# Amicus Brief — United States v. Cronic

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 648

## Text

IN THE NOV 9 1983
Supreme Court of the H
OCTOBER TERM, 1983 rn
>

UNITED STATES OF AMERICA,

Petitioner,

—y —

HARRISON CRONIC,
Respondent.

ON WRIT OF CERTIORAR! TO THE UNITED STATES
COURT OF APPEALS POR THE TENTH CIRCUIT

:
i
|
:
BRIEF OF THE NATIONAL LEGAL AID AND
i DEVENDER ASSOCIATION, THE ASSOCIATION OF
TRIAL LAWYERS OF AMERICA, AND THE AMERICAN
} CIVIL LIBERTIES UNION, AS AMICI CURIAE
SUPPORTING RESPONDENT
:
4.

—_—_——_—_—— —
—_ —+_—_—- ———

RICHARD J. WILSON*
: National Legal Aid and
fy Defender Association
; 1625 K Street, N.W.—Eighth Floor
: Washington, D.C. 20006
(202) 452-0620
*Counsel of Record

~ DAVID S. SHRAGER, President
Zz The Association of Trial Lawyers
i of America

1160 Suburban Station Building
1617 John F. Kennedy Blvd.
Philadelphia, Pennsylvania 19103
(215) 568-7771 .

CHARLES S. SIMS

TABLE OF CONTENTS

Table of Authorities .......-.
Interest of Amici.

Summary of Argument. .

Argument

BECAUSE UNFAIR IMPAIRMENTS CREATED BY
THE GOVERNMENT PREVENTED RESPONDENT'S
COUNSEL AT TRIAL FROM RENDERING THE
EFFECTIVE ASSISTANCE OF COUNSEL
GUARANTEED BY THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS, RESPONDENT'S
CONVICTION MUST BE REVERSED WITHOUT

THE NECESSITY OF DEMONSTRATION OF

PREJUDICE. al ° . . * *

I. THIS COURT'S LONG RECOGNITION OF
THE INDISPENSIBLE IMPORTANCE OF
THE EFFECTIVE ASSISTANCE OF
DEFENSE COUNSEL TO THE ADVERSARY
PROCESS REQUIRES ITS STRONG
GUIDANCE IN SETTING CLEAR
STANDARDS FOR REVIEW OF CLAIMS
OF INEFFECTIVE ASSISTANCE ON

DIRECT REVIEW OR COLLATERAL

ATTACK . . . . . . . . . . . . .

II. IN ORDER TO ESTABLISH A DENIAL
OF EFFECTIVE ASSISTANCE OF
COUNSEL, THE DEFENDANT MAY
DEMONSTRATE EITHER THAT COUNSEL
SUFFERED FROM AN UNFAIR SYSTEMIC
IMPAIRMENT WHICH SO HINDERED
REPRESENTATION AS TO NULLIFY THE
PRESENCE OF COUNSEL, OR THAT
COUNSEL'S ACTION FAILED TO SHOW
THE SKILL, JUDGMENT AND
DILIGENCE OF A REASONABLY
COMPETENT DEFENSE COUNSEL. ...

34

TABLE OF CONTENTS (Cont'd.)

Argument (Cont'd.)

IIl.

IV.

MINIMUM OBJECTIVE STANDARDS MUST
BE ADOPTED TO MEASURE COUNSEL'S
FAILURE TO ACT AS REASONABLY
COMPETENT COUNSEL, AND THE
PROSECUTION MUST BEAR THE BURDEN
OF PROOF, IF PREJUDICE ENTERS
INTO THE CALCULUS OF COUNSEL'S
EFFECTIVENESS. . . - «© © «© «© « «

HERE, WHERE COUNSEL WAS
FUNDAMENTALLY IMPAIRED BY THE
LIMITS OF GOVERNMENTAL
COMPENSATION FOR HIS SERVICES,
HIS ACCESS TO ESSENTIAL
INVESTIGATORY AND EXPERT
RESOURCES, HIS OWN INEXPERIENCE,
HIS IGNORANCE OF CRIMINAL LAW
AND THE CRIMINAL TRIAL, AN
INADEQUATE TIME TO PREPARE A
DEFENSE, THE GRAVITY AND
COMPLEXITY OF TPE CHARGES, AND
HIS INACCESSIBILITY TO
WITNESSES, THE COURT OF APPEALS
DID NOT ERR IN CONCLUDING THAT
RES PONDENT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL.

Ti... « = « « » & « «6 6 6 %

a A a

Page

- 40

. 48

TABLE OF AUTHORITIES

Page
CASES:

Argersinger v. Hamlin, 407 U.S. 25 (1972). 12

Beasley v. United States, 491 F.2d 687
(6th Cir. 1974). . « «© «© ew ew we we wo wc 0 co 4

Blankenship v. Commonwealth, 554 S.W. 2d
ee ee eee ee ee ee eee

Brooks v. Tennessee, 406 U.S. 605 (1972) . 36

Chambers v. Maroney, 399 U.S. 42 (1970). 46, 47

Chapman v. California, 386 U.S. 18 (1967). 45

Coles v. ae 389 F.2d 224 _— Cir.
1968). . . . . . . . 46

Cooper v. Fitzharris, 557 F.2d 1162 (9th
re ee es ee

Douglas v. California, 372 U.S. 353
a! «+ 6 6 « @¢ 6 6 6 « « ¢ 6 « és 6 =

Dyer v. Crisp, 613 F.2d 275 (10th Cir.
80) . . . . . . . . . . . . . . . . . . 19

Ferguson v. Georgia, 365 U.S. 570 (1961) . 36

Ferri v. Ackerman, 444 U.S. 1983 (1979). . 16
Geders v. California, 425 U.S. 80 (1976) . 36

Gideon v. Wainwright, 372 U.S. 335 (1963). 11
ilton v. Alabama, 368 U.S. 52 (1961). . 36

iii

TABLE OF AUTHORITIES (Cont'd.)

Page

Herring v. New York, 422 U.S. 853 (1975) . 36

In re Gault, 387 U.S. 1 (1967) ....-+.-.12

ee

McMann v. Richardson, 397 U.S. 759 (1970). 19

Miranda v. Arizona, 348 U.S. 436 (1966). . 48

People v. teeth 43 APP - Div. 2d 914
(N.Y., 1974) . . . . . . . . 33

Polk County v. Dodson, 454 U.S. 312
ey «es e«6¢eeeeeseeseseeewes

Powell v. Alabama, 287 U.S. 45 (1938). .. 10

State v. Jackson, 534 P.2d 281 (Ariz. App
1975). . . . . . . . . . . . . . . . . . 34

State v. Marrero, 155 N.J. Super. 567
(1978) . . . . . . ,. . . . . . . . . . . 32

Tower v. Glover, No. 82-1988, Cert.
~ granted Oct. 3, 1983 . . . . . . . * . >. 16

United States v. Cronic, 675 F.2d 1126
ran. meer . . «6 6 « 4% « &. ae

United States v. Decoster, 624 F.2d 196
(D.C. Cir. 1979). . . . . . . . . . . 18,20

United States v. Golub, 638 F.2d 185
t Cc r . 1980) . . . . . .* . . . . .* * 39

iv

TABLE OF AUTHORITIES (Cont'd.)

Page
United States v. Morrison, 449 U.S. 361
va. a2 eo. 6 ss Gee eo ee
Von Moltke v. Gillies, 232 U.S. 708
(1948) . . . . . . . . . . . . . . . . 30

Walker v. Caldwell, 476 F.2d 213 (5th Cir.
es a6 6 & & 8 @ © & 6 6 6 6 6 © Ss ee

Washington v. Maroney, 428 F.2d 10 (3d

Cake 2970) «§ «© © @ 31
Williams v. Twomey, 570 F.2d 634 (7th Cir.
a. so of. =o a & “es « © 6 «¢ «6 6 ae

CONSTITUTION, STATUTES, ETC.

Amendment V, United States Constitution. passim
Amendment VI, United States Constitution .passim
Amendment XIV, United States Constitution.passim
28 U.8.C. Sec. 300GA . . « «© 2 © 0 0 0 « $4—S3,94
R2 U.S.C. Sec. 1963. . . © = » we we wo wo © ohf

Federal Judicial Council, CJA
Committe, Model Plan for the
Composition, Administration, and
Management o the Pane ° Private
Attorneys Under the Criminal Justice
i as: 2 eS Ce 6 ¢ 6 eo 6 6 ee

Misc. No. 22, Plan, United States
| for the Western

Ae

TABLE OF AUTHORITIES (Cont'd.)

No. 1426 Misc., Plan for the Appointment
of Counsel and Other Services Pursuant to
the Criminal Justice Act of 1964, As

Amended (U.S. District Court for
District of N.M., Approved, Oct. 19,
2. 6 ¢-s bie e«#® € 6 6¢¢ 6 6 6 ¢ 6 8
MISCELLANEOUS

ABA Section of Legal Education and
Admission to the Bar, Final Report, Task
Force on Lawyer Competency: fThe Role of
Law Schools ( boo eoceeeeee ee @

ABA Standing Committee on Legal Aid and
Indigent Defendants, The Center for
Defense Services: A Draft Discussion
Proposal (February 1978 Draft). .... .

"After 12 Years Without an Hourly Rate
Rise, D.C.'s Court Appointed Lawyers Go
‘on Strike," National Law Journal, Sept.
BO, B9GB. 2 os eo eo ceeceeeee ee

ALI-ABA Committee on Continuing
Professional Education, A Model Peer
Review System (Discussion Draft, 1980). .

Alpert and Huff, “Defending the Accused:
Counsel Effectiveness and Strategies,"
The Defense Counsel (McDonald ed. 1983).

American Bar Association Standards for
Criminal Justice, Providing Defense

Services (1981) ia er 6 So 6 eo eo tee

vi

Page

53

54

42,48

TABLE OF AUTHORITIES (Cont'd.)

Bazelon, "The Defective Assistance of
Counsel,” 40 U. Cin. L. Rev. (1973)...

Bazelon, "The Realities of Gideon and
Argersinger," 64 Geo. L. Rev. 811 (1976) .

Boston University Center for Criminal
Justice, Right to Counsel in Criminal
Cases: The Mandate of Argersinger v.
Hamlin (S. Krantz ed. 1976). se 8

Bureau of Justice Statistics, U.S.
Department of Justice, 1980 Sourcebook of
Criminal Justice Statistics (1981) ....

Bureau of Justice Statistics, U.S.
Department of Justice, 1981 Sourcebook of
Criminal Justice Statistics (1982) ....

Damaska, "Presentation of Evidence and
Factfinding Precision,” 123 U. Pa. lL.
Rs A >, | ee ee

Erickson, “Standards of Competency for
Defense Counsel in a Criminal Case," 17

Page

54

Am.Crim.L. Rev. 233 (1979) . . . . . . -42,43-44

Final Report of the Task Force _ on
Professional Competence (ABA, July 1983) .

Goldblatt, "Ineffective Assistance of
Counsel: Attempts to Establish Minimum
Standards," The Defense Counsel (McDonald
Jee? 6 6 «© 6 « 6 © 2.6 6 @¢ & ¢te: ea

vii

- 14

TABLE OF AUTHORITIES (Cont'd.)

Goodpaster, "The Trial for Life:
Effective Assistance of Counsel in Death
Penalty Cases,” 5& wW.Y.U. L. Rev. 299
(1983). (6 @1¢@ 6 bé6é ea @ 6 60 6 e@86 &*

Joint Committee on Judicial
Administration, "District of Columbia
Criminal Justice Act Plan," The Daily
Washington Law Reporter, 994 (May 2l,

Page

42

I9Gl). «© © © we we we wo we ee e o « « 43,53

. Lasater, "The Role of Harm in

Ineffectiveness of Counsel Cases:
Practice and Policy.” 32 Syracuse L. Rev.
a anes 6 6 © 6¢ 650 © 6 6 ¢ 6 6 6 @ Oe a

Lefstein, Criminal Defense Services for
the Poor (ABA Standing Committee on Legal
Aid and Indigent Defendants, 1982)......

“New Worry for Public Defenders," St.
Louis Post-Dispatch (Jan. 9, 1983). .... .

NLADA, The Other Face of Justice (1973). . .22,

Schaefer, “Federalism and State Criminal
Procedure," 70 Harv. L. Rev. 1 (1956) ....

Note, "Identifying and Remedying
Ineffective Assistance of Criminal
Defense Counsel: A New Look Afv.er United
States v. Decoster," 93 Harv. L. Rev.
Tt. is 6 -@-6 © € 6 @ 66-6 ¢ 6 6 Bete

Wilson, “Empty-Handed Justice," 22 The
Judge‘s Journal 20 (Winter 1983). ...+-s-s.

viii

43

49

16
49

14

54

50

No. 82-660

In the Supreme Court of the United States

October Term, 1983

United States of America,
Petitioner

Vv.

Harrison Cronic, Respondent

On writ of certiorari to the United States
Court of Appeals for the Tenth Circuit

Interest of Amici

The National Legal Aid and Defender
Association (NLADA) is the sole national
voice for the overwhelming majority of
public defenders, private attorneys and
Gefender ciients who make up its defender
membership. Representing nearly 600 mem-

ber public defender offices and about

7,000 individual defenders, NLADA has
spoken out on national issues of concern
to the legally indigent and their
attorneys in both civil and criminal
courts since 191l.

The Association of Trial Lawyers cé
America (ATLA), founded 38 years ago, is a
voluntary national bar association with a
membership exceeding 50,000 advocates, of
whom approximately 5,000, constituting
the Criminal Law Section, regularly
appear in both state and federal courts in
defense of those accused of crime. The
men and women of the Association are dedi-
cated to the preservation of the American
legal system, the protection of
individual rights and liberties, and the
evolution of the common law.

ATLA, through its appropriate

officers and committees, has authorized

its participation in this case as Amicus
Curiae. ATLA is vitally concerned with
this appeal, not only for the instant
case, but also for the effect the decision
in this case will have on similar cases
now pending throughout the country, as
well as for its impact on constitutional
doctrine.

The American Civil Liberties Union
(ACLU) is a nationwide, non-partisan
Organization of over 250,000 members,
founded in 1920, dedicated ‘o preserving
and defending fundamental liberties
embodied in the Constitution. The ACLU
has frequently appeared in this Court to
defend the Sixth Amendment's right to
counsel, which is indispensable to pre-

servation of other dv process rights.

Amici have obtained the written con-
sent of the parties to file a brief in

this case.

SUMMARY OF ARGUMENT

Harrison Cronic was denied the
effective assistance of counsel
guaranteed by the Fifth and Sixth
Amendments because unfair impediments
created by the Government prevented his
attorney from rendering competent
representation. Because those
impediments were not of his own making,
and because Mr. Cronic should not be now
put to the burden of proving his likely
innocence based on a trial record which is
inherently suspect due to his lawyer's
action or inaction, his conviction must
now be reversed for a new trial with the
adequate assistance of counsel.

Amici urge the Court to adopt a test
recognizing that counsel may be consti-
tutionally ineffective in two very dif-

ferent ways, one suggested by the Fifth

efe«

and Fourteenth Amendment "“due process”
clauses and one by the Sixth Amendment's
"assistance of counsel” provision. Under
this test, the defendant is deprived of
the effective assistance of counsel when
counsel either is unfairly impaired by
external or systemic restraints, or fails
to exercise “the skill, judgment and
diligence of a reasonably competent

defense counsel." United States v.

Cronic, 675 F.2d 1126, 1128 (10th Cir.
1982)

When the reviewing court finds that
the attorney has been unduly restricted
by systemic or “structural” impairments,
a reversal of the conviction should ordi-
narily follow, as neither the defendant
or his counsel can be faulted for the

failure of the State to provide a funda-

«@<«

mentally fair proceeding, and allocation
of prejudice would be entirely
speculative and conjectural.

Where, however, the failure lies
substantially within the attorney's per-
sonal control; i.e., his or her errors re-
late to “skill, diligence and judgment,”
the inguiry is necessarily subjective.
To lend more objectivity to an inquiry
into the quality of counsel's perfor-
mance, the court should adopt specific
practice criteria against which counsel's
performance can be judged. When these
criteria have been substantially complied
with, the trie! or reviewing court may
rest assured that the defendant's convic-
tion was fairly obtained, at least as to
ade-quacy of counsel. Where there is a
significant shortcoming in these

standards, however, the government

Carries a heavy burden to demonstrate why

the conviction should not be reversed.

ARGUMENT

BECAUSE UNFAIR IMPAIRMENTS CREATED
BY THE GOVERNMENT PREVENTED RESPONDENT'S
COUNSEL AT TRIAL FROM RENDERING THE
EFFECTIVE ASSISTANCE OF COUNSEL
GUARANTEED BY THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS , RESPONDENT'S
CONVICTION MUST BE REVERSED WITHOUT THE
NECESSITY OF DEMONSTRATION OF PREJUDICE.

I

THIS COURT'S LONG RECOGNITION OF THE
INDISPENSIBLE IMPORTANCE OF THE EFFECTIVE
ASSISTANCE OF DEFENSE COUNSEL TO THE
ADVERSARY PROCESS REQUIRES ITS STRONG
GUIDANCE IN SETTING CLEAR STANDARDS FOR
REVIEW OF CLAIMS OF INEFFECTIVE
ASSISTANCE ON DIRECT REVIEW OR COLLATERAL
ATTACK.

The history of the Court's decisions
demonstrates a growing and now firmly
established principle that counsel is an
indispensable adjunct to fairness in a
Criminal trial. Counsel, it may be said,

is the sine gua non of all other procedu-

ral rights. The Government's assertion
that the right to counsel “supplements”

other Sixth Amendment rights (Brief for

e 9 «

the United States, at 25) is

Gisingenuous, and belittles a strong
history establishing counsel as the cor-
nerstone of the adversary system.

As early as Powell v. Alabama,
nearly fifty years ago, this Court elo-
guently gave voice to the need for
counsel's "guiding hand":

The right to be heard would be in
many cases, of little avail if it did
not comprehend the right to be heard
by counsel. Even the intelligent
and educated layman has small and
sometines no skill in the science of
law. If charged with crime, he is
incapable, generally, of determining
for himself whether the indictment
is good or bad. He is unfamiliar
with the rules of evidence. Left
without the aid of counsel he may be
put on trial without a proper
charge, and convicted upon
incompetent evidence, or evidence
irrelevant to the issue or otherwise
inadmissible. He lacks both the
skills and knowledge adequately to
prepare his defense, even though he
have a perfect one. He requires the
guiding hand of counsel at every
step in the proceedings against him.

Powell v. Alabama, 287 U.S. 45, 68-
9 (1938)

eo DD «

oe

Powell, of course, relied on the Due
Process clause to find a denial of funda-
mental fairness to nine illiterate black
youths, the “Scottsboro Boys,” accused of
capital rape. Undeniably, the young men
had "counsel" at their trial. The Court
found that the circumstances leading up
to counsel's performance in trial, how-
ever, were such as to create = an
insurmountable impediment to fairness.
Id. at 56, 69.

In Gideon v. Wainwright, 372 U.S.

335 (1963) the Court found that defense
counsel was as much a necessity as prose-

cutors in state felony proceedings:

That government hires lawyers to
prosecute and defendants who have
the money hire lawyers to defend are
the strongest indications of the
widespread belief that lawyers in
criminal courts are necessities, not
luxuries. The right of one charged

» fh «

with crime to counsel may not be
deemed fundamental and essential to
fair trials in some countries, but
it is in ours. From the very
beginning, our state and national
constitutions and laws have laid
great emphasis on procedural and
substantive safeguards designed to
assure fair trials before impartial
tribunals in which every defendant
stands equal before the law. This
noble ideal cannot be realized if
the poor man charged with crime has
to face his accusers without a
lawyer to assist him.

Id. at 344.

These and many other decisions of
this Court demonstrate that competent
counsel is the bulwark of the adversary
system. In fact, the adversary system
presumes attorney competence, and the

failure to provide competent counsel to

both sides in a criminal trial threatens

1

See, e.g., Argersinger v. Hamlin,
407 U.S. 25 (1972) ; Douglas Vv.
California, 372 U.S. 353 (13633; In re

Gault, 387 U.S. 1 (1967).
*- 38 «

the structure of our system. See Damaska,
"Presentation of Evidence and Factfinding

Precision," 123 U.Pa.L.Rev. 1083, 1091

(1975). Further, beyond preserving the
institutional integrity of the system,
society has an interest in guaranteeing
the accuracy of results of criminal
trials. If society did not care so
fervently about fairness, it could as
easily turn to the inquisitional model to
find the "obviously" guilty. Because of
this concern for fairness, this Court
must speak firmly and clearly to courts
below to guarantee the maintenance of
adequate counsel for rich and poor alike.
Former Justice Schaefer of the Illinois
Supreme Court summarized our justifiable
reliance on the right to counsel as the
cornerstone of justice when he said, “Of

all the rights that an accused person has,

» $9

the right to be represented by counsel is
by far the most pervasive, for it affects
his ability to assert any other rights he
may have.” Schaefer, “Federalism and

State Criminal Procedure," 70 Harv.L.Rev.

1, 8 (1956).

More practical law school training,
continuing legal education programs,
specialization and certification may, in
the long run, help to alleviate much of
the problem of attorney competence. See,
e.g., ABA Section of Legal Education and

Admission to the Bar, Final Report, Task

Force on Lawyer Competency: The Role of

Law Schools (1979); ALI-ABA Committee on

Continuing Professional Education, A

Model Peer Review System (Discussion

Draft, 1980); Final Report of the Task

Force on Professional Competence (ABA,

July 1983). Each of these tasks, however,

- 14 -

is long-term and requires investment of
immense resources.

The provision of money damage reme-
dies to the defendant, either through a
malpractice or civil rights action, pro-
vides no viable deterrent to lawyer inef-
fectiveness for several reasons. First,
and most important, these remedies do not
provide what the Constitution guarantees:
the opportunity for vindication in a full
and fair hearing. Second, law and exper-
ience greatly restrict these remedies.
Civil rights actions under 42 U.S.C. Sec.
1983, are impossible since this Court has
held that neither the private attorney,
appointed counsel or public defender acts
"under color of state law," for jurisdic-
tional purposes, while performing his or
her duties as “personal counselor and ad-

vocate" for the accused. Polk County v.

e 18 <

Dodson, 454 U.S. 312, 318 (1981)% In
malpractice actions, the painful fact is
that while the appointed lawyer is not

immune from suit, Ferri v. Ackerman, 444

U.S. 1983 (1979), such suits are almost
impossible to bring without the help of an
attorney, and are difficult to prevail
in, due to the hostility of judges and
— 3
juries.

Finally, attorney disciplinary pro-

ceedings suffer from the same

é This term, the court will review the
question of whether the public defender,
like prosecutors and judges, should be
afforded immunity under 42 U.S.C. 1983,
when a conspiracy with government
officials is alleged. Tower v. Glover,
No. 82-1988, Cert. granted Oct. 3, 1983.

Records available to the NLADA
reveal only one malpractice suit brought
against a public defender in St. Louis on
grounds of ineffective assistance, which
was ultimately settled. "New Worry for

Public Defenders," St. Louis Post-
Dispatch, 1, 8 (Jan. 9, 1983)
- 16 -

shortcomings as the damage remedy. They
come too late and they do nothing to help
the party most aggrieved: the wrongly
convicted defendant. They are virtually
of nonexistent in situations in which the
defendant's conviction is upheld on
appeal.

Thus, however imperfect direct or
collateral review may be, and however in-
exact the standard for review, this
remedy is the only effective means of cor-
recting wrongs occasioned by counsel's
ineffectiveness.

Articulation of the standard for
effectiveness of counsel has progres-
sively moved from one requiring reduction
of the proceedings to a “farce or sham"
before reversal is justified to one which

may be summarized as requiring

te «

"reasonably competent counsel. "4 Courts
and commentators have struggled to dis-
cover whether this change in the wording
of the standard has been followed by a
change in the number of convictions
attacked or reversed. Some suggest that
these generalized standards are no more
than a “semantic merry-go-round," a

change in form only. See United States v.

Decoster ("Decoster III"), 624 F.2d 196,

206 (D.C. Cir. 1979), quoting Cooper v.
Fitzharris, 557 F.2d 1162, 1166 (9th Cir.

1977) (Duniway, J., concurring). Others
suggest that the "more stringent

‘reasonably competent’ test" was in fact

4 A detailed description of the
Circuits’ transition from "farce and
mockery" to "reasonable competence”
standard is adequately compilated and
described in the Brief for the United

States, at 32-33 and Appendix B, and will

not be reiterated here.

—

aa
a
"ve «Gd

applied even while courts continued to
formally adhere to the "farce and
mockery" standard. See Dyer v. Crisp,
613 F.2d 275, 278 (10th Cir. 1980).

In an effort to discover how the
standard has been applied in fact, the
National Legal Aid and Defender Associa-

5 conducted research specifically for

tion
the Amicus brief in this case. A computer
and library sample of reported state and
federal appellate decisions was collected
for the period between 1970, the date of
this Court's decision in McMann v.
Richardson, 397 U.S. 759 (1970), and July
of 1983. Our sample included reported

decisions of the U.S. Circuit Courts of

Appeal, as well as all state appellate

5 Assisted by funding from the ABA's
Bar Information Project of the Standing
Committee on Legal Aid and Indigent
Defendants.

e % «

courts, both intermediate and final. For
purposes of examining the question of
“systemic” or "personal" ineffec-
tiveness,° erwe excluded those cases
reviewing ineffectiveness on grounds of a
purported conflict of interest. We did
not individually review all decisions in
which an issue of ineffectiveness of
counsel was raised. We did review and

7

catalog all cases in our case sample.’ The

. "Systemic" and “personal” ineffec-
tiveness refer to the distinction between
counsel's ineffectiveness allegedly
caused by external impairment, and
ineffectiveness resulting from counsel's
"untrammelled and unimpaired" per-

formance. CEs United States Vv.
Decoster, supra 624 F. at
7

We have included as Appendix A all
cases in which relief was granted by the
reviewing court on grounds of ineffective
assistance of counsel; i.e., reversal and
remand for a new trial, grant of a writ,
etc. We did not pursue the appellate
cases in which relief was granted back to
the trial courts. Thus, no data is
reported here on reconviction rates,
Gismissal or acquittal at retrial.

- 20 -

results of our examination are both
revealing and disturbing.

The computer reports that between
1970 and July of 1983, a total of 8,460
reported decisions were rendered in the
Federal and State courts of review in
which an issue regarding “personal” or
"systemic" (i.e., "non-conf lict-of-
interest") ineffectiveness was raised.®
Of those cases, we individually reviewed
a sample of 4,403, or approximately 52%.

Our sample was keyed to all cases in whach

the computer indicated that counsel had

° Of these decisions, 1,996 were in
federal courts of review, while 6,464
were decided in state courts, both in
intermediate and high.

= o-

been appointed or assigned, whether
public defender or private counsel.”

From the original sample of 4,403,
our individual review included a
"cleaning" of the computer data to elimi-
mate erroneous citations, cases not on
point, limited remands, etc. This
reduced our sample by about 10% to
approximately 4,000.

Of the 4,000 remaining appellate

decisions, only 159, or 3.9%, resulted in

a grant of relief to the defendant on

grounds of ineffectiveness of counsel.

Such a small number, might be considered

"statistically insignificant."

° Disparities between the percentage
of appeals here reported involving
assigned counsel and reported indigency
rates, infra, p. 9, are explained easily
by very high guilty plea rates for
appointed counsel. Such cases seldom
result in appellate review. See, NLADA
The Other Face of Justice, supra at 30,
Table 44.

— 2

To further study the impact of the
change in the standard, we studied
distribution of the cases by the year of
their decision, to determine purportedly
if the “evolving” standard resulted in
more reversals in more recent years.

Yearly breakdown of the decisions is

as follows:

Figure l
Appellate Decisions Where Relief Granted
on Ineffectiveness of Counsel Grounds, By
Year.
Year No. of Cases
1970 7
1971 6
1972 6
1973 8
1974 ll
1975 9
1976 13
1977 ‘ 13
1978 15
1979 13
oe 23 «

Appellate Decisions Where Relief Granted
on Ineffectiveness of Counsel Grounds, By

Year. (Cont'd.)

Year No. of Cases
1980 17 /
1981 ll
1982 19
1983 (to 7/1) 1l
TOTAL 159

While a slight increase has occurred
in the incidence of reversals over the
past 13 years, the increase is insignifi-
cant, given the small number of cases each
year as a percentage of all reported
appellate decisions.

Without further analysis, however, a
number of conclusions can be drawn from
the data presented. First, and most
important, there is no evidence that
adoption of a "more stringent” test

requiring “reasonable competence” of

o 24 «

counsel has or will result in an "opening

of the floodgates” on appeal. The evi-

dence shows that the claim is both infre-
ll

quently raisea?” and rarely successful.

This court has the opportunity to provide
leadership and guidance to the lower
courts in their proper articulation and

application of the standard.

10 The 8,460 total cases in which the
Claim was raised from 1970 to 1983 must be
compared to an annual average number of
criminal appeals in the federal courts of
appeal alone of approximately 4,425 cases
nationally between 1971 and 1980. Bureau
of Justice Statistics, 1981 Sourcebook of
Criminal Justice Statistics Table 5.22
(1982). This translates to nearly 60,000
federal cases during the period of our
survey. Thus, claims of ineffectiveness
occurred in less than 3.3% of all federal
criminal appeals during the period
studied.

il In his insightful analysis of the
issue, Judge Bazelon bluntly concludes:
"One of the major reasons that the problem
of ineffective assistance has remained
hidden is the appellate court's
remarkable propensity to ignore the issue
of ineffective assistance and to paper
over the cracks in the house that Gideon
built." Bazelon, "The Defective
Assistance of Counsel," 42 U. Cin. L.
Rev. 1, 21 (1973).

—

Second, the lack of any real dif-
ference in outcomes due to a new and pur-
portedly more strict standard means that
the "new" standard has not accomplished
that which it seeks - to raise the quality
of advocacy so as to more nearly approxi-
mate due process and equal justice in our
nation's courts. This is because the

"new" standard is no less subjective than

(Footnote ll Cont'd.)

Judge Bazelon suggests this
“papering over" of cases occurs because
of real or imagined concerns tiiat: (1) if
courts reversed all convictions where it
was proper on this ground, “half the
convictions" would be remanded; (2) if
reversals occurred, there would not be
enough competent lawyers to handle the
Gefense of the indigent; (3) if the
lawyers were competent in the _ first
place, the system would grind to a halt;
(4) the reviewing court may unnecessarily

“soil” the reputation of the attorney who |

is found to be ineffective; or (5) most
criminal defendants are guilty anyway.
Id. at 23-27. The article explains why
each of these factors is either erroneous
or irrelevant to the decision of the
reviewing court.

- 26 -

the "old." The only remedy is the adop-
tion of more specific and objective cri-
teria, as is proposed below.

Third, a closer review of these
cases reveals that the errors of counsel
were very frequently occasioned by a sys-
temic impairment or restraint which
worked to unfairly inhibit or even nul-
lify representation by counsel, although
counsel was “bodily” in the courtroom,
totally apart from counsel's personal

12 Several instances

skills or abilities.
of this sort were discovered in our review
of these cases, and their relationship to
the case at bar should be immediately

apparent.

12 Our rough and unscientific count of
such instances identified 111 of the 159
case sample as real or possible cases of
"systemic failure in adequacy of
representation.”

- 27 -

—<

In Walker v. Caldwell, 476 F.2d 213

(Sth Cir. 1973), the defendant had been
charged in Georgia with seven counts of
burglary, three counts of theft by taking
and one count of carrying an unlicensed
pistol. Six days after his arrest, he
appeared with appointed counsel and pled
guilty to all charges, receiving a sen-
tence of three years for each of the ten
charges, the sentences to be served con-
secutively, for a total of thirty years
imprisonment. On the one remaining
charge, Walker received a six month con-
current sentence. Id. at 214.

The Court of Appeals ordered
issuance of a writ of habeas corpus on
grounds that Mr. Walker had been denied
effective assistance of counsel. Among

its findings on appeal was the fact that

- 28 -

the attorney who represented Walker
worked in an office adjoining the court-
room, that the attorney handled roughly
ninety percent of the appointed cases in
the court, without fee, and that the
lawyer represented about 500 defendants
each year, averaging about ten cases each
"plea day."

The lawyer for Walker testified that
his usual practice was to talk to each
client for ten to thirty minutes on an
average plea day. It was admitted that he
had not investigated the facts in this
case, talked to any witnesses, explored
any motions or engaged in any plea bar-
gaining. The lawyer testified that he
follows a “substantially different prac-
tice" when representing fee clients

rather than appointed clients. The de-

—

fendant was illiterate, and his pleas of

guilty were signed by his attorney. Id.

at 215.

Noting each of these factors, the
Court of Appeals overturned the
convictions, relying on the language of

this court in Von Moltke v. Gillies, 232

U.S. 708 (1948), when the court said, “we
cannot accept this designation of counsel
by the trial court as anything more than
token obedience to his constitutionally
required duty to appoint counsel for

petitioner.” Von Moltke v. Gillies,

supra, 232 U.S. at 723. That is to say,

in Walker, as in Von Moltke, Powell v.

Alabama, and the case at bar, a lawyer was
in the courtroom with the defendant, but

was only a “token.”

e 30 «

In Washington v. Maroney, 428 F.2d
10 (3d Cir. 1970) the Court of Appeals
overturned a Pennsylvania conviction of
armed robbery and burglary, for which
consecutive sentences of ten to twenty
and two and one-half to five years
imprisonment were impcsed, respectively,
after a bench trial. The basis for rever-
sal was the conduct of the case by an
attorney with the Allegheny County Legal
Aid Society.

Although interviewed by a social
worker from the Society who visited him in
jail to determine his eligibility for
services, the defendant did not see his
attorney until the day of his trial, thir-
teen days later. The defendant testified
that he saw his attorney for about “one
moment" before the trial began, while his

attorney said he did not recall the defen-

» Re

dant or the case at all. Id. at 12.
Indicating that there was "no indication
in the record of any preparation what-
soever by the attorney,” Id. at 13, the
Court of Appeals remanded for issuance of
the writ of habeas corpus, holding that
the defendant “did not have the vigorous
representation which one expects in the
usual adversary proceeding..." Id. at
14.

In both Walker and Washington, as in

many of the other cases discovered in this

review of reversals, > there was a common

is Other examples include State v.
Pelfrey, 256 S.E. 2d (W.Va. 1979)
(appointed counsel failed to move for
mistrial, despite belief that error had
occurred, due solely to economic
disincentive to try the case again);
State v. Marrero, 155 N.J. Super. 567
(1978) (assistant public defender failed
to seek pre-trial intervention and
diversion for defendant, despite the fact
that another public defender in the same
office had successfully moved for

oe 9 «

theme which emerged. In each case, the
reviewing court put great emphasis on the
fact that the inadequacies in representa-
tion related as much to the structure or
system in which the derelictions occurred
as to the personal actions or inactions of
the attorney appointed. In each case, the
courts found that, although a lawyer was
present in the courtroom, this
impairment or restraint resulted in a
denial of effective assistance of counsel

requiring reversal of the conviction.

(Footnote 13 Cont'd.)

diversion of this defendant on this
charge after his conviction, without
knowledge of other public defender's
actions); * ankenship v. Commonwealth,
554 S.W. -. Ky. App. public
defender "system" failed to file
transcript for defendant, resulting -
dismissal of appeal); 1

Gonzale? : 43 App. Div. 2d 914 (N.Y. 1974)
new attorney from Legal Aid Society,
assigned at sentencing, knew nothing
about case and did not assist defendant at

e 33 «

II

IN ORDER TO ESTABLISH A DENIAL OF
EFFECTIVE ASSISTANCE OF COUNSEL, THE
DEFENDANT MAY DEMONSTRATE EITHER THAT
COUNSEL SUFFERED FROM AN UNFAIR SYSTEMIC
IMPAIRMENT WHICH So HINDERED
REPRESENTATION AS TO NULLIFY THE PRESENCE
OF COUNSEL, OR THAT COUNSEL'S ACTION
FAILED TO SHOW THE SKILL, JUDGMENT AND
DILIGENCE OF A REASONABLY COMPETENT
DEFENSE COUNSEL.

In its brief, the Government relies
totally on an “error-based” analysis of

the issue of ineffectiveness. (Brief for

the United States, at 15 et seg.). This

analysis unduly restricts the inguiry of
the Court, and fails to acknowledge the
development of the right to effective

assistance of counsel in Fifth, Sixth and

(Footnote 13 Cont'd.)

sentencing stage); State v. Jackson, 534
P.2d 281 (Ariz. App. 1975) (new public
Gefender appearing on day of trial
because of unavailability of deputy who
had been assigned case and had prepared it
for trial, was ineffective in trial
representation); Williams v. Twomey, 570
P.24 634 (7th Cir. 1974) same fact

pattern as State v. Jackson, supra).
oe 2

_—

Fourteenth Amendment contexts. Moreover,
the requirement that the defendant
identify specific and significant errors
ignores precedent of this Court to the
contrary and constitutes a highly sub-
jective test for ineffectiveness of
counsel which the Court should reject.
That the law of ineffectiveness of
counsel finds it roots in both the Four-
teenth and Sixth Amendments to the Con-
stitution has already been demonstrated.
Supra, at 10 - 12. By following the
development of the caselaw under the
Fourteenth Amendment, which requires an
ad hoc inquiry into the fundamental fair-
ness of the proceedings due to the alleged
failings of counsel, it is readily
apparent that the focus of the due process

inguiry lies on the systemic impairment

> @ «

of counsel which actually or effectively
"removes the guiding hand" from the
proceedings. This occurs when counsel is
either totally absent, or is barred from
the opportunity to appear or function in
the traditional advocacy role as counsel.

See, Ferguson v. Georgia, 365 U.S. 570

(1961) (prohibition against direct

examination of the defendant); Hamilton

v. Alabama, 368 U.S. 52 (1961) (denial
of counsel at arraignment); Brooks v.

Tennessee, 406 U.S. 605 (1972)

(requirement that defendant be first de-

fense witness); Herring v. New York, 422

U.S. 853 (1975) (denial of right to sum-
mation in non-jury case); Geders v.
United States, 425 U.S. 80 (1976) (prohi-
bition against consultation with defen-

dant during overnight recess).

» Be

In each of these situations, the
Court has reversed the conviction without
the requirement of any specific showing
of prejudice, due to the fact that the
defendants were deprived of counsel at a
critical point in the proceedings. !4

Amici urge the adoption of a test for
ineffectiveness of counsel which recog-
nizes this line of authority as well, and
under which no showing of prejudice is
required. Under the due process “prong”
of the test, the initial inguiry of the
court must be whether counsel was sub-
stantially impaired, by factors outside

of his or her control, from rendering

effective assistance of counsel thereby

Ae Our analysis of these cases does not
differ in this respect from that of the
Solicitor General. Brief for the United
States, at pp. 27-29.

e 33.<

inhibiting a full and fair development of
facts and law. If so, the conviction must
be reversed without inquiry into preju-
dice, since such an inguiry would be fu-
tile.

This test is implicitly recognized
by both the Government in its brief and
the Tenth Circuit in its decision below.

The Solicitor General premises the
entire argument of the Government on the

assertion that:

A number of considerations pertain-
ing to the nature and purposes of an
inguiry into counsel's performance
at trial strongly suggest that where
counsel was unfettered by externa

restraints on his ability to fu

a lawyer's traditional role, a court
may set aside a conviction on the
basis of assertedly ineffective
assistance of counsel only upon a
showing of serious errors that sub-
stantially prejudiced the accused or
fundamentally undermined the
fairness of the proceedings.

Bri for the United States, at
7 (Emphasis added)

o 96 «

Thus, while asserting that prejudice may
have to be shown in some cases, the
Government acknowledges an exception from
its proposed test when "external
restraints" occur.

The test proposed here is exactly
that which was applied by the court of
appeals in its decision below. In citing

to United States v. Golub, 638 F.2d 185

(10th Cir. 1980) the court referred to
instances in which “circumstances hamper
a given lawyer's preparation of a defen-

dant's cases." United States v. Cronic,

supra, 1126 F.2d at 1128. In enumerating

the circumstances articulated in King and

15

Golub, the court was stating nothing

15 These include "(1) the time afforded
for investigation and preparation; (2)
the experience of counsel; (3) the
gravity of the charge; (4) the complexity
of possible defenses; and (5) the
accessibility of witnesses to counsel."

yeited States v. Cronic, supra, 675 F.2d
at ‘

more than the fact that these circum-
stances, taken in their cumulative impact

16 can and did effectively

in this case,
bar the defendant's attorney from
performance of his functions as _ an
advocate, thereby depriving defendant of
counsel at a critical stage in the
proceedings. This Court, too, should
adopt this test, find that it was rot met

in this case, and affirm the decision of

the court of appeals.

16 The Solicitor's seriatim discussion
of the various factors involved in the
result reached by the court of appeals is
a classic example of “divide and conquer"
Strategy. Brief for the United States, at
35-44. Cases cited as to each individual
circumstance may be accurate, but no
authority cited speaks to the cumulative
impact of these circumstances.

o @ «

III

MINIMUM OBJECTIVE STANDARDS MUST BE
ADOPTED TO MEASURE COUNSEL'S FAILURE TO
ACT AS REASONABLY COMPETENT COUNSEL, AND
THE PROSECUTION MUST BEAR THE BURDEN OF
PROOF, IF PREJUDICE ENTERS INTO THE
CALCULUS OF COUNSEL'S EFFECTIVENESS.

If this Court also applies a Sixth
Amendment test suggesting that counsel
must exercise "the skill, judgment and
diligence of a reasonably competent
defense attorney,” Amici would urge the
Court to apply more objective criteria
against which to measure counsel's per-
formance than the test itself suggests. -’

Commentators and courts have

increasingly given voice to the fact that

sd These objective criteria should also
be adopted even if this court requires
proof of "serious derelictions” by
counsel, as the government’ suggests.
Brief for the United States, at 16. The
prosecution's test is certainly no less
subjective than that of the court of
appeals, and will give precious little
guidance to courts below as to its
practical application.
- 41 -

é'

more clear and specific standards are
needed to measure counsel's performance.
Many, if not most, suggest that’ the

American Bar Association's Standards for

Criminal Justice are an appropriate

starting point. The Standards are

described as “comprehensive, realistic,
and amendable." Goldblatt, “Ineffective
Assistance of Counsel: Attempts to

Establish Minimum Standards," The Defense

Counsel, 221-247 (McDonald ed. 1983).
See also, Alpert and Huff, “Defending the
Accused: Counsel Effectiveness and

Strategies," The Defense Counsel, 247,

248, 267 (McDonald ed. 1983); Erickson,
"Standards of Competency for Defense
Counsel in a Criminal Case," 17

Am.Crim.L.Rev. 233-251 (1979);

Goodpaster, "The Trial for Life:

Effective Assistance of Counsel in Death

« @3 «

Penalty Cases” 58 N.Y.U.L.Rev. 299, 339-

345, 362 (1983); Lasater, "The Role of
Harm in Ineffectiveness of Counsel Cases:

Practice and Policy,” 32 Syracuse L. Rev,

759, 790-800 (1981); Joint Committee on
Judicial Administration, "District of
Columbia Criminal Justice Act Plan,” The

Daily Washington Law Reporter, 994-997,

Section 10 (May 21, 1981).

The guidelines enumerated by
Colorado Supreme Court Justice Erickson
in his article capture the basic duties of
counsel in a clear and articulate

fashion:

l. Counsel must diligently and
actively participate in the
full and effective preparation
of his client's case.

2. Counsel has a duty to
investigate clearly all
defenses of fact and of law
that may be available to the
defendant.

» 4 «

3. Counsel must confer with his
client without undue delay and
as often as necessary to elicit
matters pertinent to his
defense.

4. Counsel should promptly advise
his client of his rights and
take all actions necessary to
preserve them.

5. Counsel should be concerned
with the accused's right to be
released from custody pending
trial, and be prepared, when
appropriate, to make motions

for a pre-trial psychiatric
examination or the suppression
of evidence.

Erickson, supra, 17 Am. Crim.L.Rev.

at 245.
These guidelines would give

specificity to the expectations of
counsel while leaving the necessary
flexibility to allow for the exercise of
judicial discretion in the determination
of whether substantial compliance with
the guidelines has occurred on the facts

of the case.

- 44 -

In the event that compliance with
any of the tests proposed in this Court
has not occurred, and the Court
determines that counsel has not performed
in an effective fashion, the decisions of
the Court make clear that the
prosecution, not the defense, bears the
burden of demonstrating the absence of
prejudice to the defendant.

Chapman v. California, 386 U.S. 18

(1967) makes clear that there are "some
constitutional rights so basic to a fair
trial that their infraction can never be
treated as harmless error," and refers
directly to the right to counsel. Id. at
23, n. 8. However, even if the rule of
prejudice demonstration is to be applied,
Chapman unequivocally requires the prose-
cution to bear the burden of demon-

strating to the court that there was no

» @ «

prejudice inherent in the violation of
defendant's rights, and that the error
was harmless beyond a reasonable doubt.
Id. at 24. Cf. Coles v. Peyton, 389
F.2d 224, 226 (4th Cir. 1968); Beasley v.
United States, 491 F.2d 687, 689-690, 696

(6th Cir. 1974).
Neither this court's recent decision

in United States v. Morrison, 449 U.S. 361

(1981) nor its earlier decision in

Chambers v. Maroney, 399 U.S. 42 (1970),

dictate a contrary result. While exten-
sive discussion of a prejudice

requirement was included in Morrison, the

entire focus of the opinion was not on the
alleged ineffectiveness of counsel, but
on the propriety of dismissal of the
indictment for alleged violation of the
Sixth Amendment. Id. at 364, 365. Here,

the remedy of the court of appeals, rever-

o @ eo

sal of the conviction and remand for a new
trial, was entirely appropriate.

In Chambers, the court specifically

distinguished the issue of whether, once
counsel was determined to be ineffective,
prejudicial results of this ineffective-
ness had to be separately demonstrated.

Chambers v. Maroney, supra, 399 U.S. at

53. Chambers held only that a mere show-
ing of late appointment was not
sufficient to establish that counsel was

constitutionally ineffective.

eo @ «

IV

HERE, WHERE COUNSEL WAS
FUNDAMENTALLY IMPAIRED BY THE LIMITS OF
GOVERNMENTAL COMPENSATION FOR HIS
SERVICES, HIS ACCESS TO ESSENTIAL
INVESTIGATORY AND EXPERT RESOURCES, HIS
OWN INEXPERIENCE, HIS IGNORANCE OF
CRIMINAL LAW AND THE CRIMINAL .RIAL, AN
INADEQUATE TIME TO PREPARE A DEFENSE, THE
GRAVITY AND COMPLEXITY OF THE CHARGES,
AND HIS INACCESSIBILITY TO WITNESSES, THE
COURT OF APPEALS DID NOT ERR IN CONCLUDING
THAT RESPONDENT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL.

Crime is largely a problem of the
poor. Data still shows that’ the
overwhelming majority of criminal
prosecutions, sometimes as high as 90% in
urban areas, involve legally indigent
individuals. Miranda v. Arizona, 348
U.S. 436, 472 n.40 (1966); American Bar

Association Standards for Criminal

Justice, Providing Defense Services,
Standards 5-6.1 to 5-6.3 (1981); ABA
Standing Committee on Legal Aid and

Indigent Defendants, The Center for

e @ «

Defense Services: A Draft Discussion

Proposal, 4 (February 1978 Draft); Boston

University Center for Criminal Justice,

Right to Counsel in Criminal Cases: The

Mandate of Argersinger v. Hamlin, 309-

347 (s. Krantz ed. 1976); National
Legal Aid and Defender Association, The

Other Face of Justice, 83-84 (1973).

Despite this fact, evidence also shows
that the indigent defense component of
the criminal justice system receives only
1.5% of all state and local expenditures
in the criminal justice system, as
contrasted with 5.9% for prosecution,
13.1% for courts, 53.2% for police and
24.7% for corrections. Lefstein,

Criminal Defense Services for the Poor,

10 (ABA Standing Committee on Legal Aid
and Indigent Defendants, 1982), quoting,

Bureau of Justice Statistics, u.Ss.

» @ «

Department of Justice, 1980 Sourcebook of

Criminal Justice Statistics (1981); see

also, Wilson, “Empty-Handed Justice," 22

The Judge's Journal 20 (Winter 1983).

This tragic and unjustified imbalance in
allocation of resources, in and of
itself, threatens the core of the
adversary system and denies fundamental
fairness to the impoverished criminal
defendant.

The close review of convictions on
direct appeal or by collateral attack
actually offers the prospect of long-term
money savings. Now, because of the rever-
sal of criminal convictions due largely
to appointed counsel's ineffectiveness,
costly new trials and appeals occur. The
adoption of articulate and strictly
enforced standards on review would result

in greater realization by government of

= $8

the savings occasioned by provision of
adequate indigent defense resources at
the outset.

Here, Mr. Cronic's counsel was
appointed pursuant to the provisions of
the Criminal Justice Act of 1964, 18
U.S.C. Sec. 3006A (hereafter CJA). His
appointment was approved pursuant to a
Plan adopted by the U.S. District Court
for the Western District of Oklahoma.

Misc. No. 22, Plan, United States

District Court for the Western District

of Oklahoma, (Approved, Feb. 27, 198)1l.

Both the Oklahoma plan and the fees
currently available under the CJA are
demonstrative of the pitiful attention
and resources allocated to the defense
function, a factor in the systemic
impairment of counsel which must not be

ignored by this Court.

e $1 «

The Oklahoma plan is so lacking in
specificity as to leave virtual unbridled
discretion for appointment of counsel in
the hands of the trial judge. It permits
the recruitment of the proverbial “warm
body" for criminal representation in the
federal court, much as defendant's trial
counsel proved to be. Had the plan
adopted: (1) controls for placement on
and removal from the appointment panel,
(2) independent screening of panel
candidates by a neutral body, and (3)
specific practice requirements or
performance criteria, this case would
never have arisen. Other jurisdictions
have proposed or adopted plans that
address each of these problems. See, e.g.

Federal Judicial Council, CJA Committee,
Model Plan for _the _ Composition,

e $8 «

Administration, and Management of the

Panel of Private Attorneys Under the

Criminal Justice Act; No. 1426 Misc.,

Plan for the Appointment of Counsel and

Other Services Pursuant to the Criminal
Justice Act of 1964, As Amended (U.S.

District Court for District of N.M.,

Approved, Oct. 19, 1980); District of

Columbia Criminal Justice Act Plan,

supra, at 43.

Moreover, payment of attorney's fees
under the CJA was and is limited to $20.00
per hour for out-of-court work and $30.00
per hour for in-court, with a $1,000
max imum for felony representation,
subject to fees in excess of the maximum
on approval of the Chief Judge of the Cir-
cuit. 18 U.S.C. 3006A(d). Payment for

expert witnesses and investigative

e $3 «

be

services is limited to a total of $300.00
under 18 U.S.C. 3006A(e) (3).

Limitation of fees in this fashion,
particularly on the complex facts of this

18

case, is unconscionable. Those few who

18 This very same fee structure
recently gave rise to a refusal by
appointed lawyers in the District of
Columbia to accept further cases without
an increase in compensation. The
attorneys asserted that the low fees
resulted directly in their inability to
deliver competent representation to the
poor. "After 12 Years Without an Hourly
Rate Rise, D.C.'s Court Appointed Lawyers
Go on Strike," National Law Journal,
Sept. 19, 1983.

While legislation is now pending
which would amend the fee levels (H.R.
3233) critics have, for some time,
asserted the inadequacy of CJA fees and
their impact on quality. Cf. Bazelon,
"The Realities of Gideon and
Argersinger,"” 64 Geo. L. Rev. 811-838
(i876); Note, “Identifying and Remedying
Ineffective Assistance of Criminal
Defense Counsel: A New Look After United
States v. Decoster,” 93 Harv. L. Rev.
752, 776-780 (1960).

© $6 «

accept, willingly or unwillingly, the
obligation to represent the indigent in
vindication of the constitutional right
for all citizens to counsel should not
have to bear the disproportionate burden
of cost in such cases. When the prosecu-
tion was here equipped to investigate and

develop its case over a three year period,

and with resources far beyond those of the
already well-funded U.S. Attorney's
office. This disparity goes far toward
explaining defense counsel's ineffective-
ness below. One of the principle benefits
which would accrue from affirmance would
predictably be the provision of resources
necessary to make the Fifth, Sixth and
Fourteenth Amendment guarantees more than

a mere form of words.

e Oa

CONCLUSION

The Tenth Circuit Court of Appeals
correctly reversed the conviction of the
defendant based on the cumulative errors
which resulted in his denial of effective
assistance of counsel. The decision of

the Court of Appeals should be affirmed.

Respectfully Submitted,

Richard J. Wilson
Counsel of Record

o $6 «

Appendix -

REPORTED FEDERAL AND STATE APPELLATE
DECISIONS REVERSING CONVICTIONS ON GROUNDS OF
INEFFECTIVE ASSISTANCE OF COUNSEL.

January 1970 - July 198?

Federal Courts of Appeal*®

Washington v. Maroney, 428 F.2d 10 (3d Cir. 1970)
(late appointment and resulting trial errors)

Audry v. Henderson, 429 F.2d 26 (5th Cir. 1970)
(counsel did not advise defendant of right to
appeal)

Thomas v. Beto, 423 F.2d 642 (5th Cir. 1970)
(failure to advise of right to appeal)

United States v. Hammonds, 425 F.2d 597 (D.C.
Cir. 1970) (general ineffectiveness)

Matthews v. United States, 449 F.2¢ 985 (D.C.
Cir. 1971) (casual summation) (reversed on other
grounds )

Saltys v. Adams, 465 F.2d 1023 (24 Cir. 1972)
(failure to file motion to suppress and ill-
advised cross-examination)

Cooks v. United States, 461 F.2d 530 (5th Cir.
1972) (erroneously informing defendant that if he
did not plead guilty he might be subject to a
sentence six times greater than possible)

* By year and by Circuit within years. ~
A-1

v. Beto, 462 F.2d 596 (5th Cir. 1972)
(counsel did not investigate defendant's only
defense)

Fitzgerald v. Beto, 479 F.2d 420 (5th Cir. 1973)
(counsel failed to communicate dead offer from
prosecutor to defendant)

Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973)
(failure to assist defendant as to entry of
guilty plea)

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)
(inadequate preparation when lawyer appointed on
day of trial, resulting in ineffective advice)

Hudson v. Alabama, 493 F.2d 171 (5th Cir. 1974)
(over defendant's protestations, counsel
informed jury of deal and allowed conviction
without any production of evidence)

United States v. Edwards, 488 F.2d 1154 (5th Cir.
1974) (failure to pursue a successful motion for
a court-appointed psychiatrist)

McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974)
(counsel failed to do any investigation other
than to interview defendant)

Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975)
(failure to request delay to investigate)

Garza v. Wolff, 528 F.2d 208 (8th Cir. 1975)
(counsel failed to call each expert witness and
to investigate a police report)

United States v. Fessel, (5th Cir. 1976) (failure
to move for a court-appointed psychiatrist)

A-2

Thomas v. Wright, 535 F.2d 407 (8th Cir. 1976)
(counsel failed to interview any witnesses
because of general policy against doing so,
because of fear of bribery accusation)

United States v. Easter, 539 F.2d 663, (8th Cir.
1976) (failure to challenge search)
Marzullo v. Maryland, 561 F.2d 540 (4th Cir.

1977) (ineffectiveness at vior dire and in
challenging testimony )

United States ex.rel Healey v. Cannon, 553 F.2d
1052 (7th Cir. 1977) (counsel gave defendant

"grossly deficient" advice concerning guilty
plea)

United States v. Bosch, 584 F.2d 1113 (1st Cir.
1976) (trial counsel offered certain references
to prior convictions into evidence)

Boyer v. Patton, 579 F.2d 284 (3rd Cir. 1978)
(counsel failed to object to certain testimony)

Proffitt v. United States, 582 F.2d 854 (4th Cir.
1975) (counsel conditioned investigation and
presentation of insanity defense on payment of
lawyer's fee and expert witness expenses)

Bonds v. Wainwright, 564 F.2d 1125 (5th Cir.
1978) (ineffective in helping defendant decide
whether to pursue direct appeal)

Canary v. Bland, 583 F.2d 857 (6th Cir. 1978)
(inadvertent failure to challenge use of a prior
conviction in a habitual criminal charge)

vis v. Alabama, 596 F.2d 1214 (5th Cir. 1979)
(failure to investigate insanity defense)

Brown v. Blackburn, 625 F.2d 35 (5th Cir. 1980)
(failure to investigate)

United States v. Porterfield, 624 F.2d 122 (10th
Cir. 1960) (failure to investigate)

Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981)
(failure to investigate)

Wiley v. Sanders, 647 F.2d 642 (6th Cir. 1961)
(in closing arguments, defense attorneys
repeatedly referred to defendant as "guilty")

Ford v. Parratt, 638 F.2d 1115 (8th Cir. 1981)
(failure to investigate a significant issue)

United States v. Baynes, 687 F.2d 659 (3d Cir.
1962) (failure to listen to exemplar of
defendant's voice and compare it to government
tape)

Uptain v. United States, 692 F.2d 8 (5th Cir.
1962) (counsel was at same time chief prosecution
witness in defendant's bail-jumping trial)

Harris v. Housewright, 697 F.2d 202 (8th Cir.
1982) (general ineffectiveness)

Hollis v. United States, 687 F.2d 257 (8th Cir.
1982) (failure to file timely notice of appeal)

Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982)
(lack of thorough investigation deprived
defendant of a defense and counsel failed to
perceive a credible challenge of the grand jury)
(death penalty case)

a States v. Rumery, 698 F.2d 764 (5th Cir.
1983) (counsel erroneously advised defendant of
maximum sentence causing defendant to enter
guilty plea to avoid that false sentence)

A-4

baste v. Rose, 701 F.2d 1150 (6th Cir. 1983)
ineffectiveness caused by the State)

of Appeal®

State v. Watson, 134 Ariz.L., 653 P.2d 351 (1982)
(failure to request a hearing on identification
procedures, considering evidence)

v. Jackson, 534 P.2d 281 (Ariz. App. 1975)
(late appointment)

v. State, 274 Ark. 81, 621 S.W. 2d 857
(1981) (failure to file motion to dismiss for
speedy trial violation)

oe v. State, 267 Ark. 469, 591 S.W. 2d 650
(1980) (ineffectiveness involving guilty plea)

In re Saunders, 2 Cal. 3d 1033 (1970) (failure to
undertake eareful investigation deprived

defendant of possible defense) (death penalty
case)

» 3 Cal. 34 192 (1970) (failure of
appellate counsel to raise crucial assignments of
error )

In_re Banks, 4 Cal. 3d 337 (1971) (failure to
argue crucial issues on appeal)

People v. Shells, 4 Cal. 3d 626 (1971) (bad trial
strategy based on poor investigation)

® Alphabetically, by state, and by year within
State.

P v. Rhoden, 6 Cal. 3d 519 (1972)
appellate counsel failed to raise crucial
issues)

People v. Belcher, 11 Cal. 3d 91, (1974) (failure
to advise defendant to enter proper plea)

f » 111 Cal. App. 34 536 (1970)
(failure to investigate easily discoverable case
law)

In_re Scruggs, 15 Cal. App. 3d 290 (1971)
(incorrect plea entered on advice of counsel)

In re Kubler, 53 Cal. App. 3d 799 (1975) failure
to enter proper plea, considering known evidence)

P v. Zimmerman, 102 Cal. App. 3d 647 (1980)
miscellaneous trial errors)

In_re Cassandra R., 139 Cal. App. 34 670 (1983)
(counsel was totally unprepared at trial)

People v. Herrera, 188 Colo. 402, 534 P.2d 1199
(1975) (failure to research question)

People v. Moreland, 193 Colo. 237, 567 P.2d 355
(1977) (ease proceeded to trial immediately
following appointment of substitute counsel)

People v. Blalock, 197 Colo. 320, 592 P.2d 406
(1979) (introduction of damaging testimony)

v. Gonzales, 37 Colo. App. 8, 543 P.2d 72
1975) (general ineffectiveness)

v. United States, 436 A.2d 804 (D.C. 1981)
failure to conduct a full and prompt

investigation)

v. United States, 441 A.2¢ 268 (D.C. 1982)
failure to interview known wit » ses or make
minimal effort to discove. available
information)

Dixon v. State, 287 So.2d 696 (Fla. 1973)
(defendant persuaded to plead guilty)

Martin v. State, 363 So.2¢ 403 (Fla. 1978)
(failure to adequately prepare)

Castro v. State, 419 So.2d 796 (Fla. 1962)
(failure to ascertain whether guilty plea was
voluntary )

Holmes v. State, 429 So.2d 279 (Fla. 1983) (at
sentencing hearing, ineffectiveness for failure
to challenge aggravating circumstances) (death
penalty case)

v. State, 136 Ga. App. 479 (1975)
(different counsel only for arraignment)

People v. Brown, 52 Ill. 2d 227 (1972) (failure
of appellate counsel to examine the record of
petitioner's trial proceeding)

People v. Carter, 41 Ill. App. 34 425 (1976)
(ineffective tactics and argument)

v. Lamparter, 56 Ill. App. 34 823 (1977)
(failure to demand new trial on valid issue)

feorse v. Meacham, 53 Ill. App. 3d 823 (1977)
failure to file timely motion to withdraw guilty
plea)

People v. Adams, 71 Ill. App. 34 138 (1979)
(failure to do anything)

A-7

People v. Howard, 74 Ill. App. 3d 138 (1979)
(failure to fully investigate past psychiatric
history)

People v. Lemcke, 80 Ill. App. 3d 298 (1980)
(failure to make offer of proof)

People v. Neeley, 90 Ill. App. 3d 76 (1980)
(ineffective closing argument and failure to file
motion to suppress)

People v. Nicewanner, 93 Ill. 34 1 (1981)
(failure to file timely motion to withdraw guilty

plea)

People v. Kronkel, 113 Ill. App. 3d 992 (1983)
(failure to investigate alibi witness)

v. State, 155 Ind. App. 199, 292 N.E. 2d
293 (1973) (counsel had virtually no time to
prepare)

Jones v. State, 175 Ind. App. 343, 371 N.E. 2d
1314 (1978) (public defender given only 3 hours
to consult with defendant. after retained counsel
withdrew)

Blankenship v. Commonwealth, 554 S.W. 2d 898 (Ky.
App. 1977) (failure to timely file appellate
record )

State v. Myles, 389 So.2d 12 (La. 1980)
(ineffectiveness at sentencing hearing at which
no evidence was introduced) (death penalty case)

People v. Strodder, 394 Mich. 193 (1975) (general
ineffectiveness and abusive treatment of court)

People v. Morris, 30 Mich. App. 169 (1971)
(miscellaneous acts)

People v. Husband, 50 Mich. App. 46 11973)
(refusal by counsel to participate after not

getting a continuance)

P v. Bryant, 77 Mich. App. 108 (1977)
failure to prepare an insanity defense which he
had announced an intention to do)

People v. McDonnell, 91 Mich. App. 458 (1979)
(failure by counsel to prepare an insanity

defense of which he was aware)

penis Snyder, 108 Mich. App. 754 (1961)
lure to obtain opinion on witness)

Hall v. State, 496 S.W. 24 30 (Mo. 1973) (sole
effort was plea bargain attempt)

Thomas v. State, 516 S.W. 2a 761 (Mo. 1974)
(failure to investigate alibi)

State v. Moon, 602 S.W. 2d 828 (Mo. 1980)
(failure to know plea entered)

Parcel v. State, 637 S.W. 2d 440 (Mo. 1982)
(failure to ascertain from defendant whether
there was a factual basis for his claimed relief)

v. State, 97 Nev. 454, 634 P.2d 456
(1981) (appellate counsel argued his petition was
frivolous)

v. Anderson, 117 N.J. Super. 507
1971) (counsel was totally unprepared)

State v. Marrero, 155 N.J. Super. 567 (1978)
(failure to make motion for pre-trial diversion

of defendant )

A-9

v. Bennett, 29 N.Y. 2d 462 (1972)
(complete lack of investigation or preparation)

People v. Labree, 34 N.Y. 2d 257 (1974) (general
ineffectiveness)

New York v. Droz, 39 N.Y. 2d 457 (1976) (little
or no effort to prepare)

coed v. Brown, 45 N.Y. 2d 852 (1978)
failure, among other things, to prepare)

v. Gonzalez, 47 N.Y. 2d 606 (1979)
(filed appellate brief which made no arguments)

People v. Baldi, 76 App. Dec. 259 (W.¥. 1980)
(general ineffectiveness)

State v. Sinatra, 89 App. Dec. 2d 913 (N.Y. 1982)
(failre to raise question of defendant's
competency to stand trial)

et v. Schelling, 92 App. Dec. 2d 694 (N.Y.
1983) (general ineffectiveness)

P v. Gonzalez, 43 App. Div. 2d 914 (N.Y.
1974) (failure to assist defendant at sentencing)

v. Cupp, 40 Or. App. 773, 621 P.2d 72
(198C) (ineffectiveness at sentencing)

v. Cupp, 54 Or. App. 897, 636 P.2d 468
1961) (failure of counsel to file a timely
notice of appeal)

v. Cupp, 54 Or. App. 283, 650 P.2d 1032
(1982) (failure of appellate counsel to argue
valid issue)

A-10

v. Wideman, 453 Pa. 119 (1973)
(course chosen by counsel had no reasonable basis
designed to effectuate defendant's interests)

Commonwea ith v. Bronson, 457 Pa. 66 (1974)
failure tc pursue alibi defense)

Commonwealth v. Adams, 465 Pa. 2°4 (1976)
(failure to call corroborating witness)

v. Hillman, 465 Pa. 541 (1976)
(failure of counsel to request time to
investigate a questionable line-up
identification)

h v. Holmes, 468 Pa. 409 (1976)
(failure tc file a direct appeal on a valid
issue)

lth v. Mabie, 467 Pa. 464 (1976)
(failure to investigate defendant's contentions)

v. Ramos, 468 Pa. 4O4 (1976)
(failure to explain charges or elements of crime)

v. Humphrey, 473 Pa. 533, 375 A.2d
717 (1977) (failure to object to references to
defendant's exercising of right to remain silent)

Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297
(1978) (failure to file motion to suppress)

eames tt v. Bailey, 480 Pa. 329, 390 A.2d 166
(1978) (failure to raise valid issue)

v. Smith, 478 Pa. 76, 385 A.2d 388
1979 appellate counsel ineffective ‘or
failing to raise valid issue)

A-11

Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766
(1979) (failure to raise, on appeal, challenge to
Commonwealth's showing at suppression hearing)

Commonwealth v. Hare, 486 Pa. 23, 404 A.2d 388
(1979) (appellate counsel ineffective for
failing to raise valid issue)

Commonwealth v. von Smith, 486 Pa. 564, 406 A.2d
1034 (1979) (untimely request for severance)

C lth v. Anderson, 490 Pa. 225, 415 A.2d
7 (1980) (failure to object to prosecutor's
summation)

Commonwealth v. Brown, 496 Pa. 86, 436 A.2d 165
(1981) (counsel failed to object to prejudicial
remarks)

aad v. Fassett, 496 Pa. 529, 437 A.2d
1166 (1981) (counsel failed to move for
suppression of evidence)

commonwealth v. Smith, 495 Pa. 362, 433 A.2d 1349
(1981) (failure to make a timely motion to sever
the trial)

Commonwealth v. Boston, 242 Pa. Super. 98, 363

A.2d 1178 (1976) (failure tc cross-examine main
witness)

Commonwealth v. McCutchen, 245 Pa. Super. 56, 369
A.2d 291 (1976) (failure to appeal on valid
issue)

nwealth v. Washington, 239 Pa. Super. 336

(1976) (failure to investigate and file n tice of
alibi)

A-12

Commonwealth v. Bable, 248 Pa. Super. 496, 375
A.2d 350 (1976) (failure to take direct appeal on
valid issue)

nwealth v. Byrd, 250 Pa. Super. 250, 378
A.2d 921 (1977) (failure to file motion to
dismiss on valid issue)

Commonwealth v. Griffith, 249 Pa. Super. 252, 376
A.2d 253 (1977) (failure to move to quash invalid
indictments)

Commonwealth v. Gasper, 262 Pa. Super. 141, 396
A.2d 685 (1978) (decision to cross-examine on
arguably illegal confession rather than moving to
suppress)

Commonwealth v. McNeal, 261 Pa. Super. 332, 396
A.2d 424 (1978) (failure to preserve valid issue)

Commonwealth v. Davis, 267 Pa. Super. 118, 406
A.2d 547 (1979) (failure to ensure defendant
understood charges)

Commonwealth v. Vasquez, 268 Pa. Super. 295, 408
A.2d 154 (1979) (failure to be aware of time
requirements for filing a motion)

Commonwealth v. Allen, 278 Pa. Super. 501, 420

A.2d 653 (1980 (failure to ensure that
defendant's guilty plea was voluntary)

nwealth v. Austin, 274 Pa. Super, 1, 417
A.2d 1220 (1980) (failure to object to charge)

Commonwealth v. Johnson, 280 Pa. Super. 309, 421

A.2d 737 (1980) (failure to file post-trial
motion)

A-13

Commonwealth v. Wetzel, 276 Pa. Super. 445, 419
A.2d 541 (1980) (repeated reference to prior
criminal activity)

Commonwealth v. Smith, 297 Pa. Super. 63, 443
A.2d 299 (1982) (failure to raise improper pre-
trial waiver colloquy)

C mwealth v. Stitzel, 454 A.2d 1072 (Pa.
Super. 1962) (failure to challenge juror)

C nwealth v. Tran, 453 A.2d 993 (Pa. Super.
1982) (failure to object to omitted charge)
Commonwealth v. White, 450 A.2d 63 (Pa. Super.

1982) (failure to find, interview, and call
certain witnesses)

Commonwealth v. Williams, 297 Pa. Super. 138, 443
A.2d 338 (1982) (stipulation of crucial
testimony)

Commonwealth v. Taliaferro, 455 A.2d 694 (Pa.
Super. 1983) (failure to object to prejudicial
irrelevant evidence)

State v. McBride, 296 N.W. 2d 551 (S.D. 1980)
(miscellaneous)

Grooms v. State, 320 N.W. 2d 149 (S.D. 1982)
(failure to make timely appeal)

McKeldin v. State, 516 S.W. 2d 82 (Tenn. 1974)

(defendant was represented by someone
masquerading as a lawyer)

A-14

Prince v. State, 500 S.W. 2d 533 (Texas 1973)
(counsel appointed on day of trial)

Ex parte Cavett, 521 S.W. 2d 619 (Texas 1975)
(alibi witnesses not subpoenaed)

Flores v. State, 576 S.W. 2d 632 (Texas 1978)
(failure to investigate)

Cude v. State, 586 S.wW. 2d 895 (Texas 1979)
(failure to object to numerous prejudicial
matters )

Miles v. State, 644 S.W. 2d 23 (Texas 1982)
(general ineffectiveness)

Weathersby v. State, 627 S.W. 2¢ 729 (Texas 1982)
(failure to object to inadmissible testimony)

Brewer v. State, 649 S.W. 2d 628 (Texas 1983)
(improper statements by counsel as to tape
recording of pre-trial consultation)

State v. Ernest, 94 Wash. 2d 839, 621 P.2d 121
(1960) (failure to interview witnesses)

State v. Jury, 19 Wash. App. 256, 576 P.2d 1302
(1976) (failure to conduct adequate
investigation)

State v. Thomas, 157 W.Va. 640, 203 S.E. 2d 44s
(1974) (miscellaneous trial errors)

Cannellas v. McKenzie, 236 S.E. 2d 327 (W.Va.
1977) (miscellaneous trial errors)

A-15

State v. Pelfry, 256 S.E. 2d 438 (W.Va. 1979)
(failure to move for a mistrial solely for
economic reasons)

State v. Bias, 301 S.E. 2d 776 (W.Va. 1983)
(failure to utilize overwhelming evidence of
defendant's insanity) (death penalty case)

State v. Felton, 110 Wis. 2d 485, 329 N.W. 2d 161

(1983) (failure to lean relevant law and failure
to investigate)

A-16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1003%3A10. Public record. Not legal advice.