his constitutional rights, instead of using the vehement, lurid phraseology that was actually employed. Hollow professions that no reflection on the judge or prior counsel is intended, are not convincing if the words actually used contradict this protestation. I have no hesitancy in making this observation, since counsel's comments referred to another judge of this Court and not to me.
It might be useful in this connection to summarize the duties and rights of counsel in connection with representing defendants in criminal cases. It is, of course, elementary that it is ethical for a member of the bar to represent the accused even if he knows the latter to be guilty. In fact, it may be on occasion an ethical duty to do so, especially when it is undertaken by assignment of the Court. This is necessarily true because every defendant in a criminal case is entitled to be represented by counsel and the trial cannot proceed without counsel unless this privilege is affirmatively waived.
There are certain inherent limitations, however, on counsel who represents a defendant whom he knows to be guilty: there must be no relation between them except purely that of attorney and client; counsel must retain control of the presentation of the case and neither the client nor any outside person may dictate to him how to conduct the case in court; and counsel may not tender any evidence, or make any statements that he knows to be false as a matter of fact. None of these limitations is involved in this instance. There is a further qualification, however. No counsel is under any obligation to advance or present arguments or points that are obviously specious, or frivolous. Counsel is not expected to stultify himself in an attempt to advance his client's interests. In fact the Supreme Court has stated that if counsel is convinced that an appeal is 'frivolous, of course, he may ask to withdraw on that account', Ellis v. United States, 356 U.S. 674, 78 S. Ct. 974, 975, 2 L. Ed. 2d 1060. A fortiori he is under no obligation to press a frivolous motion under 28 U.S.C. § 2255.
The present Federal Rules of Criminal Procedure were adopted in 1946 in order to do away with technicalities and hairsplitting refinements or distinctions that were no credit to the law or to the administration of justice. This basic philosophy of the new procedure is clearly enunciated in Rule 2 and Rule 52(a) of the Federal Rules of Criminal Procedure. Rule 2 reads as follows:
'Rule 2. Purpose and Construction. These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.'
Rule 52(a) reads as follows:
'(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'
Anglo-American jurisprudence provides certain safeguards for the purpose of preventing the possibility of a conviction of the innocent, or oppressive treatment even of the guilty. These safeguards must be carefully observed even if occasionally they permit a criminal to slip through the meshes. On the other hand, sheer casuistic, captious technicalities that can be of no assistance to the innocent, but that may result in turning miscreants loose unwhipped of justice and to that extent have an adverse effect on the protection of the public, have no place in modern jurisprudence. This fundamental philosophy was eloquently formulated by two of the greatest jurists of our times, each of whom has been known as a strong defender of individual liberty. Judge Learned Hand in United States v. Garsson, D.C., 291 F. 646, 649, made the following statement:
'Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve * * * Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.'
Mr. Justice Cardozo, in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338, 78 L. Ed. 674, made the following observation:
'* * * justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'
This court has reviewed the various aspects of this application at greater length than its lack of merits perhaps justifies, but this course has been followed in view of the voluminous brief submitted and the lengthy oral argument presented by counsel.
In conclusion it is well to bear in mind Lord Acton's sage observation that 'liberty and good government do not exclude each other'.
Motion to vacate judgment and sentence is denied.