Respondents Brief — Strickland v. Washington

Office - Supreme Court, U.S

FILED

No. $2-1554 NOV 29 1983

IN THE ALED

Supreme Court of the United States

October Term, 1982

CHARLES E. STRICKLAND, Superintendent, Florida State

Prison: JIM SMITH, Attorney General of Florida; and LOUIE

L. WAINWRIGHT, Secretary. Florida Department of Correct:

ions

Petitioners

DAVID | _ROY WASHINGTON,

Respondent

ON WRIT OF CERTIORAR! TO THE UNITED STATES

COUNT OF APPEALS FOR THE FORMER FIFTH CIRCLIT

(UNIT B)

BRIEF OF RESPONDENT

JOSEPH H. RODRIGUEZ

PUBLIC DEFENDER

RICHARD E. SHAPIRO

Department of the

Public Advocate

Richard J. Hughes

Justice Complex

CN - 850

Trenton. NJ 08625

(609) 292-1693

Attorneys for Respondent

The Copy Center, inc., 615 Chestnut Steet, Philadeipmia, 9A 19106 - 218/928-1900

oie

QUESTIONS PRESENTED

1. Whether the federal courts properly

made an independent determination of the re-

Spondent's claim that he was deprived of

effective assistance of counsel under the

Sixth Amendment.

2. Whether petitioner was deprived of

the effective assistance of counsel guaran-

teed in the Sixth Amendment when his trial

attorney neglected to conduct any indepen-

dent investigation into readily available

information in mitigation of punishment and,

as a consequence, failed to develop favora-

ble evidence about petitioner's character,

background, and mental state at the time of

the crimes, for presentation at his capital

sentencing hearing.

3. Whether a habeas petitioner is

entitled to relief under the Sixth Amendment

when he establishes that inadequate coun-

sel's serious derelictions impaired or

adversely affected the presentation of the

eiie

defense though not necessarily the outcome

of the trial.

4. Whether the court of appeals, in

assessing petitioner's claim of ineffective

assistance of counsel at sentencing, prop-

erly concluded that the district court erred

in admitting and considering testimony of

the state trial judge concerning his own

mental processes in imposing sentence and

his belief as to the effect he would have

given to the mitigating evidence that

inadequate counsel failed to obtain.

-iii-

TABLE OF CONTENTS

QUESTIONS PreSeENted .wcrseseseerevesvees

Table Of CONCENES wise eecccvcssseveseses

Table Of AUthoOrities wwe eeeseesesnvees

Statement of the Case ..rsssseeseeseeees

Summary Of ATGUMENE ..cececcessssesececs

ARGUMENT .nccccvccccccccccssccssesssesess

I THE COURT OF APPEALS WAS CORRECT

IN MAKING AN INDEPENDENT DETER-

MINATION OF THE RESPONDENT'S

CLAIM THAT HE WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL

UNDER THE SIXTH AMENDMENT ....eee5.

Ir A CLAIM OF INEFFECTIVE ASSISTANCE

IS MADE WHEN A DEFENDANT SHOWS:

(1) THAT HE DID NOT RECEIVE

REPRESENTATION WITHIN THE RANGE OF

COMPETENCE DEMANDED OF ATTORNEYS

IN CRIMINAL CASES AND (2) THAT

COUNSEL'S FAILINGS IMPAIRED THE

PRESENTATION OF HIS DEFENSE

WITHOUT REGARD TO WHETHER THE

OUTCOME WOULD NECESSARILY HAVE

BEEN DIFFERENT eeeeeeeeeeeeeeeeeeene

A. The Sixth Amendment is

Violated By Represeuatation

That Falls Outside The Range

of Competence Demanded of

Attorneys in Criminal Cases ...

18

25

25

28

29

B. Relief Should Be Granted To

A Defendant Who Demonstrates

That Counsel's Serious Dere-

lictions Impaired The Pre-

sentation Of The Defense,

Though Not Necessarily The

Outcome of the Trial ..ceceeeee 58

C. Application of Appropriate Sixth

Amendment Principles To The

Record In This Case Convincingly

Establishes That Respondent

Was Deprived of the Effective

Assistance of Counsel At His

Capital Sentencing Hearing ..... 92

III THE COURT OF APPEALS CORRECTLY

DETERMINED THAT TESTIMONY OF

THE STATE SENTENCING JUDGE ON

THE ISSUE OF PREJUDICE WAS

INADMISSIBLE *eereeeeeneeeeeeeeeeeeee 99

CONCLUSION *eewepeeeeeeeeeeeeeeeeeeeeeeeee 107

Appendix A: Portions of Transcript of

Evidentiary Hearing in Federal

District Court That Were

Omitted From Joint Appendix

Appendix B: The Standards Employed by the

Circuits in Assessing Claims

of Ineffective Assistance of

Counsel

Appendix C: The Decision of the Circuits

On the Burden of Showing

Prejudice From Ineffective

Assistance of Counsel

“Ve

TABLE OF AUTHORITIES

Cases Page

Adams v. Jago, 703 F.2d 970

(6th ah Re Tl 0.60.6 bee eke 26

Adams v. Strickland, 709

F.2a 1443 (Lith

Giz.

Anders v. California,

Gees Caer) vcs ee 46,

Barclay v. Florida, U.S.

, Lod 8.ct 3418 24,

eu)

Baxter v. Rose, 523 S.W. 2d

ns Bre) -véscesden 44

Beasley v. United States, 491

arr 6a? (6th Gane 1974) . 49,

Brewer v. Williams, 430 U.S.

Cd 6 oie awe 26,

Brooks v. Texas, 381 F.2d 619

Biter RET) 6c ce bawmes 50

Brown v. Allen, 344 U.S. 443

(1953) a as hle.0.0.0' bbe nee 27

87

39, 48

=—

Cases

California v. Ramos, U.S.

, £03 S.Ct. 3446

RETR iS ge ERR Re ae

Carter v. Illinois, 392 U.S

oe 2 £6 64 666 63 8: 8 6

Chapman v. California,

Rae U.s. 18 (1967) ey re

Chicago B.O. Ry. Co. v.

ame eas cock, 304 U.S. 585

OS om Tt ee Oe 2 ee oe oe oe Oe

Coleman v. Alabama, 399

U.s. 1 (1970)

3.2.0.9 6 6.9 6:9 ©@'¢

Commonwealth v. Safarien,

Mass. . N.E.

2G B7E (1974) wccccccceces

Cooper v. Fitzharris, 586

; 2d L325 (Sth Cir. 1978)

(en Dn: On ék bb ee ee. cree e¢

Page

56, 90

60

50, 86

107

30

lol

37, 38

74

31, 43,

59, 72

31

passim

56, 96

Cases Page

Engle v. Isaac, 456

So gag go > De 33, 34,

41, 80

Entsminger v. Iowa, 386

4 my Be, +3 i Speers 46

Estelle v. Smith, 451

U.s. 454 (1981) jw ok} ee 6:05 38

Ferri v. Ackermann, 444 U.S.

LT CL. s 0's pins w 046 6 45

Gaines v. Hopper, 575 F.2d

1147 (5th oS Peek yy) » 43

Gardner v. Florida, 430

U.S. 349 (1977) A ee 233, S23,

54, 102

Geders v. United States,

S = ae wh een b pee 36

Gideon v. Wainwright, 372

U.s. 335 (1963) Te tiee ah eae 29, 30

39

Goodwin v. Balkcom, 684 F.2d

Guts, Beer esece 49

-vili-

Cases Page

Haggard v. Alabama, 550 F.2d

fois (Sth Cir. 1977) ..... 103

Halliwell v. State, 323 So.

2d 5 SR |) Pere 98

Hamilton v. Alabama, 368

U.S. 52 (1961) cnlo@s4ee ees 37

Hampton v. rick, 500 F.2d

+H fem GSEs 2970) s0cr0 103

Harris v. Housewright, 697

F.2d 202 (8th i k Pe eG Py

z) Teas oa i a/an werale a | ee y

39, 49

Jones v. Barnes, Nae

103 $.ct. 3308 Teas). ae

Jurek v. Texas, 420 U.S 273

EE Sao bor oda 8 4's 0eers 64 57

Lovett v. Florida, 627 F.2d

Gabe SOOO? iucece 41

-ix-

Cases Page

Machibroda v. United States,

See UG. GOl ChORE) weseer 27

Maggio v. Fulford, u.s....,

re (5 B.cc. aaen 4ames) .06< 22

Marshall v. Longberger,

A OP ’ 03 S.Ct. 843

Marzullo v. Maryland, 56l

F.2d 540 cas Gals oof?) «so Oe

Mason v. Balkcom, 531 F.2d

[Sus Gaex« BETO) ceocns 54

McCampbell v. State, 421 So.

" Bey i Pe | 6 ee 98

McMann v. Richardson, 397

Uns TORU ROTEE Lie b diceivin’s passim

McQueen v. Swenson, 493 F.2d

207 (8 Gabe BUG sebiows 50, 62,

73, 85

Michel v. Louisiana, 350 U.S.

ess yee ee ie 88

Moody v. State, 418 So. 2d

ee SEs BOOED eo sccicincccs 98

-X=-

Cases Page

Moore v. United States, 432

F.2d 730 ieee Gas. 1970)

EE: ip o¢e' seb e000 080 31, 42,

49, 65

Morris v. Sla ’ U.S.

103 s.ct. 1610 (1983) icles

National Labor Relations

Board v. Air Associates,

Nea v. State, 384, So.2d

881 (Fla. Sande oo 0.8 98

Packet Co. v. Sickles, 72

(Ss Wall.) ee | > 106

Parker v. North Carolina,

397 U.S. 790 (1970) hebeoh 41

People v. Hines, 390 P.2d

398 (Cal. 1964) we 6 wacelea-e 92

People v. Terry, 390 P.2d

381 (Cal. 164) ps eew aha oe 92

Pickens v. Lockhart, 714 F.2d

455 (8th Cir. 1983) ...... passim

Powell v. Alabama, 387 U.S.

EE rors 's. ones eeu passim

Proffitt v. Florida, 428

U.S. 242 (1976) eS 5

Cases Page

Pullman-Standard v. Swint,

Reynolds v. Mabry, 574 F.2d

978 (8th Cir. 1978) ...... 73

Shue v. State, 366 So. 2d

_387 Pe AOD kw tweedws 98

Simmons v. State, 419 So. 2d

DCR; SUED 6 eeedsases a8

Stanley v. Zant, 697 F.2d

955 (5th Cir. 1983) ...... 53

State v. Dixon, 283 So. 2d l

7 ne. web kec cb ee ee 97

State v. Harper, 57 Wis. 2d

543, 205 N.W.2d 1 (1973).. 44

State v. Hester, 45 Ohio St.

2d 71, 341 N.E.2d 304

CPG aiels OM Uw ase v0 ae k 44

State v. Perez, 98 Idaho 181,

579 P.2d l2? CLSTS) fe ee-08 44

Strader v. Troy, 571 F.2d

Ases (Sen Cale. 1976) ...*%. 103

Stovall v. Denno, 383 U.S.

- el Ls la 31

Sumner v. Mata, 455 U.S. 591

orn Tsu be mee eee 27

Tollett v. Henderson, 41ll

< St mw. ). ) gee 32, 42, 48

»

-xii-

Cases

Tomkins v. State of Missouri,

ae eee Gee CLEOO) eeacec

Townsend v. Burke, 334 U.S.

736 (1948) eee. i enh ime ate

Townsend v. Sain, 372 U.S.

293 (1963)

United States v. Agurs,

U.S. 97 (1976)

“_* eee ee eee

United States v. Ash, 413

U.S. 300 (1973)

United States v. Baynes, 687

F.2d 59 (3rd Cir. 1982)...

United States v. Campa, 679

F.2d 1006 (1st cir. 1982).

United States v. Crouch, 566

F.2d 3 (5th Cir. 1978)..

United States v. Davis,

Mek Wis SEE CEOTSS voces

United States v. Decoster,

524 F.2d 196 (D.C. Cir.

1979) (en banc)

United States v. Frady,

456 U.S. 152 el | >} Reena

United States v. Glick, 710

F.2d 639 (10th Cir. 1983).

Page

36, 47

76

23,.27, &

2a, Vi, ea

36, 39, 49

73

73

101, 106

33

passim

17, -33

74

68

-xiii-

Cases Page

United States v. Johnson,

De Weeks, BOO CAPOO) .cevecece 83

United States v. Morgan,

Bae Ucbs GOO (CE9GL) -ccees 101

United States v. Morrison,

449 U.S. 361 (1981) ...... 39, 76,

85, 86

United States v. Nobles,

Mae aes SEO CASVO) wceces 40

United States v. Pinkney, 543

F.2d 908 (D.C. Cir. 1976). 54

United States v. Porterfield,

624 F.2d 122 (10th Cir.

Dt erie ee hy ces 64640 ees 88

United States v. Tucker,

404 U.S. 443 (1972) ...... 76, 102

United States v. Tucker, 716

F.2d 576 (9th Cir. 1983).. passim

United States v. Wade,

a is ae LEEOT) << cece 31, 38

United States v. Valenzuela-

Bernal, U.S. >; on

Bomue Dee Coeee) secvcsee« 77

United States ex rel. Chambers

v. Maroney, 408 F.2d 1186

ca. h Weis oe ede 6860m as 59

-xiv-

Cases Page

United States ex rel. Green

v. Rundle, F.

(ard Gas. GOTO) «6:0 covet pece ;: i, 2

85, 86

United States ex rel. Williams

v. Twomey, 510 F.2d 634

(7th eT EE 5 cn 5. pee 6 0 81

Von Moltke v. Gillies, 332

U.S. 208 (1945) ....c.eee passim

Voyles v. Watkins, 409 F.Supp.

901 (N.D. Miss. 1980) .... 90

Wade v. Franzen, 678 F.2d

se ANP cecvece 73

Walker v. Cardwell, 476 F.2d

Sh ROTO. -oee00e 26

Walsh v. State, 418 So. 2d

yp lS ES 98

Washington v. Strickland,

F. 9 ( Gases

Be SUR IP pocccectsve 16

Washington v. Watkins, 655

er 1346 (5th Cir. 1981). 43, 50

te v. Ragen, 324 U.S.

760 i1S4e) ka > hs 6 ahewnee 41, 75, 89

-xVe

Cases Page

Williams v. Beto, 354 F.2d

Ds (aes ede staves 103

Williams v. Kaiser, 323 U.S.

+ CRD? gout obs 0 0.d.66.660608 37

Wolfs v. Britton, 509 F.2d

4 Gs. Bee) ides cach 44

Wood v. Zahradnick, 578 F.2d.

+ aw Sere?) secets bos 49, 73

Constitution, Statutes and Rules

U.S. Const. amend. VI.......... passim

SO WiC. GABOR ws cc cccvsess ene 102

2B U.S.C. §$2254(G)..cicccccsces 25

DoMeGek ce BSCE) accccccssvcsesoses 3

F.R. Evidence 704.....ccccccees 104

Fla. Stat. Ann. §921.141(1)... 4, 5

Fla. Stat. Ann. §921.141(3)(b). 70

Fla. Stat. Ann. §921.141(6)(b). 7

Fla. Stat. Ann. §921.141(6)(f£) 7

-xvi-

Other Authorities Page

American Bar Association, Project

on Standards for Criminal

Justice, Standards Relating To

The Defense Function (2d ed.

Comment, A Coherent Approach To

Ineffective Assistance of

Counsel Claims, 71 Cal. L.

Rev. 1516 (1983) Pee ee a 61

Comment, Adequacy of a Criminal

D

Comment, A Standard For The

Ineffective Assistance of

Counsel, 14 Wake Forest L.

ey | Le a 46

Comment, Defects In Ineffec-

tive Assistance Standar

Used By State Courts, 50

U. Col. L. Rev. 389 (1979).. 32

Comment, Effective Assistance

of Counsel: A Constitutional

Comment, Ineffective Repre-

sentation As A Basis For

Relief From Conviction:

Review, Colum. L. Rev.

and soc. Pr. l CLSTT A iccsces Gk

52

-xvii-

Other Authorities

Dash, The Defense Lawyer's

Role At The sentencing stage

of A Criminal Case, 54

A ° Se. ei ) a

Erickson, Standards of Compe-

ten For Defense eeeeet

In Criminal cases, 1? Am

Crim. L. Rev. 233 (1980) ...

Field, Assessing The Harmless-

ness of Federal Constitutional

Error - A Process In Need of

A Rationale, 125 U. Pa. L.

MOV. 15 (1976) wcccccccccees

Finer, Ineffective Assistance

of Counsel, 58 Cornell L.

Se DTT CLOUD) sciaccrcects

Goodpaster, The Trial For Life:

Effective Assistance o

Counsel in a Penalt

Cases, S58 N.Y.U.L Rev. 299

Lasater, The Role of Harm |

Ineffective Assistance 0}

Counsel cases: Procedure

Ip

and Policy, 32 Syracuse L.

Rev. 759 Fi9al) Rech ae wee a'e'&-<

Levine, Toward Competent

pounses. 13 Rutgers L. Rev.

BS) seccccccccccsccccs

8A Moore's Federal Practice

(2G @G. 19G9) nc ccccccccces

$5

44,

79,

$9, 61

85

66

$3,

57

61

-xXVlli-

Other Authorities Page

Note, Effective Assistance of

Counsel For The Indigent

Defendant, 78 Harv. L. Rev.

I ne ee cay Sl

Note, A Functional Analysis of

the Effective Assistance of

Counsel, 80 Colum. L. Rev.

Fates b6006:64 6 G80 34, 61

.

Note, Identifying and Remedyin

Ineffective Assistance of

Criminal Defense Counsel: A

New Look After United states

v. Decoster, 93 Harv. L. Rev.

Pt widet «cep hehe See as 46

Note, A New Focus On Prejudice

In Ineffective Assistance of

Counsel cases: The Assertion

Of Rights Standard, 21 Am.

Crim. L. Rev. 29 (1983) .... 60

Tenth Circuit), 49 F.R.D.

+ DOD) coccccccvccencces 39

Saltzburg, The Harm of Harmless

Error, 59 Va. L. Rev. 988

Di dab rb. ah bles Ce bo omen 63

Schaefer, Federalism and State

-

-Xix-

Other Authorities . Page

Schwarzer, Dealing with Incompe-

owe OC 35 aaen te

Rev 633 (1980) DEehs cman kn 46, 49,

Smithburn and Springmann,

Effective Assistance of

Counsel: In Quest of A

Uniform Standard of Review,

Wake Forest L. Rev. 4

CASBS)) cere ccccccccccesececes 31, 44, 61

Tague, The Attempt To Improve

Criminal Representation, 15

Am. Crim. L. Rev. 109

STE A aN cee eee Abeba ks 49

Error (

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-1554

CHARLES E. STRICKLAND, SUPERINTENDENT,

PLORIDA STATE PRISON, ET AL.,

PETITIONERS,

Ve.

DAVID LEROY WASHINGTON,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FORMER FIFTH CIRCUIT (UNIT B)

BRIEF OF RESPONDENT

STATEMENT OF THE CASE

Respondent confessed, pled guilty and

was convicted of three counts of first

degree murder under Florida law. ([Pet.

-2-

App. 71, The critical proceeding

for respondent -- the only state court

hearing at wnich there were contested

issues of law and fact -- was the sentenc-

ing phase of his capital case.

It is a basic, historical fact, found

by the district court, that Mr. Washington's

trial counsel, William Tunkey, ceased any

serious preparation or investigation of

Mr. Washington's case approximately one

month after being appointed, because he

was immobilized by a “hopeless feeling"

upon learning that Mr. Washington had

confessed to two capital murders in

addition to the one on which Mr. Tunkey

was representing him. [Pet. App. 264;

J.A. 380, 382-84, 426].* Mr. Tunkey

1/ The Appendix of Petitioner on Juris-

diction will be referred to as "Pet.

App."; the Joint Appendix will be referred

to as “J.A.°.

2/ The petitioners’ selective presenta-

tation of the record in their Statement of

the Case is at odds with the f ngs o

-3-

acknowledged that, after these confessions,

he did not feel that “there was anything

which fhe) . . . could do which was going

to save David Washington from his fate,"

[J.A. 400] >, and that his despair over the

confessions resulted in a “cessation and

end" to counsel's preparation. [J.A. 426].

The district court found that "this

feeling was behind [Tunkey's] .. . failure

2/ = continued

the district court. The petitioners did

not challenge the district court's findings

as clearly erroneous. See F.R.C.P. 52(a);

Pullman-Standard v. Swint, 456 U.S. 273,

287 (1982). The court Of appeals essential-

ty 7 fea the findings below. [Pet. App.

2-16].

3/ Mr. Washington surrendered to police

on the first murder charge on October 1,

1976. [J.A. 255-57]. On October 7, 1976,

Mr. Tunkey was appointed to represent Mr.

Washington on the first murder charge and

related crimes. ([(J.A. 372-73]. On November

5, 1976, Mr. Washington confessed to two

additional murders. [J.A. 119-20, 123-39,

198-218]. On December 1, 1976, he pled

guilty to three charges of capital murder

and several other crimes. Petitioner's

sentencing hearing was conducted on Decem-

ber 6, 1976, and he was sentenced to die

on that date.

wie

to do an independent investigation into

petitioner's background and potentially

“mitigating emotional and mental reasons

for the killings," (Pet. App. 282] as Mr.

Tunkey admitted at the evidentiary hear-

4 [3.A. 376; 388-89; 376-77].

ing.

Mr. Tunkey was aware of the strong

likelihood that respondent would be

convicted of three capital murders based

on the confessions. But Florida's capital

Sentencing procedure involves two separate

Phases: a guilt phase and a separate

sentencing phase "to determine whether

the defendant should be sentenced to death

or life imprisonment." Fla. Stat. Ann.

§921. 141/1). At the time of respondent's

convictions, Florida law provided that at

this sentencing hearing “evidence may be

4/ Prior to learning of the confessions,

counsel had been directing his efforts

toward pre-trial motions and discovery.

He had not conducted any separate investi-

gation or preparation for the sentencing

phase. [Pet. App. 264; J.A. 376; 379-80].

-5-

presented as to any matter that the court

deems relevant to sentence, and shall

include matters relating to any of the

aggravating or mitigating circumstances

enumerated [in the statute.]" .” In

July of 1976, several months before Mr.

Washington's surrender to the authorities,

the Court sustained the constitutionality

of the Florida death penalty statute, in

part because that statute requires the

sentencer to focus not only upon the

individual circumstances of the crime but

also on the character of the offender.

Proffitt v. Plorida, 428 U.S. 242, 251,

5/ Pla. Stat. Ann §921.141(1) (1983

Supp.) has since been amended and now

provides:

"In the proceeding, evidence may

be presented as to any matter

that the court deems relevant to

the nature of the crime and the

character of the defendant and

shall include matters relating to

any of the aggravating or miti-

gating circumstances enumerated

in [the statute] ."*

252 (1976).

As the findings of the District Court

make clear, Mr. Tunkey was utterly unpre-

pared to represent Mr. Washington at this

sentencing inquiry. Other than some con-

versations with Mr. Washington in jail,

and some futile efforts to meet with Mr.

Washington's wife or mother after briefly

speaking with them on the telephone [Pet.

App. 264-65], Mr. Tunkey conducted no

investigation for witnesses who could have

provided mitigating information about Mr.

Washington's character and background.

[Pet. App. 265]. Moreover, despite Mr.

Tunkey's recognition that there was "an

absolutely inexplicable difference between

the personality [of Mr. Washington] which

I knew as compared to the crimes charged

and the admissions he had made, *© Mr.

6/ Pages 38-39 of the transcript of the

evidentiary hearing in the district court

(footnote continues on following page)

~ -

Tunkey never sought to explore that dis-

crepancy. He did not obtain any informa-

tion relating to Mr. Washington's character

and background from those who best knew

him nor did he seek any psychiatric or

psychological examination of Mr. Washington

for evidence of statutory or non-statutory

mitigating factors relating to his mental

state at the time of the offenses.’

6/ continued

have been inadvertently omitted from the

Joint Appendix. For the convenience of

the Court, these pages have been reproduced

in Appendix A to respondent's brief. The

Statement in the text appears on page 39

of the transcript of the evidentiary hear-

ing in the district court, which is part

of the record of the court of appeals.

7/ ‘Two provisions of the Florida statute

enumerate mitigating circumstances pertain-

ing to a defendant's mental state: Pla.

Stat. Ann. §921.141(6)(b) ("The capital

felony was committed while the defendant

was under the influence of extreme mental

or emotional disturbance"), and Fla. Stat.

Ann. §921.141(6)(£) ("The capacity of

the defendant to appreciate the criminal-

ity of his conduct or to conform his

conduct to the requirements of law was

substantially impaired").

-8-

Having failed to conduct any independ-

ent investigation into Mr. Washington's

character and background or to seek any

expert evaluation of Mr. Washington's

mental state at the time of the crimes,

Mr. Tunkey testified that:

I really could find very little to

address myself to in terms of a

relevant, cogent presentation of

mitigating circumstances as out-

lined by the statute itself and

certainly insofar as aggravating

circumstances are concerned,

I... did not feel exactly like

I... . had sufficient ammunition

to persuade anybody that the State

was not going to succeed in show-

ing at least that they outweighed

the mitigating circumetances.

{\J.A. 404).

He thus decided that at the sentencing

hearing he would “attempt to convince the

judge of Washington's sincerity and frank-

ness in pleading guilty, recognizing the

sentencing judge as a judge who had

acknowledged his respect for individuals

who came before him in the court and

admitted their guilt." [Pet. App. 265-66;

-9-

J.A. 403). After Mr. Washington entered

his guilty pleas to three capital murders,

Mr. Tunkey offered no testimony or any

Other evidence at the sentencing hearing

in support of a life sentence, but relied

solely upon brief statements made by Mr.

Washington at the guilty plea proceedings.

(J.A. 322).° In an argument at the

close of the hearing that covers only three

transcript pages [J.A. 320-24], Mr. Tunkey

made no mention of Mr. Washington's family

life or background; he did not suggest

that there was any independent information

about Mr. Washington's character and life

history or mental state at the time of the

crimes’ that should be considered by

8/ At these proceedings, Mr. Washington

acknowledged his guilt and briefly referred

to the pressure he was under at the time of

the crimes. [J.A. 46, 52-53].

9/ Although Mr. Tunkey had asked the

court in his sentencing memorandum to

consider, as a mitigating circumstance,

(footnote continued on following page)

-10-

the sentencing judge. '°

The record of the habeas proceeding

establishes that there was a substantial

amount of readily available evidence

on the critical issue of whether Mr.

Washington deserved to live or die. At

the evidentiary hearing below, fourteen

affidavits from Mr. Washington's neighbors,

9/ continued

that “the capital felony was committed

while the defendant was under the influence

of extreme mental or emotional disturbance”

(see note 7 supra), he made no explicit

reference to the nature of Mr. Washington's

mental state at the time of the crimes.

Mr. Tunkey never requested a presentence

report on Mr. Washington's mental state,

social background or life history. The

district court below found that such a

presentence report “may have provided

additional independent information in

mitigation of the aggravating circunm-

Stances previously shown." [Pet. App.

280).

10/ The district court did not find

counsel's perfunctory closing argument,

standing alone, to be persuasive evidence

of ineffectiveness but found that it had

to be evaluated “in light of the mitigating

circumstances which may have been advanced

upon a more complete investigation."

-l1l-

friends, former employees, family members,

and community members were introduced.

[J.A. 338-65]. All of the affiants stated

that they would have testified on Mr.

Washington's behalf at his sentencing

hearing but were never contacted by anyone

involved in his defense.

These individuals all described David

Washington as a responsible, nonviolent,

young black man who did not use drugs

or alcohcl, was an active member of his

church, was devoted to his family and

eager to work, but was unable to find

employment to support his wife and newly-

born child. ([J.A. 338-65]. They consist-

ently expressed their belief that the David

Washington they knew was not the type to

commit a murder; many of them remarked that

violent behavior was completely “out-of

character” for him,!!

il1/ Leonard Brady, a Dade County police

(footnote continues on following page)

-12-

Two affidavits of medical experts --

a psychiatrist and a psychologist -- were

also introduced at the habeas hearing.

[J.A. 6-9; 10-16]. As the district court

found, these experts provided “information

relevant to the issue of mental or emotional

212

stress at the time of the crimes.

Ail/ continued

officer, best summed up the prevailing

view of these affiants when he observed:

In all of the years that I

have observed deviant be-

havior as a police officer, I

have never seen anyone do

something like David has done,

with the history and character

that David has. [J.A. 365].

12/ At Pet. App. 326, a portion of the

Gistrict court's opinion containing this

quote is omitted. The full passage can be

found on page 58 of the record in the

Court of Appeals and is as follows

(omitted portions are underscored):

Investigation in the psy-

chiatric areas would undoubt-

edly have produced information

relevant to the issue of mental

Or emotion stress. s is

evidenced by review of the

(footnote continues on following page)

@13<

(Pet. App. 9).'3 In brief, the psychia-

trist and the psychologist concluded

that, while Mr. Washington was legally

Sane at the time of the crimes, his

violent actions were attributable to the

uncontrollable eruption of long-suppressed

- feelings of self-hatred and anger generated

by exposure to extensive child abuse,

incest and a broken and violent family

situation, combined with the severe

frustration and depression concerning his

financial problems. Both doctors noted

12/ , continued

affidavits from friends, rela-

tives and medical personnel

Oo examined the petitioner

in recent years.

13/ After the hearing, respondent sub-

Mitted the affidavit of a second psychia-

trist to the district court. This psychia-

trist reported that, at the time of the

crimes, Mr. Washington was under the

influence of extreme mental or emotional

disturbance, and that he was unable to

conform his conduct to the requirements of

the law. [See note 7, supra). [J.A.

495-503) ~~

-14-

that Mr. Washington expressed substantial

remorse during their interviews with him.

[J.A. 6-9; 10-16).

Based on this record, the district

court found: (1) that counsel “made an

error in judgment” by failing to conduct

an adequate investigation into factors

relevant to the mitigation of Mr. Washing-

ton's sentence, and (2) that such an

investigation “would have produced general-

ly favorable information from family,

friends, former employers, and medical

experts," [Pet. App. 282-83], about Mr.

Washington's character, background, social

history, and mental state at the time of

the crimes. But for Mr. Tunkey's failure

to seek out mitigation witnesses, this

evidence would have been before the

tribunal that decided whether Mr. Washing-

ton was to live or die.

Despite these findings, the district

court denied “he petition because it

-15-

concluded that a death-sentenced prisoner

must shoulder the additional burden of

establishing that the outcome of the sen-

tencing hearing would have been different

in the absence of counsel's derelictions of

duty. [Pet. App. 286]. In reaching this

conclusion, the district court employed a

Standard established by the plurality

opinion in United States v. Decoster,

624 F.2d 196 (D.C. Cir. 1979) (en banc)

(Decoster III) and considered, but did not

treat as determinative, the testimony of

the sentencing judge who believed he would

have still imposed the death sentence “even

if he had considered the live testimony of

character and psychiatric witnesses."

[Pet. App. 285].

On appeal, a divided panel of the

court of appeals reversed the judgment and

remanded the case to the district court

with directions to determine whether

counsel's representation at the sentencing

-16<

phase had been ineffective and whether

Mr. Washington had established prejudice

“-- i.e., "that but for his counsel's

ineffectiveness, the sentencing phase, but

not necessarily its outcome, would have

been altered in a way helpful to him.”

The panel also held that, even if respond-

ent satisfied this burden, the State could

still show beyond a reasonable doubt that

counsel's ineffectiveness was harmless and

did not contribute to respondent's sentence.

Washington v. Strickland, 673 F.2d 879,

14

906 (5th Cir. 1982) (Unit B).

5

The en banc court of appeals’ agreed

14/ The panel directed the district court,

Tn assessing prejudice, “not [to] take into

consideration [the sentencing judge's] tes-

timony as to his mental processes in sen-

tencing Washington or his speculation on

how these processes might have differed had

additional evidence been presented to him.”

Id.

15/ Six separate opinions were issued by

the en bane court of appeals. Eight

members of the court rejected the outcome-

determinative standard of prejudice while

three judges would have adopted that test.

@1Jo

with the panel that the case should be

remanded to the district court for further

findings on whether counsel's lack of

investigation constituted ineffective

assistance. The court of appeals held

that, in assessing whether counsel breached

the duty to investigate, the district court

should decide whether the failure to inves-

tigate was based on a reasonable strategic

choice to pursue one line of defense at the

expense of another. [Pet. App. 54-55].

The court of appeals also held that, should

counsel be found ineffective, the district

court should then separately assess whether

the habeas petitioner has established pre-

judice -- i.e., “actual and substantial

disadvantage to his defense.*'®

[Pet.

App. 75, 81]. Finally, it held that, if

the district court found actual and

16/ This standard of prejudice is derived

from United States v. Prady, 456 U.S. 152,

170 ( °

-18-

substantial disadvantage, the State was

still to be afforded the opportunity to

establish that the ineffectiveness of coun-

sel was harmless beyond a reasonable doubt.

[Pet. App. 76, 82-83]. The en banc court

agreed with the panel (see note 14, supra)

that the portion of the sentencing judge's

testimony relating to his mental processes

in reaching the verdict was inadmissible

and should not be considered by the

district court on remand. [Pet. App..

76-81).

SUMMARY OF ARGUMENT

I. The federal courts were not bound

by the state court determinations of effect-

ive assistance of counsel in this case. The

State courts held no evidentiary hearings

and made no determinations that could

be termed findings of fact to be presumed

correct under 28 U.S.C. § 2254(d). Rather,

the district court appropriately made

-19-

initial findings of fact and the court of

appeals acted correctly in independently

addressing an issue of federal constitu-

tional law under the Sixth Amendment.

II. Claims of ineffective assistance

of counsel should be measured by Sixth

Amendment principles. Thus, petitioners

and, to some extent, the en banc court are

in error in relying on principles derived

from due process and procedural default

cases. While the Due Process Clause guaran-

tees a fair trial, the Sixth Amendment

posits that assistance of counsel is a

precondition to a fair trial. And the

Court's procedural default decisions presume

both a fair trial and competent counsel.

Similarly, the Court should reject

the en banc court's rigid and categorical

approach to claims of ineffective assist-

ance of counsel. Assertions of inadequate

performance by counsel arise in a variety

-20-

of factual settings; categorical rules

would necessarily be imprecise and would

divert the courts from the central inquiry

of whether counsel has, in a particular

case, performed within the range of compe-

tence expected of criminal attorneys.

Rather, the court should set forth the

governing factors, inherent in fundamental

Sixth Amendment principles, that should

guide the exercise of judgment by the lower

courts in these fact-specific assessments.

These factors are derived from the basic

functions counsel serves: He is a “guiding

hand" to the accused through the legal pro-

cess and a critical leg of the adversary pro-

cess, a counterweight to the prosecutor. An

attorney must, therefore, discharge certain

basic responsibilities. He must: (1) func-

tion as an active advocate, providing "[u]n-

divided allegiance and faithful, devoted

service to a client." VonMoltke v. Gillies,

332 U.S. 708, 725 (1945); (2) act

-21-

as an informed advisor by providing the

lawyer's skilled perspective on the case;

and (3) conduct an adequate factual and

legal investigation in order to be able to

fulfill this advisory role in a proper

manner.

The responsibility must be adequately

discharged at sentencing as well as at

trial. Particularly in the area of capital

sentencing, effective counsel serves to

ensure an individualized determination of

life or death based on the character and

background of the offender and the circum-

stances of the offense. Zant v. Stephens,

__. US» __, 103 S.Ct. 2733 (1983).

To prevail on a Sixth Amendment claim

of ineffective assistance, a defendant must

establish an adverse impact on the presen-

tation of the case or other impairment to

the defense from counsel's errors, not

that the outcome would have been different

with adequate counsel. The outcome-

-22-

determinative test is wholly inappropriate:

It forces the federal courts to retry

issues of guilt and penalty and to specu-

late on how the record might have been

different and how these differences might

have altered the perceptions of the ori-

ginal trier of fact. Instead of principled

decisions focusing on an attorney's perfor-

mance, the outcome-determinative test would

generate a series of subjective judgments

as to whether a person was properly con-

victed or sentenced. These would provide

no guidance to conscientious counsel or

reviewing courts.

In applying a standard of prejudice

that focuses on the impairment to the

defense, courts will necessarily be guided

by certain facto.s: (1) the extent to

which the defect in counsel's performance

deprives the defendant of the essential

attributes of counsel; (2) whether coun-

sel's errors resulted in an improverish-

-23-

ment of the record; (3) the pervasiveness

of counsel's derelictions; and (4) the

nature and seriousness of the issues at

stake.

The application of these principles to

the present case demonstrates that the

judgment below should be affirmed. Although

the stakes were life or death, counsel

failed to act as a zealous advocate, but

rather ceased preparation for respondent's

sentencing hearing out of a sense of hope-

lessness and despair. Because counsel had

not conducted adequate investigation and

preparation, he was in no position to pro-

vide the “guiding hand" that his client

needed to make informed strategic choices.

These derelictions fundamentally skewed

the sentencing process because they

deprived the sentencer of indispensable,

individualized information about the

accused, Zant v. Stephens, U.S. ’

103 S. Ct. 2733, 2743-44 (1983), that has

-24-

frequently been determinative in Florida

capital sentencing decisions. Barclay v.

Florida, G8, _, 103 6. Ct. BEE

(1983).

III. The court of appeals correctly

held that the state trial judge's testi-

mony that the outcome would not have been

affected should have been excluded at the

habeas hearing. This testimony was irrel-

evant to the proper standard of prejudice

under the Sixth Amendment. In addition,

testimony about a judge's mental processes

is inadmissible under Fayerweather v.

Ritch, 195 U.S. 276 (1904) and its progeny.

A contrary result would inevitably allow

probing inquiries during federal habeas

proceedings into the mental processes of

judges and juries. Nor could the post hoc

testimony of the state sentencing judge

possibly comply with the requirement of

reliability in capital sentencing.

@25<

ARGUMENT

I

THE COURT OF APPEALS WAS CORRECT

IN MAKING AN INDEPENDENT DETER-

MINATION OF THE RESPONDENT'S CLAIM

THAT HE WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL

UNDER THE SIXTH AMENDMENT

Petitioners raise a threshold contention

that the federal court should have accorded

presumptive validity to the state court

determination that the respondent was not

deprived of the effective assistance of

counsel, [Pet. Br. 84). Petitioners are

seriously mistaken in their view that the

federal courts were bound by the state court

findings.

First, the state court determination

regarding counsel's effectiveness is not a

presumptively correct finding of fact under

28 U.S.C. §2254(d). Section 2254(d) applies

only to "basic, primary, or historical

facts." Townsend v. Sain, 372 U.S. 293, 309

n. 6 (1963), (quoting Brown v. Allen, 344

-26-

U.S. 443, 506 (1953) (opinion of Frankfurter,

J.)). In contrast, the issue of whether

counsel's representation violated the Sixth

Amendment involves “a legal standard, by

definition normative and prescriptive, which

must be applied to a particular set of

facts." Walker v. Cardwell, 476 F.2d 213,

216 (Sth Cir. 1973); Adams v. Jago, 703 F.2d

970, 978 (6th Cir. i983). Thus, the resolu-

tion of whether a person has been denied the

effective assistance of counsel is a mixed

determination of law and fact that “is open

to review on collateral attack in a federal

court.” Cuyler v. Sullivan, 446 U.S. 335,

342 (1980). C£&. Marshall v. Lonberger,

U.S. __, 103 S.Ct. 843, 849 (1983); Brewer

v. Williams, 430 U.S. 387, 403-04 (1977).

Second, it is well-settled that the

federal courts have a clear, independent

responsibility to decide such questions of

=27<

federal constitutional law, |? without

being bound by the state court's decision.

Summer v. Mata, 455 U.S. 591, 597 (1982);

Brown v. Allen, 344 U.S. 443, 458-59 (1953).

See also, Wainwright v. Sykes, 433 U.S. 72,

87 (1977). Consequently, the federal courts

were correct in making an independent deter-

mination of the respondent's claim that he

was deprived of the effective assistance of

counsel guaranteed by the Sixth Amendment.

17/ The conclusion to be drawn from the

record in the present case regarding the

effectiveness of counsel's representation is

purely legal in nature and does not involve

the reesTatton of any factual determinations

or matters of credibility, since the state

courts did not conduct any evidentiary

hearing where facts were in conflict

or credibility at issue. Compare, Maggio v.

Fulford, U.S. ey _103 See. 226T, 2262

). The absence of any development in

the state court of the pertinent facts

regarding counsel's actions outside of the

courtroom also required the district court

to conduct an evidentiary hearing pursuant

to the mandate of Townsend v. Sain, 372 U.S.

293 (1963). See also, Machibroda v. United

States, 368 U.S. 457, 454-55 (1562). Petition-

ers’ argument that such a hearing was not

necessary Or appropriate [Pet. Br. 57, 62]

is plainly without merit.

-28-

II

A CLAIM OF INEFFECTIVE ASSISTANCE IS MADE

WHEN A DEFENDANT SHOWS: (1) THAT HE DID

NOT RECEIVE REPRESENTATION WITHIN THE

RANGE OF COMPETENCE DEMANDED OF ATTORNEYS

IN CRIMINAL CASES AND (2) THAT COUNSEL'S

FAILINGS IMPAIRED THE PRESENTATION OF HIS

DEFENSE WITHOUT REGARD TO WHETHER THE OUT-

COME WOULD NECESSARILY HAVE BEEN DIFFERENT

The en banc court of appeals reached

the correct result on the merits. We do

not, however, support all of the en banc

court's reasoning. As suggested below, the

en banc court's rigid, categorical approach

to the issue of counsel's duty to investigate

is neither necessary nor helpful, and

creates further complications in an area

that is already less than clear. In addi-

tion, the en banc court's standard of

prejudice is less satisfactory than that

followed by several circuits and adopted

in substantial part by the panel. We

therefore set forth the Sixth Amendment

principles that we believe should govern

this case. In the course of this presenta-

-29-

tion, we will encounter and dismiss at the

threshold petitioners' arguments, which

essentially ask the Court to eviscerate the

Sixth Amendment and disincorporate its

provisions from the Fourteenth Amendment.

A. The Sixth Amendment is Violated B

Representation That Falls Outside

The Range of Competence Demanded

of Attorneys in Re tainal Cases

The Sixth Amendment to the Constitution

guarantees that "[{i]n all criminal prosecu-

tions, the accused shall enjoy the right

+ « « to have the Assistance of Counsel for

hiss defence." U.S Const. amend. vz. 18 The

Court has frequently emphasized the “funda-

mental” nature of this constitutional pro-

vision, Gideon v. Wainwright, 372 U.S. 335,

343-44 (1963), since "“[t]he assistance of

i18/ This right is secured for defendants in

State as well as in federal criminal pro-

ceedings. Gideon v. Wainwright, 372 U.S.

335 (1963). Gideon etgnalien a sharp depar-

ture from the Court's analysis of the right

to counsel in state proceedings solely under

the Fourteenth Amendment's Due Process

Clause. Betts v. Brady, 316 U.S. 455 (1942).

- 30 -

counsel is often a requisite to the very

existence of a fair trial." Argersinger v.

Hamlin, 407 U.S. 25, 31 (1972). See, e.g.,

Cuyler v. Sullivan, 446 U.S. at 344; Johnson

v. Zerbst, 304 U.S. 458, 462 (1938); Powell

v. Alabama, 387 U.S. 45, 67 (1932).

The theme of the Court's Sixth Amend-

ment decisions is that a lawyer is a precon-

dition to a fair trial, |? not simply one

element of a fair trial. Cuyler, 446 U.S.

at 443-44. Therefore, the petitioners are

wrong in contending that the issue in this

case is solely one of fundamental fairness

under the Due Process Clause. (Pet. Br. 16].

Indeed, the petitioners are doing noth-

ing less than inviting the Court to resur-

rect the analysis of Betts v. Brady, supra,

19/ The fundamental nature of this consti-

tutional guarantee is reflected in the Court's

view that the assistance of counsel is cne of

the "rights so basic to a fair trial that their

infraction can never be treated as harmless

oo". 32 an v. California, 386 U.S. 18,

n. oa

-31i-

a decision repudiated in Gideon as "an

anachronism when handed down." 372 U.S.

at 345. Developments since Gideon firmly

establish that vindication of the right

to counsel is not dependent upon whether

the proceeding is characterized as fun-

damentally unfair, compare United States

v. Wade, 388 U.S. 218 (1967) (Sixth Amend-

ment right to counsel) with Stovall v. Denno,

388 U.S. 293 (1967) (Due Process Clause),

but on whether inadequate counsel violated

the accused's Sixth Amendment rights. °°

Purthermore, the reversion to Betts v.

20/ Smithburn and Springmann, Effective

Assistance of Counsel:

Pitzharris, 586 F. ‘2d 1325, 1329

en banc), cert. denied, 446 U.S.

974 (1979) See also Moore v. United

States, 432 F.2d 7350, 737 (3rd Cir. 1970)

(en banc). Por these reasons, petitioners'

reliance on a variety of cases decided

under the Due Process Clause -- United

States v. Agurs, 427 U.S. 97 (1976); Smith

~ Vo llips, 5 U.S. 209 (1982); Cu Vv.

McNaughten, 414 U.S. 141 (1973) == is

Misplaced.

-32-

Brady, would, as petitioners candidly con-

cede, (Pet. Br. 77], thrust federal courts

into the morass of the "farce and mockery”

test, a quagmire the Court clearly sought

to avoid in formulating an objective

standard of effectiveness under the Sixth

Amendment in McMann v. Richardson, 397

U.S. 759, 771 (1970). See also Tollett v.

Henderson, 411 U.S. 258, 266 (1973).*"

The Court's decisions on the scope of

review in collateral proceedings of trial

errors to which no contemporaneous objec-

tion was made, upon which petitioners rely

heavily [Pet. Br. 71-75, 87-94], provide

no support for their contention. See,

21/ While many courts have followed the

test in McMann, several state courts and the

Second Circuit (see Appendix B), still

adhere to the archaic "farce and mockery"

approach derived from Betts. Comment,

Defects In Ineffective Assistance Standard

Used by state courts, 50 U. col. L. Rev.

359, tbe (T1575). See also Comment, Effective

om

Assistance of Counsel: A Constitutiona

Bight in Transition, 10 Val. LC. Rev. 509,

=@33@

e.g., Wainwright v. Sykes, 433 U.S. 72

(1977); Engle vy. Isaac, 456 U.S. 107 (1982),

and United States v. Prady, 456 U. S. 152

(1982) [Pet. Br. 71-75; 87-90]. None of

these cases involves a challenge to the ade-

22,

quacy of counsel. o the contrary, all of

the Court's procedural default cases assume

the presence of competent counsel.??rn

these cases, the Court considered the cir-

cumstances under which courts on collateral

22/ In Wainwright v. Sykes, the prisoner

had waived any allegation relating to

ineffective assistance of counsel at his

trial. Id., 433 U.S. at 75 n. 4, and the

Court did not address this issue. 433 U.S.

at 88 n. 12.

23/ In Wainwright v. Sykes, both Justices

Stevens and White assumed the presence of

competent counsel. Id., 433 U.S. at 96

(Stevens, J., concurring) ("(C]ompetent

trial counsel could well have made a deliber-

ate decision not to object to the admission

of the respondent's in-custody statement") ;

id., 433 U.S. at 99 (White, J., concurring)

(deliberate bypass unless record demonstrates

that services of counsel were not “within

the McMann reasonable competence standard").

See also United States v. Davis, 411

+S. , 204 Mm. 1 (1973); Fay v. Noia, 372

U.S. 391, 439 (1963).

-34-

review would assess the merits of federal

constitutional claims even though there

had been procedural defaults by competent

counsel in state or federal trial courts.

The rationale of these cases is obviously

irrelevant to ineffectiveness claims*4

and contains no hint of the bold extension

sought by petitioners.*>

In short, the petitioners' proposed

regression to Betts v. Brady and the "farce

24/ Note, A Functional Analysis of the

Effective Assistance of Counse Olum.

L. R@V. 1053, 1060 53 (1980). we

’ ne

anything, the Court's observation in Engle

vy. Isaac that “the Constitution guarantees

criminal defendants only a fair trial and a

competent attorney,” 456 U.S. at 134 (empha-

sis added) belies the petitioners' conten-

tion that that there is no distinct Sixth

Amendment interest in the performance of

counsel apart from whether a defendant

received a fair trial.

25/ In fact, these decisions provide com-

pelling reasons for ensuring representation

by competent counsel, since federal consti-

tutional rights could otherwise be forever

waived through attorney error, neglect or

indifference rather than as a consequence of

the exercise of “reasonable professional

judgment." Jones v. Barnes, _—°U.S. __s,

-35-

and mockery” test is wholly at odds with the

development of the Sixth Amendment guarantee

in the Court.?®

1. The Basic Functions of Counsel in

Criminal Proceedings Have Been

The principal functions of counsel in

the criminal process have been established by the

Court in right to counsel cases. The repeated

theme of these decisions is that counsel serves

"as a guide through complex legal technicalities"

26/ One final assertion by petitioners need

only be briefly mentioned. Respondent is

not challenging the substantive propriety of

his death sentence. ([Pet. Br. 62-63).

Every court -- state and federal -- that has

reviewed this case has recognized that the

focus of respondent's claims is on deficien-

cies in the sentencing proceedings as a

consequence of inadequate counsel. This is

Clearly a proper challenge to a death

sentence in federal court: "“"[T]he defendant

has a legitimate interest in the character

of the procedure which leads to the imposi-

tion of sentence even if he may have no

right to object to a particular result of

the sentencing process." Gardner v. Florida,

430 U.S. 349, 358 (1977) Temphasis added).

See also, Townsend v. Sain, 334 U.S. 728,

741 (1948).

=-36-

for the lay person, United States v. Ash, 413

U.S. 300, 307 (1973), and as a counterweight in

the adversary system to the creation of a pro-

fessional prosecuting official. Id. at 309.

The “guiding hand of counsel” is imper-

ative to assist the accused layperson in

understanding the nature of his case. As

Justice Sutherland recognized in Powell v.

Alabama:

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 intelli-

gent and educated layman has small

and sometimes no skill in the sci-

ence of law. If charged with crime,

he is incapable, generally, of

determining for himself whether

the indictment is good or bad. de

is unfamiliar with the rules of

evidence. Left without the aid of

counsel he may be put on trial

without a proper charge, and con-

victed upon incompetent evidence,

or evidence irrelevant to the issue

or otherwise inadmissible. He

lacks both the skill and knowledge

adequately to prepare his defense,

even though he have a perfect one.”

See also Geders v. United States, 425 U.S.

80, 88 (1970); Tomkins v. State of Missouri,

=37=

323 U.S. 485, 489 (1945); Williams v.

Kaiser, 323 U.S. 471, 475-76 (1945);

Johnson v. Zerbst, 304 U.S. at 463.

Counsel enables the accused to assess

the charges and potential defenses so that

the defendant may intelligently understand

the options available to him. Hamilton v.

Alabama, 368 J.S. 52, 55 (1961). Counsel

does so by applying a specialized ability

to integrate a knowledge of the law with an

assessment of the relevant facts to determine

how the accused can best present his defense.

Counsel also protects the accused against an

erroneous or improper prosecution by vigor-

ously examining witnesses, probing tor

evidence, developing facts, making legal

arguments and generally requiring that the

prosecution be put to its legal proof.

Coleman v. Alabama, 399 U.S. 1, 9 (1970).

To protect the accused adequately, "the

guiding hand of counsel" must be available

"at every step in the proceedings against

-38-

him." Powell v. Alabama, 287 U.S. at 69.

See also Estelle v. Smith, 451 U.S. 454,

471 (1981); Coleman v. Alabama, 399 U.S. at

7; United States v. Wade, 388 U.S. at

224-226.

Consequently, counsel is not a supple-

ment to other constitutional rights; he is

an indispensable figure charged with ensur-

ing that all other constitutional and

procedural protections afforded the accused

are fully preserved. The right to counsel

is sui generis; “there is no right more

essential than the right to assistance of

counsel..." Lakeside v. Oregon, 453 U.S.

333, 341 (1978), because “it affects [an

accused person's) ability to assert any

Other rights he might have." Schaefer,

Federalism and State Criminal Procedure,

70 Harv. L. Rev. 1, 8 (1956).

Besides performing an essential role

for the accused, defense counsel's parti-

cipation in the criminal process is criti-

-39-

cal to the integrity and fairness of the

adversary system. Brewer v. Williams, 430

U.S. 387, 398 (1977); United States v.

Morrison, 449 U.S. 361, 364 (1981). The

adversary system assumes the presence and

active involvement of three participants --

the judge, prosecutor and defense counsel

-- who will discharge their respective

responsibilities conscientiously and

27

effectively. United States v. Ash,

413 U.S. at 309. See also Johnson v.

Zerbst, 304 U.S. at 462; Gideon v. Wain-

wright, 372 U.S. at 344. Partisan advocacy

by defense counsel and the prosecutor

27/ The Chief Justice has metaphorically

compared the criminal justice system to a

tripod with the court, the prosecutor and

defense counsel as the legs. Inadequate

legal representation for a criminal defen-

dant severely impairs this system by

effectively removing one of the legs.

Proceerie At The 1969 Judicial Confer-

ence Mited sta tes Court of A ais

° (1969).

roject On Standards Por

teiminal Justice, Standard -$ 1 Relating

to the Defense Punction, ~1(a » ed

T9580).

-40-

serves to promote the fact-finding objec-

tives that are necessary to proper determ-

inations in the adversary system. Herring

v. New York, 422 U.S. 853, 862 (1975).

See also Polk County v. Dodson, 454 U.S.

312, 318 (1981); United States v. Nobles,

422 U.S. 225, 230 (1975).

In sum, the dual functions of counsel

underscore the critical role of the effec-

tive assistance of counsel in the criminal

process. As we show below, they also sug-

gest the standards by which claims of in-

effective assistance should be determined.

2. Effective Counsel Must Discharge

Certain Basic Duties That Derive

Directly Prom the Functions He

Fulfills in the Criminal Process

At the outset, we note the parameters

established by the decisions of the cir-

cuits and the implications of the Court's

Sixth Amendment cases. On one hand, the

basic purposes of the Sixth Amendment

guarantee of counsel must require more

-41-

than the mere formal appointment or phys-

ical presence of counsel. See Holloway v.

Arkansas, 435 U.S. 475, 489-90 (1978);

Avery v. Alabama, 308 U.S. 444, 446

(1940); White v. Ragen, 324 U.S. 760

(1945); Powell v. Alabama, supra. °°

On the other hand, the Constitution does

not require errorless counsel, Parker v.

North Carolina, 397 U.S. 790, 797 (1970);

McMann v. Richardson, 397 U.S. at 771, nor

does it compel counsel to recognize and

raise every conceivable claim or defense.

Engle v. Isaac, 456 U.S. at 134. "[(C]oun-

sel for a criminal defendant is not

required to pursue every path until it

bears fruit or until all conceivable hope

withers." Lovett v. Florida, 627 F.2d

706, 708 (Sth Cir. 1980). Rather, counsel

must provide assistance “within the range

As A Basis For Relie

rincip =. aot Ere - ate Rev <r 7) um.

L.J. an Pr.

-42-

of competence demanded of attorneys in

criminal case." McMann v. Richardson,

29

397 U8. at T71. Accord Tollett v.

Henderson, 411 U.S. 258, 266 (1973). This

encompasses the level of competency pro-

vided by attorneys with knowledge, skill,

judgment and diligence in the sound prac-

tice of criminal law. See also Cooper v.

Pitzharris, 586 F.2d 1325, 1330 (9th Cir.

1978) (en banc), cert. denied, 440 U.S.

974 (1979); Moore v. United States, 432

F.2d 730, 736 (3d Cir. 1970) (en banc).

Thus far, the Court has not fleshed

out the details of that responsibility;

29/ In McMann, the Court did not des-

Cribe the standard in any more detail,

preferring to leave its development “to

the good sense and discretion of the trial

courts." Id. at 771. With the exception

of the Second Circuit, which still adheres

to a “farce and mockery" test, the courts

of appeal have uniformly adopted an objec-

tive standard for assessing counsel's per-

formance that is identical or similar to

that announced in McMann. The standards

in each circuit are set forth in Appendix

B.

-43-

it has not formulated any list of specific

duties for determining whether counsel has

been reasonably competent. Nor in respon-

dent's view would it be necessary or wise

to do so. To implement an exhaustive list

of categorial rules, as the en banc court

attempted, would not provide sufficient

guidance for the state and federal courts

that must apply the Sixth Amendment guar-

antee in a wide variety of factual settings.

The rules would of necessity be imprecise,

and would divert the courts from the prin-

cipal inquiry: whether the actions or

inactions of counsel in a particular case

were that which a reasonably competent

lawyer, faced with similar circumstances,

would have undertaken. See Washington

v. Watkins, 655 P.2d 1346, 1356 (Sth Cir.

1981). Rather, courts should retain the

discretion to utilize a broad range of

sources, including the American Bar Asso-

ciation (ABA) Model Rules of Professional

-44-

Conduct, >” or the ABA Standards for

Criminal Justice (2d. ed 1980),°' prece-

30/ See Jones v. Barnes, 103 S.Ct. at 3313

mn. 6; Cuyler v. Sullivan, 446 U.S. at 346

Re We

31/ Although these standards do not define

Minimal constitutional criteria, Jones v.

Barnes, 103 S.Ct. at 3313 n. 6, the Court

has trequently noted their relevance in

assessing the responsibilities of defense

counsel under the Sixth Amendment. Id.,

103 S.Ct. at 3312. Holloway v. Arkansas,

435 U.S. at 486 n. 9; Cuyler v. Sullivan,

446 U.S. at 346 n. 11. a contrast, some

courts have adopted specific obligations

for defense counsel, many of which are

drawn from these standards. See, e.g.,

State v. Perez, 98 Idaho 181, 154, +

P.2d 127, 129 (1975); State v. Hester, 45

Ohio St.2d 71, 79, 341 N.B. 2d 304, 310

(1976); Baxter v. Rose, 523 S.W. 2d 930,

936 (Tenn. 1975); State v. Harper, 57

Wis. 2d 543, 557, 205 N.W. at 3

(1973); Marzullo v. State of Maryland,

561 F.2d 540, 544 (4th cir. 1977).

Several commentators have urged the

adoption of these or other precise criteria

to measure counsel's performance under the

Sixth Amendment. See, e.g., Levine, Toward

Competent Counsel, 13 Rutgers L. Rev. 227

SELIE Erickson, Standards Of Competenc

Por Defense Counsel In A Criminal Tre +7

. Crim. L. Rev. 23535 (1980); Smithburn

and Springmann, supra n. 20; Lasater, The

Role of Harm in ective Assistance of

Counsel cases: Procedure and Policy, 32

Syracuse L. nev. 159 (1961).

-45-

dent from state and federal courts, expert

testimony, and other information that

could assist in the objective determina-

tion of the normal range of competency of

attorneys in criminal cases.

What the Court's precedents do indi-

cate, however, is that the Sixth Amendment

guarantee requires counsel to discharge

certain basic responsibilities in every

criminal proceeding. It is against these

responsibilities that counsel's competence

and effectiveness must be measured. |

First, as the Solicitor General con-

cedes [S.B. 13], counsel must give “[u]n-

divided allegiance and faithful, devoted

service to a client." VonMoltke v.

Gillies, 332 U.S. 708, 725 (1945) (plural-

ity opinion). See also Ferri v. Ackermann,

444 U.S. 193, 204 (1979); Cuyler v. Sulli-

van, supra; Holloway v. Arkansas, supra.

While there is no guarantee of a "'meaning-

ful relationship' between an accused and

-46-

his counsel,” Morris v. Slappy, 0.8.

___» 103 S.Ct. 1610, 1617 (1983), the

Sixth Amendment still requires an attorney

to pursue the defense as "an active advo-

cate in behalf of his client." Anders v.

California, 386 U.S. 738, 744 (1967). See

also Entsminger v. Iowa, 386 U.S. 748, 75

(1967). Therefore, responsible, competent

counsel must be an advocate, devoted to

serving his client's interests vigorously

in an adversary proceeding. °*

32/ Commentators have recognized the

threat to the adversary system posed by

ineffective defense counsel. See, e.g.,

Note, Identifying and Remedyin treftec-

tive Assistance of criminal Serense

Counsel: A New Look After United states

v. De Coster, 3 Harv. ob. Rev.

SELOK Schwarzer, Dealing With Incom etent

Counsel: The Trial” Jud a5 Role, 92 cea

L. Rev. versary pro-

cess ceases to function when lawyers are

not competent); Comment, A Standard For

The Effective Assistance o ounsel,

ake Fores ev. ;

Comment, Effective Assistance of Counsel:

A Constitutional Right In Transition, 10

ali. . ev. ’ com ; ner,

Ineffective Assistance of Counsel, 58

orne » Rev. P .

-47-

Second, counsel must bring an informed

grasp of the facts and law to his decision-

making on the wide range of issues con-

fronting the accused. The “reasonably

competent advice" demanded of counsel by

33

McMann v. Richardson, 397 U.S. at 770,

is the keystone of effective assistance,

"lest the accused concede that which only

bewilderment or ignorance could justify or

pay a penalty which is greater than the

law of the State exacts for the offense

which [he] in fact and in law committed."

Tompkins v. State of Missouri, 323 U.S. at

489. The accused is effectively deprived

33/ Petitioners miss the point of McMann

In suggesting that the obligations of coun-

sel set forth in that decision are limited

to guilty plea cases. [Pet. Br. 78-79;

82-83]. The decision is not limited by

its terms to guilty plea cases nor is

there any sound constitutional or logical

reason for assessing counsel's adequacy

under a different standard when the defen-

dant goes to trial. The teaching of McMann

is that reasonably competent advice is a

precondition to the “guiding hand” role

of counsel at all stages of the criminal

process.

-48-

of the “guiding hand" of counsel unless

counsel provides the defendant with advice

predicated on a basic understanding of the

application of the law to the relevant

facts.

Third, it necessarily follows from

counsel's role as advisor and “guiding hand"

that an attorney “must make an independent

examination of the facts, circumstances,

pleadings and laws involved" in order to

be in the position to exercise sound pro-

fessional judgment for the accused. Van

Moltke v. Gillies, 322 U.S. at 721; Powell

v. Alabama, 287 U.S. at 57. See also

Brewer v. Williams, 430 U.S. 387, 398

(1977); Tollett v. Henderson, 411 U.S. at

266-67. The consensus of the circuits on

this point is well-expressed in Moore v.

United States, 472 F.2d at 735:

The careful investigation of a case

and the thoughtful analysis of the

information it yields may disclose

evidence of which even the defendant

is unaware and may suggest issues

-49-

and tactics at trial yoich would

otherwise not emerge.

Without preparation to unearth the factual

bases of the case, counsel cannot “act as a

spokesman for, or advisor to, the accused,"

United States v. Ash, 413 U.S. at 312 or

"protect [him] from conviction resulting

from his own ignorance of his legal and

constitutional rights." Johnson v. Zerbst,

304 U.S. at 465. Gaines v. Hopper, 575

F.2d 1147, 1149-50 (5th Cir. 1978). With-

out adequate investigation, counsel is

34/ Moore and numerous other decisions in

the circuits explicitly state what McMann

strongly intimates -- the Sixth Amendment

guarantee requires an attorney to obtain

"the legal and factual information he needs

to appreciate the decisions he must make."

Tague, The Attempt To Improve Criminal

Defense 51s Ly s Am. crim. L. Rev.

’ <a" . ee e. . Goodwin Vv.

Balkcom, 684 F.2d 794, 505 tite Cir. 1982),

cert. denied, U.S. , 103 S.Ct. 1798

(1583); Wood v. Zahradnick, 578 F.2d 980,

982 (4th Cir. 1978); Wolfs v. Britton, 509

F.2d 304, 309 (8th Cir. 1975); Beasley v.

United States, 491 F.2d 687, 696 (6th ies

1974). See also Schwarzer, supra, note 31,

at 654 (Adequate preparation es at the

heart of a competent trial performance).

-50-

little more than a companion for the hap-

less layperson as he wanders through the

intricacies of a criminal trial to a fore-

ordained result.°>

For these reasons, the assumption of

the en banc court that, in certain instances,

counsel can make a reasonable choice among

alternative strategies without conducting an

adequate investigation is inconsistent with

35/ As the Fifth Circuit aptly observed:

[A]ny experienced trial lawyer knows

that a purported trial without ade-

quate preparation amounts to no trial

at all. Brooks v. Texas, 381 F.2d

619, 625 (5th Cir. T1967).

See also McQueen v. Swenson, 493 F.2d 207,

215-10 (8t ir. 1974).

The adequacy of counsel's investigation in

particular circumstances must turn on the

specific facts of the case and does not

lend itself to the categorical rules that

the en banc court of appeals sought to

formulate. The scope of investigation

will vary according to the nature of the

prosecution's case, the seriousness of the

charges, the complexity of the issues and

the extent of the colorable defenses to

the charges. Washington v. Watkins, 655

F.2d at 1356; United States Vv. Tucker, 716

F.2d 576, 584 (Sth cir. 1963).

-5i-

Sixth Amendment principles. [Pet. App. 53-

54). This assumption is squarely at odds

with Powell v. Alabama, 287 U.S. at 58, and

Von Moltke v. Gilles, 322 U.S. at 721, both

of which indicate that a reasonable investi-

gation is the prerequisite to an informed

tactical decision. “Strategic” decisions of

an attorney without reasonable investigation

and preparation of the pertinent facts and

law amount to nothing more than uninformed

speculation. °°

A court cannot, and should not, conjure

up a meaningful tactical judgment or stra-

tegic choice by a lawyer who is too factu-

36/ See ABA Project on Standards for Crim-

Inal Justice, Standards Relating to the

Defense Function 4-4.1(2d ed. EEL (Duty To

Investigate); Note, Effective Assistance of

Counsel For The Indigent Detendant, ?6 Harv.

L. nev. 1434, 1439 tT SES) (Competent deci-

sion to omit a possible defense assumes ade-

quate knowledge of the potential of the

defense, which usually depends upon investi~

gation); Sepesezer: Supra, note 31, at page

656 (Only after an adequate investigation of

leads for clearly indicated defenses can

counsel advise his client properly and make

the required tactical decisions).

-52-

ally uninformed to make a competent decision.

Nor should a habeas petitioner have to

negate the possibility that a demonstrable

failure to conduct an adequate investigation

into the relevant law or facts was a stra-

tegic or tactical decision. "“"[T]he crucial

inquiry is not whether appellate judges

can imagine an argument to justify counsel's

decision, but whether the record indicates

that the attorney was aware of the problem,

considered the alternatives, and made a

reascnable choice of the best course of

37 rt he did not, then the fail-

action."

ure to investigate and prepare can only be

attributable to neglect or ignorance of

the accused's interests, and the defendant

has been effectively deprived of the assis-

tance of counsel guaranteed by the Sixth

37/ Comment,

Ks A Basis for

-53-

Amendment. °°

Pickens v. Lockhart, 714

F.2d 1455, 1467 (8th Cir. 1983).

3. Adequate Performance Of The Basic

Duties of Reasonably Competent

Counsel 1S critical TO the Relia-

bility Of Capital Sentencing

Determinations

The basic duties of reasonably compe-

tent counsel described above must be dis-

charged at sentencing as well as at trial.

Gardner v. Florida, 430 U.S. 349, 358

(1977). Because of the critical nature of

the sentencing determination, counsel's

38/ The relative wisdom of counsel's deci-

Sions after adequate investigation need not

be open to review under this standard; the

only pertinent inquiry is whether defense

counsel had a tactical or strategic justifi-

cation that “reasonably competent, fairly

experienced attorneys might agree with or

find reasonably debatable." Finer, supra,

note 31, at 1080. See also Beasley v.

United States, 491 F.2d 687, 696 (6th Cir.

° e production of this evidence

would place a minimal burden on the State,

since the trial counsel “may be unwilling to

cooperate with present counsel" and is "much

more likely to cooperate and consult with

counsel for the State, whose object at the

hearing will be to vindicate his conduct.”

Stanley v. Zant, 697 F.2d 955, 974 (5th Cir.

T5835) tarnold- J., dissenting).

-Sé-

assistance is essential "in marshaling the

facts, introducing evidence of mitigating

circumstances and in general aiding and

assisting the defendant to present his case

as to sentence." Mempa v. Rhay, 389 U.S.

128, 135 (1967). Accord Gardner, 430 U.S.

at 360; Moore v. Michigan, 355 U.S. at 155,

39 Effective assistance must

160 (1957).

include zealous advocacy and an informed

grasp of the law and facts pertinent to

the sentencing issues, based a” an ade-

quate investigation. Cf. Von Moltke v.

40

Gillies, 332 U.S. at 721.

39/ See also United States v. Pinkney, 543

F.2d 308, 514 (D.C. Cir. 1976); Mason v.

Balkcom, 531 F.2d 717, 723 (Sth Cir. 1976);

roject on Standards For Criminal

Justice, Standards Relating To The Defense

Punction, 4-7.10 (poSt-trial motions); 4-56.17

(Sentencing) (2d Ed. 1980).

40/ The drafters of the ABA Standards have

Similarly emphasized the critical need for

counsel to conduct an independent inves-

tigation for sentencing:

The lawyer also has a substantial

(footnote continues on following page)

-55-

Adequate performance of these basic

functions is nowhere more crucial than in

40/ continued

and important role to perform in rais-

ing mitigating factors both to the

prosecutor initially and to the court

at sentencing. This cannot effectively

be done on the basis of broad general

emotional appeals or on the strength of

statements made to the lawyer by the

defendant. Information concerning the

defendant's background, education,

employment record, mental and emotional

Stability, family relationships, and

the like, will be relevant, as will

mitigating circumstances surrounding

the commission of the offense itself.

Investigation is essential to fulfili-

ment of these functions.” Id. at 4-55.

Other commentators repeatedly stress

the need for careful investigation of miti-

gating information for a sentencing hearing.

See, @.g., Dash, The Defense Lawyer's Role

At The entencing Brags of A Criminal Case,

54 F.R.D. 315, 6 ( 2) (In order to pro-

vide effective assistance to his client, the

lawyer must be prepared to present to the

court the most favorable facts relating to

his client's life history, employment record

and, where appropriate, his potential and

prospects for rehabilitation). See also

Comment, Adequacy of a Criminal Defense

Lawyer's Preparation For sentencing, 1961

pep St. L. J. 505, 0068 (investigation

should encompass interviews with the client

and with those who know him best, a dili-

gent search for mitigating information and

inquiry into available programs for reha-

bilitation).

-56-

Capital sentencing proceedings, where vigor-

ous advocacy and investigation are indispen-

sable to the proper fulfillment of the cen-

tral purpose of a valid capital sentencing

scheme -- the individualized determination

of life or death on the basis of the charac-

ter and background of the individual and

the circumstances of the particular offense.

Zant v. Stephens, U.S. __, 102 S.Ct.

2733, 2744 (1983); accord California yv.

Ramos, 0.8. » 103 S.Ct. 3446, 3452-

3453 (1983); Barclay v. Florida, U.S.

, 103 S. Ct. 3418, 3423 (plurality opin-

ion); Eddings v. Oklahoma, 455 U.S. 104,

111-12 (1982); Woodson v. North Carolina,

428 U.S. 220, 304 (1976).*' To ensure that

informed decisions are made as to whether a

person should live or die, it is essential

that the sentencer “have before it all pos-

41/ See genera Goodpaster, The Trial

for Life: ective Assistance of Counsel

Tn Dea ena ases,

299, 323-25 (1983).

-57-

sible relevant information about the indivi-

dual defendant whose fate it must determine”.

Jurek v. Texas, 428 U.S. 273, 276 (1976).

Counsel is certainly in no position to

assist the defendant or the sentencer in

understanding the unique issues at stake in

a capital sentencing hearing unless there

has been an adequate investigation into

potential mitigating information about the

client's individual circumstances and back-

“3 Only after an investigation of

ground.

all available mitigating circumstances can

counsel make an informed decision about what

42/ Goodpaster, supra note 41, at 319:

Where potentially beneficial mitigating

evidence exists and counsel has not

presented it, counsel has precluded the

sentencer from considering mitigating

factors. Through failure to discover

or present such evidence, counsel has

"create(d] the risk that the death pen-

alty will be imposed in spite of fac-

tors which may call for a less severe

penalty. (quoting from Lockett v.

Ohio, 438 U.S. 586, 605 (1975)).

43/ Goodpaster, supra note 42, at 344.

-58-

evidence should be presented to make a con-

vincing case for sparing the defendant's

life. Pickens v. Lockhart, 714 F.2d at 1467.

B. Relief Should Be Granted To A

Detencant who Demonstrates That

Counsel's Serious Derelictions

Impaired the Presentation Of

ense, Ot Neces-

Sarily e Outcome of the Trial

In requiring a showing of prejudice but

rejecting the outcome-determinative test of

DeCoster III, the en banc court acted in a

manner consistent with the Sixth Amendment

principles discussed above. While the Court

has not yet addressed the prejudice question

44

in this context, it has indicated that

44/ Petitioners rely on Chambers v.

Maroney, 399 U.S. 42, 53-54 (T570) to sup-

port a requirement that the defendant show

an effect on the outcome of the proceeding

(Pet. Br. at 93). However, the Court did

not squarely confront the issue in that

case. At that time, the Third Circuit rule

was “that the belated appointment of counsel

is inherently prejudicial and makes out a

prima facie case of denial of effective

counsel, with the burden of proving absence

of prejudice shifted to the prosecuting

(footnote continued on following page)

-59-

only those violations that have “had [an]

adverse impact upon the criminal proceedings”

warrant relief under the Sixth Amendment.

United States v. Morrison, 449 U.S. 361, 367

(1981); cf. Avery v. Alabama, 308 U.S. at

45

452. The en banc covrt erred, however,

in adopting the "actual and substantial pre-

44/ continued

authorities.” United States ex rel. Cham-

bers v. Marone 408 F.cod 1166, 1159-90 (3d

Cir. 1969). Consistent with this analysis,

the court of appeals determined that the

presumption of prejudice was sufficiently

rebutted Sy the State, id. at 1195, a deter-

Mination that was aftirmed by this Court.

Tnerefore, it defies reason for petitioners

to suggest [Pet. Br. 93] that Chambers tac-

itly determined the degree of prejudice in

ineffective assistance cases in a manner at

odds with the court of appeals decision that

this Court affirmed. Indeed, Chambers has

been interpreted as standing solely for the

proposition that the late appointment of

counsel is not per se prejudicial. See,

e.g., Cooper v. FPitzharris, 586 F.2d at 1331.

45/ With the exception of the Fourth and

Sixth Circuits, every court of appeals

requires the petitioner to bear the burden

of showing some impairment to the presenta-

tion of the defense resulting from counsel's

errors. (Appendix ¢). A substantial number

of state jurisdictions require a defendant

to demonstrate prejudice. Erickson, supra,

note 32, 17 Am Cr. L. Rev. at 249 n. ry

-60-

judice" formulation of United States v. Frady,

456 U.S. at 170, because this standard is

foreign to -- indeed, in conflict with --

basic Sixth Amendment principles.

1. Relief Should Be Granted To A

Habeas Petitioner who Demon-

Strates That counsel's serious

Derelictions impaired The pre-

Sentation Of His Defense, Though

Not Necesarily The Outcome Of

His Trial

Virtually without exception, the cir-

cuits' decisions support the adoption of a

standard of prejudice that focuses on whether

counsel's derelictions had an adverse impact

on the presentation of the defense, and the

rejection of a test that inquires into

whether the result would have been altered

in the absence of inadequate counsel. “©

46/ It is noteworthy that most commentators,

while differing over the proper methodology

for analyzing claims of ineffective counsel,

reject the outcome-determinative test as

inconsistent with Sixth Amendment principles.

See, e.g., Note, A New Pocus On Prejudice In

Ineftective Assistance of counsel Cases:

The Assertion Of Rights Standard, 21 Am.

(footnote continues on following page)

-61-

Respondent will first explore why an outcome-

determinative test is unacceptable and will

then explain why a standard of prejudice

that focuses on impairment to the defense is

more closely attuned to basic Sixth Amend-

ment principles.

46/ continued

Crim. L. Rev. 29 (1983) (proposing an

assertion of rights standard that requires

counsel to assert adequately all pertinent

rights of the defendant); Comment, A Coher-

ent Approwc To Ineffective Assistance of

ounse aims, al. Le Rev. 1516

(1983) (proposing a “net diminution" analy-

sis which measures prejudice by whether

there has been a net diminution in the

quality of the attorney's performance) ;

Smithburn and Springmann, supra, 17 Wake

Porest L. Rev. 497 (proposing e develop-

ment of uniform guidelines for assessing

ineffective assistance of counsel claims);

Lasater, The Role of Harm In Ineffective

Assistance of Counsel Cases: Procedure and

olicy, yracuse L. Rev.

(proposing the development of an objective

set of guidelines describing in detail the

duties owed by defense counsel); Erickson,

supra n.30, 17 Amer. Crim. L. Rev. at 250

n.143; Finer, supra n.31, 58 Cornell L. Rev.

1104, 1105 n.1 and accompanying text;

Note, A Functional Analysis of the Effective

Assistance of Counsel, 53 Colum. L. Rev.

TOSS (1580) (evaluates ineffective repre-

sentation in terms of the potential of sub-

stantial prejudice to the various interests

protected by the right to counsel).

-62-

a. The court of appeals correctly

rejected an outcome-determina-

tive standard of prejudice

The court of appeals properly concluded

that an outcome-determinative test places an

untoward burden on a habeas petitioner.

{[Pet. App. 70-73]. This test also imposes a

host of inapropriate and burdensome responsi-

Dilities on the federal courts and is incon-

Sistent with the fundamental values under-

lying the Sixth Amendment.

Pirst, it is evident that a focus on

outcome will require federal courts to retry

issues of guilt and penalty, inevitably forc-

ing judges to trespass “upon what properly

would have been the jury's province in

weighing the truth or falsity of the evi-

dence at the original trial." McQueen v.

Swenson, 498 F.2d at 220. This inquiry

therefore risks substituting-the judgment of

federal courts on the evidence and its

weight or bearing on guilt and sentence for

that of a properly informed state trial

-6§3-

judge or jury. Field, Assessing the Harm-

lessness of Federal Constitutional Error --

A Process In Need Of A Rationale, 125 U. Pa.

L. Rev. 15, 33-34 (1976); Saltzburg, The

Harm of Harmless Error, 59 Va. L. Rev. 988

1020 (1973); R. Traynor, The Riddle of

Harmless Error, 18, 29 (1970).

Second, such an inquiry is not only

improper, but also highly speculative. A

federal judge must necessarily conjecture

about how a judge or jury might have reacted

to certain evidence or testimony. United

States v. Tucker, 716 F.2d at 589. Cf.

Traynor, supra, at page 23. While a trial

court or jury before whom the witnesses

appear is in a position to evaluate the

numerous factors that affect the probative

value of testimony, a court reviewing the

cold, written record has no way of doing

so. Traynor, supra, at page 30.

Tris speculation reaches particularly

unacceptable levels when counsel's failings

-64-

have resulted in an impoverished record.

When counsel has failed to investigate and

prepare, it is unfair if not impossible to

assess the impact that later unearthed

information, first presented in habeas

corpus hearings, would have had on the deci-

sion maker in the original proceedings. Cé£.

Holloway v. Arkansas, 435 U.S. at 590-91;

Schwarzer, supra n. 31, 93 Harv. L. Rev. at

642-43.

A reviewing court simply cannot recon-

struct a criminal trial from portions of

different records and determine with any

degree of confidence how that hybrid pro-

ceeding would have been viewed by the first

trier of fact. The reviewing court has

seen only some witnesses, while the ori-

ginal trier has seen others. No one is

in a position to resolve credibility

conflicts or inconsistencies between

these records. Moreover, the weight,

value, and impact of particular evidence

-65-

Or testimony is colored and shaped by the

context and manner of its presentation. Not

only might a previously elicited fact have

looked different to the original trier in

light of the new evidence, but also the

reviewing court cannot ascertain how the

full record would have been perceived nad

it been developed and structured by compe-

tent, effective counsel. Cf. Moore v.

United States, 432 F.2d at 735.

To admit that a conviction or sentence

was the result of a breakdown in the process,

but then to make relief turn upon a guess as

to how that process might have functioned

with effective counsel is to trivialize the

central importance of the guarantee of

adequate counsel to the proper functioning

of the adversary process.

Third, the subjective and conjectural

inquiries implicit in decisions based on

the outcome-determinative test will neces-

sarily prevent any principled consistency in

-66-

determinations of effective assistance and

will fail to provide sufficient guidance to

conscientious counsel or reviewing courts.

The unguided guesses of a district judge

about what a state-court decision maker

would have done if different evidence had

been consid red is hardly likely to be much

illuminated or regulated by an array of

particularistic opinions of appellate judges

engaging in the same kind of guesswork.

Cf. Field, supra, 125 U. Pa. L. Rev. at

36. This entire process does not approach

the kind of “intelligent evenhanded appli-

cation,” Holloway v. Arkansas, 435 U.S. at

491, that is so essential for the elucida-

tion of proper standards of attorney per-

formance under the Sixth Amendment.

Fourth, an outcome-determinative test

is unduly burdensome on the federal courts.

In order accurately to assess the effect of

counsel's failings on the outcome, a federal

judge must evaluate the relative credibility

-67-

of various witnesses (which cannot be done

without observing their demeanor), and con-

Sider the strength of the physical or docu-

mentary evidence (which cannot be done

without examining it in full). An outcome-

determinative test would compel the parties

to present the case anew, without counsel's

errors or omissions, in order to ensure a

reliable decision as to what the proper

Outcome ought to be but for counsel's

ineffectiveness. The burden on the federal

courts would be inordinate.

The outcome-determinative standard is

particularly inappropriate when claims of

ineffective representation at capital sen-

tencing proceedings are involved. Not only

does a focus on result fail to ensure ade-

quate protection of the defendant's legiti-

mate interest in the character of a capital

sentencing scheme, Gardner v. Plorida, 430

U.S. at 358, but also it does not take into

account the discretionary and highly sensi-

-68-

tive nature of the capital sentencing deci-

sion. Whereas one judge or juror may con-

sider the defendant's character and back-

ground insufficient to mitigate a murder,

another judge or juror could easily come to

the opposite conclusion. Sentencing always

involves "a large area of discretion and

doubts." Carter v. Illinois, 392 U.S. 173,

178 (1946); United States v. Grayson, 438

U.S. 41, 48 (1978). Even under the guide-

lines provided by conscitutional capital

punishment statutes, there is the opportun-

ity for a considerable amount of discretion

informed by a wide variety of factors, both

Statutory and nonstatutory. Indeed, just

last Term, the Court emphasized that the

capital sentencing process is not “a rigid

and mechanical parsing of statutory...

factors,” but that "(iJt is entirely fitting

for the moral, factual, and legal judgment

of judges and jurors to play a meaningful

role in sentencing.” Barclay v. Florida,

-69-

103 S.Ct at 3424; id. at 3435 (Stevens, J.,

concurring). The outcome-determinative

standard will require the federal courts to

engage in fine-spun speculation on how a

sentencer would exercise that judgment when

faced with new information in mitigation

that inadequate counsel failed to uncover.

Furthermore, the application of an

outcome-oriented test to capital sentencing

proceedings will impose substantial burdens

upon the federal courts. In order to meet

the exacting requirements of reliability in

the determination that death is the appropri-

ate punishment in a particular case, Woodson

v. North Carolina, 428 U.S. at 305, it is

even more vital that the subtle influence

and effects of live testimony be assessed,

for these are the precise factors that often

Sway a sentencer to choose life over death.

The habeas court could not rely on affida-

vits or depositions, for it would face the

risk of basing conclusions about the merits

-70-

of a death sentence on a paper record. The

sentencing hearing would have to be recon-

Structed -- together with the additional,

Originally-neglected evi. ence in mitigation

-- in order to satisfy the district judge

that the result would not have been differ-

ent with adequate counsel.

Assuming that a record could somehow be

satisfactorily recreated, the outcome-deter-

Minative standard would then require the

federal district court to make substantive

decisions on state capital sentencing

issues. Under Florida law, the federal

judge would have to engage in the weighing

of aggravating and mitigating circumstances,

a responsibility conferred by statute on

State juries and judges. Fla. Stat. Ann.

§921.141 3(b). This is hardly the sort of

task that should be performed by a federal

judge who would, of necessity, have to

familiarize himself with the guidelines and

interpretative nuances of state judicial

« -71-

decisions on capital sentencing.

By forcing habeas courts to grapple

with these substantive state sentencing con-

cerns, the outcome-determinative test intro-

duces other significant problems. For exam-

ple, the district court below reached its

own conclusion that respondent's proffered

"character and medical testimony cannot rea-

sonably be characterized as evidence of

mental or emotional disturbance." [Pet.

App. 286]. This conclusion is not sup-

ported by any findings that would explain

it, nor is there any citation or reference

to any Florida law that might have guided

the district court in reaching that conclu-

In the context of capital sen-

sion.

tencing, the outcome-determinative test

would convert habeas review into a standard-

47/ We will explain below that Plorida

courts have frequently found that nonstatu-

tory factors about a defendant's mental

State or background provide a basis for

imposing a life rather than a death sentence

[see note 61, infra].

-72-

less rehashing of the propriety of the death

sentence in a particular case, inevitably

leading to the arbitrary results condemned

in Furman v. Georgia, 408 U.S. 238 (1972).

Por these reasons, virtually every cir-

cuit that has adopted a test of prejudice

within the framework of a reasonable compe-

tence standard has focused the inquiry

solely on the impact of counsel's inadequacy

upon the course of the proceedings rather

than upon the conjectured outcome. Under

this view, a requirement of prejudice “does

not mean" that the reviewing court must

weigh the evidence for itself and conclude

that "the defendant would have been acquit-

ted but for counsel's blunders." Cooper v.

Fitzharris, 586 F.2d at 1333; Harris v.

Housewright, 697 F.2d 202, 212 (8th Cir.

1982); United States ex rel. Green v. Rundle,

434 P.2d 1115-1116 (3rd Cir. 1970). It

means instead that the court must determine

whether the ineffective assistance had an

-73<

adverse impact on or created a “flaw in the

adversary process," McQueen v. Swensen, 498

F.2d at 218-19, 48 So far as the federal

48/ Two circuits (the Fourth and Seventh)

Place a “harmless beyond a reasonable doubt"

burden on the State. Wood v. Zahradnick,

578 F.2d 980, 982 (4th Cir. 1978); Wade v.

Franzen, 678 F.2d 58, 59 (7th Cir. T582).

Two circuits (the Third and Eighth) hold

that the accused must first demonstrate that,

but for counsel's ineffectiveness, the pro-

ceedings before the trier of fact would have

been materially different in a way "helpful"

or “beneficial” to the accused; once the

accused makes this showing, the burden

shifts to the State to show that counsel's

ineffectiveness was harmless beyond a rea-

sonable doubt. United States v. Baynes, 687

F.2d 659, 673 (3d Cir. 1962), and United

States ex rel. Green v. Rundle, 43 °

ir. 1970); Reynolds v. Mabry,

574 P, 24 978, 980 (8th Bie: ED (citing

McQueen v. Swensen, 498 F.2d at 220). Three

Circuits (the Firth, Ninth and Eleventh)

have adopted a standard that requires the

accused to demonstrate that counsel's errors

and omissions impaired the defense in some

fashion. Washington v. Strickland (5th);

ee States v. Tucker, 716 F.oag at 588

ams v. Strickland, 709 F.2d 1443,

1446 (1Te h Cir. 1563). The Sixth Circuit

does not require a showing of prejudice, so

there has been no need to formulate a stan-

Gard. The Pirst and Tenth Circuits have not

expressed any opinion on the degree of pre-

judice that must be shown by @ petitioner.

See, e.g., United States v. Campa, 679 F.2d

(footnote continues on following page)

-74-

circuits are concerned, therefore, the out-

come oriented standard of prejudice advo-

cated by petitioners and amici curiae is an

anomaly articulated in only two circuits --

the Second Circuit, which adheres to the

universally condemned “farce and mockery"

Standard, and the District of Columbia

Circuit, which wholly misinterpreted the

source of its test. 49

48/ continued

1006, 1009 (1st Cir. 1982); United States v.

Glick, 710 F.2d 639, 644 n.6 (loth cir.

49/ In developing its standard, the plural-

Tty opinion in Decoster relied extensively

on a passage from Commonwealth v. Safarien,

386 Mass. 89, 96, 315 N.E. 20 878,

(1974), which requires a showing that coun-

sel's deficiency “has likely deprived the

defendant of an otherwise available

stantial ground of defense.

added) It is evident that this is a pro-

cess-oriented test. The Supreme Judicial

Court of Massachusetts explicitly relied on

process-oriented federal cases; it formu-

lated a test of prejudice that required the

defendant to demonstrate impairment to the

defense; and the court specifically disa-

vowed any inquiry that would exclusively

concentrate on whether the trial was fair or

(footnote continues on following page)

-75-

Pinally, the Court's decisions in the

Sixth Amendment area are plainly at odds

with an outcome-determinative standard. No

decision of the Court involving the Sixth

Amendment right to counsel has ever inti-

mated that outcome, as opposed to the effect

on the defense, is the appropriate focus of

inquiry. See, e.g., Cuyler v. Sullivan, 446 -

U.S. at 348-49; Holloway v. Arkansas, 435

U.S. at 489-91; Avery v. Alabama, 308 U.S.

at 458 (claim of inadequate investigation

rejected in part because there was an "ab-

sence of any indication, on the motion and

hearing for new trial, that [the attorneys)

would have done more had additional time

been granted."); White v. Ragen, 324 U. S.

49/ continued

guilt was established. Id. at 884. The

Outcome-oriented test in Decoster therefore

bears little relationship to its process-

Oriented seed.

-76-

760, 764 (1975).>° And a recent deci-

sion of the Court that canvasses the issue

of prejudice in tne Sixth Amenament con-

text framed the inquiry solely in terms of

whether the infringement “has had or

threatens some adverse effect upon the

effectiveness of counsel's representation

or has produced some other prejudice to the

defense." United States v. Morrison, 449

U.S. at 365. (emphasis added). The

inquiry was conspicuously not whether the

result of a criminal prosecution would have

been different if the right to counsel had

been properly afforded. See also Weather-

ford v. Bursey, 429 U.S. 545, 558 (1977).

It is not surprising therefore that

50/ The assertion that Chambers v. Marone

Or McMann v. Richardson Tacitly adopted thts

standard (Pet. Br. 63, 93; S.G. 14 n. 4) is

simply unsupported by any fair reading of

those decisions. See n. 44, supra. In fact,

invitations to include considerations of out-

come in Sixth Amendment analysis have been

explicitly rejected by the Court. United

States v. Tucker, 404 U.S. 443, 447 n. 5

; Townsend v. Burke, 333 U.S. at 741.

oFJe

respondent and amici curiae seek precedential

Support for an outcome-determinative test in

non-Sixth Amendment decisions -- most nota-

bly in cases interpreting the Due Process

Clauses of the Pifth and Fourteenth Amend

ments, e.g., United States v. Agurs, 427 U.S.

97 (1976), and those discussing the conse-

quences of procedural defaults in trial

courts. wih

51/ Petitioners and amici curiae also

rely on the recent decision in United States

v. Valenzuela-Bernal, U.S. ¢ 1O8 BoGte

3440 (1982), for a result-oriented standard.

This decision is inapposite for several rea-

sons. First, the materiality standard

established in Valenzuela-Bernal does not

even extend beyond the unique circumstances

in that case, which involved the tension

between the executive's authority over immi-

gration and the Compulsory Process Clause;

the Court expressly reserved opinion on "the

showing which a criminal defendant must make

in.order to obtain compulsory process for

securing the attendance of his criminal

trial witnesses within the United States.”

102 S.Ct. at 3450 n. 9. Second, the Court

"borrowed much of [its} reasoning [or preju-

dice) .. . from cases involving the Due

Process Clause of the Pifth Amendment," id.

at 3449. To this extent, reliance on

Valenzuela-Bernal for an outcome-determina-

(footnote continues on following page)

o7§-

However, as respondent has already ex-

plained, the Sixth Amendment orientation

focus is very different from tlhe due pro-

cess concern with outcome. > The Sixth

Amendment precludes the states from con-

ducting trials at which “persons who face

incarceration must defend themselves with-

out adequate legal assistance.” Cuyler

v. Sullivan, supra, 446 U.S. at 744. Invo-

cation of due process principles repre-

sents an unacceptable effort by petitioner

and amici curiae to circumvent this guaran-

tee and resurrect the “farce and mockery"

2'/ continued

tive test is no more justifiable than seek-

ing support from the due process line of

authority discussed in the text.

52/ The petitioners' and Solicitor General's

Reavy reliance on United States v. Agurs, as

a source of the principles to apply in Sixth

Amendment cases is curious, since the Court

in Agurs predicated its analysis on the pres-

ence Of adequate counsel. 427 U.S. at 102

n.5.

-79-

53

progeny of Betts v. Brady.

Finally, by extrapolating a standard of

prejudice from Wainwright v. Sykes, Frady

and Engle, the petitioners and amici curiae

seek to fit a square peg in a round hole. 4

53/ Erickson, 17 Am. Crim. L. Rev. 250 n.

T43. The suggestion by the petitioners (Pet.

Br. 74 n. 18] and the Solicitor General

(S.G. 27-8] that Sixth Amendment analysis

should be influenced by concern for the

attorney's thought processes is equally

unsettling and turns the guarantee of effec-

tive counsel on its head. The Sixth Amend-

ment embodies a protection for t.e accused,

not a comunications privilege for the attor-

ney or a shield to insulate from inquiry

counsel's decisions on behalf of the accused

when they are challenged by the defendant.

Nothing would be more disruptive of Sixth

Amendment values than to elevate counsel

from an advisor to the accused to an inde-

pendent functionary whose decisions, however

incompetent, are unassailable. Indeed, the

"ardor of defense counsel" that petitioners

and the Solicitor General seek will be en-

hanced, not vitiated, by articulated deci-

sions on what constitutes adequate perfor-

mance. In any event, the Court has already

recognized that some degree of judicial

supervision over the performance of attorneys

is essential, so that "defendants cannot be

left to the mercies of incompetent counsel,”

McMann v. Richardson, 397 U.S. at 771.

54/ Por this reason, we also cannot sup-

(footnote continues on following page)

-80-

As noted earlier, these cases all assume the

presence of competent counsel for the defen-

dant. Once the defendant has had "a fair

trial and a competent attorney," Engle v.

Isaac, 456 U.S. at 134, (emphasis added) the

interests in finality and comity dictate

stringent rules to prevent “sandbagging” by

competent defense lawyers who decide to

forego objections in the state forum with

the intention of raising their constitu-

tional claims later in a federal habeas

court if their client is convicted. Wain-

wright v. Sykes, 433 U.S. at 89.

By imposing cause and prejudice re-

quirements on persons who failed to make a

contemporaneous objection in state court,

the Court has made “the state trial on the

merits ‘the main event' so to speak, rather

than a ‘tryout on the road' for what will

547 continued

port the reasoning of the en banc court,

which derived its standard of prejudice in

part from United States v. Frady.

-81-

later be the determinative federal habeas

hearing.” 433 U.S. at 90. However, while

the Constitution does not require that the

main event be a “game in which the partici-

pants are expected to enter the ring with a

near match of skills, neither is it a sacri-

fice of unarmed prisoners to gladiators.”

United States ex rel. Williams v. Twomey,

510 F.2d 634, 640 (7th Cir.), cert. denied,

423 U.S. 876 (1974).

While it is justifiable to erect a

rigorous standard of prejudice when there

has been a procedural default by competent

counsel, United States v. Frady, 456 U.S. at

169-70, principles of finality developed in

habeas jurisprudence should not shield

criminal proceedings flawed by inadequate

counsel from scrutiny under the Sixth

Amendment. >> Consequently, the outcome-

55/ The court of appeal's concern that a

@ifferent standard of prejudice would enable

(Pootnote continued on following page)

-82-

determinative principles advanced by the

petitioners and amici curiae and the Frady

standard are foreign to, and inconsistent

with, the Sixth Amendment guarantee of

adequate counsel. >°

25/ continued

defendants to circumvent the procedural

default cases is unwarranted. [Pet. App. 68

n. 30). A habeas petitioner claiming inade-

quate assistance could not obtain review of

an unobjected to error; the error would only

serve as circumstantial evidence of an inade-

quate performance by counsel. If the peti-

tioner were able to demonstrate serious

derelictions and prejudice under the Sixth

Amendment, the relief would be based on

counsel's ineffectiveness, not on the merits

of the defaulted claim. Therefore, the prin-

ciples of Wainwright v. Sykes and its pro-

geny, which preclude review of the merits of

procedurally defaulted claims, could be

fully preserved under a Sixth Amendment stan-

dard that is developed independently of the

principles set forth in Frady.

56/ The Solicitor General suggests that the

Sixth Amendment guarantee should be treated

no differently than a new trial motion.

{S.G. 18-26]. Historically, however, a new

trial motion was “designed to afford relief

where despite the fair conduct of the trial,

it later clearly appears to the trial judge

that because of facts unknown at the time of

(Pootnote continued on following page)

-83-

In sum, an outcome-determinative test

of prejudice is fundamentally at odds with

the Court's decisions and the standards

developed in the overwhelming majority of

the circuits. It is difficult to justify

either logically or constitutionally; its

exclusive focus on the result of, and not

the adequacy of, counsel's performance,

threatens to deprive the defendant of every-

thing that makes counsel worthwhile in our

adversary system. Additionally, the direc-

tion it signals is plainly wrong under the

Sixth Amendment -- by permitting the nature

56/ continued

trial, substantial justice was not done."

United States v. Johnson, 327 U.S. 106, 112

(1946). See also SA Moore's Federal Prac-

tice 433.03[1] (2d ed. 1983). Obviously,

after a fair trial with competent counsel,

every piece of newly discovered evidence

should not necessarily call into question

the integrity of the verdict. The focus is

therefore quite properly on whether the

result would have been different. This

underlying policy has little relevance to a

trial flawed by the errors or omissions of

inadequate counsel. The Solicitor General's

false analogy mocks the importance of the

Sixth Amendment.

-84-

of the offense or the strength of the prose-

cution to overshadow counsel's obligations,

the outcome determinative standard threatens

to steer the federal courts towards the

untenable position that there may be no need

for adequate counsel for certain types of

cases or individuals. Any standard that has

such fundamental flaws should be soundly

rejected by the Court.

2.

erious reiictions Iimpaire

The Defense.

The above discussion reveals the evi-

dent superiority of a standard of prejudice

that focuses on the impairment to the

defense caused by counsel's inadequacies.

Simply put, as the overwhelming majority of

circuits recognize, when defense counsel is

ineffective, the representation of the defen-

dant is “not a product of an adversary, but

a flaw in the adversary process." McQueen

v. Swenson, 498 F.2d at 218-19. This taint

-85-

can only be neutralized by inquiring into

"whether counsel's incompetence impaired

[the] defense, not whether the defendant

would have been convicted in spite of these

errors." United States v. Tucker, 716 F.2d

at 587. See also McQueen v. Swenson, 498

F.2d at 220; United States ex rel Green v.

Rundle, 434 F.2d at 1115. C£&. United States

v. Morrison, 449 0.S. at 365.

The standard is also sufficient to

guard against baseless attacks on counsel.

It first requires a showing that counsel's

failings breached the basic responsibilities

of reasonably competent counsel. Insignifi-

cant or insubstantial errors by diligent

counsel would hardly serve to overturn a

conviction or sentence. McMann v. Richard-

son, 397 U.S. at 711. Then there must be a

showing that counsel's errors actually im-

paired the presentation of the defense. For

example, if a motion to suppress were not

filed, but the evidence could not have been

-86-

excluded, there would have been no impair-

ment of the defense. Chambers v. Maroney,

399 U.S. at 53-54. Similarly, if there has

been a failure to investigate, but there is

nothing that could have been uncovered or

the omitted evidence would be cumulative,

then the presentation of the defense has not

been impaired. Avery v. Alabama, 308 U.S.

at 452.

Even if a habeas petitioner could show

impairment to the defense, the State could

still establish that the denial of the right

to effective assistance of counsel was harnm-

less in light of the entire record. See, e.g.,

United States v. Tucker, 716 F.2d at 588;

Washington v. Strickland (Pet. App. 75-76].

As at other points in the consideration

of ineffective assistance ciaims, courts

will necessarily have to retain flexibility

in the application of this standard to spe-

cific cases. While considerations of preju-

dice do not lend themselves to categorical

-87-

rules, there are several factors that should

be considered in weighing the extent to

which the defense was impaired in a particu-

lar case.

First, certain defects in counsel's

representation are more basic than others

because they deprive the defendant of the

undivided allegiance of a partisan and

zealous advocate. When there is a conflict

of interest, Cuyler v. Sullivan, supra; a

lack of vigorous advocacy, Anders v. Cali-

fornia, supra; physically or mentally

debilitated counsel; or the abdication of

counsel's basic responsibilities, the

defendant has been effectively deprived of

"the prized traditions of the American

lawyer." VonMoltke v. Gillies, 332 U.S. at

725-26. Since there has been a fundamental

failing of counsel in these instances, the

degree of prejudice required will be quite

different than that necessary when there has

been a momentary lapse in counsel's repre-

-88-

sentation during trial.

Second, the pervasiveness of counsel's

inadequacies must also be considered. The

prejudice to the defense of an isolated

error at trial may be more easily discerni-

ble than the impact of errors that pervade

the entire trial. United States v. Porter-

field, 624 F.2d. 122, 124-25 (10th Cir.

1980); United States ex rel. Green v.

Rundle, 424 F.2d at 1115. United States v.

Morrison, 449 U.S. at 365 n.2.

Third, the effect of counsel's failings

that result in an impoverished record must

be approached quite differently than other

errors whose impact on the defense is more

easily ascertainable. Without adequate in-

vestigation or preparation, it follows “that

the record is necessarily incomplete as to

the extent of the prejudice which resulted

from counsel's derelictions." United States

v. Tucker, 716 F.2d at 593. Cf. Michel

v. Louisiana, 350 U.S. 91, 100-01 (1955);

<-89-

White v. Ragen, 324 U.S. at 762, 764; Avery

v. Alabama, 308 U.S. at 447.

Fourth, just "as the severity of the

sentence [in a capital case] mandates care-

ful scrutiny in the review of any colorable

claim of error,” Zant v. Stephens, 103 S.Ct.

at 2747, so too do “capital cases demand

special efforts by counsel and special

sensitivity by courts to the impact of

counsel's actions." ([S.G. 11 n.3).

A fifth factor to consider is the

nature and subtlety of the issues. Where

the issue is guilt or innocence, a deter-

mination closely bounded by legal rules,

the probable effect upon the defense of

counsel's failure to locate witnessess

or evidence may be undertaken with some

degree of confidence. In contrast, in

the highly discretionary area of sen-

tencing, the extent to which counsel's

inadequate preparation or investigation

impaired the defense is much more difficult

-90-

to assess. Even under constitutionally

valid schemes, "[o]nce the jury finds that

the defendant falls within the legisla-

tively defined category of persons eligible

for the death penalty .. . the jury is

then free to consider a myriad of factors

to determine whether or not death is

the appropriate punishment." California v.

Ramos, 0.8. , 103 S. Ct. 3446, 3456

(1983); Zant v. Stephens, 103 S. Ct. at

2756 (Rehnquist, J., concurring). In this

context, a showing that counsel failed to

uncover readily available and non-cumulative

information relevant to the sentencing |

determination should be sufficient to estab-

lish prejudice. See, e.g., Pickens v.

Lockhart, 714 F.2d at 1467-68; Voyles v.

Watkins, 489 F. Supp. 901, 912 (N.D. Miss.

1980).>” The simple truth is that the

57/ It is in this context that the panel's

Formulation of "helpful", 673 F.2d at 902,

(footnote continues on following page)

-91-

precise effect of mitigating information on

the sentencer in a capital case is inherent-

ly indeterminable:

The precise point which prompts the

penalty in the mind of any one juror is

not known to us and may not even be

known to him. Yet this dark ignorance

must be compounded twelve times and

deepened even further by the recogni-

tion that any particular factor may

influence any two jurors in precisely

the opposite manner.

We cannot determine if other evi-

dence before the jury would neutralize

the impact of an error and uphold a

verdict. Such factors as the grotesque

nature of the crime, the certainty of

guilt, or the arrogant behavior of the

defendant may conceivably have assured

the death penalty despite any error.

Yet who can say that these very factors

might not have demonstrated to a partic-

ular juror that a defendant, although

legally sane, acted under the demands

of some inner compulsion and should not

die? We are unable to ascertain

whether an error which is not purely

insubstantial would cause a different

577 continued

makes sense. When the decision is the

highly discretionary one between life and

death, the omission of any evidence regard-

ing the defendant's background or character

that would be helpful to the sentencer would

represent a substantial impairment to the

defense. That is the precise issue the

panel was addressing.

-92-

result; we lack the criteria for

objective judgment.

People v. Hines, 390 P.2d 398, 402 (Cal.

1964) (emphasis in original). Accord People

v. Terry, 390 P.2d 381, 392 (Cal. 1964);

Pickens v. Lockhart, 714 F.2d at 1467-68.

The interplay of these factors may take

on different meanings in the myriad circun-

stances confronted by courts. While none of

the factors will be dispositive on the issue

of prejudice, they should guide the courts

in assessing whether the circumstances in a

particular case are sufficient to merit

relief under the Sixth Amendment.

C. Application of Appropriate Sixth

Amendment Princ es e

Record In This case cConvincingl

Establishes That Respondent was

Deprived of the ective Assist-

The application of the basic Sixth

Amendment principles articulated above to

the present case point unerringly to the

conclusion that counsel was ineffective in

-93-

failing to conduct any snbepenselt investia

gation for mitigating information about the

respondent. Furthermore, this serious

error severely impaired the respondent's

presentation of his case at a capital

sentencing hearing.

First, the stakes were life or death.

Second, the district court explicitly

found that Tunkey ceased any preparation or

investigation of respondent's case out of a

sense of hopelessness and despair after

respondent confessed to three murders.>°

[Pet. App. 264; J.A. 300, 302-04, 426). He

never attempted to undertake the role of an

active and zealous advocate for his client's

life. The integrity and fairness of the

adversary proceedings were wholly undermined

by the essential withdrawal of defense coun-

58/ Since Tunkey had not focused on sen-

tencing prior to the confessions (see

note 3, supra), the sentencing aspects of

petitioner's capital case went totally by

default.

-94-

sel from the sentencing process.

Third, counsel was unable to provide a

"guiding hand” at sentencing because he

lacked the indispensable factual prerequi-

sites for the exercise of informed judgment.

The district court found as a fact that

Tunkey did not seek any witnesses in mitiga-

tion [Pet. App. 264-65] nor did he conduct

"an independent investigation into peti-

tioner's background and potentially mitigat-

ing emotional and mental reasons for the

killings." (Pet. App. 282). Without this

factual information, counsel could do little

more than rely on respondent's statements at

the guilty plea proceedings [(J.A. 322-23);

he certainly could not meaningfully advise

the respondent on what mitigating informa-

tion could and should be presented to the

sentencer.>” Tunkey's “total abdication

59/ Tunkey's recollection that the respon-

(footnote continues on following page)

-95-

of duty should never be viewed as permissi-

ble trial strategy.” Pickens v. Lockhart,

714 F.2d at 1467.°°

597 continued

dent did not want anyone at his sentencing

hearing [J.A. 408] was not credited by the

district court as the reason for Tunkey's

failure to investigate. In any event, a

criminal defendant is hardly able to make a

decision on what options to pursue without

counsel's sound advice. Yet, Tunkey was

unable to discharge this responsibility

because he lacked the essential factual

ingredients that an adequate investigation

would have provided. Any other requirement

in the Sixth Amendment area would allow the

use of the accused's ignorance of the law

and facts as an excuse for counsel's inade-

quacies when it is this very ignorance

that makes diligent preparation by counsel

indispensable to the defendant.

60/ Even assuming an attorney could make a

tactical judgment in a capital case without

adequate investigation of mitigating evi-

dence, the record shows that Tunkey never

made the judgment now attributed to him by

the petitioners. [Pet. Br. 98-100]. He did

in fact attempt -- albeit wholly ineffec-

tively -- to place information before the

sentencing judge about petitioner's charac-

ter and background, as well as the circum-

stances surrounding the offenses. He also

argued to Judge Fuller in support of a life

sentence that David Washington “possesses

somewhere within him a spark which is good,

(footnote continues on following page)

-96-

Fourth, counsel's inadequate prepara-

tion resulted in the impoverishment of the

record, depriving the sentencer of the

knowledge about the character and back-

ground of the defendant that is indis-

pensable to an "individualized determina-

tion" of whether life or death is the proper

punishment. Zant v. Stephens, 103 S. Ct.

at 2743-44; Eddings v. Oklahoma, 455 U.S.

104, 110-112 (1902); Woodson v. North

Carolina, 428 U.S. at 304.

Fifth, the subtle influences that are

involved in reaching a life or death deci-

sion under Florida law make it particularly

difficult to assess the impact of counsel's

60/ continued

which is decent." [J.A. 322]. Without

evidence in mitigation demonstrating that

respondent's crimes were the product of

unusual mental and emotional pressures, and

were wholly inconsistent with his character

or prior history, a plea for mercy on the

basis of "a spark which is good, which is

decent,” lacked any detectable factual

— and was hardly likely to impress

a ge.

8 <-97-

errors upon a record thus impoverished.

Under Florida's capital sentencing

scheme, “even if the statutory threshold

has been crossed and the defendant is

‘a the narrow class of persons who are

subject to the death penalty, the sen-

tencing authority is not required to

impose the death penalty.” Barclay v.

Florida, 103 S. Ct. at 3431. State v.

Dixon, 283 So. 2d 1, 10 (Fla. 1973).

Indeed, the Florida courts have devel-

oped a series of precedents “in which,

even though statutory mitigating circum-

stances do not outweigh statutory aggra-

vating circumstances, the addition of non-

statutory mitigating circumstances tips the

scales in favor of life imprisonment."

Barclay, 103 S.Ct. at 3431-3432. Numerous

Florida cases emphasize the critical, often

determinative, significance of non-statutory

mitigating circumstances in the life or

-98-

death decision.°' Counsel's inade-

quacies in the present case deprived

respondent of the non-statutory miti-

gating information that Florida sentencers

have repeatedly employed in their capital

sentencing calculus. °*

61/ See, e.g., McCampbell v. State,

421 So. 2d 5 (Fla. ) (life sentence

based on exemplary employment record,

potential rehabilitation, and family

background); Simmons v. State, 419 So. 2d

316, 320 (Pla. 1982) (evidence of potential

rehabilitation must be considered); Walsh

v. State, 418 So. 2d 1000, 1002 (Fla. 1582)

(life sentence based on good character);

“ogee v. State, 418 So. 989, 995 (Fla.

(error in failing to consider per-

sonality change following return from war

and destorted religious beliefs of the

defendant); Neary v. State, 384 So. 2d

881, 885-87 (Fla. 1980) (life sentence

based on various non-statutory mitigating

factors, including family background and

slow learning capacity of defendant); Shue

v. State, 366 So. 2d 387, 389-90 (Fla.

1978) (life sentence based on family

background of brutality and deprivation);

Halliwell v. State, 323 So. 2d 557, 561

(Fla. 1575) (life sentence based on emo-

tional strain from victim's mistreatment

of girlfriend). '

62 The importance accorded non-statutory

mitigating circumstances by Florida courts

(footnote continues on following page)

-99-

In sum, respondent has shown that he

did not receive representation within the

range of competence demanded of attorneys in

criminal cases and that counsel's ineffec-

tiveness impaired the presentation of the

defense at his capital sentencing hearing.

IIl.

THE COURT OF APPEALS CORRECTLY

DETERMINED THAT TESTIMONY OF

THE STATE SENTENCING JUDGE ON

THE ISSUE OF PREJUDICE WAS

INADMISSIBLE

At the evidentiary hearing in the

district court, the state sentencing judge

[Judge Fuller] was allowed to testify, over

petitioner's objections, about the weight he

had accorded to the aggravating and mitigat-

ing circumstances that he found were present

in this case [J. A. 457-460] and about

627 continued

(supra at note 61) belies petitioners' asser-

tion at the prejudice to the respondent

is somehow diminished by the fact that coun-

sel's derelictions pertained to non-statutory

ee (Pet. Br. 98-99;

S.G., 9-12 .

-100-

whether the evidence that could have been

presented by constitutionally adequate

counsel would have altered his sentencing

determination. [J.A. 461-463; 478-479].

“Although the district court did “not treat[]

Judge Fuller's testimony" as determinative

on the issue of prejudice” [Pet. App. 285],

it did "consider[] Judge Fuller's testimony"

[Pet. App. 285] in finding that no prejudice

resulted from inadequate counsel under the

outcome-determinative standard.

The court of appeals was correct in

concluding that the district judge erred in

considering this testimony.

First, the state judge's testimony is

irrelevant to the proper standard for

assessing prejudice from counsel's ineffec-

tiveness. As discussed above, the appro-

priate focus of inquiry should be on the

impairment to the defense, not the outcome

of the sentencing proceeding.

Second, the testimony of the sentenc-

-10i-

ing judge violates the well-settled princi-

ple that a judge should not be questioned

about his mental processes in reaching a

decision. In Fayerweather v. Ritch, 195

U.S. 276 (1904), the Court held:

[T]he testimony of the trial judge,

given six years after the case had

been disposed of, in respect to mat-

ters he considered and passed upon,

was obviously incompetent. ...

[N]o testimony should be received

except of open and tangible facts -

Matters which are susceptible of

evidence on both sides.

Id. at 306-07.

Since then, the Payerweather principle

has prohibited, without exception or quali-

fication, any testimony that probes or com-

promises the mental processes of a decision-

maker in formulating a judgment. See, e.g.,

United States v. Morgan, 313 U.S. 409, 422

(1941); Chicago B. & Q. Ry. Co. v. Babcock,

204 U.S. 585, 593 (1907); United States v.

Crouch, 566 P.2d. 1311, 1316 (Sth Cir.

1978); National Labor Relations Board v. Air

Associates, 121 F.2d 586, 591 (2d Cir. 1941).

-102-

Petitioners are unable to point to any

case - state or federal - that has upheld

the admissibility of a state judge's subjec-

tive processes. 28 U.S.C. § 2245, upon

which petitioners rely, is clearly inappos-

ite; the express terms of the statute relate

to a certificate “setting forth the facts

263

occurring at the trial, not the judge's

mental processes. Id. (emphasis added).

Furthermore, the Court's decisions in

Gardner v. Florida and United States v.

Tucker do not support the admissibility of

such testimony. [Pet. Br. 102, 103, 105].

In neither Gardner nor Tucker did the Court

send the case back to the sentencer to

63/ 28 U.S.C. § 2245 provides in pertinent

part:

On the hearing of an application

for a writ of habeas corpus to

inquire into the legality of the

detention of a person pursuant to a

judgment the certificate of the judge

who presided at the trial resulting

in the judgment, setting forth the

facts occurring at the trial, shall

be admissible in evidence.

-103-

determine whether it would have reached

the same result without the taint.°4

Instead, in botn cases the Court required

the sentencer to conduct a new sentencing

hearing.°>

Petitioners' contention that the judge's

testimony was admissible as opinion evidence

64/ In Gardner, the flaw was a failure

to disclose information in a pre-sentence

report to defense counsel; in Tucker, the

error was the consideration at sentencing

of prior invalid convictions.

65/ There is also no decision in the

circuits that justifies the admissibility

of this testimony. Cases where testimony

or a certificate of a state sentencing

judge has been considered generally

involve the judge's opinions on counsel's

competency or matters of basic, historical

fact. See, e.g., Haggard v. Alabama,

550 F.2d 1061 1022 itch Cir. 1977);

Williams v. Beto, 354 F.2d 698, 703 (5th

Cir. 1565). Such testimony does not

implicate the Fayerweather principle.

[Pet. App. 76-/7])].

Other cases cited by the petitioners

[Pet. Br. 102] never considered the admis-

sibility under Fayerweather of testimony

relating to a sentencing judge's mental

processes. See Hampton v. wyeack 588

P.2d 632, 633-34 (8th Cir. 1979) Strader

v. Troy, 571 P.2d 1263 (4th Cir. 1578).

-104-

under Federal Rule of Evidence 704°° [Pet.

Br. 101-02) is simply not supportable. Noth-

ing in Rule 704 or its commentary justifies

the novel assertion that this provision tac-

itly overrules the longstanding Fayerweather

doctrine.

It is easy to understand the unquali-

fied adherence to Fayerweather, since there

are sound reasons underlying the rule. Its

primary rationale, of course, is that a

judge's written orders or orally pronounced

judgments should stand complete in them-

selves and not be undermined by after the

fact testimony. Additionally, as the court

of appeals recognized, "a rule that allows

the probing of the mental processes of a

state judge would exacerbate certain pro-

66/ This rule states:

Testimony in the form of an opinion

or inference otherwise admissible is

not objectionable because it embraces

an ultimate issue to be decided by the

trier of fact.

-105-

blems that are already inherent in the

habeas corpus context." [Pet. App. 79].

While in this case the testimony was used to

Sustain a judgment, fundamental notions of

fairness would require that litigants seek-

ing to impeach a judgment be afforded a

similar opportunity. This would inevitably

subject state court judges to probing and

wide ranging inquiries into their subjective

processes of decision-making in all sorts of

situations.

Furthermore, petitioners' argument has

no discernible limits. There is plainly no

basis for distinguishing between the judge

in the present case and the members of the

sentencing jury in those states where the

jury is involved in the sentencing process

(like Florida) or makes the definitive

67

sentencing decision. The disastrous

67/ FPayerweather itself was based on

Packet Co. v. Sickles, 72 U.S. (5 Wall.)

(footnote continues on following page)

-106-

consequences of onic up state court jury

deliberations to inquiry in federal courts

are self-evident.

Finally, contrary to petitioners'

suggestion [Pet. Br. 105], it is extremely

doubtful that the Payerweather rule would

be relaxed if the habeas petitioner in a

death case sought the admission of favor-

able testimony regarding a sentencing

judge's mental processes. [Pet. Br. 104).

Payerweather and its progeny set forth an

unqualified rule excluding such testimony.

See United States v. Crouch, 566 F.2d at

1316. Circumstances could conceivably arise

in which a modification of the rule in favor

of a death-sentenced petitioner would be

required by either the Eighth Amendment or

the Due Process Clause of the Fourteenth

Amendment, cf. Green v. Georgia, 442 U.S.

66/ continued

580, 593 (1866) which prohibited inquiries

into the mental processes of jurors.

-107-

95, 97 (1979), but that is true of any

evidentiary rule in extraordinary cases.

See, e.g., Chambers v. Mississippi, 410 U.S.

284 (1973). It is no reason for abandoning

the rules of evidence.

In sum, the record reflects that the

district judge explicitly considered evi-

dence which is both (1) irrelevant to the

proper standard for assessing prejudice

under the Sixth Amendment, and (2) patently

inadmissible under settled rules of evidence

based on sound policy considerations. Since

there is no means of determining the extent

to which this incompetent evidence affected

the district court's analysis of respondent's

Claims, reversal is required to ensure

adjudication of these claims uninfluenced by

consideration of the inadmissible testimony.

CONCLUSION

a For the reasons stated above, the judg-

ment of the court of appeals should be

-108-

affirmed, and the case should be remanded to

the court of appeals for further proceedings

consistent with the analysis, as set forth

above, of claims of ineffective assistance

4

of counsel under the Sixth Amendment.

Respectfully submitted,

JOSEPH H. RODRIGUEZ

PUBLIC DENFENDER

By:

RICHARD E. SHAPIRO

November 29, 1983

l-a

APPENDIX A

e. [Counsel for Washington] So

that the record is complete, prior to the

sentencing hearing, you never obtained or

requested a psychiatric or psychological

examination of David Washington; is that

correct?

A. (Tunkey ] No, I never requested

one, that is correct. That is 100 percent

correct.

Q. And also, prior to the December

6th sentencing hearing --

A. I never asked for one.

Q. -- you had not conducted any

interviews or investigations of people who

might have been familiar with David

Washington's background, childhood or

activity in the community?

A. I believe that to be essen-

tially correct, with the exception of my

conversations with David himself and what

2-a

brief conversations I had with his wife

on the phone.

Q. From you knowledge of David

Washington's background gleaned from dis-

cussions with him and your knowledge

about the crimes of which he was charged

or at that point of which he had been

convicted, did you see, in your judgment,

that there was a great disparity from

what you had understood David Washington's

past to be and the crimes of which he was

convicted?

A. It was like night and day.

Q. So, you saw the tremendous

difference between the person.

Did you also see the difference

between the person you were interviewing

and working with as a client and the

person who had been charged and convicted

of these crimes?

A. So far as I could tell, the

3-a

answer to that question, from my numerous

interviews with David, the answer to that

question was that there was just an abso-

lutely inexplicable difference between

the personality which I knew as compared

to the crimes charged and the admissions

which he had made.

Insofar as admitting that he

had done these various things was an inex-

plicable kind of circumstance.

Q. Did you at any point in time

consider that psychiatric or psychological

examination would have been useful for

you in understanding Mr. Washington's be-

havior and preparing for his sentencing

hearing?

A. No.

Q. You did not? Did you request

a pre-sentence investigation prior to the

sentencing hearing?

A. Not that I recall [Transcript

continues after ellipsis on J.A. 404].

l-b

APPENDIX 8B

First Circuit: United States v.

Bosch, 584 F.2d 1113, 1121 (lst Cir. 1978)

("(T]he quality of a defense counsel's

representation should be within the range

of competence expected of attorneys in

criminal cases."); United States v.

Fusaro, 708 F.2d 17, 26 (lst Cir. 1983)

(same).

Third Circuit: Moore v.United

States, 432 F.2d 730, 736 (3d Cir. 1970)

("(T)he standard of adequacy of legal

services ... is the exercise of the

customary skill and knowledge which

normally preva. .s at the time and place.");

United States ex. rel. Caruso v. Zelinsky,

689 F.2d 435, 438 (3d Cir. 1982) (same).

Fourth Circuit: Marzullo v. State

Of Maryland, 561 F.2d 540, 543 (4th Cir.

1977), cert. denied, 435 U.S. 1011 (1978)

(Defense counsel's representation must be

2-b

"within the range of competency demanded

of attorneys in criminal cases"); Arthur

v. Bordenkircher, 715 F.2d 118, 119 (4th

Cir. 1983) (same).

Fifth Circuit: MacKenna v. Ellis,

280 F.2d 592, 599 (Sth Cir. 1960), rev'd

on other grounds, 289 F.2d 928 (en banc),

cert. denied, 368 U.S. 877 (1961). (Sixth

Amendment guarantee entitles defendant to

"counsel reasonably likely to render and

rendering reasonably effective assis-

tance"); United States v. Rusmisel, 716

F.2d 301, 304 (Sth Cir. 1983) (same).

Sixth Circuit: Beasley v. United

States, 491 F.2d 687, 696 (6th Cir. 1974).

(The Sixth Amendment guarantees "counsel

reasonably likely to render and rendering

reasonably effective assistance" and

"defense counsel must perform at least

as well as a lawyer with ordinary train-

ing and skill in the criminal law.")

3-b

These standards are used interchangeably.

See, e.g., Adams v. Jago, 703 F.2d 978,

980 (6th Cir. 1983); United States v.

Martin, 704 F.2d 267, 274 (6th Cir. 1983).

Seventh Circuit: United States ex.

rel. Williams v. Twomey, 510 F.2d 634,

641 (7th Cir. 1975), cert. denied, 423

U.S. 876 (1975) ("({T)he Constitution

guarantees a criminal defendant legal

assistance which meets a minimum stan-

dard of professional representation.");

United States v. Zylstra, 713 F.2d 1332,

1338 (7th Cir. 1983) (same).

Eighth Circuit: Morrow v. Parratt,

574 F.2d 4ll, 412 (8th Cir. 1978) ("(T)he

defendant must show that his attorney

failed to exercise the customary skills

and diligence that a reasonably compe-

tent attorney would perform under similar

circumstances."); Lufkins v. Solem, 716

F.2d 532, 539-540 (8th Cir. 1983) (same).

+b

Ninth Circuit: Cooper v. Fitzharris,

586 F.2d 1325, 1329 (9th Cir. 1978) (en

banc), cert. denied, 440 U.S. 974 (1979)

("{E]ffective assistance means assistance

within the range of competence demanded

of attorneys in criminal cases.")

Tenth Circuit: Dyer v. Crisp, 613

F.2d 275, 278 (10th Cir. 1979) (en banc),

cert. denied, 445 U.S. 945 (1980) ("The

Sixth Amendment demands that defense

counsel exercise the skill, judgment

and diligence of a reasonably competent

defense attorney"); United States v.

Glick, 710 F.2d 639, 644 (10th Cir.

1983) (same).

Eleventh Circuit: King v. Strick-

land, 714 F.2d 1481, 1485 (llth Cir.

1983) ("The sixth amendment guarantees a

criminal defendant the right to counsel

reasonably likely to render, and render-

ing, reasonably effective assistance");

ws

-b

Wiley v. Wainwright, 709 F.2d 1412,

1413 (llth Cir. 1983) (same).

District of Columbia Circuit:

United States v. DeCoster, 624 F.2d 196,

208 (D.C. Cir.) (en banc), cert. denied,

444 U.S. 944 (1979) ("The claimed inade-

quacy mst be a serious incompetency

that falls measurably below the perform-

ance ordinarily expected of fallible

lawyers."); United States v. Green, 680

FP.24 183, 188 (D.C. Giz. 19862), gert.

denied, U.S. , 103 §.Ct. 1204

(1983) (same).

The Second Circuit is the only

circuit which still retains the "farce

and mockery" standard. United States

v. Wight, 176 F.2d 376, 379 (2d Cir.

1949), cert. denied, 338 U.S. 950 (1950)

("A lack of effective assistance of

counsel must be of such a kind as to

shock the conscience of the Court and

6-b

make the proceedings a farce and

mockery of justice."); United States

v, Maniego, 710 F.2d 24, 27 (2d Cir.

1983) (same).

lec

APPENDIX _C

Ten Circuits require a habeas peti-

tioner to bear the burden of proof on

the issue of prejudice.

First Circuit: United states v.

Campa, 679 F.2d 1006, 1014 (lst Cir.

1982) (Petitioner bears burden of es-

tablishing actual prejudice).

Second Circuit: LiPuma v. Commis-

ept. of Corrections, State o

New York, 560 F.2d 84, 92 (2d Cir.

1977), cert. denied, 434 U.S. 861

(1977) (Petitioner must prove actual

and not possible prejudice).

Third Circuit: United states

ex rel. Green v. Rundle, 434 F.2d 1112,

1115 (3d Cir. 1970) (Petitioner must

demonstrate prejudice where discrete

errors of counsel are alleged, but not

where there are claims of pervasive

incompetence).

2-¢

Fifth Circuit: Washington Vv.

Watkins, 655 F.2d 1346, 1362 (Sth Cir.

1981), cert denied, 456 U.S. 949 (1982).

Seve cuit: Uni Ss v,

Berkwitt, 619 F.2d 649, 659 (7th Cir,

1980); but see, United states ex rel.

Healey v. Cannon, 553 F.2d 1052, 1057

n. 7 (7th Cir.), cert. denied, 434

U.S. 874 (1977) (suggesting no showing

of prejudice is required).

Eighth Circuit: Lufkins v.

Solem, 716 F.2d 532, 540 (8th Cir.

1983); Morrow v. Parratt, 574 F.2d

411, 412-13 (8th Cir. 1978).

Ninth Circuit: Unit t Vv.

Tucker, 716 F.2d 576, 588 (9th Cir.

1983); Cooper v. Fitzharris, 586 F.2d

1325, 1331 (9th Cir. 1978) (en banc),

cert. denied, 440 U.S. 974 (1979).

Tenth Circuit: United states v.

Glick, 710 F.2d 639, 644 (10th Cir.

> -

I

1983); United States v. Golub, 694

F.2d 207, 215-16 (lOth Cir. 1982). In

certain instances, however, the Tenth

Circuit does not require a showing of

prejudice. United States v. Cronic,

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

cert. granted, __—-U.S. ___ss« (1983),

and where incompetence of counsel is

pervasive, the government bears the

burden of establishing the lack of

prejudice. United States v. Payne,

641 F.2d 866, 867-68 (10th Cir.

1981); United States v. Porterfield,

624 F.2d 122, 124-25 (10th Cir. 1980).

Eleventh Circuit: King v. Strick-

land, 714 F.2d 1481, 1488 (llth Cir.

1983).

District of Columbia Circuit:

United States v. Decoster, 624 F.2d

196, 208 (D.C. Cir. 1979) (en banc),

cert. denied, 444 U.S. 944 (1979).

+c

The Fourth Circuit only requires

the petitioner to demonstrate that his

counsel failed to meet certain minimum

requirements. Once any of these re-

quirements has not been satisfied,

the petitioner is entitled to relief

unless the State can show that the

lawyer's derelictions were harmless.

Wood v. Zahradnick, 578 F. 2d 980,

982 (4th Cir. 1978); Coles v. Peyton,

389 F.2d 224, 226 (4th Cir. 1968),

cert. denied, 393 U.S. 849 (1968).

The Sixth Circuit does not require

any showing of prejudice once petitioner

has established that counsel failed to

render reasonably effective assistance.

Beasley v. United States, 491 F.2d 687,

696 (6th Cir. 1974).