Full opinion text
This case gives the court en banc the opportunity to present its views on the requirement of effective assistance of counsel in criminal prosecutions, with principal focus on the duty of counsel to make due investigation prior to trial. We conclude that appellant has not made the showing requisite for reversal of his conviction. A. Proof at Trial At trial, Roger Crump, a soldier, testified that he was accosted by three men at about 6 p. m. on May 29, 1970, on the sidewalk at 8th and K Streets, N.W., near the parking lot of the Golden Gate Bar. He was yoked from behind by one man, threatened with a razor by another, while a third rifled his pockets and took his wallet which contained over $100 in cash. Two plainclothes policemen cruising in an unmarked car saw the robbery in progress, alighted and gave chase. One officer followed the man later identified as Fred Eley. Officer Box testified that he followed appellant Decoster — whom he identified as the robber who went through Crump’s pockets — from the scene to and into the D.C. Annex Hotel, found him at the lobby desk and arrested him. He testified that the chase lasted two to three minutes, that he did not lose sight of appellant and that Crump, who had been following along, immediately identified Decoster as one of the robbers. Crump was unable to identify De-coster at trial, because in the meanwhile his sight had been impaired in an accident, but he testified that he had been positive of his identification when he made it in the hotel. A search of appellant’s pockets did not turn up any money, and the wallet was never recovered. Appellant testified he had met and had a few drinks with Crump at the Golden Gate Club bar, but had left Crump in the bar, walked back to the hotel about a block away, and was getting his key from the desk clerk when he was arrested. The defense called Eley. He (as well as the other codefendant, Taylor) had already pleaded guilty at a time when Decoster, having jumped bail, was a fugitive from justice. Eley corroborated that Decoster had met Crump in the bar (a point on which Crump was unsure). However, he also testified that he had seen appellant fighting with Crump in the parking lot across from the bar — and as to this contradicted appellant. Decoster’s conviction for aiding and abetting an armed robbery, which resulted in a 2-8 year sentence, is on appeal to this court. B. Subsequent Proceedings When the appeal was first before this court, the panel, while rejecting the contentions presented by appellate counsel, remanded for a hearing on the issue of ineffective assistance of counsel, an issue that it raised su a sponte and directed be presented to the district court on motion for a new trial. The panel ruled that a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Giving content to this standard, the panel adopted duties owed by counsel to his client derived in large part from the guidelines for the defense function promulgated by the American Bar Association Project on Standards for Criminal Justice. The panel then held that once the appellant had shown a substantial violation of a duty owed to him by counsel, the burden was on the government to demonstrate lack of prejudice. Pursuant to the remand, the motion for new trial was filed November 1, 1973. In February, 1974, District Judge Joseph Wad-dy held three days of supplementary hearings on the adequacy of trial counsel. On April 23, 1975, with findings of fact and conclusions of law, he entered an order denying the motion for a new trial. On October 19, 1976, the panel of this court, one member dissenting, reversed the judgment of conviction, holding that appellant had been denied the effective assistance of counsel. Essentially, the panel opinion (referred to as Decoster II) concluded that trial counsel had violated his duty to conduct a factual investigation. On March 17, 1977, the court granted the government’s motion for rehearing en banc, vacated the panel opinion, and provided for supplemental briefs and oral argument. C. Guiding Principies The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall . . have the Assistance of Counsel for his defense.” In giving content to this provision, the courts have recognized the need for differing approaches depending on the nature of the particular claim of denial of assistance in each case. These differences stem from the courts’ perceptions of the exactness with which a denial can be identified and remedied, as well as their views of the need for a showing of prejudice. The cases present a continuum. At one end are cases of structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee. The most obvious example is, of course, the failure of the state to provide any counsel whatever. The Supreme Court long ago held that the Sixth Amendment requires that the federal courts provide counsel for indigent defendants charged with felonies under federal law. As to the states, the Court first defined the right to counsel as an aspect of a fair trial, with the eventual result that the right was restricted to less than that provided in the federal courts. Gideon made the Sixth Amendment applicable to the states by incorporation into the Fourteenth Amendment. Today the Sixth Amendment requires that counsel be provided not only in all felony prosecutions, but also in all prosecutions for misdemeanors that result in imprisonment. The right to have counsel provided is so fundamental that, like the admission in evidence of a coerced confession, or trial before an interested judge, the violation of the constitutional right mandates reversal “even if no particular prejudice is shown and even if the defendant was clearly guilty.” In this area, the doctrine applied is more stringent than that applicable to most denials of constitutional rights — permitting affirmance when the government shows beyond a reasonable doubt that the violation did not affect the conviction. “Effective” assistance of counsel is denied by a statute that, while permitting a defendant to make an unsworn statement, bars the defendant from having his testimony elicited by counsel through direct examination; by a statute that restricts counsel in deciding when to put the defendant on the stand; by a statute that gives the judge in a non-jury trial the power to deny defense counsel closing summation; and by a trial court order directing a defendant not to consult with his attorney during an overnight recess that falls between direct and cross examination. These state-created procedures impair the accused’s enjoyment of the Sixth Amendment guarantee by disabling his counsel from fully assisting and representing him. Because these impediments constitute direct state interference with the exercise of a fundamental right, and because they are susceptible to easy correction by prophylactic rules, a categorical approach is appropriate. A less clearcut rule emerges from the cases on multiple representation. The principle is stated categorically — to require an attorney to represent co-defendants whose interests may conflict denies the right to effective assistance of counsel. No showing of prejudice is necessary. However, because there is no absolute requirement that every defendant have his own attorney, the application of the rule requires some factual analysis to determine whether divergent interests that justify separate counsel may in fact exist. The factual analysis will not be exhaustive. As the Supreme Court has recently indicated, the courts must rely, by and large, on the representations of defense counsel that potential conflicts exist, since a thorough scrutiny might require the attorney to reveal the confidences of his client. The problem of late appointment moves us farther along the continuum. The Supreme Court has long recognized that sufficient time to prepare a defense is a vital element of effective assistance. Late appointment of counsel resembles the state-created restrictions on counsel’s ability to assist and represent his client. Yet in its 1970 Chambers opinion, the Supreme Court indicated categorical rules were not appropriate in this area. Although the Court’s treatment was cursory, it made clear that determining whether counsel was ineffective due to late appointment turned on the facts of the case. The Court emphasized, “we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel.” At the other end of the continuum are cases, including the present one, in which the issue is counsel’s performance when he is “untrammelled and unimpaired” by state action. The Supreme Court has never addressed this issue frontally, though it has indicated — albeit in abbreviated fashion— that it does not contemplate simplistic or categorical approaches. The Court has twice held that reliance on the erroneous advice of counsel does not negate an intelligent and voluntary guilty plea, so long as the advice fell “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” The Court recognized the “inherent uncertainty in guilty-plea advice” and rejected any requirement of a per se rule invalidating guilty pleas. It emphasized that to undo a guilty plea, the defendant must show “serious derelictions on the part of counsel.” In the 1976 Agurs case, the Court ruled that defense counsel’s failure to request the criminal record of a murder victim did not demonstrate ineffective assistance. The Court’s opinion is without explication but is significant, since what was apparently involved was a failure of defense counsel to pursue potential sources of aid to the defense available without inordinate effort — and yet the Court abruptly negatived the possibility of a constitutional claim. While the reasons for a non-categorical approach were not developed in Agurs, they are not difficult to discern. The defense attorney’s function consists, in large part, of the application of professional judgment to an infinite variety of decisions in the development and prosecution of the case. A determination whether any given action or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel’s judgment. In this fact-laden atmosphere, categorical rules are not appropriate. Over and above — or should one say below — the Supreme Court opinions, there has emerged a considerable body of circuit and state court law on the issue of ineffective assistance. Several reflective judges have recognized that differing approaches are pertinent where different aspects of the assistance of counsel are involved. Judge Bright, writing for the Eighth Circuit, has noted that while the total absence of counsel cannot but be harmful, when a defendant is represented by counsel and the performance of counsel has fallen below the accepted standard, “the seriousness of this constitutional violation must be judged in terms of the particular factual circumstances of that case.” Recently, Judge Browning, writing for the Ninth Circuit en banc in Cooper v. Fitzharris, pointed out that the rulings that a defendant need not show prejudice involved an absolute denial of counsel or a structural impediment to counsel’s effective performance. In a case involving the quality of performance, as reflected in acts or omissions at trial, the accused must prove not mere errors but “serious derelictions” and that counsel’s errors prejudiced the defense. Judge Hufstedler’s dissent put it that a defendant with a “totally inept counsel” would not also have to show “precisely” how he was affected, but this opinion acknowledged that courts consider “prejudicial impact of attorney behavior” in determining whether the attorney was constitutionally competent, and further recognized that in many cases the outcome would be the same under both majority and dissenting approaches. The task remains of delineating the non-categorical criteria that are to be applied in evaluating claims of inadequate performance by counsel. It is now clear that the courts will not abstain completely from some oversight of counsel’s performance. At one time this court came close to abstention, in the 1945 Diggs case adopting the “farce and mockery” standard. Even under that standard counsel’s performance was on occasion found so delinquent as to prompt judicial correction, but the occasions were rare. In the 1958 Mitchell opinion, Judge Prettyman in effect defended an approach of nonintrusion into the attorney/client relationship. Some of his observations still have merit, but they survive today as reasons for limiting the degree of judicial intrusion, not as a brief for abstention. Judge Fahy dissented, on the ground that a hearing was required on the ultimate question whether the conviction “rests in substantial degree” upon a course reflecting a lack of professional skill. Our 1967 Bruce opinion, which Judge Bazelon joined as to this issue, laid down a standard that recognized the need for more judicial oversight. It was put that “ineffective assistance” was established where “there has been gross incompetence of counsel and . . . this has in effect blotted out the essence of a substantial defense.” Bruce thus departed from Diggs and Mitchell, as has been recognized by this court and others. Although not stated explicitly, the Bruce departure was obviously away from Fifth Amendment due process concepts to a Sixth Amendment approach to the problem of ineffective assistance. And Bruce went beyond that to state that a less powerful showing of ineffectiveness was required on direct appeal than that necessary to support a collateral attack. We pause to take note of the formulations adopted by the other circuits. As Justice White has put it, the circuits are in “disarray.” One prominent formulation appears in the Third Circuit’s 1970 Moore opinion as a standard of “normal competency:” “the exercise of the customary skill and knowledge which normally prevails at the time and place.” This is essentially a negligence standard. Indeed the Third Circuit cited the American Law Institute’s formulation of the standard for civil liability of an attorney. However, as the ALI points out, the mere fact that performance falls below average does not equal negligence. Thus, the question remains of what departures from a potential “norm” are so egregious as to call for judicial interposition. Other circuits have adopted variations on a notion of “reasonable” competence, using tests that suffer from the same uncertainties as the Third Circuit’s. The Seventh Circuit has held that a defendant is entitled to assistance of counsel that meets a “minimum professional standard.” In the last analysis, all the circuits recognize that the performance of counsel must fall below a minimum, not just an abstract “norm.” There must be “serious derelictions.” Some circuits have attempted to give content to their standards by adopting, explicitly or by implication, specific duties the violation of which amounts to ineffective assistance. The panel of this court that wrote DeCoster I employed — with some embellishment — the standards for the defense function promulgated by the American Bar Association In Decoster II the panel referred to these DeCoster I requirements as “the minimal components of ‘reasonably competent assistance,’ ” although in both opinions the panel qualified these duties by requiring a “substantial” violation. The ABA Standards, however, were not put forward by the ABA as either exclusively “minimum” standards or as “a set of per se rules applicable to post-conviction procedures.” Rather, they constitute a “blend of description of function, functional guidelines, ethical guidelines and recommended techniques,” a mixture of the aspirational and the obligatory. Even those circuits that formulated an apparently categorical approach to these problems have shown restraint in actual application to the specific facts presented. While in Coles v. Peyton the Fourth Circuit laid down duties of defense counsel, including an unqualified duty to investigate, in Jackson v. Cox, the court apparently limited Coles, by distinguishing it as a case of virtually complete lack of investigation that was not controlling in a case where there were shortfalls in investigation, yet counsel had performed more than a “perfunctory” investigation. Similarly, the Third Circuit’s 1971 Green opinion has tempered any implication of Moore that it sufficed to identify specific aspects of incompetency. The District Court had granted habeas corpus because of unfairness due to the consolidation of rape and assault indictments arising out of unrelated events. In reversing, the Third Circuit stressed that the acquiescence of defense counsel in the consolidation was based on information furnished by the client that suggested a connection between the events. This course was accepted as not outside “the range of normally competent representation,” even though defense counsel acknowledged that he was not aware that the police version of the events differed significantly from that of his client. Finally, we find support in the recent 1979 decision of the California Supreme Court in the Pope case. As we have already noted, both majority and dissenting opinions of the Ninth Circuit’s 1978 en banc decision in Cooper v. Fitzharris acknowledged that the determination of lack of competence requires an assessment of both materiality and likely prejudice, with the opinions differing only as to the rule applicable to a defendant with a “totally inept counsel.” The California state court in Pope also disclaimed a categorical approach. In discarding the “farce or sham” standard, the court articulated “basic duties” of defense counsel that it characterized as “constitutional obligations,” using the DeCoster I approach of the “reasonably competent attorney acting as a diligent, conscientious advocate.” However, after establishing that defense counsel had failed to perform in accordance with that standard, defendant still had the additional burden of establishing that “counsel’s acts or omissions related in the withdrawal of a potentially meritorious defense.’.’ This differs in degree but not in kind from Bruce (“blott[ing] out the essence of a substantial defense”), and requires a showing of likely effect on outcome. This brief survey underscores that generalized standards may be little more than a “semantic merry-go-round.” Our Bruce opinion was one formulation and other courts have used others — but in the last analysis they are necessarily limited efforts to describe that courts will condemn only a performance that is egregious and probably prejudicial. As put by Justice Kaplan in the Massachusetts Saferian case: Whatever the attempted formulation of a standard in general terms, what is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of de-fence. For the first condition of judicial intervention, Saferian speaks of “serious incompetency, inefficiency or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” This may fairly be regarded as a refinement of the “gross incompetence” language of Bruce. The other condition is more important. Bruce required that the accused show that the deficiency “blotted out the essence of a substantial defense.” But Saferian requires only that the accused show that counsel’s deficiency “likely” deprived him “of an otherwise available, substantial ground of defense.” This is an appropriate modification of Bruce. Overarching concepts of justice tug on the court whenever it is seriously troubled by likelihood of injustice, even though there is no concrete establishment of injustice as a fact. In effect this consideration was identified in Bruce, where the court noted that on direct appeal the accused would be held to a lesser showing than that required for collateral attack. Bruce was in harmony with a similar observation by Judge Fahy, dissenting in Mitchell In general, including matters totally unrelated to performance of counsel, a federal appellate court has statutory authority to reverse convictions when this is “just under the circumstances.” Exercise of this authority may depend in some measure on a concern over the way the case was handled. It does not depend on a determination that there has been a lack of “effective assistance of counsel” in the constitutional sense. Indeed, in the Dyer case, cited in Bruce the court noted counsel’s general competence and the difficulties of “trying circumstances” and “an uncooperative client.” Nonetheless, the court had “misgivings” as to the adequacy of the defense “in net result” that caused it to reverse, on direct appeal, without any statement that the defendant had been denied effective assistance of counsel. On direct appeal the appellate court has latitude to exercise its supervisory function over the administration of justice in the court(s) subject to its review. That latitude is not fully available when a challenge is presented on collateral attack. Collateral attack requires a showing of violation of constitutional rights — save for the “exceptional circumstance” of a claim that both could not have been raised on appeal and that constituted a “fundamental defect which inherently results in a complete miscarriage of justice.” It may also be noted, without now attempting any doctrinal declarations, that the availability of collateral attack is also affected by concerns such as respect for finality of judgments and conservation of judicial resources, concerns that emerged in Stone v. Powell. Although the distinction between direct appeal and collateral attack, in terms of scope of cognizable problems, was not made the subject of separate discussion and justification in Bruce, it has been reaffirmed and has current vitality. Although direct appeal gives more latitude to the court, the difference is likely one of application rather than formulation of standards. On direct appeal, as on collateral attack, the court is still concerned with the two considerations focused in Safe-rian. The claimed inadequacy must be a serious incompetency that falls measurably below the performance ordinarily expected of fallible lawyers. And the accused must bear the initial burden of demonstrating a likelihood that counsel’s inadequacy affected the outcome of the trial. Once the appellant has made this initial showing, the burden passes to the government, and the conviction cannot survive unless the government demonstrates that it is not tainted by the deficiency, and that in fact no prejudice resulted. The need for a criterion that requires defendant to show at least probable effect on outcome has been identified even by judges seeking to liberalize Sixth Amendment protection. Such a criterion achieves a realistic resolution of the pertinent legal tensions. The court’s appraisal requires a judgmental rather than a categorical approach. It must be wary lest its inquiry and standards undercut the sensitive relationship between attorney and client and tear the fabric of the adversary system. A defense counsel’s representation of a client encompasses an almost infinite variety of situations that call for the exercise of professional judgment. A shortfall by defense counsel that is perceptible but is modest rather than egregious is no basis for judicial interposition — as appears from Agurs, Bruce, Saferian and the other cases cited. This limitation preserves the freedom of counsel to make quick judgments, and avoids the possibility that there will be frequent and wide-ranging inquiries into the information and reasoning that prompted counsel to pursue a given course. The problem is complicated by the fact that these decisions often derive from the information supplied by the client. For the law to encourage a wide-ranging inquiry, even after trial, into the conduct of defense counsel would undercut the fundamental premises of the trial process and transform its essential nature. The resulting upheaval in the role of the trial judge, widely recognized as a serious difficulty, would in itself call into question any broad doctrine of ineffective assistance. And the prosecution in a criminal case would in turn ask to oversee defense counsel’s conduct at trial — to ensure against reversal. An even more difficult problem would be posed by the supervision of defense counsel’s development of the case before trial. Even if we had the authority, it would be unwise to embark upon a doctrine that would open the door to a fundamental reordering of the adversary system into a system more inquisitorial in nature. The adversary system, warts and all, has worked to provide salutary protection for the rights of the accused. Efforts to improve the performance of defense counsel should not imperil that protection. The approach we have outlined is congruent with most of the decisions of this court, including United States v. Pinkney An exception should be noted for DeCoster I —not for the result, but some of the broad observations. D. The Duty To Investigate The duty to investigate is a subset of the overall duty of defense counsel. A conscientious defense attorney will naturally investigate possible defenses. As part of this process, witnesses who may have information relevant to the case should be identified and interviewed. However, any claim of ineffectiveness must turn not on abstractions as to duty, but on an appraisal of consequences. And the development of the case before trial is an area of peculiar sensitivity in the attorney/client relationship. Some failures to investigate may be so egregious as to command judicial correction without more. In McQueen v. Swenson, the defense counsel had adopted a blanket policy which he adhered to even in the face of requests by the defendant that certain persons be interviewed. This was held “an absurd and dangerous policy which can only be viewed as an abdication — not an exercise — of his professional judgment.” Counsel’s defect was subject to a simple, workable remedy and thus was a proper subject for judicial intervention. Most claims of failure to investigate will not involve such clearcut situations. They must be appraised in light of the information available to the attorney. A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel. This is the teaching of our 1974 Glayborne opinion. As Judge MacKinnon, joined by Judge McGowan, and writing over Judge Bazelon’s dissent, pointed out: “[T]rial counsel had their own clients as sources of information.” Realistically, a defense attorney develops his case in large part from information supplied by his client. As the Third Circuit indicated in Green, choices based on such information should not later provide the basis for a claim of ineffectiveness even though that basis would have been undercut by inquiry of others. Judicial intervention to require that a lawyer run beyond, or around, his client, would raise ticklish questions of intrusion into the attomey/client relationship, and should be reserved for extreme cases where an effect on the outcome can be demonstrated. And so in Matthews v. United States, involving a claim that counsel was ineffective in failing to introduce evidence or call witnesses, then Circuit Judge Stevens focused on the failure to allege that such witnesses or evidence existed, adding: Petitioners have not told us what was said in their conference with counsel. Perhaps, for all we know, they merely explained that they had indeed forged the 35 ballot applications which were placed in evidence by the government and that they were indeed guilty as charged. Surely, if that were the case, counsel had no duty to search for witnesses, expert or otherwise, who might falsely testify to the contrary. Our reflections on this point are congruent with the standard applicable when counsel for an indigent defendant seeks funds to obtain investigative services to assist in the preparation of the defense. While in general effective assistance of counsel embraces such an allowance it is far from automatic and “depends on the facts and circumstances of a particular case,” with funds provided when counsel makes a showing of necessity of the specific subjects to be explored and of their likely materiality. Finally, claims based on a duty to investigate must be considered in light of the strength of the government’s case. “When, . . . the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do.” It is all well and good for a millionaire to retain counsel with the instruction to “leave not the smallest stone unturned.” But it goes too far to insist that such a course is a general constitutional mandate. E. Appellant’s Claims We turn from general questions of principle and approach to the matter of application to the case at hand. As focused in the remand proceedings, appellant makes some seven allegations of defective performance by his counsel. Following three days of hearings, Judge Waddy found that appellant had not been denied the effective assistance of counsel. We affirm. While we do not commend counsel’s performance, we have no serious misgivings that would lead us to reverse in the interest of justice. 1. Failure To Interview Potential Witnesses We turn first to the claim that defense counsel failed to interview potential witnesses prior to trial. This is the claim that is most vigorously pressed on appeal, and by its nature requires somewhat detailed development. Admittedly, defense counsel did not attempt prior to trial to interview the three prosecution witnesses — complainant Crump, and Officers Box and Ehler. However, at appellant’s preliminary hearing counsel did hear Officer Ehler testify that he and Officer Box were together when they witnessed the crime, and that Box pursued appellant to the hotel where he was apprehended. Ehler further testified that within minutes after the assault, Crump had identified appellant in the hotel lobby — a point appellant has never contested. Defense counsel was aware, therefore, of the main points of the likely testimony of the witnesses at trial. Appellant attacks defense counsel’s failure to interview the desk clerk at the D.C. Annex Hotel, and his failure to make an effort to locate and interview potential eyewitnesses that might have been in the hotel at the time appellant entered and was apprehended. These are abstractions without context. Appellant himself testified at trial that he had just entered the lobby when he was arrested. Counsel was aware that there would be, as indeed there was, testimony of the police officer that he had not lost sight of appellant from the time of the robbery to the time of his apprehension. Appellant makes no claim that he advised counsel of any occurrence that would generate a significant issue as to his entry into the hotel. If given an unrestricted budget and freed of any constraints as to probable materiality or accountability, a lawyer might have cheerfully logged in many hours looking for the legal equivalent of a needle in a haystack. As already noted, a millionaire might have retained counsel to leave not a single stone unturned. However, a defendant is not entitled to perfection but to basic fairness. In the real world, expenditure of time and effort is dependent on a reasonable indication of materiality. In the circumstances of this case, appellant has singularly failed to make a meaningful demonstration that counsel’s omission probably affected the outcome of the trial. It is argued that potential witnesses might have testified to appellant’s demeanor as he entered the lobby. This abstract possibility is not only speculative but remote in the extreme. It cannot fairly be said to undercut materially the positive police testimony. Appellant goes on to challenge counsel’s failure to seek out and interview potential witnesses in the Golden Gate Club. It would be extravagant to require counsel to seek out the anonymous patrons of a bar in order to testify that two persons were having a drink — a point that is, incidentally, undisputed as far as appellant and Crump are concerned. Appellant makes no offer as to what more could have been learned. We turn next to the failure of defense counsel to interview appellant’s co-defendants, Eley and Taylor, prior to trial, and his belated interview of Eley shortly before Eley testified on the second day of trial. The record reveals that appellant consistently maintained to his attorney that his defense was alibi — that he had not been present at the scene of the crime, but rather had returned directly to the hotel from the bar where he had had a drink with Crump. This was the essence of appellant’s eventual testimony at trial. We may assume for present purposes that appellant’s lawyer should have made some timely effort prior to trial to learn of the accounts of the co-defendants, beginning with consultation with their counsel. However, counsel subsequently did interview Eley and called him to the stand. At this time, be it noted, appellant had recently written to his counsel and raised a possible self-defense claim, altering his previous account (that he had left Crump in the bar) to claim that outside the bar Crump had assaulted him, and that Eley and Taylor would testify that they had come to his aid in fighting off Crump. At the insistence of appellant, Eley was subpoenaed to appear at trial. Eley, who was in jail, was brought to the courthouse in the same bus as Decoster and placed in the cellblock behind the courtroom with De-coster. At the remand hearing, defense trial counsel testified that he had interviewed Eley, and that Eley had told him Decoster was not present at the scene of the crime. This narrative was consistent with Decoster’s trial testimony, and defense counsel called Eley as a witness. On the stand, however, Eley gave a different account, testifying that he had seen Crump and Decoster fighting. At the remand hearing Decoster and Eley both admitted that counsel had visited the cellblock prior to calling Eley as a witness. Decoster stated that he could not recall whether counsel had interviewed Eley, and Eley denied that he had spoken to counsel. The District Court found Eley’s testimony “incredible” and credited the testimony of defense counsel as to his interview of Eley. As already indicated, we do not approve the belated effort to interview the co-defendants. However, appellant has not demonstrated a likelihood that counsel’s omission affected the outcome of trial. Counsel did interview Eley, and at a time when Eley could at least be asked to exculpate appellant without fear of self-injury, for by this time Eley’s own fate was set, following the plea of guilty he had made during the period appellant had eloped. Appellant was insisting that Eley be called, and Eley’s interview provided a glimmer of hope of corroborating appellant against a phalanx of credible prosecution witness. Neither appellant nor his counsel was in an enviable position at any time. Although appellant now claims ineffective assistance of counsel, what this conviction reflects is the clear-cut prosecution evidence, appellant’s weak contradiction, and Eley’s turnabout. As a variant on the claim of failure to investigate, appellant points to counsel’s apparent confusion at the beginning of the trial. After defense counsel had announced “ready” for trial, the government demanded the names of alibi witnesses. Counsel stated that he might present alibi witnesses, but he sought the full twenty day period permitted by local rules to respond to such a demand. When this was denied, defense counsel announced he would proceed without alibi witnesses. The effort of defense counsel to keep his options open was hardly unusual, but even if this indicated uncertainty as to theory of defense, some degree of confusion would not be unexpected in view of appellant’s shifting accounts and demands. In any event, there is no indication of likely effect on outcome. Counsel’s responses came before the jury was impanelled. At the trial, counsel did call Eley as a witness he understood would support defendant’s alibi defense. 2. Other Claims of Ineffective Assistance As to appellant’s other claims, the District Court’s findings, while framed in response to the Decoster I mandate, are generally in accord with the principles we have developed in this opinion. a. The Bond Review Motion. Appellant was arrested on May 29, 1970. A judge of the District of Columbia Court of General Sessions set bond at $5,000. Appellant could not meet that figure and remained incarcerated. On October 12, 1970, the Black Man’s Development Center accepted third-party custody. On November 9, 1970, counsel filed a motion for bond review in the District Court. The issue was disputed at the remand hearing, but Judge Waddy apparently found that this motion had included the condition of third-party custody. However, it was not until December 8,1970, that defense counsel filed in the correct court (General Sessions) a motion for bond review explicitly reflecting the third-party custody condition. Appellant was eventually released on January 14, 1971. The District Court found that counsel’s deficiencies did not affect the result of the trial in the slightest degree, did not “limit defendant’s ability to contact witnesses and inform his counsel of them if there were any; nor did it frustrate his defense, nor affect his guilt or innocence.” While lack of diligence in obtaining a criminal defendant’s pretrial release cannot be condoned, reversal of a conviction is not the appropriate remedy where the trial itself was not affected by the default. b. Failure To Obtain Transcript. Defense counsel did not obtain a copy of the transcript of the preliminary hearing. At the remand hearing, he testified that it was his normal practice to read the prosecutor’s copy. This practice, and their cooperation, was substantiated by the prosecutors’ testimony. We cannot say that counsel’s practice was impermissible. He had not only access to a transcript, but his own memory of the preliminary hearing that he had attended. Appellant argues that Officer Ehler’s testimony at trial differed from his testimony at the preliminary hearing on the exact role of each of the defendants in the robbery. These variations were not “substantial” — Judge Waddy’s term — insofar as the alibi defense was concerned. There is no showing of likely impact on the trial result. c. Offer To Waive Jury Trial. Appellant’s effort to condemn defense counsel for the offer to waive jury trial is frivolous. Appellant was in fact tried by a jury. Moreover, as the District Court found, appellant himself demanded that his attorney offer to waive jury trial, and appellant persisted in this demand even after the court advised him of his constitutional rights and explained that the court had heard part of the evidence against him. We are moved to add a word. The trial judge, the late Honorable Joseph Waddy, had a distinguished record at the bar as a compassionate and effective defense counsel, and on the bench as a patient, fair and conscientious judge. Appellant’s wish for a trial by him was neither unusual nor such as to require conscientious counsel to set himself in opposition to his client. d. Waiver of Opening Statement and Failure To See Sentence Properly Executed. As the District Court found, there is no merit in the claims of ineffectiveness on the ground of waiver of opening statement and failure to see that appellant’s sentence was properly executed. Waiver of an opening statement is a tactical decision. There was no effort to demonstrate that the waiver had, or was likely to have had, a substantial effect on the outcome. As to the sentencing issue, defense trial counsel had withdrawn from the case before the issue had arisen, an appeal had been taken, and appellate counsel had been appointed. And of course an omission would justify at most a reconsideration of sentence, not a reversal of the conviction. F. Conclusion The several claims, both seriatim and in combination, do not raise in our minds serious misgivings as to whether justice was done. We certainly do not commend counsel’s performance as ideal. Yet some of the complaints border on the frivolous. And ultimately there was a total failure of appellant to show that it was likely that counsel’s deficiencies had any effect on the outcome of this trial. As the District Court found: While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof. In the absence of a governmental impediment to effective assistance of counsel, the court cannot lightly vacate a conviction on the basis of its own appraisal of the performance of defense counsel. The door is open, but only for cases of grievous deficiency and where the court has serious misgivings that justice has not been done. Our adversary system will be tortured out of shape if defense counsel must contemplate from the beginning that the judge will subsequently retrace his conversations with his client, and his evolving perceptions of the problems and possibilities presented by the assignment. We support efforts to upgrade performance of defense trial counsel. We commend the programs of the last decade in clinical education for law students. We approve the American Bar Association’s efforts to clarify the defense and prosecution functions. More should be done. But more is not better if it undercuts the adversary system. So far as the present case is concerned, ultimately dispositive of the appeal are the strength of the government’s case and failure of appellant to demonstrate a likelihood of effect on the outcome. # s(: * sfc ;}! * As Jan Deutsch has recently noted, it is often in the nature of a dissent to present a political statement. Judge Bazelon’s characteristic eloquence destines his remarks to stand as an oft-quoted expression of aspirations for the legal system. In our view, that eloquence is not matched by tenable standards. 1. Starting from the ABA Standards Relating to the Defense Function, Judge Bazelon propounds a list of “duties owed by counsel to client” as representing the “minimum requirements of competent performance.” The ABA issued its standards — dropping the term “minimum” — as a “blend of description of function, functional guidelines, ethical guidelines and recommended techniques.” They were not designed as a hard and fast checklist of duties for defense counsel. In application there must be room for judgment, and for consideration of context. Our analytic structure permits reversal in the interest of justice, but without inappropriate rigidity. The claimed deficiency must fall measurably below accepted standards. To be “below average” is not enough, for that is self-evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards. What is all-important is significance in terms of context. This has been understood by virtually every court and judge that has spoken to the issue. We resolve the problem of taking context into account without imposing an undue burden on the defense. We do not require that defendant bear the burden of proving actual prejudice. What defendant must demonstrate is a likelihood of effect on the outcome. In that event, the government would have the burden of showing that there was in fact no prejudice in the particular case. Judge Bazelon qualifies his formulation by asserting that his “checklist” does not compel automatic reversal, as it applies only if the violation is “substantial.” In DeCoster I, the meaning of “substantial” was left ambiguous, but a fair reading of the opinion suggests that it referred to the magnitude of the violation, either in terms of egregiousness or frequency, rather than to the violation’s impact or likely impact. In Judge Bazelon’s panel opinion in Decoster II- — -later vacated by the en banc order— the defendant’s burden was expanded to include a reference to impact. Judge Bazelon stated that Pinkney made clear that “for a violation to be substantial,- it must [have been] ‘consequential,’ that is, it in some way must have impaired the defense.” Judge Bazelon’s dissent now appears to recede from the concept of burden on defendant to show impairment of the defense. While Judge Bazelon’s dissent acknowledges that “the ‘reasonably competent’ attorney must tailor his actions to fit the unique circumstances presented by a given case,” defendant’s nominal burden to show “substantiality” is structured so that, realistically, deviation from the checklist makes out a prima facie case, leaving the actual burden on the government (or defense trial counsel) to show that the departure was “excusable” or “justifiable.” Judge Bazelon’s difficulties with the substantiality concept suggest that it is unsound to make this the analytical cutting edge. Judge Bazelon recognizes that the government can always defend by showing beyond a reasonable doubt that the violation was harmless — a rule prescribed by Chapman even for established constitutional violations. The realistic thrust of Judge Bazelon’s approach, however, is a rule structured toward a conclusion of prejudice from any deviation from the checklist of standards concerning preparation, whatever the likely or actual consequence. Omissions of investigation lead to new trials on the rationale that one can never be certain what might have happened had counsel performed better. A new trial is needed if exculpatory information might have been turned up (obviously), and also if the fruits of the investigation would have proved neutral or even inculpatory, for defense counsel could have been in a stronger position to lead his client to plead guilty. This kind of speculation renders no error harmless. 3. The crucial difference between our views of this case is not the shortfall of counsel so much as the analysis of effect on outcome. The critical point is the duty to investigate. Since the defendant’s account to his counsel of his entry into the hotel was so close to that of the police, the speculation that something might have been turned up by interviewing the hotel clerk is tantamount to an obligation to turn over each and every stone. This is even clearer for the extreme suggestion that defense counsel should have made inquiries, of persons unknown, at the bar where defendant and the victim were drinking. There is more force to the objection that counsel rested with the preliminary hearing, and did not interview the policemen or the victim. However, a notably conscientious trial judge has found that there was no effect on outcome. Finally, co-defendant Eley was interviewed prior to trial. Eley’s damaging testimony on the witness stand was a turnabout, defense trial counsel submitted. When one also factors in the reality of the turnabout in defendant’s own statements to counsel, the notion that counsel’s shortfall contributed to the outcome is comminuted. 4. Judge Bazelon’s premise is that the Sixth Amendment dictates an inevitable progression toward categorical rules governing the assistance of counsel. The Supreme Court decisions, however, establish a variable and judgmental approach depending on the nature of the claimed deprivation of the right. In particular, Chambers v. Maroney clearly, if briefly, rejected the proposition that per se rules were appropriate, and implicitly accepted an outcome requirement. In the cases where the Court rejected any kind of prejudice requirement, the violation could easily be remedied by a categorical prohibition of a state-erected impediment to effective assistance. Those cases did not involve intrusion into the more sensitive area of pretrial preparation. We are constrained by Chambers and the signals in Agurs. In the law, “leadership requires lieutenants as well as captains.” On an intermediate court we have some latitude to initiate approaches and to interpret Supreme Court decisions, but we must abide by their constraints. 5. Judge Bazelon is animated by a view of the adversary system as so impaired in practice as to warrant a thorough reordering, with extensive supervision by the trial judge through a pretrial “checklist” to ensure that counsel has met his duties of preparation, and oversight of the conduct of the trial. The manifest consequence would be inevitable and increasing intrusion into the development and presentation of the defense case by the trial judge, and (out of self-protection) by the prosecution. The adversary system is neither sacrosanct nor impervious to change. But Judge Bazelon has not pointed to any system — let alone the inquisitorial system of the Continent — that guarantees better protection against injustice. We do not think he has made a case for the drastic overhaul of a system that historically has heightened protection of the accused. Perhaps the spectre of disruption will lead to increased appropriations to the criminal justice system, but such a tactical approach to the judicial function would be perilous. 6. Starting with Bruce in 1967, this circuit has evolved and refined Sixth Amendment protections against the ineffectiveness of counsel. Judge Bazelon fashioned an important advance in the ruling of DeCoster 1 that established a procedure by which the trial court could take a fresh look within the structure of a direct appeal. This opinion modifies the Bruce requirement of a showing that a substantial defense has in fact been “blotted out” by requiring only a showing of a likelihood of effect on outcome. We cannot accept the more radical departure outlined in the Decoster II panel opinion and reiterated in the dissent. 5(5 * * * * 5* The concurring opinion subsequently received from Judge Robinson is subject to the comments addressed to Judge Bazelon’s dissenting opinion insofar as those two opinions are congruent. In key aspects the concurring opinion differs from Judge Ba-zelon’s dissent, notably Judge Robinson’s appraisal of the limited utility of the checklist approach of DeCoster I, and basically his assessment of the particular case before us. 5(5 5(C * Sfc 5(5 5(5 The judges of this court are emphatically not indifferent to the plight of the poor in the criminal justice system. Certainly there is need for the allocation of additional resources. Certainly there is need to cull out incompetent counsel or to call them to account. Responses are primarily required from the bodies that can supply resources— the legislature and the bar. Judge Bazel-on’s bold but single-valued approach would tolerate disruption of the administration of justice and a reordering of the adversary system, with little guarantee of improved performance and impassivity as to the uncharted and likely noxious consequences. Our approach toward the minimum legal obligations of our democratic society to ward off injustice may be more earthbound, but in our view it is more salutary. Affirmed. MacKINNON, Circuit Judge, with whom TAMM and ROBB, Circuit Judges, join, concurring. This case has a tortuous history. It started with a sua sponte remand from this Court to the District Court for determination of issues that were not raised on appeal and which were not apparent in the record. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [DeCoster I]. I dissented in part. On remand, the trial judge (Waddy, J.) held an extensive hearing. His findings and conclusions did not support the preconceived fears of the majority of the appellate panel that counsel had been ineffective. However, on appeal in a far reaching opinion that attempted to write new law the majority of the panel set aside Judge Waddy’s findings and conclusions and reversed the conviction. United States v. Decoster, 199 U.S.App.D.C. -, 624 F.2d 196 (1976), [Decoster II]. The factual and legal deficiencies of the reversal of Decoster’s conviction by the panel were set forth at length in my dissent, 199 U.S. App.D.C. -, 624 F.2d 196, and that opinion covers a number of points that need not be covered here. The full court subsequently ordered en banc rehearing of the case. Now the court en banc affirms the conviction. In Judge Leventhal’s plurality opinion, which was prepared after my earlier original draft, many issues raised by the earlier panel majority are now subordinated to a discussion of more general law, and the specific factual issues of this case, which support the finding of guilt and the effectiveness of counsel, receive less attention. I reach the same result as the opinions by Judges Leventhal and Robinson, but on several issues those opinions do not make as complete and conclusive a case against the theories and analysis of the dissent as the record supports, and, in some respects, I differ from their analysis. However, since such theories are now relegated to a dissent from an en banc opinion the need for an opinion to completely refute them is diminished. Thus, to avoid repetition, I have withdrawn a large portion of my original opinion and instead will make a few observations with respect to the dissent beyond those of Judge Leventhal’s opinion, and discuss the issues surrounding the burden of proof which I believe should be set forth with greater clarity and precision. I stand by my earlier statements which are accurately quoted in the dissent. I vote to affirm the conviction. I. THE BURDEN OF PROOF IN SIXTH AMENDMENT RIGHT TO COUNSEL CASES The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall have the Assistance of Counsel for his defence.” In addition to the right to not be actually denied the “Assistance of Counsel” it has long been recognized that a defendant has a right to the effective assistance of counsel, for courts have understood that a defense may be so ineffective as to constitute a constructive denial of the assistance of counsel. Obviously, the two types of cases are composed of radically different essential elements. This case turns on the nature of the showing that must be made in order to reverse a conviction because of alleged ineffective representation. I believe that a defendant who alleges that his counsel was ineffective must show that substantial prejudice to his defense resulted from the alleged violation of duty owed him by counsel. I base my conclusion on four considerations: (1) precedent in this Circuit; (2) the Supreme Court’s approach in the analogous Fifth Amendment area; (3) traditional common law principles governing the burden of proof; and (4) respect for the adversary system. A. Precedent 1. Before DeCoster I The early cases in this Circuit held that the Sixth Amendment only established a defendant’s right to appointment of competent counsel. Subsequent negligence of that counsel did not implicate the Sixth Amendment. However, the Fifth Amendment’s due process clause guarantees the accused a fair trial, and the early cases recognized that the performance of counsel might have been so inept that the defendant did not receive a fair trial. Thus, initially, the adequacy of counsel was considered to involve a Fifth Amendment question. The Sixth Amendment, however, guarantees more than the appointment of competent counsel. By its terms, one has a right to “Assistance of Counsel in his defence.” Assistance begins with the appointment of counsel, it does not end there. In some cases the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided. Clearly, in such cases, the defendant’s Sixth Amendment right to “have Assistance of Counsel” is denied. Thus, in Scott v. United States, 138 U.S. App.D.C. 339, 340, 427 F.2d 609, 610 (1970) we recognized that the right to adequate assistance of counsel is derived from the Sixth Amendment as well as from the Fifth. In addition to applying the Sixth Amendment to the adequate assistance of counsel area, the pre-DeCoster I cases established two principles. First, they delineated a constitutional standard by which the adequacy of attorney representation can be tested. Second, they clearly allocated the burden of proof in adequacy of representation cases. (a) The Standard. In our earliest decisions on the subject, we stated that a defendant’s constitutional right to adequate representation is violated when counsel is shown to be so inept that the trial is a “farce and a mockery of justice.” Later cases stated that the “farce and mockery of justice” test was meant as an example of a constitutional violation; it was not intended to restrict the Sixth Amendment’s application to only those cases in which the trial could be called a “farce.” See Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793 (1958). Once the ambiguity surrounding the “farce and mockery of justice” test was cleared up, this court consistently held that a defendant’s right to assistance of counsel is violated when his attorney’s ineptness substantially prejudiced defendant’s ability to receive a fair trial. In United States v. Hammonds, 138 U.S.App.D.C. 166, 169, 425 F.2d 597, 600 (1970) we stated that “ ‘[t]he question * * * is whether [counsel’s] representation was so ineffective that Appellant was denied a fair trial’ ” Similarly, in Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970) the court held that the “appropriate standard for ineffective assistance of counsel ... is whether gross incompetence blotted out the essence of a substantial defense.” (b) Burden oí Proof. The pre-DeCoster I cases also established that the burden rests on the defendant to show that he did not receive a fair trial. In Bruce v. United States, 126 U.S.App.D.C. 336, 339-40, 379 F.2d 113, 116-17, 121 (1967) (emphasis added) Judge Leventhal wrote for the Court: In earlier cases it was said that a claim based on counsel’s incompetence cannot prevail unless the trial has been rendered a mockery and a farce. These words are not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness. Although the cases are rare and extraordinary, it appears that an accused may obtain relief under 28 U.S.C. § 2255 if he shows that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense either in the District Court or on appeal. A claim of ineffective assistance of counsel might be made out if the wishes of the appellant were in fact diverted by clearly erroneous legal advice and he was substantially prejudiced thereby. The defendant in Bruce was seeking habeas corpus release. Since his constitutional claim was made as a collateral attack on his convi