Morris v. Slappy

Justice Brennan,

with whom Justice Marshall joins, concurring in the result.

The Court states that “[i]n its haste to create a novel Sixth Amendment right, the [Court of Appeals] wholly failed to take into account the interest of the victim of these crimes in not undergoing the ordeal of yet a third trial in this case.” Ante, at 14. Unfortunately, it could just as easily be said of the Court that in its haste to “deal with the novel idea that the Sixth Amendment guarantees an accused a ‘meaningful attorney-client relationship,’” ibid., the Court reaches issues unnecessary to its judgment, mischaracterizes the Court of Appeals’ opinion, and disregards the crucial role of a defendant’s right to counsel in our system of criminal justice. For the reasons described below, I concur only in the Court’s reversal of the Court of Appeals’ judgment.

*16HH

After reviewing the record of the proceedings in the state trial court, the Court of Appeals concluded that respondent moved for a continuance based on the unavailability of Harvey Goldfine, the Deputy Public Defender originally appointed to represent him. 649 F. 2d 718, 719-720 (CA9 1981). The court, therefore, proceeded to consider whether the trial court had denied respondent’s Sixth Amendment right to counsel by refusing to grant his motion for a continuance until Goldfine was well enough to represent him at trial. Id., at 720. In considering this question, the Court of Appeals acknowledged that “an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing.” Ibid. The court stated, however, that after a particular attorney is appointed to represent a defendant, the defendant and his attorney develop a relationship that is encompassed by the Sixth Amendment right to counsel. Ibid. In the court’s view, the attorney-client relationship is important to a defendant’s Sixth Amendment right to counsel because it affects the quality of representation and the defendant’s ability to present an effective defense. Id., at 720-721. In this regard, the court noted that unreasonable denials of continuances when a defendant has retained counsel can amount to a denial of the right to counsel or to a violation of due process. Id., at 721. The court saw no reason “to distinguish between appointed and retained counsel in the context of preserving an attorney-client relationship.” Ibid.

In light of “the importance of the attorney-client relationship to the substance of the defendant’s sixth amendment right to counsel,” the court held that “the sixth amendment (as incorporated by the fourteenth amendment) encompasses the right to have the trial judge accord weight to that relationship in determining whether to grant a continuance founded on the temporary unavailability of a defendant’s particular attorney.” Ibid. The court stated that in consider*17ing motions for continuances based on the temporary unavailability of counsel, “the trial court must balance the defendant’s constitutional right to counsel against the societal interest in the ‘prompt and efficient administration of justice.’” Ibid, (citation omitted). In this case, the trial judge failed to inquire into the expected length of Goldfine’s unavailability and, therefore, could not “engage in the balancing required to protect [respondent’s] rights.” Id., at 722. As a result, respondent had been denied his right to counsel as that right was construed by the Court of Appeals. Ibid.1

The Court of Appeals next concluded that no showing of prejudice was required for reversal of the conviction. Ibid. In reaching this conclusion, the court stated that this case did not involve a claim of ineffective assistance of counsel, which it previously had held to require a showing of prejudice to justify reversal. Id., at 722, and n. 4. Instead, the court analogized this case to cases in which counsel is either not provided or in which counsel is prevented from fulfilling normal functions. Id., at 723. In such cases a defendant is not required to demonstrate prejudice. Ibid.2

HH I — I

I agree with the Court that the Court of Appeals misread the record in concluding, at least implicitly, that respondent made a timely motion for a continuance based on Goldfine’s *18unavailability and on his desire to have Goldfine represent him at trial. Ante, at 12-13.3

Respondent based his initial motion for a continuance on the ground that Hotchkiss had not had enough time to prepare the case. App. 7-13. On the second day of trial, respondent again complained that Hotchkiss had not had enough time to prepare. Id., at 17. For the first time respondent also mentioned Goldfine and stated that Goldfine “was [his] attorney.” Id., at 24. Respondent went on to state that he had not seen Goldfine in five weeks because Goldfine was in the hospital. Ibid. Respondent suggested, however, that Goldfine “didn’t even have time enough to go over my case with me, he didn’t even have time.” Ibid. It is clear, therefore, that respondent was basing his inartful motions for a continuance on the inadequate preparation of his appointed counsel. Even construing respondent’s statements liberally, as a court should, there is no way the trial judge reasonably could have understood that respondent’s motions for a continuance were based on Goldfine’s unavailability and on respondent’s desire to be represented by him. Based on Hotchkiss’ assurances that he was prepared, id., at 10-11; see id., at 21-23, the trial judge clearly did not abuse his discretion in denying a continuance.

On the third day of trial, following an intervening weekend, respondent filed a “Writ of Habeas Corpus” with the trial court. Id., at 28. He stated that the writ was based, in part, on the ground that his attorney was in the hospital and that he did not “legally have [an] attorney.” Id., at 29. During his discussion with the trial judge, respondent repeatedly stated that he did not have an attorney and that his at*19torney was in the hospital. See id., at 32, 38, 41. At this point, the trial judge reasonably could be expected to have understood that respondent was moving for a continuance based on Goldfine’s unavailability and on his desire to be represented by Goldfine. As the Court points out, however, respondent finally made clear the grounds for his motions 11 days after Hotchkiss had been substituted for Goldfine, ante, at 13, and 5 days after the trial had begun. I agree with the Court that the trial judge was justified “in denying respondent’s midtrial motion for a continuance. ...” Ibid. See Ungar v. Sarafite, 376 U. S. 575, 588-591 (1964).

Because respondent did not make a timely motion for a continuance based on Goldfine’s unavailability, I concur in the Court’s reversal of the Court of Appeals’ judgment. We need go no further to support a reversal. The Court recognizes as much when it states that “[t]he facts shown by the record conclusively rebut [respondent’s] claims and are alone dispositive, independent of the correctness of the novel Sixth Amendment guarantee announced by the Court of Appeals.” Ante, at 4. See also ante, at 14.

III

Despite the Court’s recognition that it is unnecessary to its decision, the Court rejects summarily “the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.” Ibid, (footnote omitted). The Court states simply that the Court of Appeals cited no authority “for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be.” Ante, at 13. In the Court’s view, “[n]o court could possibly guarantee that a defendant will develop the kind of rapport with his attorney — privately retained or provided by the public — that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel.” Ante, at 13-14. This is the extent of the Court’s analysis. Properly understood, however, the interest recognized by the Court of Appeals does find *20support in other cases and does not require any court to guarantee that a defendant develop a rapport with his attorney.

A

We have recognized repeatedly the central role of the defendant’s right to counsel in our criminal justice system. See, e. g., Holloway v. Arkansas, 435 U. S. 475 (1978); Geders v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975); Argersinger v. Hamlin, 407 U. S. 25 (1972); Gideon v. Wainwright, 372 U. S. 335 (1963); Chandler v. Fretag, 348 U. S. 3 (1954); Glasser v. United States, 315 U. S. 60 (1942); Powell v. Alabama, 287 U. S. 45 (1932). We have described this right as “fundamental,” Gideon v. Wainwright, supra, at 344, and have stated that “[t]he assistance of counsel is often a requisite to the very existence of a fair trial.” Argersinger v. Hamlin, supra, at 31. In Powell v. Alabama, supra, the Court stated:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Id., at 68-69.

Given the importance of counsel to the presentation of an effective defense, it should be obvious that a defendant has *21an interest in his relationship with his attorney. As we noted in Faretta v. California, 422 U. S. 806, 834 (1975), “[t]he right to defend is personal.” It is the defendant’s interests, and freedom, which are at stake. Counsel is provided to assist the defendant in presenting his defense, but in order to do so effectively the attorney must work closely with the defendant in formulating defense strategy. This may require the defendant to disclose embarrassing and intimate information to his attorney. In view of the importance of uninhibited communication between a defendant and his attorney, attorney-client communications generally are privileged. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). Moreover, counsel is likely to have to make a number of crucial decisions throughout the proceedings on a range of subjects that may require consultation with the defendant. These decisions can best be made, and counsel’s duties most effectively discharged, if the attorney and the defendant have a relationship characterized by trust and confidence.4

In recognition of the importance of a defendant’s relationship with his attorney, appellate courts have found constitutional violations when a trial court has denied a continuance that was sought so that an attorney retained by the defendant could represent him at trial.

*22In Releford v. United States, 288 F. 2d 298 (CA9 1961), the attorney retained by the defendant was hospitalized. Instead of granting a continuance so that either the retained attorney could represent the defendant at trial or the defendant could secure substitute counsel of his choice, the trial judge ordered another attorney to represent the defendant over the defendant’s objections and in the face of the second attorney’s reluctance. Id., at 299-301. The Court of Appeals reversed the defendant’s conviction because the defendant had been deprived of the assistance of counsel of his own choice. Id., at 301-302.

In Gandy v. Alabama, 569 F. 2d 1318 (CA5 1978), the Court of Appeals found that the defendant had been denied due process when the state trial court denied a continuance and forced the defendant to go to trial with an attorney other than the one he had retained. In the court’s view, “the trial was rendered fundamentally unfair when [the defendant] was effectively denied his right to choose his counsel.” Id., at 1327. See also Linton v. Perini, 656 F. 2d 207, 209-211 (CA6 1981); United States v. Seale, 461 F.2d 345, 356-361 (CA7 1972); Lee v. United States, 98 U. S. App. D. C. 272, 274, 235 F. 2d 219, 221 (1956). Cf. United States v. Burton, 189 U. S. App. D. C. 327, 330-334, 584 F. 2d 485, 488-492 (1978); Giacalone v. Lucas, 445 F. 2d 1238, 1240 (CA6 1971).

Admittedly, the cases discussed above involved retained rather than appointed counsel. This ground of distinction, however, is not sufficient to preclude recognition of an indigent defendant’s interest in continued representation by a particular attorney who has been appointed to represent him and with whom the defendant has developed a relationship. Nothing about indigent defendants makes their relationships with their attorneys less important, or less deserving of protection, than those of wealthy defendants. As was stated in a different context in Griffin v. Illinois, 351 U. S. 12 (1956), “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Id., at 19 *23(plurality opinion). Undoubtedly, we must accept the harsh reality that the quality of a criminal defendant’s representation frequently may turn on his ability to retain the best counsel money can buy. But where an indigent defendant wants to preserve a relationship he has developed with counsel already appointed by the court, I can perceive no rational or fair basis for failing at least to consider this interest in determining whether continued representation is possible.5

In Smith v. Superior Court, 68 Cal. 2d 547, 440 P. 2d 65 (1968), the California Supreme Court considered a petition for a writ of mandate to compel the trial court to vacate its order removing the defendant’s attorney in a pending murder trial. The court found that the trial court had no power to remove a court-appointed attorney over the objections of the defendant and the attorney even if the decision to remove the attorney was based on doubts about the attorney’s compe*24tence. Id., at 562, 440 P. 2d, at 75. In reaching this conclusion, the court rejected the argument that because an indigent defendant does not pay for his attorney he has no cause to complain about the attorney’s removal as long as the attorney currently handling his case is competent. It stated:

“But the attorney-client relationship is not that elementary: it involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for thé service. ... It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.” Id., at 561-562, 440 P. 2d, at 74 (footnote omitted).6

*25In light of the importance of a defendant’s relationship with his attorney to his Sixth Amendment right to counsel, recognizing a qualified right to continue that relationship is eminently sensible. The Court of Appeals simply held that where a defendant expresses a desire to continue to be represented by counsel who already has been appointed for him by moving for a continuance until that attorney again will be available, the trial judge has an obligation to inquire into the length of counsel’s expected unavailability and to balance the defendant’s interest against the public’s interest in the efficient and expeditious administration of criminal justice. Contrary to the Court’s suggestion, ante, at 13-14, this does not require a trial court “to guarantee” attorney-defendant “rapport.” The defendant’s expressed desire in continued representation by a particular attorney is a clear indication that an attorney-client relationship has developed. The quality of that relationship, or the reasons that it developed, are of no concern to the court. The trial court’s only duty is to inquire into the expected length of the attorney’s unavailability and to determine whether the existing attorney-client relationship can be preserved consistent with society’s interests. This is a minimal burden. It is one that we should readily impose in order to insure that a defendant’s rights are not arbitrarily denied.

The defendant’s interest in preserving his relationship with a particular attorney is not afforded absolute protection. If the attorney is likely to be unavailable for an extended period, or if other factors exist that tip the balance in favor of proceeding in spite of a particular attorney’s absence,7 the *26defendant’s motion for a continuance clearly may be denied. Such denials would be subject to review under the traditional “abuse of discretion” standard. As the Court of Appeals suggested, however, the balancing is critical. 649 F. 2d, at 722, n. 3. In the absence of a balancing inquiry a trial court cannot discharge its “duty to preserve the fundamental rights of an accused.” Glasser v. United States, 315 U. S., at 72.

B

After concluding that respondent had been denied his Sixth Amendment right to counsel, the Court of Appeals proceeded to consider whether a showing of prejudice was necessary to support the issuance of a writ of habeas corpus. 649 F. 2d, at 722. The Court of Appeals held that it was not. Ibid.8 In reaching this conclusion, the court stated that claims of ineffective assistance of counsel, which involve specific acts and omissions of counsel, require a showing that the defendant was prejudiced by counsel’s conduct before relief will be granted. Ibid. This case, however, did not involve an ineffective-assistance claim. Id., at 722, n. 4. The claim in this case was based on the trial court’s arbitrary deprivation of respondent’s interest in continued representation by a particular attorney. This deprivation prevented “counsel from fulfilling normal functions — from forming and exploiting an attorney-client relationship with [respondent].”' Ibid. As a result, the court found that this case was analogous to cases such as Holloway v. Arkansas, 435 U. S. 475 (1978), Geders v. United States, 425 U. S. 80 (1976), Herring v. New York, 422 U. S. 853 (1975), Gideon v. Wainwright, 372 U. S. 335 (1963), Glasser v. United States, supra, and Powell v. Alabama, 287 U. S. 45 (1932), in which counsel either was not provided or was prevented from discharging his normal func*27tions and in which no showing of prejudice was required. 649 F. 2d, at 723.

I find the Court of Appeals’ reasoning persuasive. The same conclusion has been reached in other cases in similar contexts. See, e. g., Linton v. Perini, 656 F. 2d, at 211-212; Releford v. United States, 288 F. 2d, at 302; Harling v. United States, 387 A. 2d 1101, 1106 (D.C. 1978). If an ineffective-assistance-of-counsel claim were at issue here, I might agree that a showing of prejudice was required. Requiring such a showing to support ineffective-assistance claims may be appropriate because courts are able to assess an attorney’s performance and the effect of that performance on a defendant’s rights based on the records before them. The courts, therefore, can make reasonable judgments regarding the presence or absence of prejudice. In cases involving claims such as the one at issue here, however, courts cannot make the same judgments. The fact that a defendant has been arbitrarily denied his interest in preserving his relationship with a particular attorney, with the result that the attorney does not appear, means that there is no record on which to base judgments regarding prejudice. We recognized this problem in Holloway v. Arkansas, supra, in the context of joint representation of conflicting interests. We stated:

“[I]n a case of joint representation of conflicting interests the evil ... is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry *28into a claim of harmless error here would require, unlike most cases, unguided speculation.” Id., at 490-491 (emphasis in original).

In this case, there is no way to know whether the character of the proceedings would have changed, whether counsel would have made different decisions, or whether the defense strategy would have been different if Goldfine had represented respondent. Conclusions based on inquiries into such questions would amount to nothing more than “unguided speculation.” Under these circumstances, it is reasonable and just not to require a showing of prejudice.9

IV

While the Court of Appeals may have misread the record, its opinion reflects a thoughtful and dedicated effort to protect the rights of an indigent criminal defendant. Despite their poverty and the fact that they stand accused of a crime, indigent defendants are entitled to the enforcement of procedural rules that protect substantive rights guaranteed by the Constitution.10 The Court of Appeals should be commended, *29not criticized, for carrying out its obligation to respect this entitlement.

The Court of Appeals stated that there was “nothing in the record from which it [could] be inferred that [respondent’s] request for a continuance was motivated by a desire to delay his trial for an improper purpose.” 649 F. 2d, at 722. The court, therefore, found it unnecessary to reach the question of whether the “same result would obtain if it were shown that the defendant’s request for a continuance was made in bad faith.” Ibid.

The court limited its holding to eases in which “a trial court does not attempt to ascertain the length of continuance necessary to insure counsel’s presence at trial, and the attorney with whom the defendant has an attorney-client relationship does not appear at trial. . . .” Id., at 723.

Unlike the Court, ante, at 13, I find no need to reach the issue of respondent’s good faith in moving for a continuance. I also do not endorse the Court’s gratuitous disagreement, ante, at 11, n. 4, with the Court of Appeals’ statement that there was “nothing in the record from which it [could] be inferred that [respondent’s] request for a continuance was motivated by a desire to delay his trial for an improper purpose.” 649 F. 2d, at 722.

The American Bar Association Standards for Criminal Justice state that “[d]efense counsel should seek to establish a relationship of trust and confidence with the accused.” ABA Standards for Criminal Justice 4-3.1(a) (2d ed. 1980) (hereinafter ABA Standards). The Standards also suggest that “[n]othing is more fundamental to the lawyer-client relationship than the establishment of trust and confidence.” Id., at 4-29 (commentary).

In Linton v. Perini, 656 F. 2d 207 (CA6 1981), the court stated that “[b]asic trust between counsel and defendant is the cornerstone of the adversary system and effective assistance of counsel.” Id., at 212. Similarly, in Lee v. United States, 98 U. S. App. D. C. 272, 235 F. 2d 219 (1956), the court stated that “ ‘[t]he relationship between attorney and client is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously.’ ” Id., at 274, n. 5, 235 F. 2d, at 221, n. 5 (citation omitted).

It is arguable that eases like Releford v. United States, 288 F. 2d 298 (CA9 1961), and Gandy v. Alabama, 569 F. 2d 1318 (CA5 1978), are also distinguishable from this one on the ground that they turn largely on a non-indigent defendant’s right to choose his own counsel, a right that indigent defendants do not enjoy. But the considerations that may preclude recognition of an indigent defendant’s right to choose his own counsel, such as the State’s interest in economy and efficiency, see generally Tague, An Indigent’s Right to the Attorney of His Choice, 27 Stan. L. Rev. 73 (1974), should not preclude recognition of an indigent defendant’s interest in continued representation by an appointed attorney with whom he has developed a relationship of trust and confidence. To recognize this interest and to afford it some protection is not necessarily to afford it absolute protection. If a particular jurisdiction has sufficiently important interests, such as the structure of its public defender’s office, which make continued representation by a particular attorney impractical, the trial judge may take this into account in balancing the defendant’s interest in continued representation against the public’s interests. The fact that such interests might exist in some jurisdictions, however, is not a sufficient reason to refuse to recognize that an indigent defendant has an important interest in a relationship that he might develop with his appointed attorney. There is no need to decide on this record which state interests might be sufficient to overcome an indigent defendant’s interest in continued representation by a particular attorney with whom he has developed a relationship.

See also Harling v. United States, 387 A. 2d 1101 (D. C. 1978). The American Bar Association Standards for Criminal Justice state that “[cjoun-sel initially provided should continue to represent the defendant throughout the trial court proceedings.” ABA Standards 5-5.2. The Standards also suggest that continuity of representation “affords the best opportunity for the development of a close and confidential attorney-client relationship,” id., at 5-54 (commentary), and reject public defender programs in which “stage” or “horizontal” representation is used. Ibid. Finally, the Standards state: “Representation of an accused establishes an inviolable attorney-client relationship. Removal of counsel from representation of an accused therefore should not occur over the objection of the attorney and the client.” Id., at 5-5.3. Based on the case law, the Standards *25go on to suggest that “[t]o hold that counsel can be removed from the case of an impecunious defendant regardless of objection from the client and attorney is to subject such an accused to unjustified discrimination based solely on poverty.” Id., at 5-58 (commentary). It is clear that the Standards recognize the importance of the attorney-client relationship to a defendant’s right to counsel.

See n. 5, supra.

In view of its “holding” that “there is no Sixth Amendment right to a ‘meaningful attorney-client relationship,’” the Court does not reach the prejudice question. Ante, at 14, n. 6.

There is a difference between a requirement that a defendant suffer some prejudice and a requirement that he show some specific prejudice. In this case the claim is that respondent was deprived arbitrarily of his interest in continued representation by an attorney with whom he had developed a relationship. That attorney did not represent respondent at trial. In this light, and in light of the factors discussed above, it is reasonable to assume that a trial court’s arbitrary denial of a continuance produces some prejudice to the defense without requiring a specific showing of prejudice.

I would qualify the Court of Appeals’ analysis in one respect. If a State could show that a defendant’s attorney would have been unavailable for an extended period or that other factors existed which would have made denial of a continuance.reasonable, then a trial court’s failure to inquire into the length of the attorney’s expected unavailability and to engage in the necessary balancing would be rendered harmless. Under these circumstances, relief should not be granted. It would no longer be reasonable to assume that the defendant had been prejudiced.

Although the Court acknowledges that “inconvenience and embarrassment to witnesses cannot justify failing to enforce constitutional rights of *29an accused,” ante, at 14, it nonetheless appears to suggest that the interests of a victim in a particular ease should be considered by courts in determining whether to enforce the established rights of a criminal defendant. Ante, at 14-15. Such a suggestion finds no support in our cases.