United States v. Emanuel W. Simpson , 475 F.2d 934 ( 1973 )

PER CURIAM:

This case, involving appellant’s petition under 28 U.S.C. § 2255 to set aside his plea of guilty to an armed robbery charge, has been before this court on two prior occasions.¹ Following the second remand, a hearing was held on petitioner’s allegation that his assigned counsel falsely represented to him that the trial judge had given assurance that defendant would be sentenced under the Youth Corrections Act.

We conclude that the preponderance of evidence supports the judgment rejecting petitioner’s claim. The record is not entirely free from doubt, particularly in view of the fact that the attorney assigned to represent appellant at trial, had at best an uncertain recollection as to this case and was unable to produce any file of the case in response to subpoena. He grounded his denial of appellant’s allegations primarily upon his unequivocal, emphatic and reiterated assertion that he had never been in Judge Gesell’s chambers. Yet at the remand hearing, Richard Hopkins, Esq., attorney for appellant’s co-defendant, not only recalled in considerable detail a conference that both he and appellant’s trial counsel attended in Judge Gesell’s chambers, but also highlighted its importance.

At this conference, said Mr. Hopkins, Judge Gesell asked whether the case would go to trial, was informed that defendant was considering a suggestion to plead guilty to one count but had not yet decided on his course, and then told both counsel that if the case were not disposed of by plea in five minutes he would proceed to trial as scheduled.

While we do not credit the recollection of appellant’s trial counsel, we think the record requires affirmance in view of the clearcut testimony of Mr. Hopkins that, following the session in Judge Ge-sell’s chambers, he attended the conference that appellant had with his trial counsel, and that at this critical conference in which appellant shortly agreed to plead guilty, there was no representation such as appellant alleged. There is corroboration, to some degree, of Mr. Hopkins’ account in the circumstance of the strong evidence of guilt that confronted all concerned — appellant and his co-defendant were apprehended shortly after the crime, in a “hot pursuit” situation, hiding in a nearby house; and both the proceeds of the robbery and the weapon purportedly used in its commission were recovered from the same premises.

Appellate counsel suggests that Mr. Hopkins’ testimony should not be given critical weight, since he was an intruder, and represented a different interest— the prosecutor would not accept co-defendant’s plea of guilty unless defendant pleaded guilty; and the co-defendant, being younger than appellant and having had fewer previous brushes with the law, had a better prospect for Youth Corrections Act treatment.

The case is not free from difficulty. We are by no means confident of the reasons for, or propriety of, the prosecutor’s approach, as reported. And we are not comfortable with the notion that the critical conference was not held under conditions permitting confidentiality of communication. Yet none of these elements has been put forward to us as having constituted undue pressure on this appellant. We cannot develop a blanket rule prohibiting testimony by a third party who attended a conference between client and attorney. Such attendance is not necessarily improper — if consented to by both client and attorney —and when it exists it precludes application of the rule protecting confidentiality.

This has been a most difficult proceeding, involving as it does the allegation that a member of the bar has fallen short of minimum standards. We are indebted to Dennis Lyons, Esq., for the way he has shouldered the burden we have placed on him with our assignment of what is inevitably an unpleasant task; he has shown unremitting application and perservance in his conduct of what is an unwelcome, yet necessary, aspect of the functioning of an officer of the court.

One result of the proceedings has been to refocus the attention of all reflective judges on the need for provision of counsel who meet minimum standards of competence and diligence. This case involves an attorney who was, unfortunately, plagued with a drinking problem,² who did not even have an office, who had to be summoned by warrant to attend the 2255 proceedings. If we take pride in our system of justice, as we generally do, that pride must be eroded by records like this one. The case is a warning against complaisant acquiescence in any assumption that the mere assignment of some counsel is enough to meet the constitutional guarantee of effective assistance of counsel.

Affirmed.

1 . United States v. Simpson, 141 U.S.App.D.C. 8, 486 F.2d 162 (1970) (evidentiary hearing ordered); United States v. Simpson, (No. 24,817, July 19, 1971) (order remanding for further hearings).

2 . On March 20, 1968, eight days after petitioner entered his plea of guilty, his attorney was convicted of contempt in the District of Columbia Court of General Sessions for appearing intoxicated in court. This judgment was subsequently reversed on the ground that, while ostensibly conducting a summary proceeding, the court had in fact relied on unsworn testimony of an expert witness. A rule to show cause issued, and on retrial after a formal hearing appellant’s trial counsel was again convicted in the Court of General Sessions (June 24, 1969).