Doherty v. United States/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While concurring completely in the Court's per curiam, I believe additional detail clarifying the applicability of Fed.Rule Crim.Proc. 44 and the Criminal Justice Act to these circumstances is warranted inasmuch as all of the circuits' rules implementing the latter are susceptible of replications of the result reached below. Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari.

* Rule

The Act of June 29, 1940, 54 Stat. 688, authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, 1944 (323 U.S. 821), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided:

'Assignment of Counsel. If the defendant appears in court     without counsel, the court shall advise him of his right to      counsel and assign counsel to represent him at every stage of      the proceeding unless he elects to proceed without counsel or      is able to obtain counsel.'

This procedure embodied our holding in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that 'every stage of the proceedings' did, in fact, include appeals. Thus, the revised rule effective since 1966 now reads:

'Every defendant who is unable to obtain counsel shall be     entitled to have counsel assigned to represent him at every      stage of the proceedings from his initial appearance before      the commissioner or the court through appeal, unless he waives such appointment.'      Fed.Rule Crim.Proc. 44(a).

Whether 'appeal' includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent's appeal.

It is significant that the language of the amended rule does extend assistance to 'appeals' and does not restrict 'appeals' to proceedings in 'courts of appeals.' Moreover, no qualification such as 'first appeal' is present. Additionally, to the extent that the Advisory Committee's suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process, including petitions for certiorari. That is the obvious disposition to be made of any ambiguity.

An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the 'interests of justice' to any pauper 'subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18.' 18 U.S.C. § 3006A(g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers. Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents' rights to counsel.

The clearest statement of the Act's policy of providing blanket coverage of indigents' representation from arraignment through review by this Court is found in the first sentence of subsection (c):

'A person for whom counsel is appointed shall be represented     at every stage of the proceedings from his initial appearance      before the United States magistrate or the court through      appeal, including ancillary matters.' 18 U.S.C. § 3006A(c).

The ambiguous phrase 'through appeal,' has been clarified by a 1970 amendment to another section. 18 U.S.C. § 3006A(d)(6) now provides:

'If a person for whom counsel is appointed under this section     appeals to an appellate court or petitions for a writ of      certiorari, he may do so without prepayment of fees and costs or security therefor and without      filing the affidavit required by section 1915(a) of title      28.' 84 Stat. 918. (Emphasis added.)

Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that 'appeal,' as used in § 3006A(c), was intended to include proceedings in this Court.

Different versions of the Act-all based upon the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice report of 1963-were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c):

'Implied in the Senate version, and expressed in the House     version, is the right of a defendant to have counsel      appointed at any stage of the proceeding; i.e., before the      commissioner, the district court, the court of appeals, or      the Supreme Court.' H.R.Rep. No. 1709, 88th Cong., 2d Sess.,     7 (1964); U.S.Code Cong. & Admin. News 1964, p. 3003     (emphasis added).

At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act's coverage.

Moreover, the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that:

'(C)ounsel appointed on appeal should advise the defendant of     his right to initiate a further review by the filing of a      petition for certiorari, and to file such petition, if      requested by the defendant.' Report on Criminal Justice Act,      36 F.R.D. 285, 291 (1965).

As mentioned earlier, this recommendation has been adopted by all of the circuit conferences.

And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53(8).

Other indicators of intent are found in the Attorney General's Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including 'any appellate proceedings.' Hearings on S. 1057 before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase 'any appellate proceedings' and substituted instead 'proceedings before the Courts of Appeals.' Moreover, the study group recommended that the Act cover probation and parole revocation hearings, a suggestion accepted by the legislature. Id., at 210, 18 U.S.C. § 3006A(a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari.

It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after court of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure.

Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their improverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those etitions within the time limits prescribed by Supreme Court Rule 22(2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783 (1961).

I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty's time within which he may file his certiorari papers may run anew.