy its burden of establishing lack of prejudice, it is not enough for the government simply to point to the evidence of guilt adduced at trial, no matter how overwhelming such evidence may be. In the first place, "proof of prejudice may well be absent from the record precisely because counsel has been ineffective." When, as in this case, ineffectiveness is founded upon gross omissions of counsel rather than specific errors, counsel's violations so permeate the trial that they necessarily cast doubt on the entire adjudicative process. Even where the consequences of counsel's omissions are less pervasive, it will generally be impossible to know precisely how the proceedings were affected, and the resulting prejudice will be "incapable of any sort of measurement." As the Supreme Court has emphasized, "'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice resulting from its denial.'"

Moreover, "prejudice" to the defendant may take many forms. The likelihood of acquittal at trial is not the only touchstone against which the consequence of counsel's failures is to be measured. The duties of an attorney extend to many areas not necessarily affecting the outcome of trial. As the present case highlights, inadequate investigation and preparation may prejudice the defendant not only at trial but before trial — in counsel's inability to offer informed, competent advice on whether to plead guilty and whether to demand a jury trial — as well as after trial — in providing ineffective representation at sentencing.

These principles, in fact, might suggest that a per se rule is appropriate in all cases in which counsel's representation fails to meet the standards of the Sixth Amendment. It may be that the prejudice to the defendant from the denial of effective assistance of counsel is so great, and the likelihood that the government can prove lack of prejudice so small, that reversal should be required whenever a substantial violation of counsel's duties is shown. Indeed, the Supreme Court has frequently emphasized 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.'" And it may be that only a rule requiring automatic reversal can provide the deterrent effect necessary to insure that all defendants — innocent or guilty — receive the effective assistance of counsel.

Nevertheless, there may be cases — however few — in which the reviewing court can isolate specific deficiencies in counsel's performance and can accurately gauge the consequences of counsel's acts or omissions. For example, when a defendant alleges ineffectiveness because his counsel has failed to object to the introduction of arguably inadmissible evidence, the consequences of counsel's violation may readily be measured. There, the government may be able to prove harmlessness either by showing that a suppression motion would not have succeeded (and the evidence would have been admitted anyway), or by proving that there was no "reasonable possibility that the evidence complained of might have contributed to the conviction." Similarly, where counsel violates his duties by failing to interview a particular witness, the government may be able to carry its burden by proving, through proffer of the witness' testimony, that the witness had nothing relevant to offer even if he had been interviewed. As these examples demonstrate, in appropriate circumstances, reversing the defendant's conviction may not be required because rectifying counsel's errors could not possibly benefit the defendant.

On the record before us in the present case, I would conclude that the government has failed to discharge its burden of proving that no adverse consequences resulted from counsel's gross violations of his duties to his client. Several important questions on the matter of prejudice remain unanswered, and in the absence of any evidence on these critical issues, I am unable to find that counsel's violations were "so unimportant and insignificant" that reversing appellant's conviction would be a futile exercise. No inquiry was made for example, on the relationship between counsel's failure to investigate and DeCoster's decision to go to trial rather than to seek and possibly accept a plea bargain comparable to that of his codefendants. Nor was there exploration of whether counsel's failure to offer any allocution at the sentencing hearing had any bearing on the trial judge's decision to sentence Decoster to a prison term of 2-8 years while his codefendants received only probation.

In DeCoster I, the court expressly stated that reversal would be required, "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.'" Thus, any doubts about the harmlessness of counsel's violations in this case would ordinarily be resolved against the government, and the case would be reversed and remanded for a new trial. Yet, despite our prior remand, it is not clear that the government was ever required to satisfy its burden of proving that the denial of Decoster's right to the effective assistance of counsel was harmless beyond a reasonable doubt. In ruling on several of appellant's contentions the district court found that counsel had not violated any duty owed to his client. As to these issues, therefore, the question of the prejudicial effect of counsel's conduct was never reached. On several other allegations, the district judge appears to have required appellant to demonstrate that he was prejudiced by counsel's actions in order to establish a constitutional violation. Thus, the government was not put to its proof in establishing harmlessness. Moreover, the initial remand hearing was conducted without benefit of this opinion's elucidation of the principles set forth in DeCoster I governing questions of ineffective assistance. I therefore would remand the case to allow the government an opportunity to satisfy its burden of proving harmlessness.

IV

Of course, even reversing Decoster's conviction would not remedy the pervasive problem of ineffective representation of the indigent. The disparity between representation of the poor and of the well-to-do reflects the larger inequality of riches in our affluent society. The imbalance in the quality of legal assistance provided for the indigent and the wealthy is only one of a host of inequities in our society — inequality of educational opportunity, of jobs, of housing, of health care.

It is not the province of the judiciary to remedy all these inequities. We have neither the means nor the competence to redress all of society's imbalances. We however do have the duty, entrusted to us by the Bill of Rights, to assure that no individual is deprived of liberty by our courts of law without a constitutionally adequate trial. We violate this duty when we place our imprimatur of "Equal Justice Under Law" on the incompetent performance of court-appointed counsel in cases like the one before us.

An appellate court's role is limited. We can promulgate standards that specify the minimum requirements of the constitutionally mandated competent performance. We can closely scrutinize the records of those cases in which effectiveness is at issue, carefully monitoring trial counsel's performance to ensure that the attorney's obligation have been fulfilled. When substantial violations are uncovered, we can enforce the Sixth Amendment's guarantee by vacating the defendant's conviction and remanding for a new trial in which the effective assistance of counsel will be provided.

The real battle for equal justice, however, must be waged in the trenches of the trial courts. Although reversing criminal convictions can have a significant deterrent effect, an appellate court necessarily depends upon the trial courts to implement the standards it announces. No amount of rhetoric from appellate courts can assure indigent defendants effective representation unless trial judges — and ultimately defense counsel themselves — fulfill their responsibilities. The Supreme Court, too, has recognized the duty of the trial court to fulfill the Sixth Amendment's promise:

[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, and . . . judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their court.

Because, as this case demonstrates, ineffective representation is often rooted in inadequate preparation, a first step that a trial judge can take is to refuse to allow a trial to begin until he is assured that defense counsel has conducted the necessary factual and legal investigation. The simple question, "Is defense ready?" may be insufficient to provide that assurance. Instead, we should consider formalizing the procedure by which the trial judge is informed about the extent of counsel's preparation. Before the trial begins — or before a guilty plea is accepted — defense counsel could submit an investigative checklist certifying that he has conducted a complete investigation and reviewing the steps he has taken in pretrial preparation, including what records were obtained, which witnesses were interviewed, when the defendant was consulted, and what motions were filed. Although a worksheet alone cannot assure that adequate preparation is undertaken, it may reveal gross violations of counsel's obligations; at a minimum, it should heighten defense counsel's sensitivity to the need for adequate investigation and should provide a record of counsel's asserted actions for appeal.

The trial judge's obligation does not end, however, with a determination that counsel is prepared for trial. Whenever during the course of the trial it appears that defense counsel is not properly fulfilling his obligations, the judge must take appropriate action to prevent the deprivation of the defendant's constitutional rights. "It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial."

My colleagues fear that judicial "inquiry and standards . . . [may] tear the fabric of [our] adversary system." But for so very many indigent defendants, the adversary system is already in shreds. Indeed, until judges are willing to take the steps necessary to guarantee the indigent defendant "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate," we will have an adversary system in name only. The adversary system can "provide salutary protection for the rights of the accused" only if both sides are equally prepared for the courtroom confrontation.

Some of my colleagues are also concerned that a wide-ranging inquiry into the conduct of defense counsel would transform the role of the trial judge. To emphasize the supposed hazards of such a result, the majority refers to the warning of Judge Prettyman in Mitchell v. United States:

If the trial judge were required, after a trial has been concluded, to judge the validity of the trial by appraising defense decisions, he would also be under an obligation to protect those rights of an accused as the trial progressed. [Emphasis added]

Yet this is the very role that the Constitution has assigned the trial judge. His is the ultimate responsibility for ensuring that the accused receives a fair trial, with all the attendant safeguards of the Bill of Rights. It is no answer to say that defense counsel will fulfill the function of protecting the accused's interest; the very essence of the defendant's complaint is that he has been denied effective assistance of counsel. The trial judge simply cannot "stand idly by while the fundamental rights of a criminal defendant are forfeited through the inaction of ill-prepared counsel . . .."

However vigilant the judge, the problem of inadequate representation of the indigent cannot be solved by the courts alone. The bench, bar and public must jointly renew our commitment to equal justice. The bar certainly must increase its efforts to monitor the performances of its members and to take appropriate disciplinary action against those attorneys who fail to fulfill their obligations to their clients. Additional funding is needed to increase the number of public defender positions and to provide those organizations with better support services. We must increase the compensation of court-appointed counsel to attract high-quality legal talent and to ensure that those who represent the indigent on a regular basis do not have to sacrifice all economic security to perform this vital role. We must reduce the caseloads of both public defenders and court-appointed counsel to manageable levels. And we must establish procedures to insulate appointed counsel from the pressure to curry favor with the judges who appoint them and fix their compensation.

That the ultimate solution does not lie exclusively within the province of the courts does not justify our ignoring the situation nor our accepting it as immutable. The people have bestowed upon the courts a trust: to ensure that the awesome power of the State is not invoked against anyone charged with a crime unless that individual has been afforded all the rights guaranteed by the Constitution. We fail that trust if we sit by silently while countless indigent defendants continue to be deprived of liberty without the effective assistance of counsel.

* * * * * *

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.

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.

* * * * * *

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.

* * * * * *

Embarrassment caused counsel by an unjust charge of ineffective assistance is a price that unfortunately must be paid at times for careful judicial administration. And where the charge is just the remedy is not to save counsel from embarrassment but to save his client from unjust conviction or sentence.

J. SKELLY WRIGHT, Chief Judge, joined by BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges:

I write only to note that while there is no majority opinion of the court, Judges Bazelon and Robinson and I agree on the two fundamental principles dispositive of this case: (1) The constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant's diligent, conscientious advocate; and (2) where that standard is shown by the defendant not to have been satisfied, the defendant has been denied his constitutional right to counsel and his conviction must be reversed unless the Government proves beyond a reasonable doubt that the ineffective assistance of counsel was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

APPENDIX

I

II A.

B.

C.

D.

III

* * * * * *

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.

[343] MacKINNON, Circuit Judge (dissenting):

In my view this dissent is required because the foregoing opinion relentlessly disregards the facts and the law applicable to this case in an unjustified switching of the burden of proof to reverse a conviction of an admittedly guilty defendant without any showing even of a mere possibility that truthful evidence might have helped the defense, or might have affected the outcome of the trial. The factual findings of the trial court are obviated without suitable explanation, and, additionally, my two colleagues attempt to change the law by an unjustified appellate experiment so as to greatly increase the discretionary powers of appellate judges to reverse criminal convictions. They accomplish this by creating a new and extremely difficult, if not impossible, burden of proof upon the government to again sustain a conviction after a prior final judgment of conviction.

With regard to the law, the majority here and in DeCoster I are attempting without en banc consideration to overrule the unambiguous and settled law of this circuit on the burden of proof to show prejudice; but absent an en banc decision changing our decisional law, both opinions which switch the burden of proof are nullities. Even worse, the two opinions in this respect also ignore governing Supreme Court rulings and common law principles and create drastic and unnecessary constitutional conflicts, finishing by refusing to apply the law they seek to create. In saying that a "new trial is required" in this case my colleagues are compelling a useless ceremony, for they well know that the "allocation of burden", which they here manufacture, will, by their standards, be "dispositive" of any subsequent trial, as it is of this trial in their opinion. (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 311 of 624 F.2d). The Government can never satisfy their application of the standard they here create because they require a showing that evidence that cannot be pointed to, from completely speculative witnesses, was not prejudicial to the defendant. The result, beyond belief, is reversal for a failure to investigate a fabricated defense by an admittedly guilty defendant.

I do not dissent from the recognition that defense counsel must conform to reasonable standards of representation. My objection is to my colleague's attempt to shift the established burden of proof to the Government on an issue that directly intrudes, without justification, into the confidential and privileged relationship between defense counsel and his accused client. The burden of proof more properly should be retained by the defendant.

THE PROCEDURAL BACKGROUND AND THE FACTS

What the introductory paragraph of the majority opinion fails to disclose is that this is the third attempt by my two colleagues in their search for error to find some ground, not raised by appellate counsel, for reversing this judgment of conviction. The appellate odyssey indulged in by the majority finally results in their claiming error on factual grounds — never raised by appellant or his counsel — and in holding that the trial judge committed error when he held that defense counsel had presented the only defense available to him. But, the majority never point to any other non-fabricated truthful defense that could have been presented.

This case was first appealed on a brief that suggested three issues: (1) denial of speedy trial, (2) insufficiency of the evidence and (3) the alleged error in submitting the aiding and abetting issue to the jury (Appellant's br. iii).

Then, just prior to oral argument on appeal, the division of the court sua sponte launched the case into its Second Phase with a telephone request to counsel asking them to be prepared to address (1) whether the trial judge improperly denied appellant Youth Corrections Act treatment and (2) whether any question as to the effectiveness of counsel was raised by the discussion of an alibi defense (Tr. Nov. 15, pp. 7-9) and the alleged alibi testimony offered thereafter at trial (Tr. Nov. 16, pp. 29-43).

After oral argument, by the following order, counsel for appellant was ordered:

. . . sua sponte to submit a supplemental memorandum, within ten days from the date of this order, addressed to the question whether the District Court's [sentencing] statement is adequate to support a denial of Youth Corrections treatment to appellant. See United States v. Coefield, [155 U.S.App.D.C. 205, 476 F.2d 1152] (1973). Counsel is specifically requested to discuss the consideration, if any, given to the overcrowded conditions then existing at the Lorton Youth Center.

Order of March 21, 1973. The order did not further press the effectiveness of counsel as to the alibi defense.

Appellant's response to this order concerning the Youth Corrections Act was filed on April 2, 1973. Thereafter, without any further mention of the aforesaid response, the majority of the panel embarked on an expanded sua sponte venture on October 4, 1973 when it filed its DeCoster I opinion, United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973), ordering a shotgun type remand of the case to the trial court for a hearing on the effectiveness of the representation of appellant by his counsel on five specific matters and a general inquiry into defense counsel's preparation and investigation. 159 U.S.App.D.C. at 328, 487 F.2d at 1199. The remand hearing was held as ordered, and the trial judge, applying the test stated in DeCoster I, has found that appellant had not been denied proper representation by his counsel at the trial. This appeal is from that finding and, despite the absence of any finding that the decision of the trial court is clearly erroneous, the majority reverse its judgment.

We are thus in the Third Phase of this court's handling of the case and in the second attempt by my colleagues to raise points on appeal that were not raised by appellate counsel. Indeed, my colleagues have already taken care to sow the seeds of the Fourth Phase: because of the delay caused by their fruitless search for other grounds of reversal, the majority intimate that delay itself (if their present tack fails) would now be cause for appellant to claim reversal on speedy trial grounds! Majority opinion, nn. 44, 49 and accompanying text at p. ___ of 199 U.S.App.D.C., p. 312 of 624 F.2d.

I. SPECIFIC ITEMS OF INQUIRY SUGGESTED BY THE OCTOBER 4, 1973 OPINION OF THIS COURT

A. The bond review.

(1) The majority first claimed that defense counsel did not file a timely bond review motion. This suggestion demonstrates a lack of understanding of the standards that judges ordinarily apply in considering such requests. When appellant was arrested on this charge he was already being sought as a fugitive on a bench warrant issued in another case. He had previously been arrested in South Carolina for carrying a dangerous weapon and had absconded by leaving the jurisdiction while he was under a $600 bond. Also, as a juvenile he had been involved in a robbery in the District of Columbia and was sent to the Receiving Home from which he escaped in 1969 (Tr. March 3, 1972, pp. 2-3). For an appellate court to suggest that defendant's trial counsel was deficient in not immediately moving for release under such circumstances is to suggest that defense counsel should clutter the courts with frivolous motions. In any event when the bond review motion was made on November 9, 1970 it was denied, as it should have been.

Thereafter, however, when the trial was delayed from January 12, 1971 to February 9, 1971, because of an injury to the complaining witness in an accident, appellant was released. As might have been expected from his prior history of two escapes, he promptly became a fugitive from justice for the third time — thus further delaying the trial.

Finally, the so-called delay in moving for bond review had absolutely no relevance whatever to the conviction of appellant. It was a complete waste of judicial time for an appellate court, knowing all this, to remand the case for hearing on such frivolous grounds.

B. The alibi and readiness for trial.

(2) The second point of inquiry is a slight enlargement of the original inquiry into alibi procedures. It was a suggestion by the majority that when defense trial counsel announced himself ready for trial he may not have been prepared to go to trial. This conclusion, however, does not clearly follow. The colloquy relied upon in the court's opinion as the basis for further inquiry by the trial court can be explained just as well by a justifiable and not improper reluctance of defense counsel to furnish the Government with the details of his alibi defense, including the names of alibi witnesses, in advance of the time the applicable district court rule required him to do so. When we consider that there were no truthful alibi witnesses, counsels' refusal to name any witness is completely understandable. In any event this refusal had no adverse effect upon defendant's case because during the trial he was permitted, without objection from the Government, to introduce his subsequently discovered alleged alibi witness whose name had not been previously given. This witness, however, did not testify to an alibi. (Tr. Nov. 16, pp. 39-40). Such testimony cannot be characterized as an alibi. The only person who testified to an alibi was the defendant himself, and Rule 84(c) of the U.S. District Court Rules for the District of Columbia then provided, the same as Fed.R.Crim.P. 12.1(d), now provides: "This rule shall not limit the right of the defendant to testify in his own behalf." Thus, as it turned out, there was no violation of the Alibi Rule. Had Eley testified to an alibi, as appellant thought he would, the circumstance would have benefited the defendant, rather than prejudicing him and it would have been the Government that might have claimed prejudice. Such facts are a far cry from proving inadequate representation by counsel.

C. The waiver of a jury trial.

(3) For their third point my colleagues claimed that defense counsel lacked knowledge of the disposition of the cases against appellant's accomplices and that the offer by defense counsel to try the case to the same court that had heard part of the evidence against the two other accomplices further indicated a laxity in representing Decoster. I would take judicial notice that the trial judge here involved would fairly try the case on the basis of the testimony to be introduced against Decoster notwithstanding the court's prior connection with the case against Decoster's accomplices. I would also have to agree with defense counsel's contention that had the Government been willing to waive a jury the appellant would have obtained a trial from the judge that was every bit as fair as from any jury. In fact, many lawyers with substantial experience in trying criminal cases believe that trial judges in most cases hold the Government to a stricter standard for proving guilt than do juries. From all that appears in the records of this court the trial judge here involved is no exception to that rule. It is also not without significance in this case that the judge's reputation was such that Decoster was personally anxious to have his case tried by him without a jury. So it is by no means clear that counsel's conduct in this respect was in any way adverse to this client's interest.

In any event, since appellant was tried by a jury and not by the court, the record indicated he was not prejudiced in any way. The point is thus irrelevant to the conduct of appellant's lawyer in his trial, and my colleagues in the present draft of their opinion have now recognized this. Moreover, I fail to see that there is any substantial difference in resulting prejudice whether a seasoned trial judge learns the facts of the crime from a jury trial with a mid-trial guilty plea followed by a presentence investigation and sentencing of defendant's accomplices, or the judge learns the details of the crime solely from the exhaustive presentence report following guilty pleas by the accomplices without the prior submission of any evidence. The majority were once again chasing an insubstantial point.

D. Miscellaneous.

(4)-(5) The remaining points were even more slight and frivolous and the present greatly modified draft of the majority opinion has abandoned any defense of them. However, since the majority continue to arrive at the same result as it did in its prior drafts it is only fair to say that they have finally given up on their prior contention that defense counsel should be found to have inadequately represented a defendant merely because the truth somehow came out from a defense witness and contributed to a proper guilty verdict.

II. PREPARATION AND INVESTIGATION BY DEFENSE COUNSEL

In addition to remanding the case for inquiry into the five points just discussed, my colleagues also directed that the trial court inquire into defense counsel's preparation and investigation. The remand hearing was held on three separate days from February 6 to February 13, 1974, and the court filed complete findings of fact and conclusions of law. (Hereafter Findings and Conclusions.) These concluded that "defense counsel was under no duty to assist the defendant in the fabrication of a defense," that defense counsel raised "the only defense available" to Decoster (putting the Government to its proof, Findings and Conclusions, p. 19), and that appellant was not denied "the reasonably competent assistance of an attorney." Appellant's motion for a new trial was therefore denied.

While my colleagues originally set forth five items of suggested deficiency in defense counsel's representation of Decoster, in their present opinion in effect they have now abandoned most of them and finally settled more or less on one item which they now characterize as the failure of defense counsel to promptly interview four groups of witnesses and alleged witnesses — which is asserted to be an alleged failure in necessary preparation and investigation.

A. The Risk of a Fabricated Defense

The holding of the majority on this problem of interviewing witnesses, when applied to the facts here, indicates that they would require defense counsel to make a full investigation in support of a fabricated defense which is fanciful and contradicted by overwhelming evidence and not presently claimed by the defendant.

Of course, the majority come out against assisting in the fabrication of a defense, but they point to no "non-fabricated defense" (Majority opinion, pp. ___, ___ of 199 U.S.App.D.C., pp. 308, 310, 624 F.2d), and they find that Decoster was prejudiced by the failure of his counsel to investigate in a vacuum in support of a defense that is never defined. Result: the conviction is reversed on such grounds by the wholly conclusory assertion of my colleagues that the Government had not sustained the shifted burden of proof of establishing beyond a reasonable doubt that counsel did raise the only defense available to him, i.e., putting the government to its proof. What truthful defense was even speculatively available, they completely fail to point out or even suggest.

My colleague's opinion does lip service to requiring a factual showing that the alleged error was harmful to the defense, but no impairment is shown. Instead my colleagues attempt to rely on newly established rules of presumption. (Majority opinion, pp. ___-___ of 199 U.S.App.D.C., pp. 309-310 of 624 F.2d). The gist of their real holding is that they would reverse "even if an investigation would not have produced a scintilla of evidence favorable to the defense" (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d) — and that is exactly the rule they have applied here. They accomplish this bit of legerdemain by toying with the words "substantial," "consequential," "harmful" and "prejudicial" in a manner that is strongly reminiscent of the many unsuccessful attempts to define "productivity" that emanated from Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954) (en banc).

The real issue here, and in many other cases, which the majority completely ignore, is how extensive an investigation a defense lawyer must make when he has sound reason to believe his client is guilty and when his client urges him to present only a fabricated defense. The extent of any investigation by counsel necessarily must be affected by the guilt or innocence of a defendant. I hold with Judge Waddy's conclusion, which points to the nub of the controversy here, when he stated in his conclusions on the facts of this case:

Certainly defense counsel was under no duty to assist the defendant in the fabrication of a defense.

Findings and Conclusions, p. 20. The effect of the majority opinion here is to hold that counsel must investigate to support a fabricated defense. It is on this aspect of this case and the means the majority take to accomplish such result in this and other criminal convictions that I part company from my colleagues.

The majority opinion of course disclaims imposing any obligation on defense counsel to suborn perjury, but the effect of holding that counsel here failed in his constitutional duty to defendant because he did not interview witnesses to support a fabricated defense, in the face of Decoster's obvious guilt and his lawyer's knowledge of his untruthfulness and his guilt, is to force objecting defense counsel in the future to indulge in an investigation for no reason other than to somehow aid an obviously untruthful defense. In this connection it must be recognized at all times that appellant's accomplices, Taylor and Eley, had both pleaded guilty and the case against Decoster was substantially the same as the case against them.

I thus take issue with the effect of my colleagues' holding on the facts of this case, that defense counsel owes the same duty to investigate in support of a fabricated defense — which is this case — as when his client makes what appears to him as a truthful claim of innocence. Once defense counsel has reasonable ground for believing his client guilty, the extent of the investigation required is substantially diminished.

To illustrate the unsoundness of the position of the majority in this case, let us look further at the investigations my colleagues assert should have been conducted in this case by defense counsel. In so doing, while defense counsel made no particular point of the fact at the remand hearing, it is perfectly apparent from the record that he was at a disadvantage in answering many questions (Tr. 40, 44) because of the three years and eight months that elapsed from the preliminary hearing (6/8/70) to the remand hearing (2/11/74) and because many of the questions related to decisions he had been required to make quickly and the reasons therefore had not been recorded. Nor could it have been expected that they would be recorded. Defense counsel in most criminal cases cannot be expected to keep books and records like corporate counsel — the representation is different and the trial pace is much swifter. Defense counsel was also not aware of the great lengths to which a majority of this panel would go to reverse a criminal conviction. See n. 7, infra.

B. The alleged failure to investigate

The majority assert that

[Defense counsel] did not interview codefendant Taylor, and delayed interviewing Eley until the second day of trial. He did not interview the complainant or the arresting officers, and he failed to search for witnesses at the hotel or the bar. From all that appears in the record, counsel advised his client on whether to go to trial, and then conducted the trial without making any real effort to determine what could be elicited by way of defense.

Majority Op. p. ___ of 199 U.S.App.D.C., p. 306 of 624 F.2d.

This bald assertion that there was a complete failure to investigate is repeated elsewhere in the majority opinion. It constitutes the entire basis for its decision. However, because defense counsel represented Decoster and one of his co-defendants at the preliminary hearing and conducted that hearing for all of them, and represented Decoster continuously thereafter for the 17 months until trial, the record is not clear that the failure to investigate was not just a failure to interrogate some witnesses shortly before trial. Cf. Majority Op., n. 23. The alleged failure to investigate thus did not cause defense counsel to be ignorant of the facts of the case — which is really the vice that the investigation requirement seeks to avoid. Therefore, the entire base for the majority opinion is not as firm as would be indicated by the frequent repetition of the unqualified assertions that there was a failure to investigate. The frequency with which the majority repeat this claim does not add to its authenticity.

C. Co-defendants Taylor and Eley

Because, Decoster's defense counsel represented both Taylor and Decoster at the preliminary hearing on June 8, 1970, ten days after the offense, in the absence of any showing to the contrary, it can be assumed that he was aware of Taylor's testimony from the very start of the case. I am unwilling to presume that counsel did not learn the facts of the case at that time. The overly strong reliance of the majority on counsel's testimony that he "never interviewed Mr. Taylor prior to the trial" (Tr. 37, cf. Majority opinion, note 23) fails to recognize that the principal thrust of the context of his examination at this point in the record was directed to his actions immediately "prior to trial" (Tr. 36-37). Counsel obviously never interviewed Taylor immediately prior to trial because Taylor was not available then, and prior to that time he had ruled Taylor and Eley out as witnesses because he believed they would both contradict Decoster's story (Tr. 29) (which Eley did). It was not until the day of the trial that Decoster changed his story and demanded that his counsel call Taylor and Eley as witnesses to support his altered defense. Counsel also relied, as he had a right to, on the "letter [he] . . . received from Mr. Decoster" (Tr. 38). (Tr. 21, 25, 29). It thus seems apparent that counsel did not interpret the question as inquiring into the knowledge of the offense and the parties thereto that he had gained beginning some 17 months earlier when he began by representing both Taylor and Decoster at the preliminary hearing. My colleagues are thus overly literal in reading the record and their reply to this charge (Majority opinion pp. ___-___ of 199 U.S.App.D.C., pp. 306-307 of 624 F.2d and n. 23) is deficient because it completely fails to reflect on the possible limited scope of the question. The majority, thus, erroneously assume, from their unreasonably broad interpretation of the scope of the two questions ( Id., pp. ___-___ of 199 U.S.App.D.C., pp. 306-307 of 624 F.2d), that counsel was not familiar with the true facts of the case from the outset. This assumes more from the answer than was clearly asked by the question. The majority faults this conclusion as being based on logic instead of evidence. ( Id.) Actually it is based on evidence and logic, and common sense, as it should be.

The third appellant, Eley, was also a defendant in the same preliminary hearing, and while Eley had separate counsel (Mr. Kehoe), it was Decoster's counsel in the preliminary hearing (who was also trial counsel for Decoster) who pulled the entire laboring oar for all three defendants at that hearing (Tr. 34 and transcript of preliminary hearing, June 8, 1970). The evidence of guilt against all three men was substantially the same, and following the introduction of the Government's case the decision was obviously made by all not to contest the finding of probable cause by the magistrate. This decision was not attacked then and is not attacked now. To reach the decision not to contest the finding of probable cause necessarily involved knowledge by defense counsel for Decoster and Taylor (the counsel whose conduct is here in question) that could only have been obtained by prior discussion of the offense with these men and by consultation with Eley or his counsel. Moreover, the trial court made a finding that counsel did interview Eley before he acceded to Decoster's demand and placed Eley on the stand. Also, before Decoster was tried, both Taylor and Eley entered guilty pleas to robbery and were sentenced.

Then, suddenly, on the day Decoster's trial began, Decoster apparently switched his story and told his counsel that he had a self-defense claim and demanded that his counsel call Eley and Taylor as witnesses (Tr. 29). It is for the failure to have foreseen and investigated this admittedly specious defense, conjured up by the accused on the opening day of the trial, that the majority now bases its reversal of this conviction. The majority cast their decision in slightly different form by indicating counsel should have realized that Taylor and Eley were at least potential witnesses who should have been previously interviewed; but the defendant himself never even claimed the defense involving his confederates as witnesses until the day before trial, so how could counsel be expected to realize that the accused was going to change his story? To require such clairvoyance demands too much of counsel. Moreover, as above pointed out counsel was aware of Taylor's and Eley's participation, and the government's evidence thereof, from the time of the preliminary hearing.

Defense counsel must rely to a great extent on the defendant for the facts of his involvement and that of his accomplices and it is unreasonable to require counsel to anticipate that his defendant on the day trial begins will radically change his story as to his own participation in the crime. It is clear in this record, however, that defense counsel had already been through the preliminary hearing with all three men and it is submitted that this was a sufficient basis for him to conclude, as he did (Tr. 34), that there was no need for the further investigation the majority suggest.

It is also apparent that as a reasonably competent lawyer defense counsel realized from his early prior knowledge of their acts, and their subsequent guilty pleas and the letter he received from his client, that Taylor and Eley were not potential witnesses who could benefit his client. He correctly concluded that they would contradict his client's story (Tr. 29, 38), and Eley's testimony at trial proved his judgment to be correct. What the majority attempts to do is to rescue Decoster from his perjury and his bull-headed demand on his counsel to call Eley. Decoster forced his counsel to carry out his unreasonable demands and thus there is no reason that he should now be saved from his own folly, particularly so because in his allocution he in effect admitted his guilt.

D. The Government Witnesses

The majority admits that there was no need for a further interview of Officer Ehler, since defense counsel had cross-examined him at the preliminary hearing, but insist that Officer Box should have been interviewed. However, prior to trial defense counsel was given full access to the Government file, including the grand jury testimony and the transcript of the preliminary hearing containing Ehler's testimony, and since defense counsel knew of Decoster's untruthfulness, it was not necessary to interview either Box, or the victim Crump. Likewise there is no showing that these Government witnesses would have willingly submitted to such interview by the lawyer for the accused. They were not required to so do. Moreover, the testimony of all three Government witnesses was substantially the same and was consistent. The record thus supports a conclusion that there was a lack of prejudice on this score.

The majority, however, attempt to make a point out of the fact that at the preliminary hearing Officer Ehler testified as follows:

Mr. Decoster and Mr. Ely [ sic] had a hold of the subject, the complainant. One of them was yoking him, I don't know which one it was at the time, but — and they were removing something from his pockets.

Tr. Preliminary Hearing 5-6 (emphasis added).

While at Decoster's trial Officer Ehler testified:

[Willie Decoster, Jr.] was the one who was going through the complainant's pockets.

Tr. Nov. 15, 1971, p. 12. This latter statement was corroborated by Officer Box's testimony (Tr. 42, 47). So there is an apparent conflict in that Ehler testified at the preliminary hearing that he did not know whether Decoster or Eley was yoking Crump and at the trial 17 months later he testified that it was Decoster who was going through Crump's pockets, i. e., that left Eley as the one who was yoking Crump. The record does not disclose any specifically obvious explanation for this. The most likely explanation probably lies in the fact that in the interim between the two statements by Officer Ehler the other two participants in the crime, Taylor and Eley, had entered guilty pleas and been sentenced. This necessarily involved the acquisition of considerable additional reliable knowledge by the Government as to what the participation of each accused had been in the crime.

Actually, the point is a minor one, and from a substantive point of view it is relatively immaterial whether Decoster was going through his victim's pockets or yoking him because both acts aided the same crime and the perpetrators of both acts are properly chargeable as principals. 18 U.S.C. § 2(a). The important fact is that both officers identified Decoster as an actual participant in the robbery. After originally taking a contrary position, the majority now admit that this was harmless beyond a reasonable doubt (Majority op. n. 42). The point was so immaterial it should never have been raised. Also, there is no reasonable doubt about Decoster's identification as a participant in the crime with Taylor and Eley, since he was arrested almost immediately thereafter only a short distance from the scene of the robbery. Even Eley placed Decoster as a participant in the crime.

E. The Desk Clerk at the D.C. Annex Hotel

My colleagues also assert that it was clearly erroneous for the trial judge to find no prejudice in not interviewing the desk clerk at the D.C. Annex Hotel where Decoster was arrested. They suggest the possibility that the desk clerk or guests or residents in the lobby at the time might have corroborated or denied that Decoster "walked from the bar to the hotel and into the lobby, while Officer Box testified that he had chased appellant" (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 308 of 624 F.2d). However, an examination of the transcript indicates that this suggestion is purely speculative, not based on any foundation whatsoever, and so there is no indication that any material testimony could be thus obtained. In the absence of a proper foundation the court cannot just dig up potentially helpful witnesses out of its imagination — that is pure speculation — and that is what the majority opinion here relies upon. There was no showing or proffer of any sort by appellant that there were any guests or residents in the "lobby", or even that this so-called "hotel" had anything that might pass as a lobby, nor any showing as to what the desk clerk would testify to, or that at his location inside the hotel he was in a position so that he was able to see whether Decoster had walked from the bar to the hotel, or that he "remembered" having seen anybody in the lobby (Majority op., p. ___ of 199 U.S.App.D.C., p. 308 of 624 F.2d). Thus no adequate foundation exists in the record for the majority's completely speculative suggestions.

Further, examination of Exhibit 2, which is a sketch of the area, clearly shows that it was impossible for the desk clerk to see the path which Decoster testified he took "from the bar to the hotel." This is so because the desk clerk was situated at point (E) on the sketch (Exhibit 2) which was at a considerable distance inside the Annex and the entire area that Decoster testified he covered in walking from the bar to the Annex was around a corner of the building from the line of vision that the desk clerk had from where he was stationed inside the Annex. See point (E), Exhibit 2. It would also have been impossible for the desk clerk to see how Decoster approached the Annex if Decoster had taken the path from the club to the Annex as testified to by the Government witness and Eley or by his own testimony. Exhibit 2 clearly shows that the desk clerk would have had to be able to see around a corner, which was a considerable distance away from where he was situated at point (E), before he could have seen how Decoster covered any of the distance from the bar to the front door of the Annex. This is difficult to do — even in an appellate opinion of this court. Exhibit 2 and the record prove that it was not possible for the desk clerk to be a competent witness on the issue suggested by the majority, i. e., whether Decoster walked from the bar to the Annex. Thus the record discloses that there was no prejudice in not interviewing him.

The assertion by the majority that "the hotel lobby . . . [was a] potentially fruitful [place] for investigation[s]" (Majority op. p. ___ of 199 U.S.App.D.C., p. 308 of 624 F.2d), and the finding that defense counsel was constitutionally deficient in his representation of his client, for not doing so is a good example of the farfetched speculation the majority indulge in to support their extreme conclusions and of what defense lawyers and the public can expect from the majority in the future if they are placed at the mercy of an unreasonable change in the burden of proof in all ineffectiveness of counsel cases. Competent lawyers should think twice before accepting defense assignments that would subject their professional reputation to second-guessing appellate criticism on such highly speculative grounds for claimed failure to seek out non-existent and immaterial evidence.

The uncontradicted evidence is that when Decoster was in the lobby he was walking. So the only testimony is that when Decoster was inside the hotel he was walking, and, if the desk clerk observed this, his testimony would be merely cumulative. Anything beyond this is pure speculation.

F. Other Witnesses

The majority make the further speculative suggestion that the desk clerk should have been asked for names of persons in the lobby, and that

Similarly, appellant testified that persons unknown to him had been in the bar at the same time he was there. Such witnesses could have been helpful if they could have corroborated appellant's claim that he and Crump had been drinking together, or, perhaps, if they had overheard conversation, or seen Crump and appellant leave. Counsel at least could have questioned employees of the bar to see if they had useful information or could supply the names of customers who were at the bar at the time.

Majority opinion, p. ___ of 199 U.S.App.D.C., p. 308 of 624 F.2d (emphasis added). The italicized words indicate the degree of speculation indulged in by the majority.

As for any possible witnesses at the Annex, as stated above, there is no conflict in the testimony as to what happened in the hotel, so further witnesses were unnecessary. As for witnesses from the bar, Decoster testified that Roger Crump was the only person with him at the Golden Gate Club (Tr. 34). Decoster testified that he had been together with Crump in the bar some time before the robbery (Tr. 30-31), and this was not denied by Crump who, because of his intervening head injuries, testified, "I couldn't say for sure" (Tr. 35, 36). So there was no dispute about what happened in the bar either. In any event, such prior meeting in the bar, as testified to by Decoster, was not helpful to him, since he testified that Crump paid for drinks with cash (Tr. 34), and this testimony afforded the Government a basis for suggesting that this may have given Decoster an opportunity to see that Crump "had quite a big roll of money on him that night" (Tr. 34), thus leading to the robbery. The indictment charged that $100 in cash was taken from Crump in the subsequent robbery.

Decoster also testified that no person in "the little restaurant on 9th St.," where he once claimed to have been before he walked to the D.C. Annex, ". . . could testify that [he was] there" (Tr. 36). So, even if witnesses had been found in the Annex or the bar, there was no dispute as to the events there, some of the facts as testified to by Decoster were not helpful to him (Tr. 35, 36), and they were not particularly relevant to the commission of the offense, i. e., the robbery of Crump on the street some distance away and out of the view of the phantom and useless witnesses the majority demand be located and interviewed. At this point, the majority's asserted denial of speculation ("Unwilling to speculate . . we remanded . . .," Majority opinion, p. ___, of 199 U.S.App.D.C., p. 301 of 624 F.2d) becomes ludicrous. It is thus clear that the majority opinion is based completely on speculative possibilities from unidentified witnesses for which there is no foundation or support in the record.

G. Admission of Guilt

A matter of great significance, which my colleagues refuse to recognize, is that prior to his sentencing Decoster in effect admitted his guilt in a letter to the trial judge. Thereafter, the following occurred at his sentencing:

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 [ sic], 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 — 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.

Tr. Sentencing Proceedings, March 3, 1972, p. 4. Thus, Decoster at sentencing did not claim to be innocent and in effect admitted his guilt. From such admission it is apparent that his testimony at trial was false. Thereafter, the height of sophistry is reached when the majority contend that the defendant might have benefited from additional investigation since he could have "been told by his lawyer that there was no evidence available to support the defense theory" (Majority opinion, p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d). But appellant knew better than anyone that there was no truthful evidence to support any defense theory. He did not need his lawyer to investigate to tell him what he already knew.

H. The Suggestion of the Majority as to the Duty of Defense Counsel

The presently stated position of the majority opinion is that from a "full investigation . . . appellant [might have] been told by his lawyer that there was no evidence available to support the defense theory [a false alibi] [and] appellant would have been able to make a better informed decision whether to go to trial, or [plead guilty]" (Majority op. p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d). When the majority opinion refers to "the defense theory," supra, in the context of his case it is contending that if, as a result of the investigation, Decoster had realized his alibi defense was weak and so had changed his story to admit the fighting, which was an easily provable obvious fact, and denied the incriminating facts, i.e., the actual taking, the larceny, he might thus have obtained an acquittal by testifying falsely. From the very beginning I have vigorously opposed this latter alternative as not being a legitimate consideration. The reluctance of the majority to discuss this prejudice, argumentatively resulting from the inability to possibly secure an acquittal from the use of testimony the majority now knows is perjured, is part and parcel of the complete failure of the majority even to discuss the effect of Decoster's admission of guilt as showing lack of prejudice. In other words, there is lurking in the silence of the refusal by the majority to even discuss the lack of prejudice from the refusal to investigate the fabricated defense, that that reason is implicit in "the defense theory" the majority refer to and asserts reliance upon, but does not explain. And while the majority opinion states that "counsel was 'under no duty to assist in the fabrication of a defense'" (Maj.Op. p. ___ of 199 U.S.App.D.C., p. 308 of 624 F.2d), it places all counsel under that precise duty by holding in this case that this counsel violated the accused's "constitutional right to effective assistance of counsel" ( Id., p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d) in allegedly not stretching his investigation to provide more fuel for a fabricated defense which the majority now knows (p. ___ of 199 U.S.App.D.C., p. 310 of 624 F.2d supra) would be based on perjury. What the majority position adds up to is that it reverses the conviction because they contend the defendant was prejudiced by lack of an investigation that might have been used as the basis for talking Decoster out of one perjured defense so he might have relied upon a second perjured defense that had a better chance of succeeding.

Basically I part company from my colleagues in their holding that what it considers to be ineffective assistance of counsel may be grounded in a failure to assist the accused in fabricating a defense.

The risk foreseen by Judge Waddy has been realized.

I deny that any lawyer has an obligation to investigate in order to create or assist such a fabrication and no appellate court with its eyes open to such a result should reverse a conviction on such grounds. Ethics alone should prevent it. That by declining to do so the lawyer might also prevent his client from committing perjury would of course be a beneficial but necessarily secondary result. In this case further investigation was not necessary because defense counsel already had adequate information. He had been in the case from the very beginning. Judge Waddy, after trying the case initially, and conducting the extensive remand hearing, also clearly perceived on the remand what was involved in this case and likewise stated that defense counsel owed no duty to assist the defendant to fabricate a defense. I agree completely with his statement of the law and with his analysis as to what the suggestions of the majority here actually add up to.

The majority say they cannot agree with the trial court's finding that defense counsel raised the only defense — but they point to no valid defense. All that is present here is an admittedly fabricated defense. I submit this is an insufficient showing upon which to base a conclusion that the trial court's finding was clearly erroneous, and the majority does not make this finding which is required to support its reversal.

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)."

The purported reasoning for placing the burden of proof on the Government, which DeCoster I asserts, 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. 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, where there was an obvious conflict of interest, or where the court denied the defendant his right to confer with his counsel. Here, every alleged failing relates to a subjective decision made with sufficient time, without conflict of interest 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.

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, the Harried excerpt relied on Mitchell, in which Judge Prettyman, writing for himself and then-Judge Burger, wrote:

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 in Scott 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); see Bruce, 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 in United 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. 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. 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.

B. United States v. Pinkney

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 engaged 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 DeCoster pressed 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 require reversal, 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:

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. See Davidson 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 show prejudice — 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 of the cases Pinkney reiterates that defendant must show prejudice 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 in DeCoster 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).

This assertion conflicts with the rule evident in holdings by the Supreme Court. 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 is defendant 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 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 in DeCoster I remains 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."

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 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 the DeCoster 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). But Chapman 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 fact Chapman 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 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. 828 supra), 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 the 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 cases DeCoster 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.

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 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.

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, 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. 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 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, 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 lawyer in 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 counsel did not prejudice defendant, as the majority here attempts to do, 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 lawyers selected 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 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 in Coles, 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. The burden of proof dictum in DeCoster I should therefore be rejected entirely, and the underlying conviction affirmed. To 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 beabricated.

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Q Did he have to open the door to get into the D.C. Annex?

A Yes sir, but it was one of those doors where there is a double door but one of them is stationery [ sic] and you have to open one to go in.