Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
Following the return of an indictment against them on April 27, 1964, appellants, McGill and Hinton, together with a third defendant Barnhart, were arraigned in open court on May 1, 1964. They were charged on one count with robbery, and on another count with assault with intent to rob (based on separate complaints). The case came to trial on June 9, 1964. On June 15, 1964, the jury returned its verdict, finding McGill guilty of simple assault and assault with intent to commit robbery and Hinton guilty of robbery and of simple assault. Barnhart was acquitted on all counts. McGill and Hinton appealed from their conviction proceeding in forma pauperis. I Permissibility of Accepting Plea of Not Guilty Prior to Assignment of
Appellants contend that they have been denied the constitutional right of an accused under the Sixth Amendment "to have the Assistance of Counsel for his defence." This claim is based on the fact that on May 1, 1964, prior to appointment or assignment of counsel, they were arraigned before the Chief Judge of the District Court, who accepted from each a plea of not guilty.
The docket sheet shows that on May 1, 1964, the Chief Judge referred Hinton's case and Barnhart's case for appointment of counsel. While no such indication appears on the record with respect to McGill's case, separate counsel were in fact appointed by the Court for each defendant on May 6, 1964.
The contention is that the Sixth Amendment requires the protection of counsel at "every step" in the proceedings. This is the language of Johnson v. Zerbst, 304 U.S. 458, 463, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Furthermore, Rule 44 of the Federal Rules of Criminal Procedure provides that when the accused is without counsel, the Court shall "assign counsel to represent him at every stage of the proceeding." The counsel appointed by this court argue to us that surely the arraignment is a "step" or "stage" in the criminal proceeding and that counsel is accordingly required. Cf. Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942).
Counsel concede that they seek reconsideration of our ruling in Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S. Ct. 150, 94 L. Ed. 540 (1949). See also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964). The case involves a question of constitutional protection. The decision involved, rendered fifteen years ago, lies in a domain of jurisprudence which has been the subject of fresh consideration by the courts. The scope of constitutional requirements has been redefined in the light of changing conditions, and the increasing awareness of the underlying needs of a democratic society devoted to the pursuit of equal justice for all under law. Accordingly, we have taken the point under advisement for fresh consideration. See Ricks v. United States, 118 U.S.App.D.C. 216, 218-219, 334 F.2d 964, note 2, 334 F.2d 964, 966-967 (1964).
Upon due reflection we see no basis for concluding that the Constitution requires the presence or assignment of counsel at a point when and where there is no reasonable possibility of prejudice to the rights or position of an accused, as in these cases.
The general language in Johnson v. Zerbst and Rule 44 must be read in the light of their fundamental purpose to provide the guiding hand of counsel at every step where an accused who is without counsel may be prejudiced. The taking of appellants' plea of not guilty on arraignment stands on an entirely different footing from the taking of a plea of guilty, which manifestly involves a possibility of such prejudice and hence cannot be accomplished prior to assignment of counsel. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S. Ct. 316, 92 L. Ed. 309 (1948); Evans v. Rives (supra).
Appellants' contention is developed in conceptual terms. The exaltation of abstraction above reality should not be condoned for the purpose of denying constitutional rights and should not be indulged for the purpose of creating constitutional rights. Counsel say that where the constitutional rights of an accused are involved it is not necessary to make a showing of actual prejudice. But before the court concludes that there is a constitutional right it must at least determine that the accused has been not necessarily prejudiced in fact, but at least exposed to a reasonable possibility of prejudice in fact.
Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) is invoked by appellants. That opinion cannot fairly be taken as a decision or indication that counsel is required in the Federal courts upon a plea of not guilty. *fn1 In that case the Supreme Court held that the Constitution required Alabama to provide counsel to accused at time of arraignment because of the necessity under Alabama law for asserting certain defenses at time of arraignment. Accordingly, the Supreme Court stated (p. 54, 82 S. Ct. p. 159) that in Alabama "[Arraignment] is a critical stage in a criminal proceeding. . . . Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes."
In these cases, however, the accused were not subject to the loss of defenses because of lack of counsel at the time of the not guilty pleas. Counsel suggested there is the possibility of prejudice inherent in the provisions of Rule 12 of the Federal Rules of Criminal Procedure concerning motions asserting defenses and objections based on defects in the institution of the prosecution or in the indictment or information. Rule 12(b) (3) provides: "The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter." The possibility of prejudice is asserted to derive from the possibility that the court may not permit such motion to be entered after the plea.
It has always been the lore, and we hereby expressly declare it to be the law, of this jurisdiction that the defendant has an absolute right to consideration on the merits of objections encompassed by Rule 12, provided the motion be made within a reasonable time after the appointment of counsel, and his motion is in no way to be subject to prejudice because the plea of not guilty was taken prior to the appointment of counsel. If necessary ...