Amicus Curiae Brief — Harris v. Luckey

——_——_—

FILED

No. 89-1516

In The JOSEPH F. SPANIOL, JR.

CLERK

Supreme Court, U.S.

SUPREME COURT OF THE UNITED ‘6PA?ES-

October Term, 1989

== SSS eS Se Se Se ee ee ee ee ee Se ee Se SE SE EE Ee Ee Se Ee Ee ee SE SS

JOE FRANK HARRIS, Governor, et al.,

Petitioners,

Vv.

HORACE LUCKEY, III, et al.

Respondents.

eee e ew we www em www eee Reem wm ew mem m eww ow ewww ww ee =

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

SS , Ree ww wm wm wm wm ww ew wm we www we =

BRIEF OF TEN STATES AS

AMICI CURIAE IN SUPPORT OF PETITIONER

DON SIEGELMAN

Attorney General

State of Alabama

ROBERT M. WEINBERG*

Assistant Attorney General

Civil Division

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7413

*Counsel of Record on Behalf

of Amici States

(Additional Counsel Listed Inside)

i

TABLE OF CONTENTS

Page

Table of Contents ........22000. sees i

List of Counsel ........... coveanceese ASS

Table of Authorities ........ coveceseeVa

TINtCFOGUCCION ..ccccccccccccces cocces 1

Interest of Amici .....ccccccccccces 1

Summary of the Argument .........6+.. 5

Reasons for Granting the Writ ...... 8

I. THE DECISION BELOW IS IN DIRECT

CONFLICT WITH PRIOR DECISIONS

OF THIS COURT

A. The opinion below is

in direct conflict

with this Court’s

holdings in Strickland

vy. Washington, 466 U.S.

668 (1984) and United

States v. Cronic, 466

U.S. 648 (1984) ...... i)

ii

TABLE OF CONTENTS (Continued)

Page

B. The opinion below is

in direct conflict

with this Court’s

holdings in Younger

v. Harris, 401 U.S.

37 (1971) and Q’Shea

v. Littleton, 414 U.S.

408 {3NTE! sévacecsass 38

II. THE DECISION BELOW CONFLICTS

WITH DECISION OF OTHER COURTS

OF APPEALS See eo eoeeeeeeeeeCeCetees @& 21

III. THE DECISION BELOW PRESENTS A

SUBSTANTIAL QUESTION OF FEDERAL

LAW THAT SHOULD BE REVIEWED BY

THIS COURT ....cccccccce cocccee 28

Conciweaee occccéoets 2eebesuseeee 35

iii

LIST OF COUNSEL

Counsel for the State of Idaho

JAMES T. JONES

Attorney General

State House

Boise, Idaho 83720

Counsel for the State of Indiana

LINLEY E. PEARSON

Attorney General

219 State House

Indianapolis, Indiana 46204

Counsel for the Commonwealth of

Puerto Rico

JORGE E. PEREZ DIAZ

Solicitor General

Department of Justice

Post Office box 192

San Juan, Puerto Rico 00902

iv

LIST OF COUNSEL (Continued)

Counsel for the State of Florida

ROBERT A. BUTTERWORTH

Attorney General

State Capitol

Tallahassee, Florida 32399-1050

Counsel for the State of Pennsylvania

ERNEST D. PREATE, JR.

Attorney General

Strawberry Square - 16th Floor

Harrisburg, Pennsylvania 17120

Counsel for the State of Missouri

WILLIAM L. WEBSTER

Attorney General

Supreme Court Building, 101 High Street

Jefferson City, Missouri 65101

Vv

LIST OF COUNSEL (Continued)

Counsel for the State of Montana

MARC RACICOT

Attorney General

Justice Building

215 North Sanders

Helena, Montana 59620

Counsel for the State of Connecticut

JOHN J. KELLY

Chief State’s Attorney

55 Elm Street

Hartford, Connecticut 06106

Counsel for the State of New Mexico

HAL STRATTON

Attorney General

Bataan Memorial Building

Galisteo Street

Santa Fe, New Mexico 87503-1508

vi

TABLE OF AUTHORITIES

Cases Page

,

470 U.S. 68 (1985) ......... issee ee

Avery v. State of Alabama,

POU Wee GOO CHEEE Sesvectvecesee DD

Caplin & Drysdale, Chartered

v. United States,

489 U.S. eee 29, 34

,

486 U.S. SEE as aid tyab's wba wire 20

,

ee Wells Se GEOG) .csccccowcbeee 12

,

ae Welln Bee COO) ccccvccccceses 18

351 F.2d 671

Soe Gale BOO) wc cccctenssésenese 29

’

638 F.2d 1031

Coe Gas SHOES 6 osvcevetesvaceees 23

vii

TABLE OF AUTHORITIES (Continued)

Cases Page

’

479 So.2d 76 (Ala. 1985) .........32

Federal Trade Comm’n v. Superior

?

’

Court Trial Lawyers Ass’n

489 = (1990) i et ead a ew @ Ga

, 500 F.2d 712

(5th Cir. 1974) cathe kone eeoeeceuee

, 498 F.2d 1249

(ist Cir. 1974) *e*eeeseeoeeeeneeeneee#eee# 19

, 860 F.2d 1012

(llth Cir. 1989) ...1, 10, 21, 25,31

Mallard v. United States District

Court of the Southern District

of Iowa, 488 U.S. (1989) .33, 34

, 781 F.2d 1448

(9th Cir. 1986) Oa ee ee

491 So.2d 1109 (Fla. 1986) ....... 30

viii

TABLE OF AUTHORITIES (Continued)

Cases Page

, 504 F.2d 1345

(DU CEO EEIO) occ cccccccces86, 27

461 U.S. 1 (1983) ...e.eeeseeeee eB

O’Shea v. Littleton, 414 U.S. 488

ERPTO) ccccesceseedS, 38, 36, 24, 25

, 626 F.2d 1

(6th Cir. 1980) coccccccccc ceca, 25

’

761 P.2d 206 (Colo. 1988) ........32

’

ee ee eS EOORD bccddcceece38, 32

, 483 F.2d 778

(Sth Cir. 1973) aff’d in part,

rev’d on other grounds sub non.

‘

420 U.S. 103 (1975) ..10, 11, 22, 25

ix

TABLE OF AUTHORITIES (Continued)

Cases Page

’

431 F.2d 907 at 913

(8th Cir. 1970) ite heeenece eon eee

Sparks v. Parker, 368 So.2d 528

(Ala. 1979), appeal dismissed,

444 U.S. 803 (1979) eeoeoeveevevevee ee e268 32

, 46 N.J. 399,

217 A.2da 441 (1969) errr rLTTt tT. ..

’

466 U.S. 668 4, 8, 9, 14, 17,

(1984) ee eed eeheeee cea r> 34

’

646 F.2d 1010

(5th cir. Unit A. 1974) TTT rrrcre. & |

’

466 U.S. 648 (1984) ....4, 8, 12, 34

’

870 F.2d 1192

(7th Cir. 1989) ~rrrrTrrrrrrrr: . = 32

x

TABLE OF AUTHORITIES (Continued)

Cases Page

United States v. Dillon,

346 F.2d 633

(9th Cir. 1965)

cert. denied 382 U.S. 978 ........ 30

SO Wile. Se ID vc cweccdccecses 16

,

440 F.2d 713 (5th Cir. 1971) ..... 26

Wallace v,. Kern, 499 F.2d 1345

Cc: MD caéebeduiclecesccecs 21

Williams v. Rubiera, 539 F.2d 470

Ce MG (EE wescsceesocede 21, 25

W ’

362 F.2d 95

Py ee PD. oc cic eee aweees <n 29

Younger v. Harris,

401 U.S. 37 15, 18, 20,

(C2971) ccocccccccvccecceses 22, 23, 24

xi

TABLE OF AUTHORITIES (Continued)

Cases Page

Constitutional Provisions

U.S. Constitution,

Amendment IV .....eeeeeeeeee passim

Statutes

Criminal Justice Act,

18 U.S.C. § JOOGA 2. cee eeeeereeces 31

te teure

3

issue in state forums. State courts

which try criminal cases would be placed

in the tenuous, if not unnerving, pos-

ture of having the federal district

court monitor day-to-day operations in

search of sixth amendment violations,

contrary to longstanding principles of

equity, comity, and federalisn.

The financial ramifications to the

Amici States if certiorari is not grant-

ed and this case reversed, are enormous.

Federal courts would be usurping the

function of state legislatures by making

determinations of how much _ indigent

criminal defense attorneys are to be

paid, and how funds and scarce resources

should be allocated between the provi-

sion of criminal defense and other vital

state concerns.

4

Finally, Amici States are seriously

concerned that the panel opinion in the

court below interprets the sixth amend-

ment in a manner so inconsistent with

this Court’s precedent in Strickland v.

Washington, 466 U.S. 668 (1984) and

United States v. Cronic, 466 U.S. 648

(1984), as to make an adjudication, or

defense, of future claims of ineffective

assistance of counsel unworkable in any

court.

The Amici States support petition-

ers’ contention that certiorari is due

to be granted and the opinion below re-

versed on the grounds that it is viola-

tive of the Eleventh Amendment, is in-

compatible with proper concerns of

equity, comity and federalism, and is

in direct conflict with this cCourt’s

and other appeals courts’ precedent.

5

SUMMARY OF THE ARGUMENT

Contrary to equity, comity, and fed-

eralism the decision below defies this

Court’s and other appeals courts’ prece-

dent by requiring states to defend

whether a class of indigent criminal de-

fendants -- in the midst of their state

court criminal trials -- are receiving,

or in the future will receive, effec-

tive assistance of counsel.

The sixth amendment protects the

right to a fair trial and guarantees

that a conviction will not be upheld if

a criminal defendant is not afforded

effective assistance of counsel and is

thereby prejudiced. By construing the

sixth amendment to confer rights upon

criminal defendants which do not affect

the outcome of the trial, the Eleventh

6

Circuit opinion implies that it is ap-

propriate for federal district courts

to assume equitable jurisdiction over

criminal defendants and state judicial

proceedings at any time, to supervise

and monitor ongoing state criminal pro-

ceedings based solely upon allegations

of anticipated ineffective assistance

of counsel. Such a suit is without

equity for there are availabile adequate

remedies at law by means cof appeal and

collateral review should counsel’s as-

sistance prove ineffective.

As a matter of federalism, the re-

lief contemplated by this action is

simply not available. State trial and

appellate judges -- the courts of first

resort should any challenge to the ef-

fectiveness of counsel be made -- would

5

become subject to constant federal scru-

tiny, possibly even contempt proceed-

ings in federal court, should state

criminal defendants be permitted to ini-

tiate federal proceedings such as those

contemplated here during the pendency ,

their state court criminal trial. The

panel opinion completely ignores legiti-

mate and longstanding concerns for equi-

ty, comity, and federalism traditional-

ly accorded the states by the federal

courts with respect to the administra-

tion of state courts, prosecution of

their criminal laws, and allocation of

state resources.

8

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS IN DIRECT

CONFLICT WITH PRIOR

DECISIONS OF THIS COURT

A. The opinion below is in direct con-

flict with this Court’s holdings in

, 466 U.S. 668

Rg a eres 466

U.S. 648 (1984).

The sixth amendment requirement of

effective assistance of counsel _ in

criminal cases is a guarantee of the

constitutional right to a fair trial.

Strickland v. Washington, 466 U.S. 668,

686 (1984). In order to determine

whether the assistance rendered was

constitutionally deficient, the defen-

dant must show first that "counsel made

errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed

by the Sixth Amendment;" and second that

the "deficient performance prejudiced

9

the defense." Strickland, 466 U.S. at

687.

The sixth amendment guarantees that

the outcome of the criminal proceeding

will be arrived at fairly through the

adversarial process. The focus, there-

fore, will be on whether the allegedly

ineffective assistance rendered affected

the outcome of the proceeding, and not

simply whether ineffective assistance

was rendered. Without a finding of pre-

judice, there is no constitutional vio-

lation. Because a claim of ineffective

assistance of counsel is inextricably

intertwined with what occurs at trial,

it is impossible that constitutional

violations under the sixth amendment can

be determined beforehand.

10

But the Eleventh Circuit in the case

below held that the sixth amendment

somehow guarantees more than the right

to a fair trial.

The sixth amendment pro-

tects rights that do not

affect the outcome of a

trial. Thus, deficiencies

that do not meet the “in-

effectiveness" standard

may nonetheless, violate

a defendant’s rights under

the sixth amendment.

Luckey _v. Harris, 860 F.2d 1012, 1017

(lith Cir. 1988). Citing, as an exan-

ple, Pugh v. Rainwater, 483 F.2d 778,

(Sth Cir. 1973), aff’d in part, reversed

in part on other grounds sub _ non.

Gerstein v. Pugh, 420 U.S. 103 (1975),

the lower court held that since the

fourth amendment rights of pre-trial

detainees to a timely judicial determi-

nation of probable cause could be the

11

basis for prospective equitable relief,

so too could the sixth amendment

rights of indigent criminal defendants.

In the context of fourth amendment

violations, reliance on Gerstein v.

Pugh makes sense, for the right not to

be unreasonably detained without prob-

able cause becomes moot after trial,

there is no remedy. But the analogy

makes little sense in the context of

alleged sixth amendment violations, for

the right to the "effective assistance

of counsel is recognized not for its own

sake, but because of the effect it has

on the ability of the accused to receive

a fair trial. Absent some effect of

challenged conduct on the reliability of

the trial process, the Sixth Amendment

guarantee is generally not implicated."

12

United States v. Cronic, 466 U.S. 648,

658 (1984).

What the Eleventh Circuit appears to

have done is create a new civil cause of

action for prospective equitable relief

based upon allegations of future inef-

fective assistance of counsel, without

any corresponding showing of inevitable

prejudice. Compare Cuyler v. Sullivan,

446 U.S. 335 (1980), in which this

Court held that actual, as opposed to

potential, conflict of interests on the

part of trial counsel representing

multiple defendants must be shown before

federal habeas corpus relief is avail-

able. There is no precedent for the

proposition that anticipated ineffective

assistance of counsel is remediable in

a suit for prospective injunctive re-

13

lief; actual prejudice must be shown.

A similar novel attempt to create

new sixth amendment rights has. been

tried before and expressly rejected by

this Court. In Morris v. Slappy, 461

U.S. 1 (1983), the Court rejected a

claim that the sixth amendment guaran-

tees a "meaningful attorney-client rela-

tionship." Id. 461 U.S. at 14. Without

citing authority, and without indicating

what constitutional rights are at issue

beyond the right to a fair trial, the

Eleventh Circuit also interprets the

sixth amendment in a novel way inconsis-

tent with this Court’s precedent.

This Court has also refused to apply

a "per se" rule as to what level of ef-

fectiveness is to be expected in any

given case, which would be required in

14

order to determine whether a violation

can be expected to occur. "More specific

guidelines are not appropriate. The

Sixth Amendment refers simply to

‘counsel,’ not specifying particular

requirements of effective assistance."

Strickland, 466 U.S. at 688. By suggest-

ing that the sixth amendment protects

rights which do not affect the outcome

of the trial, the Eleventh Circuit ef-

fectively does away with the requirement

of prejudice, negates the Strickland

test of how to establish a constitution-

al violation based on ineffectiveness of

counsel, and creates a novel and unprec-

edented cause of action.

15

B. The opinion below is in direct

conflict with this Court’s holdings in

Younger vy. Harris, 401 U.S. 37 (1971)

and QO’Shea v. Littleton, 414 U.S. 488

(1974).

This Court has long been hesitant to

interfere with states’ administration of

their criminal laws. See, Avery Vv.

State of Alabama, 308 U.S. 444 (1939).

Petitioner has already briefly addressed

the abstention doctrine under Younger v.

Harris, 401 U.S. 37 (1971) and Q’Shea v,.

Littleton, 414 U.S. 488 (1974); and

Amici States will not belabor the point

except to emphasize their concern, and

in particular, the concern of the

states’ judiciaries should certiorari

not be granted and the case reversed.

A number of concerns become readily

apparent if a little thought is given as

to what relief, if any, could be ordered

16

if respondents were to prove at trial

that "systemic deficiencies" exist in

the manner in which Georgia’s indigent

defense system is administered. Remedies

of sixth amendment violations must be

narrowly tailored to the injury. United

States v. Morrison, 449 U.S. 361 (1981).

Assuming that the Eleventh Amendment

were no bar to a declaration that the

amount of fees paid indigent defense

counsel was insufficient under the sixth

amendment, and assuming further that re-

spondents could show that higher fees

improved the adequacy or effectiveness

of counsel, there remain claims out-

standing against the defendant class of

trial judges regarding the manner in

which the court systems are administer-

ed.

- ee ee

17

Surely a federal court would not

order the state trial judges to, for

example, establish guidelines to measure

the pending effectiveness of counsel ap-

pointed to indigent defendants. The

concept of guidelines for trial courts

to follow has been expressly rejected by

this Court. Strickland, 466 U.S. at

688-689. Allegations of ineffective as-

sistance of counsel must, by their very

nature, be decided on a case-by-case ba-

sis. But assuming the district court

did enter such an order, would every al-

leged failure on the part of trial coun-

sel prompt a cause of action for crimi-

nal defendants to bring against the

trial judge presiding over their case,

ostensibly for failing to ensure the de-

18

sired level of effectiveness? See,

QO’Shea, 414 U.S. at 501-502.

Judge Edmondson’s dissent from deni-

al of rehearing en banc is persuasive:

"If a state judge does not obey a dis-

trict judge’s injunction, are we willing

to jail the state judge for contempt?"

The chilling effect the prospect of fed-

eral contempt power looming over the

heads of state judges in the daily ad-

ministration of their courts would be

overwhelming. This is the type of fed-

eral-state friction the abstention doc-

trine announced in Younger v. Harris and

its progeny was intended to prevent.

An additional concern is what effect

an adjudication of across-the-board in-

effective assistance of counsel in fed-

eral court would have on the pending, as

19

well as disposed of, cases of the plain-

tiff class of indigent criminal defen-

dants. Presumably, that would mean that

the ineffectiveness prong of the Strick-

land test would already be adjudicated,

or res judicata, with respect to any

subsequent attack on a_ conviction.

Worse, it would be res judicata with re-

spect to any pending or impending trial

of any present class’ wmember. ee.

Deakins v. Monaghan, 484 U.S. 193, 208

(1988) (White and O’Connor, JJ., con-

curring). Compare in this’ regard,

Guerro v. Mulhearn, 498 F.2d 1249, 1254

(lst Cir. 1974).

But the cornerstone of the absten-

tion doctrine is that the federal plain-

tiffs will suffer immediate and irrepa-

rable injury, and must have no remedy at

20

law. QO’Shea, 414 U.S. at 502. The re-

spondents clearly have an adequate ren-

edy at law, by means of appeal in the

state courts wherein they can raise the

same claims or in postconviction collat-

eral review. Id. There is no evidence

or argument that state courts are not

competent to entertain respondents’ fed-

eral claims; state courts are in fact

presumed competent. Cf. Chick Kam Choo

v. Exxon Corp., 486 U.S. ’ (1988).

To presume otherwise, as apparently did

the Eleventh Circuit, is directly con-

trary to the dictates of Younger and

QO’ Shea.

ok RO ape anaes

21

II. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF OTHER COURTS

OF APPEALS

As stated by the dissent in the

court below and by the petitioners, the

panel opinion is in direct conflict with

a number of other courts of appeals’ de-

cisions including Gardner v. Luckey, 500

F.2d 712, 715 (Sth Cir. 1974); Tarter v.

Hury, 646 F.2d 1010 (5th Cir. Unit A.

1981); and Wallace v. Kern, 499 F.2d

1345 (2nd Cir. 1974). Amici States will

not repeat the analysis. But the opin-

ion below is in direct conflict with de-

cisions of other courts of appeals as

well.

In addition to those cited above,

another case in direct conflict with the

Eleventh Circuit’s opinion in Luckey is

Williams v. Rubiera, 539 F.2d 470 (5th

22

Cir. 1976), a declaratory judgment ac-

tion against criminal judges in Dade

County, Florida in which it was alleged

that persons charged with welfare fraud

were not being appointed counsel. The

Fifth Circuit affirmed dismissal of the

action on Younger abstention grounds,

holding that plaintiff’s claims could

be presented to the state court. "An

injunction against a trial without ap-

pointed counsel would, of course, be di-

rect federal interference in the state

criminal prosecution." And it expressly

rejected the argument that the action

was governed by Gerstein v. Pugh, dis-

tinguishing the fourth amendment pre-

trial rights from those directed at the

fairness of the trial.

25

noted that as in Q’Shea, the plaintiffs

had adequate remedies at law and that

“other less intrusive avenues of relief

were available: appeal within the state

system, federal habeas corpus relief,

federal criminal prosecution of state

judges." Parker, 626 F.2d at 7. The

court further noted that "federal inter-

ference with the state proceedings would

be as serious here as it was feared to

be in Q’Shea." Id. at 8. Like the

Fifth Circuit in Williams, but contrary

to the Eleventh Circuit’s analysis in

Luckey, the Sixth Circuit did not find

the fourth amendment' rationale in

Gerstein v. Pugh controlling. Id.

Among plaintiffs/respondents’ claims

in Luckey are that they are "denied in-

vestigative and expert resources neces-

26

sary to defend them effectively."

Luckey, 860 F.2d at 1018. If true, the

relief contemplated would require the

anticipatory measurement of some quantum

of what resources are necessary in any

given case. But the "standards to gov-

ern what is ‘necessary to an adequate

defense’ are not susceptible of arbi-

trary articulation but can best be de-

veloped on a case by case basis. Schultz

v. United States, 431 F.2d 907 at 913

(8th Cir. 1970) (concurring opinion).

United States vy. Theriault, 440 F.2d

713, 715 (Sth Cir. 1971). The Eleventh

Circuit apparently disagrees.

And in Mason _v. State of Arizona,

504 F.2d 1345 (9th Cir. 1974), the court

of appeals held that "such assistance is

not automatically mandatory but rather

a a ene

27

depends upon the need as revealed by the

facts and circumstances of each case."

Mason, 504 F.2d at 1352. Thus, while

all are in agreement that particular

cases may warrant access to certain

resources, cf. Ake v. Oklahoma, 470 U.S.

68 (1985), the Eieventh Circuit’s opin-

ion, in holding that respondents have

stated a claim upon which declaratory

or injunctive relief can be granted

prior to conviction, conflicts with the

decisions of the Eighth, Ninth and for-

mer Fifth Circuits as to when that deci-

sion can be made.

28

III. THE DECISION BELOW PRESENTS

A SUBSTANTIAL QUESTION OF

FEDERAL LAW THAT SHOULD BE

REVIEWED BY THIS COURT

Another example of the potential

conflict between state and federal judi-

ciaries contemplated by the anticipated

relief in this case involves the rela-

tionship between the state courts and

attorneys who appear before them. Given

the relief anticipated in this case,

federal courts would be monitoring not

only the actions of state judges, but

closely scrutinizing the legal and tac-

tical decisions of appointed counsel in

any given case prior to conviction. This

would necessitate the interposition of

the federal courts between the state

bench and its bar, clearly an unworkable

remedy.

ee — er

29

As suggested by the dissent in

Luckey, federal habeas corpus would be-

come unnecessary if criminal defendants

were permitted to challenge the effec-

tiveness of their counsel in the midst

of criminal trials. Cf., Caplin &

Drysdale, Chartered v. United States,

489 U.S. , at , n. 9 (1989) ("We

see no reason why our cases such as

Strickland v. Washington, 466 U.S. 668

(1984), are inadequate to deal with any

such ineffectiveness where it arises.")

The question of compensation of ap-

pointed attorneys and appropriation of

resources is one for the state legisla-

ture, not the courts. See, Wright v.

State of Louisiana, 362 F.2d 95 (5th

Cir. 1966); and see, Dolan v. United

States, 351 F.2d 671 (5th Cir. 1965);

30

and United States v. Dillon, 346 F.2d

633 (9th Cir. 1965), cert. denied 382

U.S. 978. The Eleventh Circuit’s opin-

ion conflicts with those decisions.

Similar issues have been raised in

other courts, in which criminal defen-

dants or their attorneys have attempted

to tie the sixth amendment rights of

indigent defendants to the amount of

fees the appointed attorneys are paid.

See, e.g., Martin County, Florida v.

Makemson, et al., 491 So.2d 1109 (Fla.

1986), cert. denied. 479 U.S. 1043

(1987), in which the Florida Supreme

Court struck down the maximum fee limi-

tations for compensation to appointed

attorneys in extraordinary cases on the

grounds that, as applied, criminal de-

fendants’ sixth amendment rights may be

a a ae ae

31

impaired. Justice White’s dissent from

denial of certiorari, 479 U.S. 1043, is

sound argument why certiorari should be

granted in Luckey.

If certiorari is not granted, the

federal courts may next be subject to

attack on the grounds that the fee

schedule provided for in the Criminal

Justice Act deprive criminal defendants

of their sixth amendment rigths. In

United States v. De La Cruz, 870 F.2d

1192 (7th Cir. 1989), the Seventh Cir-

cuit ruled against a sixth amendment

challenge to the fee schedule under the

Criminal Justice Act, 18 U.S.C. § 3006A,

holding that "in return for membership

in the professional bar, an attorney

must accept court appointments to repre-

sent an indigent...in order to preserve

32

his Sixth Amendment right to counsel."

De La Cruz, 870 F.2d at 1194. Citing

Powell _v. Alabama, 287 U.S. 45 (1932),

the court noted the constitution does

not even require compensation to appoin-

ted attorneys.

In accord with the Seventh Circuit

that the quantity of compensation does

not dictate the quality of representa-

tion and that it is the attorneys’ pro-

fessional obligation as members of the

bar and officers of the court to repre-

sent their clients zealously without re-

gard to the amount of fee are cases

such as Sparks v. Parker, 368 So.2d 528

(Ala. 1979), appeal dismissed 444 U.S.

803 (1979); Ex parte Grayson, 479 So.2d

76 (Ala. 1985); People v. District

Court of E] Paso, 761 P.2d 206 (Colo.

33

1988); and State v. Rush, 46 N.J. 399,

217 A.2d 441 (1969). Accord, Mallard

v. United States District Court of the

Southern District of Iowa, 488 U.S. ’

(1989); see again, Powel] v. Alabama,

yy ae re | But the result of the

Eleventh Circuit’s decision directly

- conflicts with the presumption that ap-

pointed counsel, as officers of the

court and members of a profession will

serve their appointed clients effective-

ly and competently.

Although this Court has never di-

rectly addressed the issue of whether a

particular level of compensation can be

constitutionally related to the effec-

tiveness of counsel, or whether claims

of anticipatory ineffective assistance

of counsel are justiciable outside the

34

context of cases such as Strickland v.

Washington and United States v. Cronic,

it has in passing suggested otherwise.

Court Trial Lawyers Assoc., 489 U.S.

(1990). If the petition for writ of

certiorari is granted, those questions

should be answered in the negative.

Ratti as iit

setae al ee

‘and

35

CONCLUSION

For the reasons stated by Petition-

and for the reasons stated above,

petition for writ of certiorari to

United States Court of Appeals for

Eleventh Circuit should be granted

the decision below reversed by this

Honorable Court.

Respectfully submitted,

DON SIEGELMAN

Attorney General

State of Alabama

Lesa tf for br ,,

Assistant Attorney General

PLEASE ADDRESS ALL COMMUNICATIONS TO:

ROBERT M. WEINBERG

Assistant Attorney General

Civil Division

11 South Union Street

Montgomery, Alabama 36130

Telephone: (205) 242-7413