Bearden v. South Carolina

WINTER, Circuit Judge

(concurring in part and dissenting in part).

Insofar as the majority holds that the Sixth and Fourteenth Amendments do not guarantee the right of a parolee to counsel at his parole revocation hearing, I respectfully dissent.1

I

The basic error in the majority’s opinion is its niggardly reading of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). However facially limited was the exact question decided in the case, the ease holds “that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (emphasis supplied.) 389 U.S. at 134, 88 S.Ct. at 257.2

*1097I cannot read Mempa, as the majority apparently does, to rest on the premise that the degree of burden on the convenience of counsel is a determining factor of whether the right to counsel attaches. True, the Court commented at the end of its opinion that “[w]e assume that counsel appointed for the purpose of the trial on guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.” 389 U.S. at 137, 88 S.Ct. at 258. But the comment appears to be little more than an aside about the practical effect of the decision. To me, the factor of burden on counsel is largely irrelevant.3 Rather, Mempa rests squarely on the propositions, first, that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected and, second, that the loss of liberty which may result from a revocation of probation or deferred sentencing is a substantial right.

The right to continued liberty — the ultimate issue in a parole revocation hearing — is the same substantial right. When that right depends upon disputed questions of fact, I have no difficulty in concluding that there is also a right to counsel, for, as said by the Court in Mempa, “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case * * * is apparent.” 389 U.S. at 135, 88 S.Ct. at 257. A parole revocation hearing, like a probation revocation hearing or “deferred” sentencing, is an accusatory and adversary proceeding. The parole board performs the same function as a judge. In oral argument, counsel for Virginia advised us that . the Virginia parole board not only determines whether a parole violation has occurred, but also has discretion to continue parole despite the violation.4 Certainly, the parole officer who initiates the proceedings and has investigated the *1098facts of the alleged violation plays a role analogous to that of a prosecutor. Revocation of parole, like revocation of probation, is often based on the alleged commission of criminal offenses for which the accused is never tried. This fact was given significant weight in Mempa (389 U.S. at 136-137, 88 S.Ct. 254), with regard to probation revocation hearings, and highlighted the necessity for counsel to protect the accused from imprisonment for crimes never committed.

Thus, I would conclude that Mempa requires us to hold that the Sixth and Fourteenth Amendments give to a parolee the right to counsel at a parole revocation hearing. Our prior decisions in Jones v. Rivers, 338 F.2d 862 (4 Cir. 1964), Gaskins v. Kennedy, 350 F.2d 311 (4 Cir. 1962), and Boddie v. Weakley, 356 F.2d 242 (4 Cir. 1966), all of which were decided before Mempa, should be overruled to the extent that they are inconsistent with this conclusion.5

There is, as the majority demonstrates, an apparent numerical majority of decisions from other jurisdictions supporting the majority’s view.6 But, in my judgment, the better reasoned cases reach the result I would reach.7 Certainly, it is one recommended by legal scholars and various study commissions.8 One of the most persuasive opinions is that in *1099People ex rel. Menechino v. Warden, Green Haven St. Pris., 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238 (1971).9 In that case, Chief Judge Fuld, writing for the court, indicated that our decision in Hewett dictates the result we should reach here. Chief Judge Fuld also effectively answered the concepts, lurking in the majority’s opinion and articulated more fully in some of the authorities on which it relies, that somehow the rules with regard to counsel are different with regard to parole revocation hearings because they are “administrative” in nature, or because the parole board bears a relationship of parens patriae to the parolee, or because the presence and participation of counsel at a parole revocation hearing would impair the benevolent objectives of the parole system. After carefully pointing out that in order to return a parolee to prison a parole board must make factual determination as to the truth of specific allegations of misconduct, Chief Judge Fuld stated:

[cjertainly, a “parole court” or a parole board panel may not be permitted — simply because it is an administrative body rather than a judicial tribunal — to base its determination, having so serious an impact on the lives of the individuals who appear before it, on a possibly mistaken view of the facts owing to the parolee’s inability to make a proper factual presentation. In the present case, for instance, counsel would have been able not only to analyze and question the accuracy of the parole supervisor’s report but also would have been available to deduce and marshal the facts necessary to refute the technical and rather ambiguous charge of “consorting.” 10

*1100He then added:

It is for reasons such as these that the Supreme Court, rejecting all efforts to limit the right to counsel to the narrow confines of “criminal prosecutions” under the Sixth Amendment, has treated such right as an essential element of due process, applicable to all proceedings, whether they be classified as civil, criminal or administrative, where individual liberty is at stake. * * * No matter how the proceeding be characterized, the demands of due process, under both the United States Constitution and the Constitution of New York State, require that a parolee be represented by a lawyer, and entitled to introduce testimony, if he so elects. The constitutional guarantee demands no less if the search for truth is not to be sacrificed to administrative speed and convenience.11

And finally he stated:

It is desirable, * * * to indicate that the hearings we are directing must not be permitted to unreasonably delay the proceedings. The presence of an attorney, the receipt of testimony offered by the parolee, are required in order to enable the board to ascertain the facts, pro and con, upon which it is to make its determination. In other words, participation by counsel need be no greater than is required to assure, to the board as well as to the parolee, that the board is accurately informed of the facts before it acts, and the permitted presentation of testimony by the parolee need be no greater than is necessary for that same purpose.

*1101Meeting these requirements will not, we hasten to interpolate, occasion the slightest relaxation of supervisory-control over parolees. It is the board alone which is to ascertain the facts and decide their ultimate importance. The presence of counsel is merely designed to afford the prisoner an added measure of protection; the receipt of testimony which he may offer is one of the fundamentals of fair play. Together, these two elements, the presence of counsel and the receipt of evidence, constitute the essential characteristics of our system of administration of justice.12

II

Having established what I think the general rule should be, I come to the precise disposition of Midgett’s case. Midgett asserts that he is entitled to relief solely because it is established that he did not have counsel and because it is conceded that he would not have been furnished counsel even if he had requested it. I would not grant the writ or require the state to consider the revocation of Midgett’s parole on this showing alone, but I would remand the case to the district court for a determination of whether the absence of counsel was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This was the procedure followed in Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), another denial of the right to counsel case. It is implicit in the concurring opinion in Jones v. Rivers, supra, and it is one which we adopted in Kemplen v. Maryland, 428 F.2d 169 (4 Cir. 1970). See also, Earnest v. Moseley, 426 F.2d 466 (10 Cir. 1970).

SOBELOFF and BUTZNER, Circuit Judges, authorize me to state that they concur in this opinion.

. The issue is directly presented and decided in Midgett’s appeal. The issue is also presented in Bearden’s appeal. Bearden was paroled twice in 1945 and 1957, and these paroles were revoked in 1949 and 1958, respectively. Bearden alleged that he was denied counsel at the 1949 revocation hearing. A state judge, after plenary hearing, found the allegation well-founded and ordered his release.

On appeal the order was reversed on the ground that Bearden was being held pursuant to the 1958 revocation of parole. Bearden v. Manning, 238 S.O. 187, 119 S.E.2d 670 (1961). I would accept the finding that Bearden had no counsel at the 1949 revocation hearing. While Bearden is presently incarcerated as a result of the 1958 revocation of parole, he has alleged that the conditions of his 1957 parole were more onerous than those of his original 1945 parole. The record is not clear as to what the conditions of the 1957 parole were, the reasons why it was revoked in 1958, or the circumstances of the 1958 revocation, i. e., whether Bearden was present

and had counsel. These are factual questions which I would have explored on remand. A new parole revocation hearing for Bearden under the terms of the original 1945 parole may be in order if the district court finds the conditions of the 1957 parole, or its revocation, were dependent upon the 1949 revocation. Even if revocation of the 1945 parole is found to have had no effect on the 1957 parole or its revocation in 1958, a new parole revocation hearing under the terms of the 1957 parole may be in order if it is found either that Bearden was not present or did not have the opportunity to be represented. As to these issues the record is silent. For these reasons, as well as the fact that I agree that Bearden was entitled to notice of his alleged violation of parole and an opportunity to rebut the same, I concur in the majority’s judgment.

. A panel of this Court so construed Mempa in Hewett v. State of North Carolina, 415 F.2d 1316 (4 Cir. 1969), when we held that there was a right to *1097counsel at a probation revocation hearing, although two members of that panel now subscribe to the majority opinion in the instant case.

. I call attention to the fact that when Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was decided, few jurisdictions, including the federal government, had adopted legislation to provide compensation for court appointed counsel. Even when Congress finally responded by enacting the Criminal Justice Act of 1964, Pub.L. 88-455, compensation for counsel was not provided for significant areas in which, by later court decisions, counsel was subsequently required. Under the original Act, counsel was compensated solely for services rendered during trials before district courts and commissioners and for arguing appeals in courts of appeals. But the larger gaps were filled by the enactment of Pub.L. 91-447, amending the 1964 Act. Under the existing statute, 18 U.S.C.A. § 3006A(a) (g), as so amended, counsel must be appointed, inter alia, when the Sixth Amendment requires the appointment of counsel and, as a discretionary matter, counsel may be appointed for an indigent who is subject to revocation of parole. The existing statute is thus sufficient to provide counsel in a federal parole revocation bearing. The states have a similar history of legislative response, although it will not be stated in detail. The conclusion to be drawn is that, while there may be a temporary period of financial hardship on court-appointed counsel, the legislative branch of government has and will respond to the financial impact of extension of the right to counsel doctrine on members of the bar.

I see no reason for concern over whether original trial counsel should or should not be counsel at a parole revocation hearing. Manifestly, the issues at a parole revocation hearing will differ from the issues at the original trial. It follows that original trial counsel may be counsel also at the parole revocation hearing, but he need not be if there is good reason to appoint another lawyer.

. The Virginia Parole Board’s discretionary authority is codified in Code of Virginia (1970 Cum.Supp.) § 53-262. By contrast, in Bearden’s case, the South Carolina Parole Board had a more limited function. If it finds that there has been a violation of a condition of parole the prisoner must be returned to serve the part of the sentence which remains unserved. However, the prisoner is made eligible for a successive parole there*1098after “when and if the Board thinks such parole would be proper.” Code of S.C. (1970 Cum.Supp.) § 55-616.

. Each of these cases relied heavily, as does the majority in the instant case, on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). Although decided approximately three weeks after the landmark decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), on the right to counsel, Hyser fails to mention Gideon. Of course, Mempa, which represented an extension of Gideon, did not follow until four years later, so that it could not have been considered. For these reasons, I do not find Hyser a persuasive authority. See discussion in K. Davis, Administrative Law Treatise (1970 Supp.) § 7.16 at p. 352.

. The cases are collected and perceptively analyzed in United States ex rel. Bey v. Conn. State Bd. of Parole, 443 F.2d 1079 (2 Cir., 1971). Judge Irving R. Kaufman, the author of the opinion in Bey began his analysis by stating “[p] recedent on the precise issue before us is conflicting and its significance is difficult to assess.” 443 F.2d at 1083. He, nevertheless, demonstrates conclusively that most of the cases denying the right to counsel were either decided prior to Mempa, or, if decided after Mempa, were decided before (or if decided after, failed to consider) Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), a decision which undermines Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), in which the dictum was stated that probation was a matter of “grace,” from which several circuits have reasoned that there cannot be a right to counsel in parole revocation proceedings. 443 F.2d at 1084, n. 11. Interestingly enough Judge Kaufman reads Hewett v. North Carolina, 415 F.2d 1316 (4 Cir. 1969), as casting serious doubt on Jones v. Rivers, 338 F.2d 862 (4 Cir. 1964). By our decision in Caulder v. Durham Housing Authority, 433 F.2d 998 (4 Cir. 1970), cert. den., 401 U.S. -, 91 S.Ct. 1228, 28 L.Ed.2d 539 (1971), we demonstrated full appreciation of the scope of Goldberg v. Kelly, supra.

. United States ex rel. Bey v. Conn. St. Bd. of Parole, 443 F.2d 1079 (2 Cir. 1971); Goolsby v. Gagnon, 322 F.Supp. 460 (E.D.Wis.1971); Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969); Warren v. Michigan Parole Board, 23 Mich.App. 754, 179 N.W.2d 664 (Ct.App.1970), appeal dismissed, Mich., 184 N.W.2d 457 (1971); People ex rel. Menechino v. Warden, Green Haven St. Pris., 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238 (1971).

. The impressive array of enlightened view that the right to counsel at parole revocation hearings does or should attach is collected in United States ex rel. Bey v. Conn. St. Bd. of Parole, 443 F.2d at 1085, n. 12:

Standards approved by the House of Delegates of the American Bar Association in February, 1966, recommended that counsel be provided in connection with both probation and parole revocation proceedings. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Sex-vices 68 (1967). The ABA Project on Minimum Standards of Criminal Justice, Standards Relating to Probation § 5.4(a) (ii) (Approved Draft,
*10991970) recommends counsel nt all probation revocation hearings. The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services § 4.2 (Approved Draft, 1968) would require that counsel be provided in all post-conviction proceedings “which are adversary in nature.” Both the President’s Commission on Law Enforcement and the Administration of Justice, Report: The Challenge of Crime in a Free Society 150 (1967) and its task force reports on The Courts 54 (1967) and Corx-ections 86-88 (1967), x-ecommend that counsel be provided for probation and parole revocation hearings. The American Law Institute, Model Penal Code § 305.15(1) (Proposed Official Draft 1962) provides that a parolee “shall be permitted to advise with his own legal counsel” in preparing for parole revocation hearings. See also, id. § 301.4 (right “to be represented by counsel” at px-obation revocation hearings). See W. Cohen, Due Process, Equal Protection and State Parole Revocation Hearings, 42 U. Colo.L.Rev. 197 (1970) ; Note, Constitutional Law, Parole Status and the Privilege Concept, 1969 Duke L.J. 139; Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705, 719-26 (196S). Cf. Comment, Freedom and Rehabilitation in Parole Revocation Hearings, 72 Yale L.J. 368 (1962).

. In Menechino the parolee was charged with having violated the conditions of his pax'ole by associating “with individuals having a cx-iminal record” and by giving “false and misleading information” to his parole supervisors. Unrepresented by counsel, the parolee agreed to the board’s characterization of his relationship with cei’tain ex-convicts as “consorting” and admitted that he had falsely denied knowing them. Although there was no evidence that the parolee had committed a crime or particijxated in any criminal activity, the board ordered his parole revoked and barred him from being considered for parole for at least two years.

. In accord, Judge Kaufman in Bey stated:

“The fact that the Board performs a predictive and prognostic function does not depreciate the importance of accurate factual exposition and evaluation. Less educated or intelligent prisonei-s are pax'ticularly likely to suffer from absence of tx'ained legal assistance.” 443 F.2d. at 1088.

This statement follows a detailed demonstration of how the parole board may only act after it finds the fact, how counsel might have been of substantial assistance in finding the facts and law, and how on the facts of that case, “a diligent lawyer representing Bey * * * might have investigated the decisive events of Bey’s brief period of release and in an orderly, disciplined pi'esentation to the Board have attempt-

*1100eel” to make a more favorable presentation and been of more aid to the Board in making a correct disposition of the matter than the parole officer and the Board’s executive secretary.

. Omitted from the text, for convenience of rending, are citations to other cases establishing the right to counsel in other contexts. One of the most important is In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), which held the right to counsel applies to juvenile delinquency proceedings. Its significance lies in its rejection of the argument that the parens patriae relationship of a judge of a juvenile court to the juvenile justified departure from strict application of constitutional principles, including Sixth Amendment rights. Rather, the Court concluded that the appearance, as well as the actuality, of fairness, impartiality and orderliness “may be a more impressive and more therapeutic attitude so far as the juvenile is concerned,” because the juvenile would think that he had been treated fairly and his hostility to rehabilitative efforts would not be aroused. 387 U.S. at 26, 87 S.Ct. at 1443. The analogy between a juvenile court proceeding and a parole board revocation hearing and the analogy between an allegedly delinquent juvenile and an alleged parole violator are self-evident. Indeed, as Judge Kaufman stated in Bey: “One certain way to increase a prisoner’s sense of resentment and to discourage his will eventually to return to a normal life would be to deny him basic safeguards essential to the fundamental fairness of a decision to deprive him of the liberty he gained upon parole release.” 443 F.2d 1089.

In addition to the cases cited by Chief Judge Fuld, an overview of the whole ambit of right to counsel cases from Gideon (right to counsel at trial, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), which the majority now seeks to revive) to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970) (counsel at preliminary hearing), lends support to the conclusion that the Court means a literal application of the Mempa test that counsel is required at every stage of a criminal proceeding where sxibstwntxal rights of an accused may be affected, viz: Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (custodial interrogation), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (lineup). These cases, as well as other right to counsel cases cited elsewhere in this opinion, have one aspect in common: the right to counsel was held applicable to a facet of the criminal process where what occurred might have a significant effect on an accused’s ultimate loss of liberty — the very issue in a parole revocation proceeding.

. In accord are the views of the Second Circuit in Bey. There, Judge Kaufman wrote for the court:

“But the state has demonstrated no respect in which the presence of counsel for the limited purpose of developing and evaluating relevant events of a parolee’s history on parole, and of recommending alternative dispositions to revocation, will tend to inhibit or constrict the parole process. Indeed, representation of parolees at revocation hearings should advance, not retard, the ‘modern concept of individualized punishment’ and rehabilitation. * * * As distinct from other elements of trial-type due process, * * * a lawyer’s
participation should not he permitted to impede the flow of relevant information to the parole board. Indeed, competent counsel should augment the flow and the board, as well as the parolee, should benefit from a trained lawyer’s capacity to guard against error and distortions. To the extent that a lawyer who misconceives his role in the parole process might resort to dilatory or distracting tactics or equate it with his role in the trial of a case, the board does not lack the power to so structure the proceedings as to maximize the lawyer’s contribution and minimize his potential for disruption.”