Amicus Curiae Brief — Connecticut, Petitioner v. Michael Skakel

NO. 18-185

In the Supreme Court of the United States

STATE OF CONNECTICUT,

v.

Petitioner,

MICHAEL SKAKEL,

Respondent.

On Petition for a Writ of Certiorari to the

Connecticut Supreme Court

BRIEF OF AMICI CURIAE STATES OF UTAH,

ALASKA, ARIZONA, INDIANA, KANSAS, LOUISIANA,

MARYLAND, NEBRASKA, NORTH CAROLINA,

SOUTH CAROLINA, AND TEXAS

SUPPORTING PETITIONER

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

JOHN J. NIELSEN

Assistant Solicitor General

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. When a defendant contends that he received

ineffective assistance of counsel, should courts judge

the reasonableness of counsel’s challenged conduct in

isolation, or in the context of counsel’s overall

performance?

2. May defense counsel reasonably base

investigative decisions on the information their client

gives them?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. LOWER COURTS HAVE SPLIT ON WHETHER

STRICKLAND REQUIRES THEM TO CONSIDER

COUNSEL’S OVERALL PERFORMANCE WHEN

DECIDING WHETHER COUNSEL PERFORMED

DEFICIENTLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Considering overall performance is an

essential part of the deficient-performance

inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Sixteen lower courts consider counsel’s

overall performance when resolving an

ineffective-assistance claim . . . . . . . . . . . 4

2. Three courts—including the Connecticut

Supreme Court—refuse to consider

overall performance . . . . . . . . . . . . . . . . . 6

B. Counsel may reasonably base investigative

decisions on a defendant’s statements and

actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Strickland held—as thirteen lower courts

recognize—that counsel can reasonably

rely on what defendants tell (or don’t tell)

them . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iii

2. Two courts—including the Connecticut

Supreme Court—have imposed unworkable

standards on defense counsel . . . . . . . . . . . 11

II. FURTHER PERCOLATION WOULD SERVE NO

PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

TABLE OF AUTHORITIES

CASES

Bigelow v. Haviland,

576 F.3d 284 (6th Cir. 2009) . . . . . . 12, 13, 14, 15

Boyd v. Johnson,

167 F.3d 907 (5th Cir. 1999) . . . . . . . . . . . . . . . . 9

Bradshaw v. State,

792 S.E.2d 672 (Ga. 2016) . . . . . . . . . . . . . . . . . 11

Broadnax v. State,

130 So.3d 1232 (Ala. Crim. App. 2013) . . . . . . . 11

Chandler v. United States,

218 F.3d 1305 (11th Cir. 2000) . . . . . . . . . . . . . . 4

In re Cohen,

640 A.2d 34 (Vt. 1994) . . . . . . . . . . . . . . . . . . . . 11

Coleman v. Brown,

802 F.2d 1227 (10th Cir. 1986) . . . . . . . . . . . . . . 9

Commonwealth v. Boyden,

517 A.2d 935 (Pa. 1986) . . . . . . . . . . . . . . . . . . . . 5

Commonwealth v. Peterkin,

513 A.2d 373 (Pa. 1986) . . . . . . . . . . . . . . . . . . . 10

In re Crew,

254 P.3d 320 (Cal. 2011) . . . . . . . . . . . . . . . . . . 11

Cummings v. Secretary for Department of

Corrections, 588 F.3d 1331 (11th Cir. 2009) . . 8, 9

Cummings-El v. State,

863 So.2d 246 (Fla. 2003) . . . . . . . . . . . . . . . . . 11

v

Curry v. United States,

498 A.2d 534 (D.C. 1985) . . . . . . . . . . . . . . . . . . . 5

Erie R. Co. v. Thompkins,

304 U.S. 64 (1938) . . . . . . . . . . . . . . . . . . . . . . . . 2

Ex Parte Thomas,

case nos. WR-86,364-01 and -02, 2018 WL

3046314 (Tex. Crim. App., June 20, 2018) . . . . . 5

Frangias v. State,

450 S.W.3d 125 (Tex. Crim. App. 2013) . . . . . . . 6

Gideon v. Wainwright,

372 U.S. 335 (1963) . . . . . . . . . . . . . . . . . . . . . . . 2

Harrington v. Richter,

562 U.S. 86 (2011) . . . . . . . . . . . . . . . . . . . passim

Hodge v. State,

355 P.3d 368 (Wyo. 2015) . . . . . . . . . . . . . . . . . 11

Int’l Shoe Co. v. State of Wash., Office of

Unemployment Comp. & Placement,

326 U.S. 310 (1945) . . . . . . . . . . . . . . . . . . . . . . . 2

Kendrick v. State,

454 S.W.3d 450 (Tenn. 2015) . . . . . . . . . . . . . . . . 6

Kimmelman v. Morrison,

477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . 3, 4, 5, 6

McCoy v. Louisiana,

138 S. Ct. 1500 (2018) . . . . . . . . . . . . . . . . . . . . 17

Mercer v. United States,

724 A.2d 1176 (D.C. 1999) . . . . . . . . . . . . . . . . 4, 5

vi

Miranda v. Arizona,

384 U.S. 486 (1966) . . . . . . . . . . . . . . . . . . . . . . . 2

Montez v. Czerniak,

322 P.3d 487 (Ore. 2014) . . . . . . . . . . . . . . . . . . . 6

Murray v. Carrier,

477 U.S. 478 (1986) . . . . . . . . . . . . . . . . . . . . . . . 5

Nix v. Whiteside,

475 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . 16

People v. Cox,

809 P.2d 351 (Cal. 1991) . . . . . . . . . . . . . . . . . . . 5

People v. Doolin,

198 P.3d 11 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . 5

People v. Reed,

535 N.W.2d 496 (1995) . . . . . . . . . . . . . . . . . . . . 5

Premo v. Moore,

562 U.S. 115 (2011) . . . . . . . . . . . . . . . . . . . . . . . 2

Rompilla v. Beard,

545 U.S. 374 (2005) . . . . . . . . . . . . . . . . 13, 14, 15

State v. Hall,

419 P.3d 1042 (Idaho 2018) . . . . . . . . . . . . . . . . . 5

State v. Prindle,

304 P.3d 712 (Mt. 2013) . . . . . . . . . . . . . . . . . . . 11

Stratmon v. United States,

631 A.2d 1177 (D.C. 1993) . . . . . . . . . . . . . . . 4, 16

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . passim

vii

United States v. Decoster,

624 F.2d 196 (D.C. Cir. 1976) . . . . . . . . 10, 15, 16

United States v. Manriquez-Rodriguez,

case no. 98-2203, 1999 WL 345505 (10th Cir.,

June 1, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Marcano-Garcia,

622 F.2d 12 (1st Cir. 1980) . . . . . . . . . . . . . . . . . 9

United States ex rel. Green v. Rundle,

452 F.2d 232 (3d Cir. 1971) . . . . . . . . . . . . . . . . 10

Upper Skagit Indian Tribe v. Lundgren,

138 S. Ct. 1649 (2018) . . . . . . . . . . . . . . . . . . . . . 7

RULE

Sup. Ct. R. 14.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

1 ABA Standards for Criminal Justice 4-4.1 (2d ed.

198 Supp.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

American Bar Association, State, County[,] and

Local Expenditures for Indigent Defense Services

Fiscal Year 2008, available at

https://www.americanbar.org/content /dam/aba

/administrative/legal_aid_indigent_defendants/

ls_sclaid_def_expenditures_fy08.authcheckda

m.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1

INTEREST OF AMICI CURIAE1

The States enact and enforce most criminal laws in

this country. Securing criminal convictions and

ensuring their finality promotes public safety. Finality

often turns on a reviewing court’s evaluation of defense

counsel’s performance under the Sixth Amendment.

The States thus have important sovereign interests in

knowing what standards govern that performance.

Where, as here, courts have interpreted the Sixth

Amendment to impose fundamentally different duties

in different jurisdictions, it undermines finality and,

potentially, public safety. And excessive, after-the-fact

scrutiny of defense counsel’s performance—particularly

scrutiny that might expose them to bar complaints for

deficient performance—might shrink or eliminate the

pool of attorneys willing to provide those

constitutionally mandated services.

1

Counsel of record for all parties received notice at least ten days

before this amicus curiae brief was due of the State’s intent to file

it. The State of Utah, as amicus curiae, may file this brief without

leave of Court or consent of the parties. S. Ct. R. 37.4.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Strickland v. Washington, 466 U.S. 668 (1984), and

its progeny pervade the criminal law in a way hard to

overstate.2 Strickland claims are the primary means by

which defendants attack their convictions—

particularly on collateral review—and thus uniquely

influence the finality of criminal judgments. Cf.

Harrington v. Richter, 562 U.S. 86, 105 (2011)

(stressing need for deference to counsel’s judgment to

maintain integrity of adversary process at trial and on

collateral review).

Strickland’s touchstone for assessing counsel’s

performance is reasonableness. 466 U.S. at 687 (“[T]he

proper standard for attorney performance is that of

reasonably effective assistance.”) (citation omitted); see

also id. at 688-89; Premo v. Moore, 562 U.S. 115, 126

(2011) (“Whether before, during, or after trial, when

the Sixth Amendment applies, the formulation of the

standard is the same: reasonable competence in

representing the accused.”) (citing Strickland, 466 U.S.

at 688). If counsel performs reasonably, the defendant

2

To illustrate, as of August 30, 2018, Westlaw shows 172,681

Strickland case citations. That is more than double the combined

number of case citations to two other, and much older, seminal

criminal cases—Miranda v. Arizona, 384 U.S. 486 (1966) (64,742

case citations), and Gideon v. Wainwright, 372 U.S. 335 (1963)

(8,772 case citations). It also dwarfs the number of citations to

foundational civil cases such as Erie R. Co. v. Thompkins, 304 U.S.

64 (1938) (20,828 case citations) and Int’l Shoe Co. v. State of

Wash., Office of Unemployment Comp. and Placement, 326 U.S.

310 (1945) (23,267 case citations).

3

has received the assistance the Sixth Amendment

guarantees.

Lower courts have split on Strickland’s

reasonableness standard in two ways relevant here.

First, should the reasonableness of counsel’s action or

omission be judged in isolation, or in the context of

counsel’s overall performance? Second, may counsel

reasonably base investigative decisions largely—or

even solely—on what a defendant says and does?

The Connecticut Supreme Court’s decision deepens

both splits in a way that disregards this Court’s

holdings and undermines the States’ interests in

finality and in meeting their constitutional obligations.

This Court should grant review.

ARGUMENT

I. LOWER COURTS HAVE SPLIT ON WHETHER

STRICKLAND REQUIRES THEM TO CONSIDER

COUNSEL’S OVERALL PERFORMANCE WHEN

DECIDING WHETHER COUNSEL PERFORMED

DEFICIENTLY.

A. Considering overall performance is an

essential part of the deficient-performance

inquiry.

Time and again, this Court has stressed that

reviewing courts must assess counsel’s alleged

deficiency in the context of counsel’s overall

performance. Strickland itself tasks courts with

deciding “whether, in light of all the circumstances, the

identified acts or omissions were outside the wide

range of professionally competent assistance.” 466 U.S.

at 690 (emphasis added). Kimmelman v. Morrison, 477

4

U.S. 365 (1986), elaborated on this requirement, saying

that it “will generally be appropriate for a reviewing

court to assess counsel’s overall performance

throughout the case” to decide the deficientperformance element. Id. at 386 (emphasis added).

Kimmelman even chided the lower courts for their

“inadvisable” failure to do so. Id. Richter further

emphasized the “difficult[y]” of proving ineffectiveness

“when counsel’s overall performance indicates active

and capable advocacy.” 562 U.S. at 111 (emphasis

added).

1. Sixteen lower courts consider counsel’s

overall performance when resolving an

ineffective-assistance claim.

Six circuits and ten states have taken this Court at

its word. In addition to those cases that Petitioner cites

(Pet. at 23-29), one additional circuit and six additional

states take overall performance into account in

assessing the reasonableness of counsel’s performance.

In Chandler v. United States, 218 F.3d 1305 (11th Cir.

2000), the defendant faulted his attorney for not calling

certain witnesses at the sentencing phase of his capital

trial. Id. at 1319-21. But before considering the alleged

omissions, the court took care to “look at what the

lawyer did in fact”—that is, it considered the alleged

omissions in the proper context of counsel’s overall

performance. Id. at 1320.

The District of Colombia Court of Appeals likewise

explained that “the analysis of counsel’s performance

typically must be comprehensive, i.e., not narrowly

limited to a review of counsel’s failings.” Stratmon v.

United States, 631 A.2d 1177, 1182 (D.C. 1993) (citing

Kimmelman, 477 U.S. at 386); see also Mercer v. United

5

States, 724 A.2d 1176, 1197 (D.C. 1999) (“In assessing

counsel’s performance, the court must look to the

overall performance . . . . Mere errors of judgment or

tactical decisions that go awry do not, by themselves,

constitute ineffective assistance of counsel.”) (citing

Kimmelman, 477 U.S. at 386, and Curry v. United

States, 498 A.2d 534, 540 (D.C. 1985)).

Though the Michigan Supreme Court recognized

that even a single error, “if sufficiently egregious and

prejudicial,” could constitute deficient performance, it

stressed that “each error must be assessed in relation

to counsel’s overall performance, before and at trial.”

People v. Reed, 535 N.W.2d 496, 505 n.14 (1995)

(cleaned up) (citing Murray v. Carrier, 477 U.S. 478,

496 (1986), and Kimmelman, 477 U.S. at 386).

The supreme courts of California, Idaho,

Pennsylvania, and Texas follow suit. See People v. Cox,

809 P.2d 351, 373 (Cal. 1991) (“[W]e must ‘assess

counsel’s overall performance throughout the case’”)

(quoting Kimmelman, 477 U.S. at 386), overturned on

other grounds by People v. Doolin, 198 P.3d 11, 33 (Cal.

2009); State v. Hall, 419 P.3d 1042, 1117 (Idaho 2018)

(“Based upon this cross-examination, Hall has failed to

establish either deficient performance or prejudice,

particularly in light of his attorneys’ ‘overall

performance,’ which was ‘active and capable

advocacy.’”) (quoting Richter, 562 U.S. at 111);

Commonwealth v. Boyden, 517 A.2d 935, 937 n.2 (Pa.

1986) (noting the need to evaluate the reasonableness

of counsel’s conduct “in the context of counsel’s overall

performance”) (citing Kimmelman, 477 U.S. 365); Ex

Parte Thomas, case nos. WR-86,364-01 and -02, 2018

WL 3046314, *6 (Tex. Crim. App., June 20, 2018) (“The

6

attorney made mistakes, but error-free counsel is not

required,” particularly considering counsel’s “overall

performance”) (citing Richter, 562 U.S. at 111); see also

Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim.

App. 2013) (“Moreover, an accused is not entitled to

representation that is wholly errorless, and a reviewing

court must look to the totality of the representation in

gauging the adequacy of counsel’s performance.”).

Two other states—Oregon and Tennessee—have

acknowledged Richter’s direction to assess overall

performance, but those courts’ opinions do not apply it

as expressly. See Montez v. Czerniak, 322 P.3d 487, 506

(Ore. 2014); Kendrick v. State, 454 S.W.3d 450, 472

(Tenn. 2015).

2. Three courts—including the Connecticut

Supreme Court—refuse to consider overall

performance.

Notwithstanding Strickland, Kimmelman, and

Richter’s plain terms, three courts—the Second Circuit,

Wisconsin Supreme Court, and Connecticut Supreme

Court—evaluate the reasonableness of counsel’s

decisions in isolation. Pet. at 29-30. That square split

justifies plenary review.

On the merits, this Court should re-affirm what it

said in Strickland, Kimmelman, and Richter: that

counsel’s overall performance is a necessary part of

deciding whether counsel’s decisions were reasonable.

A contrary approach—like the Connecticut Supreme

Court’s—is akin to judging a painting by an isolated

brushstroke or a spot of blank canvas. To be sure, in an

extreme case, one brushstroke might ruin a

masterpiece; a moustache would irreparably mar the

7

Mona Lisa. But most errors or omissions will not have

so outsized an influence on the work as a whole. And

the larger view will almost always give enough context

to distinguish the rare ones that do from the vast

majority that don’t.

B. Counsel may reasonably base investigative

decisions on a defendant’s statements and

actions.

Amici also urge this Court to clarify a subsidiary

question: whether defense counsel reasonably may base

their investigative decisions on their competent clients’

statements. This Court may properly consider that

question because certiorari review encompasses not

just the question presented but also “subsidiary

question[s] fairly included therein.” S. Ct. R. 14.1(a);

see, e.g., Upper Skagit Indian Tribe v. Lundgren, 138

S. Ct. 1649, 1656 (2018).

Judging counsel’s overall performance necessarily

requires taking stock of counsel’s discrete decisions; to

return to the metaphor, a painting comprises its

brushstrokes. The Connecticut Supreme Court’s

decision here has deepened an existing split about the

extent to which counsel may reasonably base

investigative decisions on a defendant’s statements and

actions.

1. Strickland held—as thirteen lower

courts recognize—that counsel can

reasonably rely on what defendants tell

(or don’t tell) them.

The “reasonableness of counsel’s actions may be

determined or substantially influenced by the

defendant’s own statements or actions.” Strickland, 466

8

U.S. at 691 (emphasis added). It is “quite proper[]” for

counsel to base litigation decisions “on information

supplied by the defendant,” and the reasonableness of

investigative decisions in particular “depends critically

on such information.” Id. Thus, “when a defendant has

given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful,

counsel’s failure to pursue those investigations may not

later be challenged as unreasonable.” Id.

Three Circuit courts and seven State supreme

courts have followed this reasoning. For example, in

Cummings v. Secretary for Department of Corrections,

588 F.3d 1331 (11th Cir. 2009), Cummings was charged

with capital murder for breaking into his girlfriend’s

home and stabbing her to death. Id. at 1335. From

early on, he instructed his counsel that if he were

convicted, he “did not want to present any mitigation

evidence.” Id. at 1336. The trial court confirmed

Cummings’s competency and made sure that that’s

what he wanted. Id. at 1336-37.

After he was convicted, Cummings “softened a little

bit” on the mitigation issue and allowed his counsel to

call two family members to testify at the penalty phase.

Id. at 1339. Even so, the jury sentenced him to death.

Id. at 1342.

In state post-trial and post-conviction proceedings,

Cummings claimed that his counsel was ineffective for

not investigating other mitigation witnesses, including

Cummings’s mother, girlfriend, sister, son, niece,

middle school principal, and childhood friend, as well

as several mental health experts. Id. at 1343-44. The

state courts denied relief. Id. at 1349-50, 1353.

9

Cummings raised the same ineffectiveness claims in

federal habeas. Id. at 1354. The district court granted

relief, but the Eleventh Circuit reversed, explaining

that the state court’s decision was permissible because

counsel’s decision not to investigate was properly based

on Cummings’s wishes. It cited Strickland to explain

that the scope of counsel’s investigative duties “is

substantially affected by the defendant’s actions,

statements, and instructions.” Id. at 1357 (citing

Strickland, 466 U.S. at 691). Because Cummings “was

competent and clearly, consistently, and adamantly

insisted that he wanted no mitigation evidence

presented,” he could not now fault the state courts for

holding that his counsel reasonably refrained from

investigating. Id. at 1361-65.

The Fifth and Tenth Circuits have held likewise.

See Boyd v. Johnson, 167 F.3d 907, 910-11 (5th Cir.

1999) (holding counsel can reasonably rely on

“impressions,” “observations and interactions” with

defendant in deciding not to investigate mental illness);

Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.

1986) (“The reasonableness of an attorney’s decision

not to conduct an investigation is directly related to the

information the defendant has supplied.”) (citing

Strickland, 466 U.S. at 691); see also United States v.

Manriquez-Rodriguez, case no. 98-2203, 1999 WL

345505, *5 (10th Cir., June 1, 1999) (“Defendant cannot

deprive her counsel of the tools necessary to carry out

a reasonable investigation and later claim prejudice

when she is convicted.”).3

3

Some pre-Strickland cases in the First, Third, and D.C. Circuits

use similar reasoning. See United States v. Marcano-Garcia, 622

F.2d 12 (1st Cir. 1980) (holding that when “a client has failed to

10

The Pennsylvania Supreme Court addressed facts

instructive here in Commonwealth v. Peterkin, 513

A.2d 373, 383 (Pa. 1986). Peterkin killed two people

during a gas station robbery. Id. at 376-77. He told his

counsel about a single alibi witness (“Cynthia”) whose

last name and previous address he could not

remember, and who had moved to a place in Texas he

did not know. Id. at 382. With such vague information,

counsel—unsurprisingly—could not find her. On

appeal, Peterkin claimed that his counsel was

ineffective for not looking harder for “Cynthia,” and

that had counsel done so, he would have found her

landlady, who could have in turn given information on

“Cynthia’s” whereabouts. Id. at 383. The Pennsylvania

Supreme Court, citing Strickland, held that counsel’s

limited investigation into “Cynthia” was reasonable

based on the limited information that Peterkin gave

him about her. Id.

apprise his counsel of information crucial to his defense,” it would

“decline to find counsel’s failure to act upon such undisclosed

information” amounted to ineffective assistance); United States v.

Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976) (“Realistically, a

defense attorney develops his case in large part from information

supplied by his client” and “choices based on such information

should not later provide the basis for a claim of ineffectiveness

even though that basis would have been undercut by inquiry of

others.”); United States ex rel. Green v. Rundle, 452 F.2d 232, 235

(3d Cir. 1971) (holding defense counsel reasonably relied on his

client’s representations when making tactical decisions).

Pre-Strickland federal cases are informative because the

Strickland test derived from precedent in the federal courts of

appeals. See Strickland, 466 U.S. at 687 (“As all the Federal

Courts of Appeals have now held, the proper standard for attorney

performance is that of reasonably effective assistance.”).

11

The California, Florida, Georgia, Montana,

Vermont, and Wyoming supreme courts have also

followed Strickland on this point. See In re Crew, 254

P.3d 320, 336 (Cal. 2011) (holding that a defendant can

limit counsel’s investigative efforts both through

affirmative statements and through omissions);

Cummings-El v. State, 863 So.2d 246, 271 (Fla. 2003)

(holding that counsel’s truncated investigation

reasonably followed the defendant’s wishes); Bradshaw

v. State, 792 S.E.2d 672, 676 (Ga. 2016) (holding

counsel acted reasonably by not pursuing a line of

investigation where defendant did not give counsel the

necessary information); State v. Prindle, 304 P.3d 712,

716-17 (Mt. 2013) (holding that a defendant’s expressed

desire to plead guilty narrows the scope of counsel’s

investigative duties); In re Cohen, 640 A.2d 34, 38 (Vt.

1994) (holding defense investigation reasonable where

based on the defendant’s lies); Hodge v. State, 355 P.3d

368, 373 (Wyo. 2015) (holding counsel acted reasonably

in not investigating contents of the defendant’s

computer for pictures where defendant never told

counsel that pictures existed); see also Broadnax v.

State, 130 So.3d 1232, 1257-58 (Ala. Crim. App. 2013)

(holding that defendant’s not giving counsel alibi

information cabined counsel’s investigative duties).

2. Two courts—including the Connecticut

S up reme C o u r t — h a v e im pose d

unworkable standards on defense

counsel.

Sharply departing from Strickland, the Connecticut

Supreme Court held that even though counsel

investigated every alibi witness that Skakel (and the

other alibi witnesses) said were present, and called

12

those witnesses to testify at trial, counsel’s

investigation was still unreasonable because he did not

unearth a fourth partial alibi witness. Pet. App. A-65A-82. This was so, the court reasoned, because counsel

has an independent investigative duty “irrespective of

whether the defendant is helpful to counsel by

providing information pertinent to his defense or

whether he provides no such assistance.” Pet. App. A46.

In support, the Connecticut court cited Bigelow v.

Haviland, 576 F.3d 284 (6th Cir. 2009). Pet. App. A-46.

Bigelow was charged with kidnapping, assault, and

arson for carjacking a woman at razor-blade point and

lighting her car on fire. Haviland, 576 F.3d at 286.

Leading up to trial, Bigelow told his attorney about

several alibi witnesses who could testify that he was in

another city at the time of the crimes, but only one had

a sufficiently specific recollection to be useful to the

defense. Id. at 286-87. She testified at trial, but

Bigelow was still convicted. Id.

In federal habeas, Bigelow claimed that his attorney

was ineffective for not investigating beyond his client’s

representations and finding more alibi witnesses than

his client said existed. Id. at 286. The Sixth Circuit

agreed. Even though counsel had tracked down and

interviewed each alibi witness that his client told him

about, the court held that the Sixth Amendment

required more: “An attorney’s duty of investigation,”

the court opined, “requires more than simply checking

out the witnesses that the client himself identifies.” Id.

at 287-88.

In imposing on counsel an independent duty to

investigate every possible lead—no matter how

13

speculative, and irrespective of what their client tells

them—both the Sixth Circuit in Bigelow and the

Connecticut Supreme Court purported to rely on

Rompilla v. Beard, 545 U.S. 374 (2005). Bigelow, 576

F.3d at 288; Pet. App. A-46. Those courts

misunderstood Rompilla; that case does not require

counsel to craft their investigation without regard to

what their clients have told them.

Rompilla was convicted of capital murder for killing

a man by stabbing him repeatedly and setting him on

fire. Rompilla, 545 U.S. at 377-78. During the penalty

phase, the State relied on three aggravators to justify

a death sentence: committing murder while committing

another felony, torturing the victim, and a history of

violence. Id. at 378. Rompilla was thoroughly

uninterested in assisting counsel, and “was even

actively obstructive” of their mitigation efforts by

sending them “off on false leads.” Id. at 381. Even so,

the defense counsel did what they could, consulting

three mental health experts (though they ultimately

could not offer mitigating testimony), and presenting

brief mitigating testimony from five of Rompilla’s

family members. Id. at 378, 382. The jury found that

the aggravators outweighed the mitigators and

sentenced Rompilla to death. Id. The conviction and

sentence were upheld on direct appeal and state postconviction review. Id.

In federal habeas, Rompilla argued that his counsel

were ineffective for relying on his statements that he

had an “unexceptional background” and not

independently investigating “pretty obvious signs” of

childhood troubles, mental illness, and alcoholism. Id.

at 379 (cleaned up). He also faulted counsel for not

14

looking at the court files on the prior convictions that

the State said it would rely on at the penalty phase. Id.

at 383. The district court granted relief, but the Third

Circuit reversed, holding that counsel reasonably

limited their investigation because Rompilla “gave no

reason to believe the search would yield anything

helpful.” Id. at 379.

In this Court, the majority commented that there

was “room for debate about counsel’s obligation to

follow at least some of” the leads that Rompilla claimed

they should have. Id. at 383. But that was not the

holding or even part of the holding. Rather, the Court

held that counsel were deficient because they did not

look at court files of Rompilla’s prior convictions,

despite two specific warnings that the State would rely

on that information in aggravation at the penalty

phase. Id. Though the Court thought it “common sense”

that “counsel must obtain information that the State

has and will use against a defendant,” it also cited to

an American Bar Association guideline on counsel’s

duty to “secure information in the possession of the

prosecution and law enforcement authorities”—a duty

that existed “regardless of the accused’s admissions or

statements to the lawyer of facts constituting guilt or

the accused’s stated desire to plead guilty.” Id. at 387

(quoting 1 ABA Standards for Criminal Justice 4-4.1

(2d ed. 1982 Supp.)). And the State’s files contained

information that would have alerted Rompilla’s counsel

that what their client told them about available

mitigation evidence was not correct.

The upshot of Rompilla is that counsel has a duty to

examine evidence that the State intends to rely on. But

that was not the takeaway for the Skakel and Bigelow

15

courts. Rather, they (incorrectly) cited Rompilla for a

broader proposition: that counsel acts unreasonably

when she limits her investigation based on her client’s

own statements. Pet. App. A-46; Bigelow, 576 F.3d at

288. But such an undefined duty disregards what

Rompilla actually held, and has no rational end point.

II. FURTHER PERCOLATION WOULD SERVE NO

PURPOSE.

The time is right to review these splits on the

merits. Further percolation will only bring about the

harms that Strickland foretold.

First, Strickland cautioned that “[c]ounsel’s

performance . . . could be adversely affected” by

“[i]ntensive scrutiny” and “rigid requirements.” 466

U.S. at 690. Yet if the Sixth Circuit and Connecticut

Supreme Court were correct, Strickland imposed

precisely what it decried—intrusive scrutiny and

inflexible requirements. That type of review would only

“interfere with” counsel’s performance, id., harming

defendants and the adversary process. That would also

make convictions perpetually subject to collateral

attack, endangering the State’s and victims’ finality

interests.

Second, further percolation could create significant

problems for defense counsel’s planning a trial strategy

and preparing for trial. This Court has been clear that

counsel can and must triage—“balanc[ing] limited

resources in accord with effective trial tactics and

strategies.” Richter, 562 U.S. at 89. The lower court’s

standard, by contrast, would require defense counsel to

not “leave the smallest stone unturned,” lest a later

hindsight inquiry notice one and reverse. Decoster, 624

16

F.2d at 210. It goes “too far to insist” that the Sixth

Amendment mandates such a course. Id. The Sixth

Amendment requires reasonably competent assistance,

not “superhuman representation.” Stratmon, 631 A.2d

at 1184.

Third, the decision below could “adversely affect[]”

counsel’s “willingness to serve.” Strickland, 466 U.S. at

689. If leaving an unknown stone unturned will result

in a finding of incompetent representation—the natural

consequence of the Connecticut/Sixth Circuit

standard—attorneys might be unwilling to risk their

licenses or reputations to represent indigent

defendants. Those concerns implicate even the rare

case where the client has the resources to fund

Herculean defense efforts. For every criminal trial

bears the risk that—no matter the defendant’s

resources—some small thing will go undone that the

defendant can later claim would have made all the

difference.

Fourth, reducing the number of available defense

counsel is not the only potential harm the rule below

creates for defendants. As Richter recognized, pursuing

some lines of investigation carries the “serious risk[]”

of proving that the defendant is lying. 562 U.S. at 108.

Counsel is ethically bound not to present perjured

testimony. See Nix v. Whiteside, 475 U.S. 157, 168-69

(1986). Because the defendant’s testimony is often the

only available source for claims like alibi or selfdefense, knowing that the defendant is lying may

prevent putting on those defenses at all.

That would obviously limit a defendant’s options.

But it could also undermine, to some extent, a

defendant’s autonomy. Defendants alone make the

17

most fundamental decisions affecting their case—such

as whether to plead guilty, testify, waive a jury trial, or

appeal. McCoy v. Louisiana, 138 S. Ct. 1500, 1508

(2018). Determining the ends necessarily limits the

means, as there are only so many ways of reaching a

given destination. If counsel can—or even

must—disregard his client in making investigative

decisions, counsel would lack not only a strategic map,

but a destination.

In sum, the Connecticut/Sixth Circuit standard does

no favors for either defense counsel or their clients. If

a reviewing court looks only at counsel’s alleged

mistakes exclusive of counsel’s entire performance,

counsel will think twice before putting their licenses

and reputations at risk. And disallowing counsel’s

reliance on the information their clients provide would

force counsel to expend time and resources

investigating possibilities to the point of distraction at

best, and of undermining their clients at worst.

Finally, the Connecticut Supreme Court’s standard

would impose impossible costs on the States, which

already spend billions of dollars annually on indigent

defense. See American Bar Association, State, County[,]

and Local Expenditures for Indigent Defense Services

Fiscal Year 2008 at 8, available at https://www.america

nbar.org/content /dam/aba/administrative/legal_aid_in

digent_defendants/ls_sclaid_def_expenditures_fy08.a

uthcheckdam.pdf (last accessed Aug. 7, 2018).

Requiring defense counsel to exhaust every lead, no

matter how speculative or inconsistent with their

client’s story, would only encourage the waste of the

State’s indigent defense funds.

18

CONCLUSION

This Court has repeatedly said that counsel’s

decisions must be judged in light of their overall

performance, and that counsel acts reasonably when

they base investigative decisions on the information

that their client does—or does not—give them. The

decision below deepened lower court splits on both

issues. This Court should grant review and reverse.

Respectfully submitted.

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

JOHN J. NIELSEN

Assistant Solicitor General

Counsel for State of Utah

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

September 10, 2018

19

ADDITIONAL COUNSEL

JAHNA LINDEMUTH

Attorney General

STATE OF ALASKA

BRIAN E. FROSH

Attorney General

STATE OF MARYLAND

MARK BRNOVICH

Attorney General

STATE OF ARIZONA

DOUG PETERSON

Attorney General

STATE OF NEBRASKA

CURTIS T. HILL, JR.

Attorney General

STATE OF INDIANA

JOSH STEIN

Attorney General

STATE OF NORTH CAROLINA

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

ALAN WILSON

Attorney General

STATE OF SOUTH CAROLINA

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

KEN PAXTON

Attorney General

STATE OF TEXAS