Commonwealth v. Garvin

Justice MARSHALL,

dissenting in Strickland, would adopt the last rule. In his view the right to the effective assistance of counsel is “so basic to a fair trial” that its denial “can never be treated as harmless error.” — U.S. at —, 104 S.Ct. at 2073, 80 L.Ed.2d at 704 (quoting Chapman v. California, 386 U.S. at 23 n. 8, 87 S.Ct. at 828 n. 8).

Perhaps the most useful way to examine Justice MARSHALL’S position is to examine it in the context of the general question, When is it wise to adopt a per se rule? As already noted, in some situations it is settled that a showing of denial of the effective assistance of counsel will per se result in a new trial, without inquiry concerning prejudice. This will occur when the defendant shows that the state has disabled counsel from fully assisting him, see, e.g., Geders v. United States, supra, and when the defendant shows that counsel was burdened with an actual conflict of interest that affected counsel’s performance, see, e.g., Cuyler v. Sullivan, supra. It does not follow, however, that in every situation in which the defendant shows ineffectiveness the showing will per se result in a new trial. A per se rule is appropriate where the danger to be avoided— state interference with counsel; conflicts of interests — is easy to identify and therefore easy to prevent. See United States v. Decoster, 624 F.2d at 201-03 (LEVENTHAL, J.). Where, as is true of the typical ineffectiveness case — the sort of case that confronts us here — the danger is not specific or discrete but identifiable only after an examination of all of the particular circumstances, which will vary widely from case to case, a per se rule does not seem the best response. For while its rigidity will result in many reversals, the reversals will not result in the desired improvement in counsels’ performance. Counsel who know that they must not represent co-defendants with conflicting interests can easily avoid doing so; counsel who only know *583 that they will be declared ineffective for failing to conduct the trial with “reasonable competence” will not find conformity so easy.

I therefore conclude that we should not adopt Justice MARSHALL’S position. Instead, I believe, we should adopt the harmless error rule, and hold that if the defendant shows that counsel was ineffective — did not perform in a reasonably competent manner — then the burden shifts to the prosecution to show beyond a reasonable doubt that counsel’s ineffectiveness did not affect the outcome of the case. This rule, it seems to me, gives appropriate recognition, both to the variety of circumstances that arise in ineffectiveness cases, thereby avoiding the rigidity of a per se rule, and to the gravity of the fact that it is a constitutional right that has been denied. Furthermore, and of decisive importance, adoption of the harmless error rule is consistent with the settled principle that where the denial of a constitutional right has been shown, if reversal does not follow per se, it will follow unless the prosecution proves beyond a reasonable doubt that there was no prejudice. See, e.g., Moore v. Illinois, 434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977) (identification of defendant at preliminary hearing at which defendant was unrepresented); Chapman v. California, supra (comment on defendant’s failure to testify); Milton v. Wainwright, 407 U.S. 371 , 92 S.Ct. 2174 , 33 L.Ed.2d 1 (1972) (post-indictment confession elicited by police officer from defendant without assistance of counsel). And see United States v. Decoster, 199 App. D.C. at 403-415, 624 F.2d at 250-262 (concurring opinion by ROBINSON, J.). I can see no basis in principle for distinguishing between the procedural consequences attendant upon a showing of denial of one constitutional right and a denial of another constitutional right. Surely the sixth amendment right to assistance of counsel is to be accorded equal dignity with any other constitutional right. And yet, that is precisely what Strickland does not do. It holds that it is not enough for the defendant to show that counsel was ineffective; he must further show that counsel’s ineffective *584 ness was “prejudicial to the defense.” — U.S. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The Court thereby imposes on one who pleads denial of the sixth amendment right to the assistance of counsel a heavier burden than is imposed on one who pleads denial of any other constitutional right.

In addition, the Court does not consistently or clearly explain what it means by “prejudicial to the defense”. At first, after saying that “the defendant [must] affirmatively prove prejudice,” — U.S. at —, 104 S.Ct. at 2067, 80 L.Ed.2d at 697, it says that

[e]ven if a defendant shows that particular errors of counsel were unreasonable ..., the defendant must show that they actually had an adverse effect on the defense. Id.

However, after saying this, the Court specifically rejects the suggestion — which might have been taken as its meaning — that it is sufficient to show that “[counsel’s] errors ‘impaired the presentation of the defense.’ ” Id. “That standard,” says the Court, “provides no workable principle”, for “any error ... ‘impairs’ the presentation of the defense.” Id. What is needed, the Court suggests, is “[a] way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.” Id. This seems to imply that the defendant’s burden is to prove, not counsel’s ineffectiveness, but his own innocence. However, the Court at once rejects this implication, saying that “[o]n the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. Finally, the Court concludes its discussion of the defendant’s burden with this statement of “the appropriate test for prejudice”:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

— U.S. at —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

*585 To borrow Justice MARSHALL’S words, which I quoted above in another context: “I am not sure what these phrases mean, and I doubt that they will be self-explanatory to lower courts” — or, I may add, to defense counsel either. I am sure, however, that the burden imposed on the defendant, whatever its exact dimensions, is so heavy that only in the rare case will the defendant be able to prove that he was denied the effective assistance of counsel. He will be able to do it, I assume, if he proves that counsel failed to introduce evidence of a rock-solid alibi. See the actual case stated by Judge BAZELON, in United States v. Decoster, 624 F.2d at 284 n. 105. And perhaps he will do it if he proves that counsel failed to move to suppress his confession, when there was no question that the confession had been unconstitutionally obtained, and when the only evidence that the defendant had committed the crime was the confession. It is difficult to imagine what other sorts of cases might satisfy the Court that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” — U.S. at —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Commenting on the Court’s test for prejudice, Justice MARSHALL said this:

First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by a good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all of these impediments to a fair evaluation of the probability that the outcome of a *586 trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

— U.S. at —, 104 S.Ct. at 2076, 80 L.Ed.2d at 708 (footnote omitted) (MARSHALL, J., dissenting).

I subscribe to these comments. By the Court’s test, the only defendant who will be able to prove that he was denied his sixth amendment right to the assistance of counsel will be the defendant who can prove that he would have been acquitted. It is all very well for the Court to say to counsel at an ineffectiveness hearing, “You don’t have to prove that in fact your client would have been acquitted — that the result of the proceeding would have been different — only a reasonable probability that he would have been.” In the real world, counsel will have to prove the fact.

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In beginning this opinion, I characterized Strickland as an unfortunate decision, which I hoped the Court would some day repudiate. Harsh words, I admit, and yet, I think, necessary.

The Court’s reasoning in Strickland, to state it in the form of a syllogism, is as follows: A defendant convicted of a crime is not entitled to plead denial of his sixth amendment guarantee to the assistance of counsel unless he proves prejudice. If he should have been convicted anyway, however, he cannot prove prejudice, for his conviction did not prejudice him but was what he deserved. Therefore, a defendant is only entitled to plead the sixth amendment guarantee if he can prove that instead of being convicted he would have been acquitted (“the result of the proceeding would have been different”).

This reasoning is fundamentally flawed. The sixth amendment guarantee does not extend only to someone who should have been acquitted. It therefore does not require proof of prejudice. It says nothing about “guilt” or “prejudice”. What it does refer to, and guarantees, is *587 “assistance of counsel.” It guarantees this assistance to innocent and guilty alike. Its concern is not with the outcome of the case — conviction or acquittal — but the process by which that outcome is reached. And the process it intends is the adversarial process. That is why, when inquiring whether the defendant in a criminal case received the assistance of counsel guaranteed by the sixth amendment, a court should not inquire, as Strickland does, into the defendant’s guilt — whether he was prejudiced by his conviction — but instead should inquire, and should only inquire, into whether the defendant’s counsel was the sort of counsel the proper functioning of the adversarial process requires. If the defendant shows that he did not have that sort of counsel, he will have shown that he was denied the process guaranteed him by the sixth amendment. And the defendant will make this showing if he shows that his counsel was incompetent, for the essence of the adversarial process — its basic premise — is that both the prosecution and the defense must be represented by competent counsel. It is therefore only after the court has determined that the defendant’s counsel was not competent that the court should inquire into prejudice. Then, since the defendant will have shown that his constitutional right to counsel was denied, the inquiry should be, as in other constitutional cases, whether the denial was harmless beyond a reasonable doubt.

Nothing in what I have just said is novel. To the contrary, settled principle establishes that the issue of effective assistance and prejudice must not be confused, as Strickland confuses them, but must be kept distinct, and that the concern of the sixth amendment is only with effective assistance, and not with prejudice. See Note, A New Focus on Prejudice in Ineffective Assistance of Counsel Cases: The Assertion of Rights Standard, 21 American Criminal Law Review 29 (1983) (sixth amendment guarantee to effective assistance of counsel requires that counsel adequately assert all rights of defendant; to establish ineffectiveness, defendant must show that counsel acted in a way that *588 prejudiced the assertion of one of his rights, including a constitutional or statutory right, or a right created by jurisdictional practice or procedural rules; once defendant establishes ineffectiveness, burden should shift to state to prove error was harmless beyond reasonable doubt); Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Columbia Law Review 1053 (1980) (sixth amendment right to effective assistance of counsel protects different interests at different stages of prosecution; advocate protects defendant’s rights to procedural fairness and advantageous outcome, advisor ensures that client has relevant information to make decisions that he must make himself, and negotiator serves as intermediary to temper the severity of an otherwise appropriate result; once defendant shows counsel’s performance risked substantial prejudice to any of these interests, burden should shift to prosecution to show harmless beyond reasonable doubt); United States v. Cronic, — U.S. at —, 104 S.Ct. 2039 , 80 L.Ed.2d at 666 (“The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.”); United States v. Morrison, 449 U.S. 361, 364 , 101 S.Ct. 665, 667 , 66 L.Ed.2d 564 (1981) (The sixth amendment right to the assistance of counsel, “fundamental to our system of justice, is meant to assure fairness in adversary criminal process.”); Cuyler v. Sullivan, 446 U.S. 335, 343 , 100 S.Ct. 1708, 1715 , 64 L.Ed.2d 333 (1980) (“Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself.”); Herring v. New York, 422 U.S. 853, 862 , 95 S.Ct. 2550, 2555 , 45 L.Ed.2d 593 (1975) (“The very premise of our adversarial system of justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.”); Anders v. California, 386 U.S. 738, 744 , 87 S.Ct. 1396, 1400 , 18 L.Ed.2d 493 (1967) (“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active *589 advocate in behalf of his client....”); Gideon v. Wainwright, 372 U.S. 335, 344 , 83 S.Ct. 792, 796 , 9 L.Ed.2d 799 (1963) (“[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”). See also ABA Standards for the Defense Function § 4-1.1 Commentary (“The adversary system requires defense counsel’s presence and zealous professional advocacy just as it requires the presence and zealous advocacy of the prosecutor and the constant neutrality of the judge.”).

It is not, however, only Strickland’s fallacious logic that is of concern. Of greater concern are the consequences of that logic.

Cases decided on fallacious reasoning generally produce bad results, and eventually are repudiated. See, for some spectacular examples, Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896) (racially segregated schools can be equal), overruled by Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954); Adkins v. Children’s Hospital, 261 U.S. 525 , 43 S.Ct. 394 , 67 L.Ed. 785 (1923) (legislation establishing minimum wages for women and children is arbitrary interference with freedom of contract), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578 , 81 L.Ed. 703 (1937); Colegrove v. Green, 328 U.S. 549 , 66 S.Ct. 1198 , 90 L.Ed. 1432 (1946) (whether boundaries of election districts properly drawn presents “political question”) (plurality opinion), distinguished in Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) (equal protection challenge); Betts v. Brady, 316 U.S. 455 , 62 S.Ct. 1252 , 86 L.Ed. 1595 (1941) (sixth amendment inapplicable to the states), overruled by Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 733 (1963). Whether Strickland will eventually be repudiated I do not, of course, know. But I am sure it will produce bad results.

For those who countenance incompetence encourage it. And surely Strickland encourages incompetence. By its rule, the worst bumbler will have little fear of ever being *590 found ineffective. The result, I suggest, will be a steady decline in the quality of representation afforded those accused of crime. The burden of that decline will fall upon the poor, for most of those accused of crime are poor. I deeply regret this prospect. In guaranteeing the assistance of counsel, the sixth amendment embodies our proudest aspiration — the achievement of equal justice. Strickland, by remitting the poor to representation by incompetent counsel, abandons that aspiration.

Nor does this exhaust the concern that one must have with Strickland. Suppose the fears I have just expressed are unjustified. Assume that a few years from now a study were to show that Strickland had not done what I anticipate it will do — depress the quality of representation provided the poor. That would not validate Strickland’s reasoning..

At the bottom of Strickland, as at the bottom of this case, lies the ancient ethical dilemma of ends and means. Our Constitution is founded on the premise that the means are what count — that if the end of social justice is ever to be achieved, it will only be through certain means, which the Constitution identifies, and which the courts are committed to uphold. One of those means is elected representatives; another is free speech; another is the provision of competent counsel. Of course someone who has committed a crime should be convicted. But the end of conviction is only to be achieved through the means of a trial at which the accused had the assistance of competent counsel. If insisting upon that means results in some guilty persons not being convicted, so be it. Strickland inverts the Constitutional equation. It places the end before the means. Given that the end of conviction has been achieved, the Court will not inquire into whether the means of achieving it included a trial at which the accused had the assistance of competent counsel — except in the rare case in which the convicted person can prove “a reasonable probability” that he would have been acquitted.

*591 It is Strickland’s inversion of ends and means, even more than its effect on the poor, that troubles me, and makes me say that I will not follow in its wake. If in our preoccupation with one end — achieving convictions — we are willing to diminish one constitutional protection — the right to counsel, then in our preoccupation with some other end we may be willing to diminish some other constitutional protection. Other societies have followed that path. It ends in tyranny.

-6-

Strickland is of course binding as to the effect to be given the sixth amendment to the United States Constitution. But, except as it is inherently persuasive, it is of no force as to the effect to be given the Pennsylvania Constitution, specifically, to article 1, section 9, which also guarantees the effective assistance of counsel: “In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel....” Pa. Const., art. 1, sec. 9. And see Commonwealth v. Sell, 504 Pa. 46, 49-50 , 470 A.2d 457, 459 (1983) (“[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.”, quoting Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977)).

Our Supreme Court has often interpreted the Pennsylvania Constitution to ensure greater protection to the rights of the defendant in a criminal case than that provided by the Federal Constitution. See Commonwealth v. Sell, su *592 pra, (automatic standing to challenge legality of search when charged with possessory offense); Commonwealth v. Bussey, 486 Pa. 221 , 404 A.2d 1309 (1979) (Miranda rights must be explicitly waived) (plurality opinion); Commonwealth v. DeJohn, 486 Pa. 32 , 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032 , 100 S.Ct. 704 , 62 L.Ed.2d 668 (1980) (customer has legitimate expectation of privacy in bank records and therefore can challenge legality of seizure); Commonwealth v. Triplett, 462 Pa. 244 , 341 A.2d 62 (1975) (statements ruled inadmissible on motion to suppress may not be used to impeach defendant who testifies at trial); Commonwealth v. Richman, 458 Pa. 167 , 320 A.2d 351 (1974) (defendant entitled to counsel at post-arrest, pre-indictment lineup); Commonwealth v. Mills, 447 Pa. 163 , 286 A.2d 638 (1971) (second prosecution and punishment for same offense not permitted in Pennsylvania unless interests of Commonwealth and jurisdiction that initially prosecuted and punished defendant are substantially different). I believe that we should interpret article 1, section 9, of the Pennsylvania Constitution so that once the defendant in a criminal case shows that his counsel was not reasonably competent, he has established a denial of his right to the effective assistance of counsel, and the burden then shifts to the Commonwealth to prove beyond a reasonable doubt that counsel’s incompetence was harmless because it had no effect on the outcome of the case.

Applying this rule here I conclude that appellant met his burden of showing that his counsel was not reasonably competent and, therefore, that he was denied the effective assistance of counsel. Appellant showed the following: At the time voir dire was conducted, appellant’s counsel did not know that Pa.R.Crim.P. 1126 had been amended so that appellant was entitled to a minimum of three and a maximum of seven peremptory challenges. N.T. May 6, 1981, 6-8. Counsel believed that appellant and his two co-defendants were together entitled to a total of seven peremptory challenges. Id. Had she known of the amendment to the rule, she would have exercised the minimum of three and *593 requested the maximum of seven peremptory challenges because she was not satisfied with the jury chosen. Id. Finally, the record shows that counsel for the three co-defendants did in fact exercise seven peremptory challenges, the maximum to which they thought the defendants were entitled.

The least that can be expected of competent counsel is to know the applicable rules of procedure. See ABA Standards for the Defense Function § 4-7.2(a) (2d Ed. 1980) (“the lawyer should prepare himself or herself prior to trial to discharge effectively his or her function in the selection of the jury, including ... the exercise of both challenges for cause and peremptory challenges.”). I recognize that a defendant must allege and prove his claim with some specificity. The courts are not required to pursue vague and unsupported allegations of ineffective assistance. See Commonwealth v. Pettus, 492 Pa. 558 , 424 A.2d 1332 (1981) (boilerplate allegations of ineffective assistance are insufficient to warrant evidentiary hearing; counsel must set forth an offer to prove at an appropriate hearing sufficient facts to support a conclusion that trial counsel may in fact have been ineffective). Although appellant’s proof might have been more specific, for example, he might have attempted to prove who counsel would have challenged had she known the rule, I believe that his proof was sufficiently specific to establish counsel’s ineffectiveness. For he proved, not only that counsel did not know the rule, but that she would have acted differently had she known the rule.

I further conclude, however, that the Commonwealth met its burden of proving beyond a reasonable doubt that counsel’s ineffectiveness was harmless. Although a defendant is entitled to eliminate specific jurors by peremptory challenge, he is not entitled to a specific jury. He is entitled to a fair jury, and the Commonwealth has shown that appellant received a fair jury. The jurors said on voir dire, and they took an oath, that they would be fair. Nothing in the record suggests any reason to believe that they did not keep *594 their oath. To the contrary, their verdict was amply supported by the evidence.

I therefore concur in the order affirming the judgment of sentence.