Hastie, Chief Judge, Ganey, Circuit Judge, and Weiner, District Judge.
The substance of this appeal concerns the too characteristic predicament of an indigent criminal defendant who is represented at trial by counsel hastily appointed by the court very shortly before trial itself. In the instant case, counsel for appellant was a voluntary defender, appointed on the eve of trial, who had not had a chance to interview his client but had only been able to consult the notes of a colleague who had previously been able to do so, as well as to spend about half an hour with witnesses in the courtroom just prior to the time of trial.
Appellant herein got into a brawl in a semi-private club on November 7, 1963. During this fray he stabbed another, who subsequently became the complaining witness in appellant's trial in the Court of Common Pleas on July 9 & 10, 1964. Appellant was there convicted of aggravated assault and battery, and of carrying a concealed deadly weapon. He pursued his post-conviction remedies through the state courts, and then sought a writ of habeas corpus in the federal district court below, all without success.
The chief question here before us is whether appellant was deprived of the effective assistance of counsel to which the sixth amendment to the constitution of the United States entitles him. More specifically, the question we are called upon to decide is whether appellant is correct in his contention that "ineffectiveness of counsel derived from the fact that he wasn't appointed soon enough to prepare his case."*fn1
The current legal standards under federal common law by which adequacy of time in which court-appointed counsel must prepare their cases is measured against the sixth amendment imperative of assistance of counsel are generally ad hoc and often lax. As Judge Higginbotham correctly pointed out in United States ex rel. Kelley v. Rundle, 242 F. Supp. 708, 709-710 (E.D.Pa.1965), the substantive content of this right to effective counsel began to take shape with Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), where as conservative a jurist as Mr. Justice Sutherland said, generally, that, where it was the duty of a state court to appoint counsel (a duty at that time encompassing a much lesser scope of proceedings than at present), then
that duty is not discharged by an assignment at such a time or under such circumstances to preclude the giving of effective aid in the preparation and trial of the case.
Id. at 71, 53 S. Ct. at 65.
Since that starting point, the federal courts of appeals have adopted generally a functional test, by the standards of which counsel appointed to defend an indigent criminal only shortly before trial would still be found to have afforded defendant adequate assistance if the latter could not have been shown to have suffered substantive harm by counsel's late appointment. In general, this rule has been
that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.
Bell v. State of Alabama, 367 F.2d 243, 247 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S. Ct. 859, 17 L. Ed. 2d 788 (1967) (emphasis removed), citing Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965). The rhetoric is similar to that employed when speaking of the standard by which excessive verdicts are to be reviewed. Alternatively, this rule has been explained as signifying that
absence of effective representation must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it.
In re Ernst's Petition, 294 F.2d 556 (3d Cir. 1961) (Hastie, J.).
As evinced by both these examples, the criteria for measuring adequate representation have in the past often been articulated on a highly abstract plane, in conclusory language; and the rulings have been made on a case-by-case basis. If one thing has emerged as sure, it is only that "the time of appointment of counsel, in itself, does not establish ineffective assistance," United States ex rel. Spears v. Rundle, 268 F. Supp. 691, 700 (E.D.Pa.1967); accord, United States v. Ray, 351 F.2d 554, 555 (4th Cir. 1965). Indeed, it has even been held, the fact that counsel was not appointed until the day of trial itself does not on its face deny defendant the effective assistance of counsel, e.g., Mathis v. State of North Carolina, 266 F. Supp. 841 (M.D.N.C.1967).
A few cases have granted a new trial on appeal where it has appeared to the reviewing court, for reasons not always clearly set out, that the time for consultation between counsel and defendant, on the facts of a given particular case, was insufficient, e.g., United States v. Helwig, 159 F.2d 616, 618 (3d Cir. 1947) (one minute); ...