Amicus Curiae Brief — Bell v. Cone

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PILED

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No. 01-400

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Supreme Court of the Gnited States

RICKY BELL, WARDEN,

Petitioner,

Vv.

GARY BRADFORD CONE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

DAVID M. PORTER WALTER DELLINGER

NAT'L ASS’N OF CRIMINAL (Counsel of Record)

DEFENSE LAWYERS PAMELA HARRIS

Co-Chair, Amicus Committee SRI SRINIVASAN

801 K St., 10th Floor O’MELVENY & MYERS LLP

Sacramento, CA 95814 555 13th Street, N.W.

(916) 498-5700 Washington, D.C. 20543

(202) 383-5300

Attorneys for Amicus Curiae

BEST AVAILABLE COPY

Af AsO

TABLE OF CONTENTS

Page

pk, eee ili

INTEREST OF AMICUS CURIAE............ccccsssssssssseesseesenes 2

SUMMARY OF ARGUMENT............:sssssssssessssessesssersenees 2

PETITE ‘sincictctpuitencientnsensibesscvensinecpenmnecscssecmenneseneeiecsonente 4

I. COUNSEL ENTIRELY ABDICATED

HIS BASIC ADVERSARIAL RESPON-

SIBILITY IN RESPONDENT’S CAPI-

TAL SENTENCING HEARING. .........::cccccsesssesseeeeeeees 4

A. Counsel’s Fundamental Duty In A Capital

Sentencing Hearing Is To Make An Af-

firmative Case For A Life Sentence. ...............:000008 4

B. Counsel Made No Case For A Life Sen-

tence In Response To The State’s Case

BP BID ciccrresiantnisiinncimincosénesinsmnsemnaqsecsnntagunssoorteseniee 8

Il. CRONIC SETS THE APPROPRIATE

STANDARD WHEN COUNSEL FAILS

TO SUBJECT THE STATE’S CASE

FOR DEATH TO MEANINGFUL AD-

ee BIIPUE ETE oxsccnccesenssecnsncssnbssecesescsencvesnees 10

A. This Case Is Governed By The Cronic

Standard For Breakdowns Of The Adver-

sarial Process Rather Than The Strickland

Standard For Specific Attorney Errors. .............++++: 10

ii

B. Application Of Cronic To The Rare Case

In Which Attorney Default Leads To An

“Adversarial Breakdown” Is Both Neces-

sary and Sensible. .............c.crcccsssssssessssosssssesssesesses 15

CONCLUSION ..ccccscssccccssosscosssossocssnssssssssosssssosssssssssssonsenss 21

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Burdine v. Johnson, 262 F.3d 336 (Sth Cir. 2001).. 15, 16, 17

Cox v. State, 880 S.W.2d 713

Tt rscereeeesinnreneennnnenennenenenananeaneass 7

Darden v. Wainwright, 477 U.S. 168 (1986) ............0c0008 14

Eddings v. Oklahoma, 455 U.S. 104 (1982) .........cccccccceseeees 5

Gregg v. Georgia, 428 U.S. 153 (1976) ........cccccccseeeeeseeeeees 9

Hall v. Washington, 106 F.3d 742 (7th Cir. 1997).......... 6, 21

Harding v. Davis, 878 F.2d 1341 (11th Cir. 1989)............. 18

Kimmelman v. Morrison, 477 U.S. 365 (1986)....... 15, 16, 17

Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989)...............000. 21

Lockett v. Ohio, 438 U.S. 568 (1978)......ccccccecseeseeeeeeeeseeneees 6

Lockhart v. Fretwell, 506 U.S. 364 (1993)........c.ccccccceeeeeeees 14

Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) ..............000.. 18

Penry v. Lynaugh, 492 U.S. 302 (1989).............. 4, 5, 6,9, 10

Rick...an v. Bell, 131 F.3d 1150 (6th Cir. 1997)...... 15, 16, 17

Roe v. Flores-Ortega, 528 U.S. 470 (2000)............ 12, 14, 20

Satterwhite v. Texas, 486 U.S. 249 (1988) .........cccccccccceeseees 16

Smith v. Robbins, 528 U.S. 259 (2000) ........ccccccccccseeeeeeeeeenees l

Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998)............. 8, 21

State v. Harris, 989 S.W.2d 307

Se 7

State v. Bibbs, 806 S.W.2d 786

(Tenn. Crim. App. 1991) ........cccccscccsssssssssssscesssssssseeseeeeee 7

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Julian, No. 03C01-2511-CV-00371, 1997

Tenn. Crim. App. LEXIS 702 (July 24, 1997) ..........0-++«. 7

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

Tucker v. Day, 969 F.2d 155 (Sth Cir. 1992) .........ccessesseees 17

United States v. Cronic, 466 U.S. 648 (1984)............. passim

Williams v. Taylor, 529 U.S. 362 (2000)........c.seeeeeseees 1,14

STATUTES

EE 4

OTHER MATERIALS

American Bar Ass’n, ABA Guidelines for the Ap-

pointment and Performance of Counsel in

Death Penalty Cases (1989) .........scssceeseseneeeeeneenees 5,6

American Bar Ass'n, Toward a More Just and Ef-

fective System of Review in State Death Pen-

alty Cases, 40 Am. L. Rev. 1 (1990)..........ceseceenrseerennes 7

Stephen B. Bright, Counsel for the Poor: The Death

Penalty Not for the Worst Crimes But for the

Worst Lawyer, 103 Yale L.J. 1835 (1994) .............++ 7, 16

California Attorneys for Criminal Justice, Cali-

fornia Death Penalty Defense Manual (1986) ................ 6

Theodore Eisenberg & Martin T. Wells, Deadly

Confusion: Juror Instructions in Capital

Cases, 79 Cornell L. Rev. 1 (1992) ........ccccsssesseseersensenses 5

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Gary Goodpaster, The Trial for Life: Effective As-

sistance of Counsel in Death Penalty Cases, 58

Pees Sites les Se crcierrinntisierertnititinimestanmsatiaein 5, 10

Craig Haney, Taking Capital Jury Seriously,

SS 6

Roy Brasfield Herron, Defending Life in Tennessee

Death Penalty Cases, 51 Tenn. L. Rev. 681 (1984)........ 7

Anthony Paduano & Clive A. Stafford Smith, The

Unconscionability of Sub-Minimum Wages

Paid Appointed Counsel in Capital Cases, 43

EE ee 7

Tennessee Ass’n of Criminal Def. Lawyers, Tools

for the Ultimate Trial: The TACDL Death

Penalty Defense Manual (1992) ............cc00c0ese0eeeeee 5, 6, 20

Welsh S. White, Effective Assistance of Counsel in

Capital Cases: The Evolving Standard of Care,

Se eS 5,7

IN THE

Supreme Court of the Anited States

No. 01-400

RICKY BELL, WARDEN,

Petitioner,

Vv.

GARY BRADFORD CONE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

This brief is filed on behalf of the National Association

of Criminal Defense Lawyers as amicus curiae in support of

respondent Gary Bradford Cone, with the written consent of

the parties. ' :

' As required by Rule 37.6 of this Court, amicus curiae submits that

no party or counsel for a party to this case authored this brief in whole or

in part, and no person or entity other than amicus curiae, its members, or

its counsel has made a monetary contribution to the preparation or sub-

mission of this brief.

2

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”) is a non-profit organization with direct national

membership of over 10,000 attorneys, in addition to more

than 28,000 affiliate members from every state. Founded in

1958, NACDL is the only professional bar association that

represents public and private criminal defense lawyers at the

national level. The American Bar Association recognizes

NACDL as an affiliated organization with full representation

in the ABA House of Delegates.

NACDL’s mission is to ensure justice and due process

for the accused; to foster the integrity, independence, and

expertise of the criminal defense profession; and to promote

the proper and fair administration of criminal justice. In

keeping with that stated mission, NACDL is dedicated to the

preservation and improvement of our adversary system of

justice. NACDL frequently files briefs before this Court in

cases implicating its substantial interest in defending stan-

dards of professional advocacy and upholding the constitu-

tional commitment to the effective assistance of counsel.

See, e.g., Williams v. Taylor, 529 U.S. 362 (2000); Smith v.

Robbins, 528 U.S. 259 (2000).

This brief, like the brief of the United States as amicus

for petitioner, is limited to the ineffective assistance issue

raised in question two of petitioner’s brief.

SUMMARY OF ARGUMENT

“The right to the effective assistance of counsel is [] the

right of the accused to require the prosecution’s case to sur-

vive the crucible of meaningful adversarial testing.” United

States v. Cronic, 466 U.S. 648, 656 (1984). The prosecu-

tion’s argument at the penalty phase of respondent’s trial —

that Gary Cone should die — was never subjected to that

“meaningful adversarial testing.” As a result, there can be

3

no confideuice in the fairness or reliability of the sentencing

proceeding. Id. at 654-56. The Sixth Amendment does not

permit that outcome to stand — not in any case, and certainly

not in a capital case, where concerns for fairness and reliabil-

ity are at a-premium.

Petitioner’s first line of attack on this straightforward po-

sition is to minimize the nature of counsel’s nonperformance

at the penalty proceeding. But this is not a case about an iso-

lated attorney error, or even a series of discrete attorney mis-

steps. This is a case about an attorney’s complete failure to

answer the State’s argument for death with an affirmative

argument for life — to forgo both of the primary tools of ad-

vocacy at a penalty proceeding, i.e., presentation of mitigat-

ing evidence and closing argument, and to create for the jury

what must have been an indelible impression of a client so

deserving of the death sentence that even his own lawyer is

left without any response to the prosecution. No amount of

disaggregating by petitioner can disguise the combined effect

of counsel’s complete abdication here.

Petitioner’s fall-back position is that Cronic does not, or

at least should not, mean what it says. We disagree. Cronic

is perfectly clear about the rule it establishes: When counsel

ceases to function as a meaningful adversary of the state, it is

as though counsel is absent altogether, and there is no need

for any further inquiry into prejudice or specific harm to

make out a violation of the Sixth Amendment. And nothing

about the Cronic principle has proved unwise or unworkable

in practice. In the rare instances in which the lower courts

have resorted to it, the Cronic standard has operated just as it

was intended, to prevent the fairness and legitimacy of

criminal proceedings from being undermined by breakdowns

of the adversarial process.

4

ARGUMENT

I. COUNSEL ENTIRELY ABDICATED HIS BASIC

ADVERSARIAL RESPONSIBILITY IN RESPON-

DENT’S CAPITAL SENTENCING HEARING.

The question in this case is whether respondent’s counsel

“entirely fail[ed] to subject the prosecution’s case to mean-

ingful adversarial testing,” United States v. Cronic, 466 U.S.

648, 659 (1984), in the capital sentencing proceeding that

resulted in respondent’s death sentence. The answer is yes.

Counsel entirely abdicated his most basic duty as an advo-

cate in the penalty proceeding — to make an affirmative case

for a life sentence to counter the prosecution’s case for death.

In fact, counsel literally stood silent in response to the prose-

cution’s case for imposition of the death sentence, leaving

the jury with the inescapable impression that there was no

argument at all to be made for sparing respondent’s life.

That constitutes a breach of counsel’s adversarial responsi-

bilities of the most fundamental kind.”

A. Counsel’s Fundamental Duty In A Capital Sen-

tencing Hearing Is To Make An Affirmative Case

For A Life Sentence.

The question for the jury in a capital sentencing proceed-

ing is which sentence — life or death — best “reflect[s; a rea-

soned moral response to the defendant’s background, charac-

ter, and crime.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(emphasis in original) (internal quotation marks omitted).

? This brief does not address separately the State’s contention that 28

U.S.C. § 2254(d)(1) barred the court below from vacating respondent's

death sentence. As respondent explains, whether 28 U.S.C. § 2254(d)(1)

precludes relief in this case turns entirely on the merits of the Sixth Cir-

cuit’s conclusion that United States v. Cronic provices the governing

framework for respondent’s ineffective assistance claim. That conclu-

sion is correct for the reasons we explain here.

5

The objective of defense counsel can be stated in stark terms:

“The goal at the sentencing phase is to help the jury see the

client as someone they do not want to kill.” American Bar

Ass’n, ABA Guidelines for the Appointment and Perform-

ance of Counsel in Death Penalty Cases (“ABA Guidelines’),

11.8 commentary (1989). After all, “[o]nce the defendant

has been found guilty of a capital crime, a life sentence is

counsel’s only remaining advocacy goal.” Gary Goodpaster,

The Trial for Life: Effective Assistance of Counsel in Death

Penalty Cases, 58 N.Y.U. L. Rev. 299, 318 (1983). And be-

cause the jury — having already found the defendant guilty of

a capital crime — is generally predisposed to imposing the

death sentence, it is up to counsel to present an affirmative

case to the jury for sparing the defendant’s life. See Welsh

S. White, Effective Assistance of Counsel in Capital Cases:

The Evolving Standard of Care, 1993 U. Ill. L. Rev. 323, 341

(“At the sentencing stage, the defendant, having been con-

victed of a capital offense, usually faces a sentencer already

inclined towards imposing the death penalty unless the de-

fense provides it with a reason not to”).°

The twin pillars of counsel’s affirmative case for a life

sentence are interrelated. The first entails the introduction of

mitigating evidence about the defendant’s “background,

character, and crime,” Penry, 492 U.S. at 319, as a counter-

weight to the aggravating circumstances presented by the

prosecution. The Constitution of course prohibits any limita-

tion on the jury’s consideration of mitigating evidence about

a capital defendant. See Eddings v. Oklahoma, 455 U.S.

> See also Theodore Eisenberg & Martin T. Wells, Deadly Confu-

sion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 12

(1992) (“The data suggest that the sentencing phase of a capital trial

commences with a substantial bias in favor of death.”); Tennessee Ass’n

of Criminal Def. Lawyers, Tools for the Ultimate Trial: The TACDL

Death Penalty Defense Manual, 14.13 (1992) (“After considering all the

gruesome evidence of guilt, the jurors often need no additional reasons to

impose death.”).

6

104, 113-14 (1982); Lockett v. Ohio, 438 U.S. 568, 604

(1978) (plurality). And it is generally accepted in the capital

defense bar “that the presentation of mitigation in the penalty

phase is of overwhelming importance.” Craig Haney, Tak-

ing Capital Jury Seriously, 70 Ind. L.J. 1223, 1227 (1995);

see ABA Guidelines, supra, 11.8.2(D) & 11.8.6(C) (describ-

ing counsel’s obligation to “ensure that al] reasonably avail-

able mitigating and favorable information . . . is presented to

the jury in the most effective possible way” and to “consider

all potential methods of offering mitigating evidence to the

sentencing entity”). The presentation of a case in mitigation

assumes special importance where, as here, the jury is in-

structed that if the aggravating circumstances “are not out-

weighed by any mitigating circumstances,” “the sentence

shall be death.” J.A. 57 (emphasis added); see, e.g., Hall v.

Washington, 106 F.3d 742, 752 (7th Cir. 1997) (“Without a

reasonable showing of mitigation by the defense, the court

had no choice: under the Illinois death penalty scheme, if no

sufficient mitigating factors are found, ‘the court shall sen-

tence the defendant to death.””).

The second basic element of counsel’s affirmative case

for a life sentence is the closing argument to the jury. The

“closing arguments of counsel are a critical stage of the pen-

alty trial. For defense counsel, there may be no more awe-

some task than delivering a plea for life.” California Death

Penalty Defense Manual, Vol. 2, H-225 (1986). Closing ar-

gument represents counsel’s sole opportunity to explain to

the jury why, in view of the various mitigating and aggravat-

ing evidence presented to it, the appropriate “reasoned moral

response” in the circumstances is to show mercy. Penry, 492

U.S. at 319. The principal objective is to “humanize” the

defendant, by marshaling the mitigating evidence and weav-

ing it into a coherent explanation of how an individual whose

life is worth sparing could commit an offense so grave. See

TACDL Death Penalty Defense Manual, supra, at 14.94.

7

Closing argument in this sense works hand-in-hand with the

presentation of mitigating evidence, and “can be the single

most important part of a capital murder trial.” Roy Brasfield

Herron, Defending Life in Tennessee Death Penalty Cases,

51 Tenn. L. Rev. 681, 758 (1984).

Because the jury’s decision is based ultimately on an in-

definite “moral response” to the defendant’s circumstances

rather than on an objective finding of determinate fact, a

skillful use of mitigating evidence and closing argument can

overcome even the most substantial case in aggravation. “In

fact, most experienced capital defense attorneys are able to

cite cases in which the defendant’s life was spared despite

overwhelming evidence of aggravating circumstances.”

White, supra, at 365.° As is by now well established, how-

ever, the quality of advocacy in capital cases represents one

of the “principal failings of the capital punishment systems

in the states today,” and too often falls far short of the ideal.

American Bar Ass’n, Toward a More Just and Effective Sys-

tem of Review in State Death Penalty Cases, 40 Am. L. Rev.

1, 16 (1990); see Stephen B. Bright, Counsel for the Poor:

The Death Penalty Not for the Worst Crimes But for the

* Consider, for instance, the following cases where Tennessee juries

found that the State had established multiple aggravating circumstances

yet were persuaded to return life sentences. State v. Harris, 989 S.W.2d

307 (Tenn. Crim. App. 1999) (victim was kidnapped, shot, and muti-

lated); State v. Julian, 1997 Tenn. Crim. App. LEXIS 702 (1997) (rape,

kidnapping, and murder of a young girl); see also Cox v. State, 880

S.W.2d 713 (Tenn. Crim. App. 1994); State v. Bibbs, 806 S.W.2d 786

(Tenn. Crim. App. 1991). The point is further confirmed by instances in

which a jury is persuaded to return a life sentence in the retrial of a de-

fendant who was previously sentenced to death. See, e.g., Anthony Pa-

duano & Clive A. Stafford Smith, The Unconscionability of Sub-

Minimum Wages Paid Appointed Counsel in Capital Cases, 43 Rutgers

L. Rev. 281, 331-33 (1991); White, supra, at 324-26 (discussing case in

which "[i}t took the second jury almost exactly the same amount of time

to reach a unanimous sentence of life as it had taken the first jury to sen-

tence the defendant to death).

8

Worst Lawyer, 103 Yale L.J. 1835, 1841 (1994).

B. Counsel Made No Case For A Life Sentence In

Response To The State’s Case For Death.

This is not a case in which counsel’s performance of his

basic responsibility at sentencing falls somewhat short of the

ideal. This case is in an altogether different category: coun-

se] literally made no affirmative argument for a life sentence

in response to the prosecution’s case for death.

To make its case at sentencing, the State presented the

testimony of a number of witnesses as to the existence of

four statutory aggravating factors. After the State completed

its proof of the four aggravating circumstances, counsel for

respondent introduced no evidence — none at all — in mitiga-

tion, even though he had “plenty of mitigating evidence at

his fingertips.” Pet. App. 35. Then, the State made its clos-

ing argument, in which it reviewed “the proof as relates to

aggravating circumstances and mitigating circumstances,”

reiterated the four aggravating factors, stated that those fac-

tors had “been proven ... beyond a reasonable doubt and to

a moral certainty,” and urged that “the aggravating circum-

stances outweigh the mitigating circumstances” and there-

fore compelled imposition of a death sentence. J.A. 50-52.

Counsel for respondent made no argument in response, stat-

ing instead only that he “waive[d] final argument.” Jd. at 52.

The jury, in short, was presented with no affirmative ar-

gument for a life sentence to counter the State’s argument for

death. In fact, given the sequence of events, counsel did

more than fail to make an affirmative argument for life.

Through his complete silence following the close of the

State’s case, counsel gave the jury the impression that, after

hearing the strength of the Staie’s case for the death sen-

tence, he had no choice but to acquiesce. Pet. App. 36; see

Smith v. Stewart, 140 F.3d 1263, 1270 (9th Cir. 1998) (“fail-

——

9

ure to offer evidence or make argument amounts to a conces-

sion that the death penalty should be imposed, and an aban-

donment of the client to that fate”’).

Nothing else about counsel’s actions at the sentencing

proceeding can compensate for this fundamental failing.

Though counsel briefly cross-examined one of the State’s

witnesses and successfully objected to the introduction of

one of the State’s exhibits, neither of those defensive efforts

went toward explaining to the jury why they should spare

respondent’s life. Nor can counsel’s brief opening state-

ment, made before the State presented its case, carry the

weight petitioner assigns it. To be sure, that statement did

refer to testimony in the guilt phase concerning respondent’s

drug abuse and mental condition. But because counsel pre-

sented no evidence and waived closing argument, there was

no subsequent reference to respondent’s mental state after

the jury had been confronted with the state’s case for death,

and thus no effort to explain how the guilt phase evidence

could justify a life sentence in the face of the state’s unrebut-

ted argument to the contrary.

Indeed, given the failure to introduce evidence or to

make a closing argument, there was no occasion to explain to

the jury why that evidence — which the jury already had re-

jected in the course of convicting respondent — should be

considered mitigating at all. See Penry, 492 U.S. at 320

(“The jury was never instructed that it could consider the

evidence offered by Penry as mitigating evidence and that it

could give mitigating effect to that evidence in imposing sen-

tence.”). Nor was there any reason to assume that the lay

jury could find its way to the mitigating properties of the

evidence on its own. Such an assumption is always unwar-

ranted. See Gregg v. Georgia, 428 U.S. 153, 192 (1976)

(plurality) (“Since the members of a jury will have had little,

if any, previous experience in sentencing, they are unlikely

to be skilled in dealing with the information they are

10

given.”). But it is especially dangerous when, as here, the

evidence goes to mental or emotional difficulties. As this

Court has recognized, such evidence is a “two-edged sword,”

likely to be perceived by a sentencing jury as aggravating

unless its mitigating potential is explained. Penry, 492 U.S.

at 324 (evidence of mental difficulties can “diminish []

blameworthiness for [a] crime even as it indicates that there

is a probability that [the defendant] will be dangerous in the

future’’).

The irreducible minimum of meaningful advocacy by de-

fense counsel in a capital sentencing hearing is this: “A true

advocate cannot permit a capital case to go to the sentencer

on the prosecution’s one-sided portrayal alone and claim to

be rendering effective assistance.” Goodpaster, supra, at

335-36. That is precisely what happened in this case.

II. CRONIC SETS THE APPROPRIATE STANDARD

WHEN COUNSEL FAILS TO SUBJECT THE

STATE’S CASE FOR DEATH TO MEANINGFUL

ADVERSARIAL TESTING.

A. This Case Is Governed By The Cronic Standard

For Breakdowns Of The Adversarial Process

Rather Than The Strickland Standard For Spe-

cific Attorney Errors.

1. In United States v. Cronic, 466 U.S. 648, 654-56

(1984), this Court established that the right to counsel pro-

tected by the Sixth Amendment entails more than mere ap-

pointment, or even presence, of counsel. Instead, the Sixth

Amendment guarantees the effective assistance of counsel —

not as an end in itself, but as a means of vindicating the un-

derlying “right of the accused to require the prosecution’s

case to survive the crucible of meaningful adversarial test-

ing.” Id. at 656. It follows, the Court held, that when that

“adversarial testing” does not occur, the Sixth Amendment is

11 f

violated. Jd. at 656-57. “[I}f counsel entirely fails to subject

the prosecution’s case to meaningful adversarial testing, then

there has been a denial of Sixth Amendment rights that

makes the adversary process itself presumptively unreliable.”

Id. at 659.

This conclusion, sometimes referred to as the “Cronic

presumption” of ineffective assistance, is perfectly straight-

forward. That the assistance of counsel is absolutely essen-

tial to the functioning of a fair trial is by now well under-

stood. See id. at 653-57; Strickland v. Washington, 466 U.S.

668, 684-85 (1984). So is the principle that actual denial of

counsel at a critical stage of trial is a per se Sixth Amend-

ment violation, without the necessity for any further inquiry

into prejudice or other harm to the defendant. See Cronic,

466 U.S. at 659 & n.25. Cronic simply applies the same

principle to the constructive denial of counsel that occurs

when a lawyer so thoroughly abdicates his responsibility that

an “actual breakdown of the adversarial process” results. /d.

at 657; see Strickland, 466 U.S. at 692 (Cronic establishes

that “[ajctual or constructive denial of the assistance of coun-

sel altogether” constitutes Sixth Amendment error).

The Cronic standard, of course, applies only rarely. But

this is the rare case that squarely implicates Cronic. At the

most critical stage of respondent’s trial — the stage that

would determine whether respondent lived or died — counsel

let the State’s case for death go unanswered. After the

prosecution put on evidence of aggravating factors and ar-

gued for death, counsel simply sat silent. No other aspect of

counsel’s performance — not evidence introduced at the guilt

phase of trial, not counsel’s opening statement — can cure

this central defect in the proceedings. See supra at 9. Coun-

sel’s failure to respond to the prosecution’s case with either

mitigating evidence or a closing argument deprived the pen-

alty phase of the “meaningful adversarial testing” that would

have made it presumptively reliable, see Cronic, 466 U.S. at

12

659, and constitutes a Sixth Amendment violation under the

Cronic standard.

2. Though this case seems clearly to fit within the terms

of Cronic, the state and its amicus argue that Strickland v.

Washington, rather than Cronic, should govern respondent’s

ineffective assistance claim. But the familiar Strickland

standard — requiring a showing by defendant of both defi-

ciency and prejudice, 466 U.S. at 687 — is designed for a

very different class of claims.

The vast majority of ineffective assistance claims do not

— and could not — allege that counsel has failed to subject the

state’s case to any meaningful adversarial testing, as is re-

quired to make out a Cronic violation. Instead, they fall into

what Cronic itself recognized as an entirely distinct category

of ineffective assistance claims: those focusing on “specific

errors and omissions” that counsel may have made in the

course of providing adversarial representation. 466 U.S. at

657 n.20, 656. It is these claims of discrete attorney errors,

Cronic makes clear, rather than claims of more thoroughgo-

ing adversarial breakdown, that are subject to the standard

announced in Strickland. 466 U.S. at 657 n.20, 666-67 &

n.41 (remanding for inquiry under Strickland). And Strick-

land works in tandem with Cronic, its companion case, to

solidify the distinction between attorney error cases, on the

one hand, and those involving Cronic-style constructive de-

nial of counsel, on the other. 466 U.S. at 692-93. See also

Roe v. Flores-Ortega, 528 U.S. 470, 482-83 (2000) (distin-

guishing between Strickland “cases involving mere ‘attorney

error’” and Cronic cases involving actual or constructive de-

nial of counsel).

Respondent in this case is not alleging the kind of spe-

cific attorney error or omission that is cognizable under

Strickland. Both the State and its amicus proceed as though

he were, breaking counsel’s nonperformance at sentencing

13

into constituent parts and treating his failure to present miti-

gating evidence and his failure to make a closing argument

as isolated and discrete attorney errors. See Pet. Br. at 27,

31; U.S. Br. at 16, 17. That is a critical category mistake,

and it goes directly to the heart of this case. The problem

here is not that counsel] made a series of specific errors, any

or all of which constituted ineffective assistance under

Strickland. It is that the combined effect of counsel’s fail-

ings — a combined effect that neither the state nor the United

States ever once addresses — was to leave the State’s case for

death, once made by the prosecution, entirely untested by the

defense. See supra at 8-10. This is precisely the kind of ad-

versarial breakdown that both Cronic and Strickland reserve

for evaluation under the Cronic standard.

3. None of this Court’s cases suggests that respondent’s

claim must be evaluated under Strickland rather than Cronic.

Contrary to the suggestion of both petitioner and the United

States, for instance, this Court never has held that the Cronic

standard applies only when the government interferes with

the performance of counsel (apart, apparently, from a some-

what ad hoc exception for conflict-of-interest cases). Pet.

Br. at 36, U.S. Br. at 12-13. In fact, Cronic itself expressly

rejects the position that its standard should be reserved for

cases in which “external constraints” produce a breakdown

in the adversarial process: “[T]hat the accused can attribute

a deficiency in his representation to a source external to trial

counsel does not make it any more or less likely that he re-

ceived the type of trial envisioned by the Sixth Amendment .

...” 466 U.S. at 662 n.31.

There is no reason to think that Strickland, issued the

same day, takes a different view of the scope of the Cronic

rule. On the contrary, Strickland excludes from its own am-

bit not only cases of state interference with counsel but also

those of “constructive denial” of counsel’s assistance, 466

U.S. at 692, thus leaving for Cronic cases in which a law-

14

yer’s own failings result in the absence of any meaningful

adversarial testing. See also id. at 703 n.2 (opinion of Bren-

nan, J.) (“counsel’s incompetence can be so serious that it

rises to the level of a constructive denial of counsel” evalu-

ated under Cronic); Flores-Ortega, 528 U.S. at 481-82

(whether Strickland or Cronic applies to claims involving

counsel’s performance turns on “magnitude of the depriva-

tion of the right to effective assistance”); Lockhart v. Fret-

well, 506 U.S. 364, 386 (Stevens, J., dissenting) (noting that

there “may be exceptional cases in which counsel’s perform-

ance fails so grievously far below acceptable standards” that

Cronic applies).

Nor do any of the Court’s prior decisions regarding inef-

fective assistance of counsel during penalty phase proceed-

ings control this case. See U.S. Br. at 16-17. The cases re-

lied on by petitioner and his amicus all involve the kind of

“specific errors and omissions,” 466 U.S. at 657 n.20, that

fall naturally within the purview of Strickland. See Strick-

land, 466 U.S. at 675 (failure to include particular mitigating

evidence in penalty phase presentation); Darden v. Wain-

wright, 477 U.S. 168, 186 (1986) (limiting penalty phase

presentation to “simple plea for mercy from petitioner him-

self”); Burger v. Kemp, 483 U.S. 776, 788 (1987) (failure to

develop and introduce mitigation evidence); Williams v. Tay-

lor, 529 U.S. 362, 395-99 (2000) (failure to investigate and

include particular mitigating evidence). None presented the

Court with the combined effect on a penalty proceeding of

defense counsel’s failure to present any mitigating evidence

and waiver of closing argument — i.e., a complete failure to

answer the prosecution’s case for death — and in none, there-

fore, did the Court even have occasion to consider the poten-

tial application of Cronic. '

15

B. Application Of Cronic To The Rare Case In Which

Attorney Default Leads To An “Adversarial Break-

down” Is Both Necessary and Sensible.

1. Petitioner’s bottom-line is this: The Court should use

this occasion to adopt the rule that “bad lawyering, no matter

how bad” is always to be evaluated under Strickland — and

particularly Strickland’s prejudice prong — rather than under

Cronic. See Pet. Br. at 37. That would be a mistake.

For the great majority of ineffective assistance claims,

Strickland does provides a sensible and workable standard.

In most attorney performance cases, Strickland’s prejudice

prong, requiring the defendant to show a “reasonable prob-

ability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different,” 466 U.S. at

694, functions just as it should, separating out those attorney

errors that undermine confidence in the fairness and outcome

of the proceeding from those that do not. See id. at 686, 692;

Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (ineffec-

tive assistance inquiry identifies cases in which “counsel’s

unprofessional errors so upset the adversarial balance .. .

that the trial was rendered unfair and the verdict rendered

suspect.”’).

But there are a few exceptional cases of attorney per-

formance — or, more accurately, attorney nonperformance —

in which application of Strickland’s prejudice prong could

lead to results inconsistent with the Sixth Amendment prin-

ciples that underlie Strickland itself. These cases involve

only the most egregious forms of attorney nonperformance

and abdication: the attorney who sleeps through substantial

portions of his client’s trial, for instance, see Burdine v.

Johnson, 262 F.3d 336 (Sth Cir. 2001) (en banc), petition for

cert. pending, No. 01-495, or the attorney who repeatedly

expresses his contempt for his client, effectively acting as a

second prosecutor, see Rickman vy. Bell, 131 F.3d 1150 (6th

16

Cir. 1997). In these very limited circumstances, the lower

courts have discovered, Strickland’s measure of prejudice

may fail to capture an attorney default so serious that it

threatens the integrity of the trial process.

Part of the problem is that the fundamental nature of an

attorney’s failure in those situations may make it difficult to

pinpoint prejudice in Strickland’s outcome-determinative

terms. When counsel entirely abdicates his adversarial role,

the reviewing court must both conjure what might have been

the hypothetical defense and then consider whether it might

have made a difference — a doubly speculative undertaking.

See Burdine, 262 F.3d at 355 (“We presume prejudice be-

cause experience tells us that an occurrence presents both a

high probability of Prejudice and a difficulty of ‘proving it’ it

any finite sense.”).

The other part of the problem is that in the narrow class

of cases containing egregious attorney nonperformance, the

question asked by Strickland’s prejudice prong — is there a

likely effect on the outcome? — is incomplete. The Sixth

Amendment is concerned with the reliability of outcomes, to

be sure. See Strickland, 466 U.S. at 692. But it is equally

concerned with the justness of outcomes and with the fair-

ness and legitimacy of the procedures that produce them.

See id. at 686-87; Williams, 529 U.S. at 391; Kimmelman,

477 U.S. at 374. So if defense counsel completely defaults

on his responsibility to perform as an advocate, then it is not

enough to satisfy the Sixth Amendment that the evidence of

defendant’s guilt may seem overwheiming, see Rickman, 131

> This problem may be especially acute in the penalty phase of capi-

tal proceedings. Because the sentencer enjoys the discretion to consider

any evidence that he or she believes to be mitigating, it is particularly

difficult to assess the effect of mitigating arguments never made. See,

e.g., Bright, supra, at 1865-66; cf. Satterwhite v. Texas, 486 U.S. 249,

258 (1988) (harmless error analysis in penalty phase context “may be

more difficult because of the discretion that is given to the sentencer”).

17

F.3d at 1156, or that the defendant may have difficulty prov-

ing that the outcome of his trial would have been different

had his lawyer been awake, see Burdine, 262 F.3d at 357

(Jolly and Smith, JJ, dissenting). Regardless of whether

there is a demonstrable effect on outcome for Strickland pur-

poses, counsel’s abdication means that there can be no con-

fidence in the fundamental fairness of the proceedings. See

Cronic, 466 U.S. at 655-56 (right to counsel assures fairness

of trial itself).

It is not surprising that Strickland’s prejudice inquiry is

ill-equipped to take account of exceptional cases involving

total attorney default. As discussed above, Strickland was

never intended to govern such cases. Cronic was, and in the

rare instances in. which the lower courts invoke it, the Cronic

standard operates to protect the “fairness, and thus the le-

gitimacy of our adversary process,” Kimmelman, 477 U.S. at

374. See Rickman, 131 F.3d at 1160; Burdine, 262 F.3d at

346. When “bad lawyering” is the equivalent of no lawyer-

ing at all, Cronic serves a vital function. This Court should

reject petitioner’s proposed curtailment of the Cronic stan-

dard and instead reaffirm its application to such cases.

2. The United States takes a slightly different position

than petitioner. Though it appears to agree with the State in

principle, see U.S. Br. at 12-14, it is willing to admit that

there may be some cases involving attorney performance to

which Strickland should not apply, see id. at 21-22. So the

rule the United States would have the Court adopt seems to

be this: so long as the government has not interfered with

counsel’s representation, Strickland governs — except when

counsel is absent, id. at 12; when counsel represents conflict-

ing interests, id. at 13; perhaps (though not necessarily) when

counsel is “sleeping (and therefore unconscious),” id. at 22;

when counsel “fail[s] to make any comment” at a sentencing

hearing, Tucker v. Day, 969 F.2d 155, 159 (Sth Cir. 1992),

U.S. Br. 21; when counsel fails to object to a directed ver-

18

dict, Harding v. Davis, 878 F.2d 1341, 1344 (11th Cir.

1989), U.S. Br. at 21; and when counsel’s strategy is to de-

Cline to put on any defense at trial, see Martin v. Rose, 744

F.2d 1245, 1250 (6th Cir. 1984), U.S. Br. at 21.

A more straightforward approach might be to acknow!l-

edge the general principle that ties together these otherwise

ad hoc “exceptions.” That principle comes directly from

Cronic: When counsel ceases to function as the state’s ad-

versary in any meaningful sense, it is as though counsel is

absent, and no further showing of harm is needed to identify

a Sixth Amendment violation. 466 U.S. at 653-55. When

“the process loses its character as a confrontation between

adversaries, the constitutional guarantee is violated.” Jd. at

656-57.

The problem for the United States is that the principle,

once articulated, applies as readily to respondent’s case as to

any the United States cites approvingly in its brief. It is not

clear, for instance, what line the United States would draw

between a case like this one, in which counsel fails to make

any affirmative case forlife to counter the prosecution’s case

for death, and a case like Harding, supra, which turns criti-

cally on counsel’s failure to object to a single motion — albeit

one for directed verdict — by the prosecution, 878 F.2d at

1344-45; or between this case and one like Martin, supra, in

which counsel’s decision to “abandon all attempts to defend

his client at trial in favor of reversal on appeal” was sup-

ported by what even the reversing court conceded was a “su-

perficially persuasive” strategic rationale, 744 F.2d at 1250.

Sensible lines can be drawn in this area, but not in a vacuum.

Once the Cronic principle is used as the reference point —

and the nature of the default in this case properly understood,

see supra at 8-10 — respondent’s case joins the same cate-

gory as the other “Strickland exceptions” noted by the

United States.

19

3. Finally, pointing to what it describes as the policy

justifications behind Cronic and Strickland, the United States

argues that in cases in which the government has not inter-

fered with counsel’s performance, Cronic should apply only

if “the court can easily identify the denial of the right to

counsel and prejudice is so likely that a case-by-case exami-

nation of prejudice is not worth the effort.” U.S. Br. at 22;

see also Pet. Br. at 36 (making similar argument). That ar-

gument is unavailing for two reasons.

First, it elevates what is a supporting rationale in Cronic

and Strickland to the level of first principle. Neither Strick-

land nor Cronic is a case chiefly about judicial efficiency.

Though in both cases the Court demonstrates appropriate

concern for matters of practicality, see Cronic, 466 U.S. at

658; Strickland, 466 U.S. at 692, in neither does it suggest

that the ineffective assistance inquiry can be reduced to a

cost-benefit analysis.

In any event, this case — like most cases involving adver-

sarial breakdown under Cronic — meets the practical criteria

held out by the United States. It is true that many attorney

deficiencies are difficult for reviewing courts to identify and

impossible to “define[] with sufficient precision to inform

defense attorneys correctly just what conduct to avoid.”

Strickland, 466 U.S. at 693. This case is different. There

is nothing difficult about identifying the defect in counsel’s

performance here. The Sixth Circuit was not required to

pore over the record to determine that counsel, by failing to

present mitigating evidence at sentencing and waiving clos-

ing argument, passed up any opportunity to respond to the

State’s case for death with his own case for life. Nor is it

likely that this kind of nonperformance could ever be justi-

fied by legitimate strategic considerations of the sort dis-

cussed in Strickland. 466 U.S. at 689-90. Indeed, counsel

for respondent never offered any strategic justification, no

matter how implausible, for the combined failure to present

20

evidence and make a closing argument that is at the heart oi

this case.°

And from the perspective of defense attorneys, the com-

plete failure to present any case for a life sentence in re-

sponse to the State’s case for death can be defined quite suc-

cinctly as “conduct to [be] avoid[Jed” by counsel. Strick-

land, supra. When it is feasible, as is the case here, this

Court has not hesitated to describe and enforce certain mini-

mal standards of representation. See Flores-Ortega, 528

U.S. at 480 (counsel has a “constitutionally-imposed duty to

consult with the defendant about an appeal when there is rea-

son to think either (1) that a rational defendant would want to

appeal . . . or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appeal-

ing”). That enterprise is enormously helpful to NACDL in

its efforts to maintain and defend professional standards of

conduct. ‘

As for prejudice, it bears repeating that the United States’

position — that Cronic should apply only when Strickland

prejudice is likely to be provable — would defeat the purpose

of Cronic: to capture the rare case of egregious attorney de-

® As for the post hoc justification offered by counsel for his failure

to make a closing argument — his concern about the oratorical prowess of

the lead prosecutor - NACDL adopts the responses of the Sixth Circuit

and respondent. See Pet. App. 35-36. NACDL adds only its hope that

this case will serve to confirm that professional standards do not counte-

nance forgoing closing argument at a capital sentencing proceeding for

fear of being outmatched in the declamatory arts. See Tools for the Ulti-

mate Trial, supra, at 14.98 (“Because the state cannct properly reserve

any significant point not already discussed by the partres for its summa-

tion, it is foolhardy to waive final argument in order to deny the prosecu-

tor the opportunity to fire a closing salvo. If you have done a good job,

you will be able to make an effective argument that can both give the

jury some reason not to kill the defendant and take the sting out of the

prosecutor’s summation.”).

21

fault for which the Strickland prejudice inquiry was never

intended and is ill-suited. See supra at 16-17. But accept-

ing arguendo the United States’ premise, the fact remains

that an actual breakdown of the adversarial system is indeed

likely to prove prejudicial in Strickland terms. In most

cases, it can fairly be said that counsel’s failure to subject the

State’s case to any meaningful adversarial testing is reasona-

bly likely to affect the outcome of a proceeding. This case

illustrates the point. Counsel’s failure to respond to the

State’s case for death with an argument for life must have

affected the jury’s view of the aggravating evidence as well

as of the case in mitigation, and may well have created the

affirmative misimpression that the state’s plea for death was

unanswerable. See Pet. App. 36; supra at 8-9. This is pre-

cisely the kind of “pervasive effect” that Strickland itself

identifies as especially likely to be prejudicial in Strickland

terms. See 466 U.S. at 695-96 (describing errors that “have

had a pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture”).

It is not surprising, then, that lower courts applying

Strickland to similar, though not entirely comparable, fail-

ures of advocacy at capital sentencing — no presentation of

mitigating evidence combined with substandard closing ar-

gument —find both deficient performance and prejudice un-

der the Strickland standard. See Smith v. Stewart, 140 F.3d

1263 (9th Cir. 1998); Hall v. Washington, 106 F.3d 742 (7th

Cir. 1997); Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989).

If, as the United States urges, Cronic sensibly applies when

the outcome likely would be the same under the more time-

and record-intensive Strickland analysis, then Cronic sensi-

bly applies to this case and cases like it.

CONCLUSION

-The judgment below should be affirmed.

22

Respectfully submitted,

DAVID M. PORTER WALTER DELLINGER

NAT’L ASS’N OF CRIMINAL (Counsel of Record)

DEFENSE LAWYERS PAMELA HARRIS

Co-Chair, Amicus Committee SRI SRINIVASAN

801 K St., 10th Floor O’MELVENY & MYERS LLP

Sacramento, CA 95814 555 13th Street, N.W.

(916) 498-5700 Washington, D.C. 20543

(202) 383-5300

Attorneys for Amicus Curiae

Dated: March 5, 2002