decided: November 17, 1976; As amended February 15, 1977.
On Consideration of the Petition for Rehearing.*fn*
Swygert and Wood, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn**
GRANT, Senior District Judge.
The petitioner in this case was tried in a bench trial and convicted of armed robbery in the Circuit Court of Cook County. (The petitioner was arrested on May 8, 1972. He was held in custody for some three-and-one-half months. Only then was an indictment returned on August 25, 1972. On August 31, 1972 he was arraigned and counsel was appointed. The case was set for trial on the following day, September 1, 1972. On that date petitioner's appointed counsel, an assistant public defender, informed the court that he had not prepared for the case; had not had an opportunity, short of a brief biographical interview, to discuss the case with his client; and did not believe that at that time he could provide adequate, competent counsel.) Without making any effort to explain the dangers inherent in proceeding to trial with unprepared counsel, the court interrogated the petitioner if he wished to proceed to trial immediately or if he wished to request a continuance. The petitioner elected to proceed to trial immediately and was adjudged guilty in the bench trial that followed. The petitioner then brought this action in the United States District Court for the Northern District of Illinois seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). The district court granted the writ of habeas corpus, relying upon our holding in United States ex rel. Williams v. Twomey, 510 F.2d 634 (CA7 1975).
The Williams case relied upon by the district court involved a similar factual scenario in the Cook County Circuit Court where a defendant, charged with burglary, proceeded to trial with counsel recently appointed and unprepared for trial. In granting the habeas corpus petition reversing his conviction, this court re-examined the "farce and mockery" standard regarding adequate representation of counsel and concluded that the Constitution guarantees a criminal defendant legal assistance which meets a minimum standard of professional representation. Williams, supra at 641.
In the case at hand, the petitioner's lawyer indicated his lack of opportunity to confer with Spencer and also stated his firm belief that he was thoroughly unprepared to go to trial. At that time the following colloquy occurred:
Mr. Norris: Your Honor, may I address the court on one matter, and that is, as Your Honor knows, this case came before Your Honor yesterday, allegedly on the 116th day of the Fourth Term. It would appear that Mr. Spencer's rights under the Four Term Rule would expire in about four or five days.
I had a brief opportunity to speak to Mr. Spencer yesterday, but the thrust of that interview was merely to obtain some biographical information about him. I strongly advised him of the great need to ask for a continuance so that I could properly prepare his case. He is, of course, charged with armed robbery, one of the most serious charges known to criminal law, carrying a minimum penalty of five years.
As his attorney, Your Honor, I am not ready to try this case.
The Court: Counsel, we have gone through this before. It is his constitutional right to be tried within 120 days. You are his lawyer appointed. You must go along with his wish.
Mr. Norris: Yes, Your Honor. Of course, the defendant has a constitutional right to a speedy trial, he also has a constitutional right to the effective assistance of counsel. In this case -
The Court: You are the lawyer, not assistant. You are the lawyer.
Mr. Norris: Yes, effective representation by an attorney.
Mr. Norris: And, Your Honor, in this case I am asking and suggesting to the court that a continuance should be granted. I could not in any way be competent, I could not in any way be effective, I don't have the grand jury transcript, the copies of the police reports in front of me, I don't have that, I haven't seen the preliminary hearing transcript, I haven't filed any discovery motions, I don't really know if there are any statements, there may or may not be physical evidence in this case, I know that there is some type of photographic identification in this case, I am not completely familiar with that, I am not familiar in the manner in which the arrest went down.
I am really not familiar in any way with any defense that Mr. Spencer may have. And I am sure he has a defense because he has plead not guilty. Judge, I am just not ready to try this case and I am asking the court to grant a continuance based on my request.
The Court: How can we do that, counsel? You have been around here a long time, you are an experienced defense lawyer. I have no alternative to hear this case. If this man says he wants to go to trial that is his right, that is his ...