# Amicus Curiae Brief — Harris v. Luckey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 957

## Text

——_——_—

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1287%3A3. Public record. Not legal advice.