Seales v. State

DONNELLY, Judge,

dissenting.

For many years the members of the federal judiciary have been given carte blanche to govern the American people. Many have responded with enthusiasm. They have injected federal control into almost every facet of the lives and thinking of our citizens. Although bound, by oath or affirmation (Article VI), to support all of the Constitution of the United States, they have virtually excised the Tenth Original Amendment. Their arrogations are a matter of record. See Eaoul Berger, Government by Judiciary (Cambridge: Harvard University Press, 1977). They have refused to recognize the ultimate question: shall judges be restricted to the exercise of those powers which derive “from the consent of the governed”? The Declaration of Independence (1776). 1

However, no good purpose can now be served by considering what might have been. As has been eloquently said in different context, “it may be a quixotic tilt at windmills which belittles great principles of liberty. Only time can tell.” Kunz v. New York, 340 U.S. 290, 295 , 71 S.Ct. 312, 315 , 95 L.Ed. 280 (1950) (Jackson, J., dissenting).

I cheerfully acknowledge that I am bound by the “supreme law of the land,” as declared by the United States Supreme Court. (Art. VI, Constitution of the United States). I must also acknowledge, and reaffirm, that since 1966 the lower courts of the Federal judicial system have played an authoritative role in cases involving violations of the criminal laws of Missouri. State v. Brizendine, 445 S.W.2d 827 (Mo. banc 1969).

It is a fact that the United States Court of Appeals for the Eighth Circuit has encountered difficulty in fixing a standard by which effectiveness of counsel can be measured. See Garton v. Swenson, D.C., 417 F.Supp. 697 (1976). But that fact is of no moment. The problem has vexed all courts since Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932). Of importance is that the practicalities of our situation require that we ascertain and follow, if possible, the current standard articulated by the United States Court of Appeals for the Eighth Circuit. Unfortunately, this is more easily said than done.

In Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir. 1978), the Court said:

“The accepted standard for effectiveness of trial counsel is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.”

In U. S. v. Hood, 593 F.2d 293 (8th Cir. 1979), the Court said:

“In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.” (Emphasis mine.)

I encounter no difficulty in adopting the standard for effectiveness of counsel “as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.” My problem is with the apparent requirement of a showing of prejudice. In my opinion, the teaching of Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978), is that if effective assistance of counsel has been denied an accused, it will be presumed that the accused was denied a fair trial and his judgment of conviction will be set aside. If Holloway is, in fact, limited to conflict of interest situations (Reynolds, supra, 574 F.2d l.c. 981), then the teachings of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , *740 17 L.Ed.2d 705 (1967) must apply. If Chapman applies, we would be compelled to hold that a failure of counsel to meet the “reasonably competent lawyer” standard would constitute federal constitutional error and that such error would compel an automatic reversal unless the reviewing court were able to declare a belief that the error was “harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. l.c. 24, 87 S.Ct. 824 ). In my opinion, Hood, supra, erroneously places the burden of showing prejudice on the accused. Chapman, supra, places the burden of showing lack of prejudice, beyond a reasonable doubt, on the State.

I must conclude that the Eighth Circuit analysis is flawed.

I respectfully dissent.

. It is poignant when a jurist, in the name of the great Cardozo, boasts of federal judges routinely engaging in “bureaucratic and administrative functions, such as overseeing [state] schools, [state] mental hospitals, and [state] prisons.” See Kaufman, Chilling Judicial Independence, 88 Yale Law Journal 681, 686, 687 (1979); Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).