The Historical Case for Abandoning Strickland

JurisdictionUnited States,Federal
CitationVol. 94
Publication year2021

94 Nebraska L. Rev. 302. The Historical Case for Abandoning Strickland

The Historical Case for Abandoning Strickland

Brian R. Gallini(fn*)


I. Introduction .......................................... 302

II. The Strange Right-to-Counsel Journey ................. 305

A. The Journey to Strickland ......................... 305

B. Defining Who Is "Effective" Counsel ............... 313

III. Strickland's Untold Story ............................. 321

A. Part V's Analytical Fallacies ....................... 322

1. Tunkey's Suppression Motions, Sentencing Memorandum, and Performance at Sentencing .................................... 323

2. Character Evidence, Psychological Evidence, and Giving Up on David Washington ............... 328

3. Washington's "Rap Sheet" ...................... 335

B. The Disutility of Part V ........................... 339

C. Justice O'Connor's Private and Unspoken War ..... 344

IV. Conclusion ............................................ 354


Even the Justices considering Strickland v. Washington knew. "[T]his is a big case," Justice Powell handwrote on the first page of his law clerk's bench memorandum for Strickland v. Washington.(fn1) Indeed, it was(fn2)-and is.(fn3) In 1984, the Supreme Court for the first time decided who is an "effective" criminal defense attorney for purposes of the Sixth Amendment.(fn4) Specifically, the Court held that a defendant receives constitutionally unacceptable representation when (1) coun-sel's representation falls below an objective standard of reasonableness that (2) prejudiced the defense, and therefore had an effect on the judgment.(fn5)

From the time of its publication, the decision received mixed re-views.(fn6) Since then, Strickland has remarkably been relied on by courts nationwide to uphold as constitutional criminal defense attorney conduct that includes sleeping through portions of a trial,(fn7) remaining completely silent during the proceedings,(fn8) mental illness,(fn9) alcohol use,(fn10) and drug use.(fn11)

With those results in mind, Strickland has steadily endured complaints from the media,(fn12) the bar,(fn13) and scholars alike.(fn14) But no article has looked back to ask a more basic question: Why? Why did the Court spend 1956-1969 expanding indigent access to justice-particu-larly in the right-to-counsel area-only to aggressively reverse course in Strickland? And a related question: Why did the opinion's author, Justice O'Connor, go so far as to apply the new Strickland standard to the facts of David Washington's case?

This Article makes two arguments: First, that Strickland is best understood as a backlash case-a case designed to radically recede from the Warren Court's more broadly conceived Sixth Amendment. By coalescing the Sixth Amendment, the Due Process Clause, the Fifth Amendment, and the Equal Protection Clause, the Warren Court issued a number of rulings that dramatically expanded indigent defendants' right to counsel. Creating the Warren Court's vision of that broadly conceived right took six years-from 1961-1967. But, once complete, the Warren Court's right to counsel included access not only to attorneys at trial, in the interrogation room, at lineups, and on appeal-among other procedural phases-but it also extended more generally to things an attorney might need, like a trial transcript.

Yet, significant changes in Court personnel beginning in 1972 correspondingly altered the Supreme Court's views about indigent defendants' access to justice. By the time of Strickland in 1984, Warren Court holdovers Brennan, White, and Marshall were overrun by new and differing views about both indigent access to counsel and, most importantly for this Article, what counsel must do in order to be "effective."

Second, this Article asserts that by applying the new Sixth Amendment standard to the facts in Part V of Strickland, Justice O'Connor undermined-perhaps deliberately-what could have been a standard far more demanding of defense attorneys. She did so in part by bucking an established Supreme Court practice that favors remanding new Supreme Court standards to lower courts in criminal procedure cases.(fn15) Strickland's true problem is, therefore, not the standard for effective assistance, but rather the fallout from the Supreme Court's decision to apply that standard.

This Article proceeds in two parts. Part II traces the Warren Court's effort to establish a broad and robust right to counsel as it emerged in the 1960s. Part II then transitions to Strickland and explores how a majority of the Court concluded that an experienced attorney who felt "hopeless" about the chances of saving his client's life nevertheless provided constitutionally competent defense representation. To collectively do so, Part II considers the social and judicial climates leading up to 1984 and reviews the Justices' private Strickland papers, the Court's exchange of Strickland-related memoranda, and the parties' briefs and oral arguments.

Part III then argues that Strickland's backlash against the Warren Court's view of the right to counsel is best seen in the last section of the Strickland opinion. In Part V of Strickland, Justice O'Connor fascinatingly concluded that David Washington received effective assistance from his trial attorney, William Tunkey, despite her colleagues' vote at the Conference following oral argument to simply remand. A detailed look at the analytical assertions in Part V, alongside Justice O'Connor's voting history in right-to-counsel cases, explains why she sought-on her own-to undo the Warren Court's approach to the right to counsel. Properly understanding Strickland in this broader historical context reveals new and previously undiscovered reasons for the current Court to demand more from criminal defense representation.


The journey to Strickland follows a non-linear path that, at best, is dark and poorly marked. This Part seeks to clarify Strickland's origins and, in doing so, thematically proposes that the result in Strickland was preordained, in large part because a change in Court personnel brought with it a change in the Court's attitude toward the Sixth Amendment. Section II.A explores the impact of the Supreme Court's composition on the Sixth Amendment right to counsel in the years preceding Strickland. Building on section II.A, section II.B explores the Strickland opinion itself in more depth.

A. The Journey to Strickland

The right to counsel exists in the Sixth Amendment, which provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."(fn16) On June 6, 1983, the date upon which the Supreme Court granted the State's writ of certiorari in Strickland,(fn17) the strength of the Sixth Amendment's right to counsel diminished. Some historical context is necessary to understand how.

At the time of its ratification in 1791,(fn18) the Sixth Amendment was understood to minimally provide a criminal defendant with the right to retain a private attorney.(fn19) A more difficult question loomed for more than a century: Does the Sixth Amendment require state governments to provide an attorney when the defendant cannot afford one?(fn20)

The Court's ambivalence about the contours of the right to counsel came to a sharp halt in 1953, following the appointment of Earl Warren as Chief Justice. Indeed, according to one commentator, "The [Warren Court] decisions with the greatest significance are clearly the right-to-counsel cases."(fn21) From the time of Warren's appointment until his retirement in 1969,(fn22) the Court steadily and dramatically expanded the right to counsel by thematically prioritizing "the fundamental right of access to justice . . . ."(fn23) Indeed, rather than focusing on the Sixth Amendment's text to expand the right to counsel, the Court, during Warren's tenure, focused more broadly on the concept of equality-that is, an equal opportunity for defendants to construct a defense.(fn24) To do so, the Warren Court relied not only on the Sixth Amendment, but also on broadly conceived notions of due process and the Equal Protection Clause.(fn25)

The Warren Court's controversial fusing of the Sixth Amendment, Fifth Amendment, Due Process Clause, and Equal Protection Clause made a powerful impact on the rights of indigent criminal defendants. To begin with, the Court decided Griffin v. Illinois in 1956, which guaranteed to indigent defendants a free copy of their trial transcript for purposes of appeal.(fn26) Griffin's seemingly innocuous holding hardly appears the poster child for the so-called Warren Court's individual rights "revolution,"(fn27) and, perhaps as a result, it generated little commentary.(fn28)

Thus, to many, the formally termed "Warren Court" did not begin until 1961, when the Court decided Mapp v. Ohio, which applied the Fourth Amendment's exclusionary rule to the states through the Fourteenth Amendment.(fn29) Ironically, by 1961, the Warren Court had firmly established itself as far more than just controversial. Indeed, the Court, by that time, had endured outlandish claims that its members were Communists,(fn30) weathered attacks from Congress,(fn31) and withstood criticism from J. Edgar Hoover(fn32)-among other detrac-tors.(fn33) The...

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