# Respondents Brief — Strickland v. Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0655%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1984 - **Citation:** 466 U.S. 668 ## Text 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) .06 106 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 } 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) ; 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'&-, 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 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 ” 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. ’ 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° 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); ” 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 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0655%3A07. Public record. Not legal advice.