Appeal from district court judgment denying appellant's petition to vacate his conviction due to ineffective assistance of counsel.
Feinberg, Chief Judge, Lumbard and Newman, Circuit Judges.
Garrett Brock Trapnell appeals from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, J., denying Trapnell's petition under 28 U.S.C. § 2255 to vacate his 10-year old conviction. Appellant argues that the assistance of counsel that he received at the trial was ineffective. Judging counsel's performance by the "reasonably competent assistance" standard, which we adopt in this opinion, we affirm the judgment of the district court.
Appellant Trapnell was found guilty in May 1973 after a jury trial before then Chief Judge Mishler on all three counts of an indictment charging him with aircraft piracy, 49 U.S.C. § 1472(i), interference with an aircraft flight crew, 49 U.S.C. § 1472(j), and possession of a firearm in the commission of a federal crime, 18 U.S.C. § 924(c)(2). All three charges stemmed from Trapnell's hijacking of a TWA airliner on a scheduled flight between Los Angeles and New York, in January 1972. The basic facts relating to the hijacking are set forth in this court's opinion affirming Trapnell's conviction. See United States v. Trapnell, 495 F.2d 22 (2d Cir.), cert. denied, 419 U.S. 851, 42 L. Ed. 2d 82, 95 S. Ct. 93 (1974). We presume general familiarity with that opinion. We note, however, that Trapnell was tried twice: his first trial, before Judge Rosling, resulted in a mistrial because the jury was unable to reach a verdict; his second trial, before Judge Mishler, resulted in his conviction. In both trials, Trapnell presented an insanity defense.
In this collateral attack on his conviction, Trapnell points out that three witnesses who were not called to testify at the second trial -- Drs. Stanley Portnow, James Cravens and David Hubbard -- had had the most sustained contact with Trapnell immediately after the hijacking and were therefore in the best position to testify about his insanity at the time of the crime. Trapnell argues that the psychiatrists who testified at the second trial did not agree on the question of his insanity, and that if Drs. Portnow, Cravens and Hubbard had testified, the jury would have been likely to find that the government had not proven his sanity beyond a reasonable doubt. In addition, Trapnell argues that his attorney at the second trial relied too heavily on subpoenas to compel testimony, and did not adequately establish the professional qualifications of the expert witnesses. According to appellant, at his second trial he was not accorded his Sixth Amendment right to "effective assistance of counsel." Appellant also urges us to reject the "farce and mockery" standard used by this court to determine whether the assistance of counsel at a criminal trial was "effective," and to adopt instead a standard of "reasonable competence." That issue, as well as the merits of the appeal, was briefed and argued by both parties.
Before examining appellant's specific contentions, we discuss the appropriate standard of competence for a defendant's attorney in a criminal trial. In the Second Circuit, that standard has been governed for over thirty years by the rule laid down in United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 94 L. Ed. 586, 70 S. Ct. 478 (1950): "A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the court and make the proceedings a farce and mockery of justice." In Wight, this court adopted the standard first formulated by Judge Thurman Arnold for the D.C. Circuit in Diggs v. Welch, 80 U.S. App. D.C. 5, 148 F.2d 667, 670 (D.C. Cir.), cert. denied, 325 U.S. 889, 89 L. Ed. 2002, 65 S. Ct. 1576 (1945). By 1962, nine of the eleven circuits were applying the Diggs "farce and mockery" standard. See In re Ernst, 294 F.2d 556, 558 (3d Cir.), cert. denied, 368 U.S. 917, 7 L. Ed. 2d 132, 82 S. Ct. 198 (1961); Snead v. Smyth, 273 F.2d 838, 842 (4th Cir. 1959); O'Malley v. United States, 285 F.2d 733, 734 (6th Cir. 1961); United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-81 (7th Cir. 1948); Johnston v. United States, 254 F.2d 239, 240 (8th Cir. 1958); Cofield v. United States, 263 F.2d 686, 689 (9th Cir.), rev'd per curiam on other grounds, 360 U.S. 472, 79 S. Ct. 1430, 3 L. Ed. 2d 1531 (1959); Frand v. United States, 301 F.2d 102, 103 (10th Cir. 1962). The two remaining circuits adopted the "farce and mockery" standard in 1965 and 1970, respectively. See Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965); Bottiglio v. United States, 431 F.2d 930, 931 (1st Cir. 1970) (per curiam).
The resulting uniformity in the standard of competence of counsel was disrupted in 1970, when the Fifth Circuit stated: "We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Caraway v. Beto, 421 F.2d 636, 637 (5th Cir. 1970) (per curiam) (quoting MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961)). That same year, the Third Circuit replaced the "farce and mockery" standard with a standard of "normal competency." Moore v. United States, 432 F.2d 730, 737 (3d Cir. 1970) (in banc). Similarly, the D.C. Circuit, apparently the original architect of the "farce and mockery" test, held in 1973 that "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate." United States v. DeCoster, 159 U.S App. D.C. 326, 487 F.2d 1197, 1202 (D.C. Cir. 1973); see also id. at 1203 ("Counsel should be guided by the American Bar Association Standards for the Defense Function"). Since 1970, every circuit except this one has adopted a "reasonably competent assistance" standard, in one of its many formulations. See United States v. Bosch, 584 F.2d 1113, 1120-21 (1st Cir. 1978) ("reasonably competent assistance"); Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 56 L. Ed. 2d 394, 98 S. Ct. 1885 (1978) ("normal competency"); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974) ("reasonably effective assistance"); United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir.), cert. denied, 423 U.S. 876, 96 S. Ct. 148, 46 L. Ed. 2d 109 (1975) ("minimum standard of professional representation"); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) ("customary skills and diligence" of "a reasonably competent attorney"); Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (in banc), cert. denied, 440 U.S. 974, 59 L. Ed. 2d 793, 99 S. Ct. 1542 (1979) ("reasonably competent and effective" assistance); Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (in banc), cert. denied, 445 U.S. 945, 63 L. Ed. 2d 779, 100 S. Ct. 1342 (1980) ("reasonably competent assistance"). The Eleventh Circuit, which adopted Fifth Circuit law as precedent in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (in banc), recently reaffirmed the Fifth Circuit's "reasonably effective assistance" standard in Douglas v. Wainwright, 714 F.2d 1532, 1553 (11th Cir. 1983).
Similarly, only a few state courts now apply the "farce and mockery" standard. See Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Colum. L. Rev. 1053, 1058 n.41 (1980). In particular, all three states within this circuit have adopted the new standard for assessing the competence of counsel in criminal trials. In People v. Droz, 39 N.Y.2d 457, 463, 384 N.Y.S.2d 404, 348 N.E.2d 880 (1976), the New York Court of Appeals vacated a conviction, stating that "we cannot say that the representation defendant received was adequate or effective in any meaningful sense of the word." This case was later interpreted as abandoning the "farce and mockery" standard that had prevailed in the state. See People v. Aiken, 45 N.Y.2d 394, 398, 408 N.Y.S.2d 444, 380 N.E.2d 272 (1978). New York now appears to follow a "reasonable competence" standard. See Barnes v. Jones, 665 F.2d 427, 434 (2d Cir. 1981), rev'd on other grounds, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). Vermont adopted a "customary skill and knowledge" standard in 1975. See In re Cronin, 133 Vt. 234, 240, 336 A.2d 164 (1975). Connecticut embraced a "reasonable competence" standard in 1976. See State v. Clark, 170 Conn. 273, 365 A.2d 1167, 1172 (Conn.), cert. denied, 425 U.S. 962, 48 L. Ed. 2d 208, 96 S. Ct. 1748 (1976).
The Second Circuit is now the only circuit court that has wrestled with this problem and not embraced the "reasonably competent assistance" standard for trials in criminal cases. Members of this court, however, have repeatedly expressed their displeasure or concern over continuing reliance on the Wight rule. For example, Judge Oakes recently urged that "the Second Circuit at long last join the rest of the federal judiciary, as well as the leading state courts of last resort, in abandoning the contentless, outmoded farce and mockery rule." Langone v. Smith, 682 F.2d 287, 289 (2d Cir. 1982) (Oakes, J., dissenting from denial of rehearing in banc), cert. denied, 459 U.S. 1110, 103 S. Ct. 739, 74 L. Ed. 2d 961 (1983); see also Rickenbacker v. Warden, 550 F.2d 62, 67-68 (2d Cir. 1976) (Oakes, J., dissenting), cert. denied, 434 U.S. 826, 54 L. Ed. 2d 85, 98 S. Ct. 103 (1977). Similarly, Judge Mansfield has called for a re-evaluation of the "farce and mockery" standard. Indiviglio v. United States, 612 F.2d 624, 632 (2d Cir. 1979) (Mansfield, J., concurring), cert. denied, 445 U.S. 933, 63 L. Ed. 2d 768, 100 S. Ct. 1326 (1980); Bellavia v. Fogg 613 F.2d 369, 375-76 n.1 (2d Cir. 1979) (Mansfield, J., concurring and dissenting). And, referring to this standard, Judge Kaufman warned against "fall[ing] prey to the pitfalls of rigid adherence to phrases and formulas which seem to gain strength by ritualistic repetition in Haec verba in case after case." United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 46 (2d Cir. 1972) (Kaufman, J., dissenting), cert. denied, 410 U.S. 917, 35 L. Ed. 2d 279, 93 S. Ct. 977 (1973).
In addition, members of the Supreme Court have expressed their displeasure with the resulting conflict among the circuits. In 1978, when a few circuits still subscribed to the "farce and mockery" standard, Justice White argued that the Court "should attempt to eliminate disparities in the minimum quality of representation required to be provided to indigent defendants." Maryland v. Marzullo, 435 U.S. 1011, 102-13, 56 L. Ed. 2d 394, 98 S. Ct. 1885 (1978) (White, J., joined by Rehnquist, J., dissenting from denial of certiorari). Last year, Justice White stated that while it was possible that a trial attorney's failure to offer exculpatory testimony given at a suppression hearing and his failure to call favorable witnesses may have "satisfied the more exacting standard the [Second Circuit] has rejected . . . there was no holding to that effect, and that question should be answered by the [Second Circuit] after the level of minimum competence required by the Sixth Amendment is determined by this Court." Romero v. United States, 459 U.S. 926, 103 S. Ct. 236, 237, 74 L. Ed. 2d 187 (1982) (White, J., dissenting from denial of certiorari).
But although this court has not explicitly abandoned the "farce and mockery" for the "reasonably competent assistance" standard, it has justified its failure to reconsider the standard by pointing out that the result in the cases before it would have been the same under either formulation. See United States v. Daniels, 558 F.2d 122, 126 (2d Cir. 1977); Rickenbacker v. Warden, supra, 550 F.2d at 66; cf. Indiviglio v. United States, supra, 612 F.2d at 632 (Mansfield, J., concurring). For example, in Rickenbacker, Judge Smith, the author of the Wight opinion, stated that "it may be that this court should reconsider the standard set forth in Wight." He added, however, that "we need not decide this issue now, for we conclude ...