Opinion — McFarland v. Collins, Director, Texas Department of Criminal Justice, Institutional Division

SUPREME COURT OF THE UNITED STATES

FRANK BASIL MCFARLAND v. WAYNE SCOTT,

DIRECTOR, TEXAS DEPARTMENT OF CRIMI-

NAL JUSTICE, INSTITUTIONAL

DIVISION

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 93-8040. Decided June 30, 1994

The petition for a writ of certiorar: is denied.

JUSTICE BLACKMUN, dissenting.

Today in McFarland v. Scott, ante, at __, this Court

addressed the right to qualified legal counsel guaranteed

to all capital defendants in federal habeas corpus

proceedings. See 21 U. S. C. §848(qX4B). More often

than not, however, it is in the proceedings antecedent to

federal habeas corpus—the capital trial, and to a lesser

extent state postconviction proceedings—that a capital

defendant’s case is won or lost. Frequently the legal

counsel available to capital defendants at these critical

stages is woefully inadequate. I therefore write to

address the crisis in trial and state postconviction legal

representation for capital defendants that forms the

backdrop to the federal right to counsel afforded by

§848(q) 4B).

Without question, “the principal failings of the capital

punishment review process today are the inadequacy and

inadequate compensation of counsel at trial and the

unavailability of counsel in state post-conviction proceed-

ings.” Robbins, Toward a More Just and Effective

System of Review in State Death Penalty Cases, Report

of the American Bar Association’s Recommendations

Concerning Death Penalty Habeas Corpus, 40 Am. U. L.

Rev. 1, 16 (1990) (ABA Report). The unique, bifurcated

nature of capital trials and the special investigation into

2 MCFARLAND v. SCOTT

a defendant’s personal history and background that may

be required, the complexity and fluidity of the law, and

the high, emotional stakes involved all make capital

cases more costly and difficult to litigate than ordinary

criminal trials. Yet, the attorneys assigned to represent

indigent capital defendants at times are less qualified

than those appointed in ordinary criminal cases. See

Green, Lethal Fiction: The Meaning of ‘Counsel’ in the

Sixth Amendment, 78 Iowa L. Rev 433, 434 (1993);

Coyle, et al., Fatal Defense, 12 Nat'l L. J. 30, 44 (June

11, 1990) (Capital-defense attorneys in eight States were

disbarred, suspended, or disciplined at rates 3 to 46

times higher than the general attorney-discipline rates).

Two factors contribute to the general unavailability of

qualified attorneys to represent capital defendants. The

absence of standards governing court-appointed capital-

defense counsel means that unqualified lawyers often are

appointed, and the absence of funds to compensate

lawyers prevents even qualified lawyers from being able

to present an adequate defense. Many States that

regularly impose the death penalty have few, if any,

standards governing the qualifications required of court-

appointed capital-defense counsel. In 21 U.S. C.

§§848(q)(5) and (6), Congress has required that attorneys

appointed “f6 represent capital defendants in federal

habeas corpus proceedings must have five years of

experience litigating before the relevant court and three

years of felony experience. See McFarland, __ U. &., at

__., n. 2. According to a 1990 survey by the National

Law Journal, however, Florida, Georgia, Mississippi,

Texas, and California have no binding statewide quailifi-

cation criteria for capital-defense counsel. See Coyle, 12

Nat'l L. J., at 32, Capital-defense attorneys in Louisi-

ana must have five years’ experience practicing in some

area of law, but are not required to have experience in

capital defense or any form of criminal practice. Ibid.

In addition to the lack of standards, compensation for

attorneys representing indigent capital defendants often

is perversely low. Although a properly conducted capital

MCFARLAND v. SCOTT ; 3

trial can involve hundreds of hours of investigation,

preparation, and lengthy trial proceedings, many States

severely limit the compensation paid for capital defense.

Louisiana limits the compensation for court-appointed

capital-defense counsel to $1,000 for all pretrial prepara-

’ tion and trial proceedings. Kentucky pays a maximum

of $2,500 for the same services. Alabama limits reim-

bursement for out-of-court preparation in capital |

to a maximum of $1,000 each for the trial and ty

phases. Ala. Code §15-12-21 (a) (Supp. 1992); Op. Ala.

Att’y Gen. No. 91-00206 (Mar. 21, 1991). See generally

Klein, The Eleventh Commandment: Thou Shalt Not be

Compelled to Render the Ineffective Assistance of

Counsel, 68 Ind. L. J. 363, 364-375 (1993).

Court-awarded funds for the appointment of investiga-

tors and experts often are either unavailable, severely

limited, or not provided by state courts. As a result,

attorneys appointed to represent capital defendants at

the trial level frequently are unable to recoup even their

overhead costs and out-of-pocket expenses, and effec-

tively may be required to work at minimum wage or

below while funding from their own pockets their client's

defense. A recent survey by the Mississippi Trial

Lawyers’ Association estimated that capital-defense

attorneys in that State are compensated at an average

rate of $11.75 per hour. See Coyle, 12 Nat'l L. J., at

32. Compensation rates of $5 per hour or less are not

uncommon. Strasser, $1,000 Fee. Cap Makes Death

Row’s ‘Justice’ A Bargain for the State, 12 Nat’] L. J. 33

(June 11, 1990).' The prospect that hours spent in trial

stances would not warrant an award of attorneys’

the ($3,500) fee cap.” IJd., at 1378. South Carolina's Supreme Court

4 MCFARLAND v. SCOTT

preparation or funds expended hiring psychiatrists or

ballistics experts will be uncompensated unquestionably

chills even a qualified attorney's zealous representation

of his client.

The practical costs of such ad hoc systems of attorney

selection and compensation are well documented.

Capital defendants have been sentenced to death when

represented by counsel who never bothered to read the

state death penalty statute, e.g., State v. Smith, 581 So.

2d 497 (Ala. Crim. App. 1990), slept through or other-

wise were not present during trial, or failed to investi-

gate or present any mitigating evidence at the penalty

phase, Mitchell v. Kemp, 483 U.S. 1026 (1987) (Mar-

shall, J., dissenting from denial of certiorari). Other

indigent defendants have been represented by attorneys

who had been admitted to the bar only six months

befoge and never had conducted a criminal trial. E.g.,

Paradis v. Arave, 954 F. 2d 1483, 1490-1491 (CA9

1992), vacated and remanded, ___ U. S. ___ (1993), relief

denied, 20 F. 3d 950, 959 (1994). One Louisiana

defendant was convicted of capital murder following a

one-day trial and 20—minute penalty phase proceeding,

in which his counsel stipulated to the defendant's age at

the time of the crime and rested. State v. Messiah, 538

So. 2d 175, 187 (La. 1988), cert. denied, 493 U. S. 1063

(1990). When asked to cite the criminal cases he knew,

one defense attorney who failed to challenge his client's

racially unrepresentative fury pool, could name only two

cases: Miranda v. Arizona, 384 U. S. 436 (1966), and

Dred Scott v. Sandford, 19 How. 393 (1857). See Bright,

also refused, on Sixth Amendment grounds, to enforce the State's

$10 and $15 per hour and $5,000 maximum compensation levels in

capital cases. Bailey v. State, 424 S. E. 2d 503, 508 (S.C. 1992).

The Oklahoma and Arkansas Supreme Courts recently struck down

their States’ respective compensation caps of $3,200 and $1,000 as

unconstitutiona] takings when applied to capital cases. See State v.

Lynch, 796 P. 2d 1150 (Okla. 1990); Arnold v. Kemp, 306 Ark. 294,

813 S. W. 2d 770 (1991).

MCFARLAND v. SCOTT 5

Counsel for the Poor: The Death Sentence Not for the

Worst Crime but for the Worst Lawyer, 103 Yale L. J.

1835, 1839, and n. 32, citing Tr. of April 25-27, 1988

Hearing, at 231, State v. Birt, No. 2360 (Super. Ct.

Jefferson Cty., Ga. 1988).

The consequences of such poor trial representation for

the capital defendant, of course, can ‘be lethal. Evidence

not presented at trial cannot later be discovered and

introduced; arguments and objections not advanced are

forever waived. Nor is a capital defendant likely to be

able to demonstrate that his legal counsel was ineffec-

tive, given the low standard for acceptable attorney

conduct and the high showing of prejudice required

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

Ten years after the articulation of that standard,

practical experience establishes that the Strickland test,

in application, has failed to protect a defendant's right

to be represented by something more than “a person

who happens to be a lawyer.” ZId., at 685.

The impotence of the Strickland standard is perhaps

best evidenced in the cases in which ineffective assis-

‘ tance claims have been denied. John Young, for exam-

ple, was represented in his capital trial by an attorney

who was addicted to drugs and who a few weeks. later

was incarcerated on federal drug charges. The Court of

Appeals for the Eleventh Circuit rejected Young’s ineffec-

tive assistance of counsel claim on federal habeas, Young

v. Kemp, 727 F. 2d 1489 (1984), and this Court denied

review, 470 U. S. 1009 (1985). ~ Young was executed in

1985. John Smith and his codefendant Rebecca Machetti

were sentenced to death by juries selected under the

same Georgia statute. Machetti’s attorneys successfully

challenged the statute under a recent Supreme Court

decision, Taylor v. Louisiana, 419 U.S. 522 (1975),

winning Machetti a new trial and ultimately a life sen-

tence. Machetti v. Linahan, 679 F. 2d 236 (CA11 1982).

Smith’s counsel was unaware of the Supreme Court

decision, however, and failed similarly to object at trial.

6 aa» MCFARLAND v. SCOTT

Smith v. Kemp, 715 F. 2d 1459 (CA11 1983). Smith was

executed in 1983.

Jesus Romero's attorney failed to present any evidence

at the penalty phase and delivered a closing argument

totalling 29 words. Although the attorney later was

suspended on unrelated grounds, Romero's ineffective

assistance claim was rejected by the Court of Appeals

for the Fifth Circuit, Romero v. Lynaugh, 884 F. 2d 871,

875 (1989), and this Court denied certiorari, 494 U. S.

1012 (1990). Romero was executed in 1992. Larry

Heath was represented on direct appeal by counsel who

filed a 6—page brief before the Alabama Court of

Criminal Appeals. The attorney failed to appear for oral

argument before the Alabama Supreme Court and filed

a brief in that court containing a 1l-page argument and

citing a single case. The Eleventh Circuit found no

prejudice, Heath v. Jones, 941 F. 2d 1126, 1131 (1991),

and this Court denied review, 502 U.S. __ (1992).

Heath was executed in Alabama in 1992.

James Messer, a mentally impaired capital defendant,

was represented by an attorney who at the trial’s guilt

phase presented no defense, made no objections, and

emphasized the horror of the capital crime in his closing

statement. At the penalty phase, the attorney presented

no evidence of mental impairment; failed to introduce

other substantial mitigating evidence, and again repeat-

edly suggested in closing that death was the appropriate

punishment. The Eleventh Circuit refused to grant

relief, Messer v. Kemp, 760 F. 2d 1080 (1985) (Johnson,

J., dissenting), and this Court denied certiorari, 474

U. S. 1088 (1986). Messer was executed in 1988. Even

the attorney who could name only Miranda and Dred

Scott twice has survived ineffective assistance challenges.

See Birt v. Montgomery, 725 F. 2d 587, 596-601 (CA11)

(en banc), cert. denied, 469 U. S. 874 (1984); Williams

v. State, 258 Ga. 281, 368 S. E. 2d 742 (1988), cert.

McFARLAND v. SCOTT 7

denied, 492 U. S. 925 (1989). None of these cases

inspires confidence that the adversarial system func-

tioned properly or “that the trial can[) be relied on as

having produced a just result.” Strickland, 466 U. S., at

686. Yet, in none of these cases was counsel's assis-

tance found to be ineffective.

Regardless of the quality of counsel, capital defendants

constitutionally are entitled to have some “person who

happens to be a lawyer . . . present at trial alongside

the accused.” Id., at 685. The same cannot be said for

state postconviction review. State habeas corpus

proceedings are a vital link in the. capital review

process, not the least because all federal habeas claims

first must be adequately raised in state court. _ This

Court thus far has declined to hold that indigent capital

defendants have a right to counse! at this level, based

on the assumption that capital defendants generally can

- obtain volunteer or other counsel to represent them in

these state proceedings. Murray v. Giarratano, 492

U. S. 1, 14 (1989) (KENNEDY, J., joined by O'CONNOR, J.,

concurring in judgment) (In “the case before us . . . no

prisoner on death row in Virginia has been unable to

obtain counsel to represent him in postconviction

proceedings”).

Though perhaps true for some jurisdictions, this

assumption bears little resemblance to the realities

confronting McFarland and other condemned inmates in

Texas. A recent study of state postconviction capital

representation in Texas sponsored by the American Bar

Association (ABA) concluded that the capital-defense

situation in that State is “desperate.” The Spangenberg

Group, A Study of Representation in Capital Cases in

Texas, ii (March 1993). According to the Spangenberg

*For further discussion of these and other examples of indigent

capital defense representation, see, eg., Bright, Counsel for the

Poor: The Death Sentence Not for the Worst Crime but for the

Worst Lawyer, 103 Yale L. J. 1835 (1994); ABA Report, at 65-70.

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8 MCFARLAND v. SCOTT

Group, “Texas has already reached the crisis stage in

capital representation and .. . the problem is substan-

tially worse than that faced by any other state with the

death penalty.” /d., at i.

Texas has the second largest death row in the country,

with approximately 375 inmates currently facing execu-

tion. Since 1976, Texas has executed approximately one

third of all the defendants put to death in the United

States, NAACP Legal Defense and Educational Fund,

Inc., Death Row, U. S.A., 10 (Spring 1994), and the pace

of executions in Texas is increasing. In June 1993, this

Court denied certiorari in an unprecedented 29 capital

cases from Texas, including McFarland’s. During the

ensuing period between June 1 and October 21, 1993,

Texas scheduled 39 executions and actually executed 10

capital defendants. All told, the Lone Star State set

more than 100 execution dates in 1993, at least eight of

which were set within 45 days of the close of direct

review.

Finding qualified defense counsel capable. of meeting

this demand might be formidable even if an adequate

pool of attorneys and adequate funds were available.

Capital defendants in Texas, however, have no statutory

right to counsel in state postconviction proceedings,

receive little benefit from the State’s skeletal public

defender service, and are not provided even discretionary

court-appointed counsel. Although the Texas Code of

Criminal Procedure, Arts. 11.07, 26.04, 26.05, gives state

courts discretion to appoint and compensate counsel for

state habeas corpus proceedings, “this is almost never

done.” Spangenberg Group, at vii. Funds for experts

and other expenses also “are almost never approved.”

Ibid. Indeed, the ABA study found that “[p]resently no

funds are allocated for payment of counsel or litigation

expenses at the state habeas level.” Spangenberg

Group, at ii. Capital defendants in state postconviction

proceedings must rely almost exclusively on volunteer

private counsel—volunteers who are increasingly difficult

to find. Texas thus has become “the only death penalty

McFARLAND v. SCOTT 9

state in which death-sentenced prisoners are not rou-

tinely represented in state postconviction proceedings.”

Brief for American Bar Association as Amicus Curiae,

McFarland v. Scott, No. 93-6497, 3, and n. 9. The lack

of attorney compensation and Texas’ aggressive practice

of “[djocket control by execution date,” Jones, “Death

Penalty Procedures: A Proposal for Reform, 53 Tex. Bar

J. 850, 851 (1990), have left an estimated 75 capital

defendants in Texas who currently are facing execution

dates without any legal representation.

The right to qualified legal counsel in federal habeas

corpus proceedings bestowed by §848(q\4\B) is triggered

only after a capital defendant has completed his direct

review and, generally, some form of state postconviction

proceeding. The continuing importance of federal habeas

corpus in correcting constitutional errors is well docu-

mented. Of the capital cases reviewed in federa] habeas

corpus proceedings between 1976 and 1991, nearly half

(46%) were found to have constitutional error. Liebman,

More than ‘Slightly Retro:’ The Rehnquist Court’s Rout

of Habeas Corpus Jurisdiction in Teague v. Lane, 18

N.Y.U. Rev. L. & Soc. Change 537, 541, n. 15

(1990-1991). The total reversal rate of capital cases at

all stages of review during the same time period was

estimated at 60% or more. Id., at 541, n. 15; see also

Murray v. Giarratano, 492 U. S., at 23-24, and n. 13

(STEVENS, J., joined by Brennan, Marshall, and

BLACKMUN, JJ., dissenting) (citing a federal habeas

corpus success rate of 60% to 70% in capital cases,

versus 0.25% to 7% in_noncapital cases); id., at 14

(KENNEDY, J., joined by O'CONNOR, J., concurring in

judgment). This Court itself frequently has granted

capital. defendants relief in federal habeas corpus

proceedings. See, e.g., Parker v. Dugger, 498 U. S. 308

(1991); Yates v. Evatt, 500 U.S. __ (1991); Yates v.

Aiken, 484 U. S. 211 (1988); Yates v. Aiken, 474 U. S.

896 (1985); Penry v. Lynaugh, 492 U. S. 302 (1989);

Amadeo v. Zant, 486 U.S. 214 (1988); Maynard v.

Cartwright, 486 U. S. 356 (1988); Johnson v. Mississippi,

10 MCFARLAND v. SCOTT

486 U. S. 578 (1988); Hitchcock v. Dugger, 481 U. 8. 393

(198° Ford v. Wainwright, 477 U. S. 399 (1986).

Th mere presence of “[sjuch a high incidence of

uncorrected error” found ih capital habeas corpus

proceedings, Murray v. Giarratano, 492 U.S., at 24

(STEVENS, J., joined by Brennan, Marshall, and

BLACKMUN, JJ., dissenting), testifies to the inadequacy

of the legal representation afforded at the trial and state

postconviction stages. Yet the barriers to relief in

federal habeas corpus proceedings are high. Even the

best lawyers cannot rectify a meritorious constitutional

claim that has been procedurally defaulted or waived by

prior inadequate counsel. The accumulating and often

byzantine restrictions this Court has imposed on federal

habeas corpus review, see, e.g., Herrera v. Collins, 506

U. S..____ (1993); Sawyer v. Whitley, 505 U. S.

(1992); Keeney v. Tamayo-Reyes, 504 U.S. __ (1992);

Coleman v. Thompson, 501 U. S. __ (1991); McCleskey

v. Zant, 499 U.S. __ (1991); Butler v. McKellar, 494

U. S. 407 (1990); Teague v. Lane, 489 U. S. 288 (1989),

make it even less likely that future capital defendants

who receive qualified legal counsel in federal habeas

actually will obtain relief. And it is the capital defend-

ant who pays the price for the failings of counsel and

this review process—generally with his life.

Our system of justice is adversarial and depends for

its legitimacy on the fair and adequate representation of

all parties at all levels of the judicial process. The trial

is the main event in this system, where the prosecution

and the defense do battle to reach a presumptively

reliable result. When we execute a capital defendant in

this country, we rely on the belief that the individual

was guilty, and was convicted and sentenced after a fair

trial, to justify the imposition of state-sponsored killing.

And when this Court curtails federal oversight of state

court proceedings, it does so in reliance on the proposi-

tion that justice has been done at the trial level. My 24

years of overseeing the imposition of the death penalty

from this Court have left me in grave doubt whether

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“MCFARLAND v. SCOTT i

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this reliance is justified and whether the constitutional

requirement of competent legal counsel for capital

defendants is being fulfilled. It is my hope and belief

that this Nation soon will come to realize that capital

punishment cannot morally or constitutionally be

imposed. Until that time, however, we must have the

courage to recognize the failings of our present system

of capital representation and the conviction to do wast

is necessary to improve it.

Adhering to my belief that the death penalty euiiniet

be imposed fairly within the constraints of our Constitu-

tion, Callins v. Collins, 510 U. S. __ (1994) (BLACKMUN,

J., dissenting), I would grant the’ petition for certiorari

and vacate the death sentence. —

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