CONTINUANCE
The Supreme Court has held that a defendant could not complain on Sixth Amendment effective assistance of counsel grounds of a court appointed “young . . . real estate lawyer” who had “never conducted a jury trial” and was given only 25 days to prepare compared to the governments “four and one half year” investigation, covering “thousand of documents,” without a demonstration of “an actual breakdown of the adversarial process during the trial of this case” having some “effect . . . on the reliability of the trial process,” US v. Cronic, 466 US 648 (1984), distinguishing Powell v. Alabama, 287 US 45 (1932) where the court held that ineffectiveness could be presumed without inquiry into actual performance at trial, where the trial court had appointed counsel on the very day a capital trial commenced. See also Tasco v. Butler, 835 F.2d 1120 (5th Cir. 1988) (noting counsel and defendant did not necessarily know of charges enhancing sentence and must be allowed time to prepare defense to recidivism charges); US v. Kennedy, 799 F.2d 556 (C.A. Del. 1986) (denying of brief continuance prior to second trial to allow defendant to obtain counsel violated his right to counsel).
The new standard for Sixth Amendment effective assistance of counsel requires not only that counsel not provide reasonably effective assistance, but also that counsel’s errors be so serious as to deprive the accused of a fair trial, causing a reasonable probability that, but for counsel’s unprofessional errors, the results would have been different. Strickland v. Washington, 80 L.Ed.2d 674 (1984).
On the other hand an accused may have a right to a continuance on Sixth Amendment compulsory process grounds to obtain the testimony of a missing witness. Dickerson v. Alabama, 667 F.2d 1364 (11th Cir. 1982).
“A court may not, however, refuse to grant a reasonable continuance for the purpose of obtaining defense witnesses where it has been shown that the desired testimony would be relevant and material to the defense.” Hicks v. Wainwright, 633 F.2d 1146 (5th Cir. 1981); Singleton v. Lefkowitz, 583 F.2d 618 (2d Cir. 1978).
In Hicks, the Fifth Circuit recently enunciated several factors which are to be considered in determining whether an accused was deprived of his right to compulsory process by a denial of a motion for continuance:
“[T]he diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony.”
See also US v. Kahn, 728 F.2d 676, 678 (1984); Fendler v. Goldstein, 782 F.2d 1181, 1191 (1984); Raulerson v. Wainwright, 811 F.2d 803, 811 (1984) (stating “no abuse of discretion, let alone such that would offend constitutional principles in this case”); US v. Wilson, 721 F.2d 967, 972 (4th Cir. 1983) (denying request for continuance based on unavailability of witnesses not reversible error when testimony would be unessential and cumulative).
