Nearing thirty years: the Burger court, Strickland v. Washington, and the parameters of the right to counsel.

• Author: Kastenberg, Joshua
• Position: Former U.S. Supreme Court Chief Justice Warren Burger - V: Strickland and Cronic: Deliberations, Debates, and Decisions A. Strickland v. Washington through VI. Conclusion, with footnotes, p. 238-265

1. Strickland v. Washington

   The Court held its conference discussions in Strickland on the same day as its conference discussions on Cronic, and three days after hearing argument in Strickland. Justice Blackmun's conference notes indicate diverging views in Strickland that are not evident in the published opinion, or even in response to the first circulated draft. (114)

   Justice Stevens believed that United States v. Agurs (115) presented a usable model for ineffective-assistance appeals of the type raised in Strickland, which arise through no fault of the trial court or government, more so than for the type raised in Cronic, which result from a judge pushing defense counsel to trial. (116) Agurs arose from a murder trial in which the prosecution possessed potentially exculpatory evidence--the murder victim's criminal record and violent past-that was unknown to the defendant. (117) The Court recognized that a prosecutor has a constitutional duty to provide known exculpatory evidence to the defendant prior to trial, but did not conclude that a prosecutor's failure to provide exculpatory evidence required a reversal and retrial in all instances. (118) The Court instead created a sliding scale in which, if a reviewing court determined that the evidence in question was unable to overcome reasonable doubt of guilt, that is, the evidence would not change the verdict, then no new trial was necessary.

   In the Strickland conference, according to notes made by Justice Blackmun and Justice Brennan, Chief Justice Burger initially disfavored creating a uniform standard, preferring that the lower courts review each claim of ineffectiveness based on reversible error. (119) In other words, Chief Justice Burger would apply a variety of tests to assess defense counsel's omission when, for example, the failure to object to the admissibility of a confession would be governed by the evidentiary standards for confessions, but the failure to discover exculpatory evidence would be governed by the newly discovered evidence rule. Under this proposed test, the failure to investigate for all exculpatory or mitigating witnesses would not automatically constitute reversible error. Instead, such a failure would place a heightened burden on an appellant to prove how an exculpatory witness would create reasonable doubt as to an element of an offense. But as Justice O'Connor would point out, the Burger method did not acknowledge that defense counsel's failure to investigate the conditions under which a confession was taken could be symptomatic of other deficiencies in the defense counsel's performance. (120)

   Justice Brennan also disagreed with Chief Justice Burger urging instead that a universal test was the correct solution. (121) Justice White concurred with Justice Brennan and called Chief Justice Burger's approach "too lax," explaining that it would create more problems than it solved. Justice White also pointed out his dislike of the outcome-determinative test, noting that it lent itself to the judge and jury having their mental processes come under scrutiny in violation of Fayerweather v. Ritch, (122) He also indicated, somewhat surprisingly, that DeCoster was "too tough," and instead approved of Judge Tjoflat's Strickland concurrence. (123)

   Justice Powell initially urged the Court to adopt DeCoster III's outcome-determinative text, and Justice Rehnquist added that "Decoster makes sense." (124) However, Justice Rehnquist also later agreed with Justice Stevens that Agurs presented a better standard than DeCoster III. (125) Justice Marshall was the sole vote to sustain the Fifth Circuit's decision, taking the position that even the rule of the en banc decision was too onerous, particularly in a death-penalty case. (126)

   Following the conference, Justice O'Connor circulated her first draft, which addressed using Tunkey's performance as an example for how the test might be applied, a discussion apparently missing from the conference deliberations. (127) Justice Marshall circulated the first draft of his dissent on May 3. (128) Justice Brennan circulated a first draft of an opinion concurring in part and dissenting in part on March 28. (129)

   After reviewing Justice O'Connor's first circulated draft, Justice Brennan informed her that he agreed with "most of the legal analysis in [her] careful and scholarly opinion," but remained convinced that vacating the decision below and remanding was preferable to reversing outright. (130) Justice Brennan's difficulty with the majority's decision was not in creating a new middle-ground standard, but the majority's application of the test in Strickland itself. He acknowledged to Justice O'Connor that it "might have been the case" that Tunkey's decision "not to investigate potentially mitigating circumstances" had been "a strategic choice," but he believed that the record did not favor such an interpretation:

   As I read this passage, it suggests at least a strong possibility that Tunkey's decision was not the product of a strategy, but rather of a sense of hopelessness. I do not consider it "reasonable" for counsel in a death case to make decisions based on a feeling of hopelessness and frustration. Indeed, it seems to me that the worse a client's plight, the more important it is that his lawyer acts professionally and not on the basis of emotion. (131)

   Justice Brennan also pointed out that because the district court did not "employ the Agars standard" to analyze prejudice, a remand was the only appropriate decision, particularly as a majority of Justices favored the creation of an entirely new standard. Finally, because the sentencing judge had only Washington's apology to consider, and "had virtually no information concerning Washington the man," there was, to Justice Brennan, more than a reasonable doubt that the outcome would have been different had Tunkey been reasonably effective as demanded by the new standards. (132)

   Justice O'Connor clearly wanted Justice Brennan to join the majority opinion, but not at the expense of applying the new standard to the facts of the initial case. But, she noted, "[i]t is helpful because it gives a concrete illustration of how the otherwise abstract principles articulated in the opinion apply to one particular set of facts." As to Justice Brennan's contention that Tunkey's "hopelessness" rendered his performance incompetent, Justice O'Connor responded that "if it did, any counsel who felt hopeless about a case would have to be disqualified." (133) On the other hand, she concluded that if she could not muster five justices to vote for reversal, she would revise the opinion to order a remand. (134)

   Justice O'Connor did not, in reality, have to wonder whether five justices would side with her first draft opinion. Justice Rehnquist noted his agreement, adding: "I think without Section V, in which you apply the standards developed in the earlier part of the opinion to the facts of this case, the opinion is somewhat abstract and might mean a number of things to a number of people." (135) Chief Justice Burger also joined her draft, stating that he saw "no need to remand" (136) Justices White, Powell, and Blackmun eventually joined Justice O'Connor's draft as well. (137) Moreover, Justice Powell agreed with Justice Rehnquist, stating, "I think we should decide Strickland. It would be helpful for the lower courts to have us apply the new standards." (138) Justice Powell also differentiated Cronic from Strickland with the caveat that he favored a remand in Cronic. This left only Justice Stevens and Justice Marshall not in favor of Justice O'Connor's circulated draft.

   On March 22, Justice Stevens informed Justice O'Connor that he favored a remand even though she had "written an excellent opinion." (139) Had Justice Stevens maintained his posture on the issue of a remand, he would have joined with Justice Brennan. But on March 28, Justice Stevens switched his position on both the remand and the application of the new standard, and decided to join the majority. (140)

   Although Justice Brennan intended to concur, his influence over the majority did not end after Justice O'Connor's third draft. Following Justice Marshall's circulated dissent, Justice Brennan noted to Justice O'Connor that the draft majority opinion could be interpreted as directing state and federal appellate courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (141) This caused Justice O'Connor to add language regarding the influence of the ABA standards. (142)

   The final opinion first provided an overview of Washington's trial and appeals history, noting that the sole reason for granting certiorari was to "consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel." (143) Then the Court reaffirmed the principle that the right to counsel is an essential component of the right to a fair trial. (144)

   In the opinion's third section, the Court held that it was not in the interests of a fair trial to create specific guidelines for measuring the effectiveness of counsel, (145) and declined to adopt the ABA guidelines as the sole determinant of effectiveness:

   Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides.

   No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. (146)

   Essentially an adoption of DeCoster III, this part of the opinion indicated the plurality's belief that defined rules would hinder the performance of defense counsel by creating restrictions on "the wide latitude counsel must have for making tactical...