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FURTHER DEVELOPMENTS
ON PREVIOUS SYMPOSIA
THE CONSTITUTIONAL FAILURE OF
THE STRICKLAND STANDARD IN
CAPITAL CASES UNDER THE EIGHTH
AMENDMENT
AMY R. MURPHY*
I
I
NTRODUCTION
Not until the twentieth century did the United States Supreme Court rule
that all criminal defendants, whether in state or federal court, had a right to be
represented by counsel under the Sixth Amendment.
1
Until nearly the end of
that century, however, the Court went no further than stating that defendants
had a right to counsel, without specifying whether that meant competent coun-
sel. In 1984, there were two landmark cases in Sixth Amendment jurispru-
dence. The first is the source of the requirement that counsel provide effective
assistance, although the Court did not clarify what such assistance would entail.
2
Out of this requirement have arisen countless appeals based on ineffective assis-
tance of counsel (“IAC”). Until the Court heard the second landmark case,
Strickland v. Washington,
3
that same year, courts ruled on these claims without
any guidance. The Court defined effective assistance of counsel according to
what it was not: a deficient performance that so prejudiced the defense as to
deprive the defendant of a fair trial.
4
The Court gave little guidance about what constitutes a constitutionally de-
ficient performance, and even less to how prejudicial the effect of the deficient
performance has to be in order to be found unconstitutional. As a result, the
Court did little more than to sanction the broad discretion already employed by
courts in considering IAC claims. This discretion leads to arbitrary determina-
tions in capital cases, which, although they may satisfy the low bar set for Sixth
Amendment analysis, violate the Eighth Amendment.
In the 1995 Law and Contemporary Problems symposium entitled “Toward
a More Effective Right to Assistance of Counsel,” Professor Uelmen gave a
Copyright 2000 by Amy R. Murphy
This note is also available at http://www.law.duke.edu/journals/63LCPMurphy.
* J.D., May 2000, Duke University School of Law.
1. See Gideon v. Wainwright, 372 U.S. 335 (1963); see also infra notes 11-25 and accompanying
text.
2.See United States v. Cronic, 466 U.S. 648 (1984).
3. 466 U.S. 668 (1984).
4. See infra text accompanying notes 87-113.
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180 LAW AND CONTEMPORARY PROBLEMS [Vol. 63: No. 3
“guided tour” of the Sixth Amendment from which he gleaned several lessons.
5
First, criminal defense will never have a high funding priority in this nation.
6
Second, the difference between no counsel and incompetent counsel is a judicial
fiction that enables courts to make distinctions under the Sixth Amendment
that do not exist in reality.
7
Finally, Professor Uelmen noted the shortcomings
in the current standards for legal counsel: “[I]f courts regarded the competence
of defense counsel as just as essential to the achievement of justice as the com-
petence of the judge, we would certainly see a different standard of competence
applied.”
8
It is these lessons, combined with the utter lack of any meaningful
guidance from the Supreme Court as to what constitutes a prejudicial effect,
that makes the Strickland standard a violation of the Eighth Amendment. Just
as legislation that gave juries complete and unguided discretion over the sen-
tencing of capital defendants was deemed unconstitutional because it resulted
in arbitrary punishment,
9
so the Strickland standard is unconstitutional because
it recreates those same problems at the appellate level.
Criminal defendants are guaranteed the right to effective assistance of coun-
sel under the Sixth Amendment, but the Supreme Court’s decision in Strickland
has given appellate courts overly broad discretion to determine exactly what
constitutes ineffective assistance of counsel. As a result, there is little consis-
tency within judicial districts or across districts.
10
Legal assistance that might be
constitutionally deficient and prejudicial before one judge may not even be con-
sidered unreasonable before another. Although most courts and legal scholars
have examined the constitutionality of the assistance of counsel on an individual
basis under Sixth Amendment jurisprudence, the appellate review of IAC
claims in capital cases itself violates the Eighth Amendment prohibition of cruel
and unusual punishment, especially as it is analyzed in Furman v. Georgia,
11
be-
cause it results in impermissible arbitrariness in the sentencing of capital defen-
dants. Part II of this note begins with a review of the right to counsel, which
leads to a discussion of the importance of this right in capital cases. Part III dis-
cusses the crucial role of counsel in capital cases throughout the trial and ap-
pellate processes. In Part IV, the Strickland decision is analyzed from a consti-
tutional perspective, and from a pragmatic approach that considers outside
factors that influenced the jury’s decision. The final section of Part IV reviews
some decisions that have applied the Strickland standard, comparing the facts
and the outcome on appeal. While this note does not attempt to catalogue
every case that has made an IAC claim, its comparison of similar capital cases
demonstrates the impermissible level of arbitrariness that stems from the
5. See Gerald F. Uelmen, 2001: A Train Ride: A Guided Tour of the Sixth Amendment Right to
Counsel, 58 L
AW & CONTEMP. PROBS. 13 (Winter 1995).
6. See id. at 28.
7. See id.
8.Id.
9. See infra notes 117-22.
10.See discussion infra Part IV, Section D at pp. 31-38.
11. 408 U.S. 238 (1972).
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Strickland decision. In conclusion, this note argues that the current test for IAC
claims is unconstitutional, failing to provide proper guidance and resulting in
impermissible arbitrary disposition of IAC claims.
II
B
ACKGROUND: THE RIGHT TO COUNSEL
The Sixth Amendment provides that “in all criminal prosecutions, the ac-
cused shall enjoy the right to have the Assistance of Counsel for his defence
[sic].”
12
While this provision was initially held to be applicable only to federal
criminal cases, the Supreme Court in Powell v. Alabama
13
held that denial of the
right to counsel in a state rape case violated the Due Process Clause of the
Fourteenth Amendment.
14
Seven young black men traveling on a train bound
for Alabama were accused of assaulting two white girls;
15
they were taken into
custody upon the train’s arrival. During the course of the proceedings, which
the Supreme Court characterized as taking place in a hostile environment,
16
the
court never appointed counsel for the defendants. Instead, the court “‘ap-
pointed all the members of the bar’ for the limited ‘purpose of arraigning the
defendants.’”
17
But no attorney ever stepped forward to accept the appoint-
ment, and the defendants were tried and convicted without any counsel to assist
them.
18
The Supreme Court first undertook a factual determination of whether
the defendants were in substance denied the right of counsel.
19
Upon the de-
termination that the court’s general appointment of the entire bar resulted in no
appointment at all, the Court undertook an analysis of the application of the
Fourteenth Amendment to the right to counsel for criminal defendants.
20
The Court held that denial of the Sixth Amendment right to counsel vio-
lated those “‘fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions.’”
21
As such, even though the Sixth
Amendment specifically dealt with the issue, denial of counsel in a state crimi-
nal rape proceeding “is obviously one of those compelling considerations which
must prevail in determining whether it is embraced within the due process
12. U.S. CONST. amend. VI. Prior to its decisions regarding the right to counsel in all state cases,
the Supreme Court held that the Sixth Amendment precluded a valid conviction and sentencing where
the defendant was not represented by counsel and had not “competently and intelligently waived his
constitutional right” to counsel. Johnson v. Zerbst, 304 U.S. 458, 468 (1938). A judgment obtained
without assistance of counsel, where the right was not waived, was void, and an individual imprisoned
thereunder was entitled to release by habeas corpus. See id.
13. 287 U.S. 45 (1932).
14. See id. at 70.
15. See id. at 57.
16. See id. at 51.
17.Id. at 56.
18. See id. at 50.
19. See id. at 53-56.
20. See id. at 60-73.
21.Id. at 67 (quoting Hebert v. State of Louisiana, 272 U.S. 312 (1926)).
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182 LAW AND CONTEMPORARY PROBLEMS [Vol. 63: No. 3
clause of the Fourteenth Amendment.”
22
While the language of the Powell de-
cision did not appear to be limited to the particular facts of the case, a subse-
quent decision by the Court significantly narrowed its scope.
23
Asserted denial [of due process] is to be tested by an appraisal of the totality of facts
in a given case. That which may, in one setting, constitute a denial of fundamental
fairness, shocking to the universal sense of justice, may, in other circumstances, and in
the light of other considerations, fall short of such denial.
24
Twenty years after the Court removed the teeth from the Powell decision, it
revisited the issue of whether states must appoint counsel for defendants in
criminal prosecutions and whether the right to counsel was a fundamental right
protected under the Due Process Clause.
25
In Gideon v. Wainwright, the Court
overruled its fact-specific application of the Sixth Amendment right to counsel
in state proceedings, stating that “[w]e think the Court in Betts had ample
precedent for acknowledging that those guarantees of the Bill of Rights which
are fundamental safeguards of liberty immune from federal abridgment are
equally protected against state invasion by the Due Process Clause of the Four-
teenth Amendment.”
26
After reviewing the Powell decision and other case law,
the Court concluded that the right to counsel was indeed a fundamental right,
mandating its protection by the states.
27
The Supreme Court elaborated somewhat on what exactly is required under
the Sixth Amendment in United States v. Cronic.
28
Here, the Court stated that:
the presumption that counsel’s assistance is essential requires us to conclude that a
trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if
counsel entirely fails to subject the prosecution’s case to meaningful adversarial test-
ing, then there has been a denial of Sixth Amendment rights that makes the adversary
process itself presumptively unreliable.
29
While the Court had considered Sixth Amendment claims based on actual
or constructive denial of assistance of counsel or state interference with coun-
sel’s ability to render effective assistance, it did not address the issue of “actual
ineffectiveness” until its decision in Strickland.
30
The deep impact on capital de-
fendants of that decision is analyzed below.
22.Id.
23. See Betts v. Brady, 316 U.S. 455 (1942).
24.Id. at 462.
25. See Gideon v. Wainwright, 372 U.S. 335 (1963).
26.Id. at 341.
27. See id. at 344.
28. 466 U.S. 648 (1984).
29.Id. at 659.
30. See Strickland v. Washington, 466 U.S. 668 (1984).
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III
T
HE INTERSECTION OF EFFECTIVE ASSISTANCE AND CAPITAL CASES: WHY
AND
WHERE IT IS MOST IMPORTANT
Counsel plays an especially crucial role in the prosecution of capital cases:
“A capital trial is, in substance, two separate trials—the guilt/not guilty trial and
the penalty trial.”
31
As in any criminal proceeding, the capital defendant relies
on his attorney’s knowledge and skill to prevent a conviction. Unlike other
criminal defendants, however, only capital defendants face the risk of losing
their lives as well as their liberty. Although the defendant’s own actions pre-
sumably play a large part in determining whether he or she will live or die, the
responsibility for handling the sentencing phase of a capital trial rests squarely
on the attorney’s shoulders. While the defendant has some say over what ave-
nues of investigation are pursued, the attorney must plan and present the miti-
gation evidence during the penalty phase.
32
Further, the attorney’s presentation
of mitigating evidence has a direct bearing on the appellate court’s ability to ex-
ercise meaningful proportionality review.
33
The American Bar Association, in establishing its 1989 guidelines for the
appointment and performance of counsel in death penalty cases, acknowledged
the crucial role played by such counsel:
[D]eath penalty cases have become so specialized that defense counsel has duties and
functions definably different from those of counsel in ordinary cases . . . . At every
stage of a capital case, counsel must be aware of specialized and frequently changing
legal principles and rules, and be able to develop strategies applying them in the pres-
sure-filled environment of high-stakes, complex litigation.
34
Trial counsel in capital cases face a dizzying array of tactical decisions, as well as
the requirement of performing capably in a number of complex undertakings.
For example, the lawyer must be able to apply sophisticated jury selection tech-
niques, including attempted rehabilitation of venire members who initially state
opposition to the death penalty.
35
In addition, she must know how to find and
31. American Bar Association Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases (Feb. 1989) (Commentary to Guideline 1.1, Objective) [hereinafter ABA Guide-
lines].
32. An attorney on a capital case may explore virtually any avenue of the defendant’s past, so long
as it amounts to mitigating evidence. The Supreme Court has held that states may not limit the presen-
tation of such relevant information during the sentencing phase. See Lockett v. Ohio, 438 U.S. 586, 608
(1978) (“To meet constitutional requirements, a death penalty statute must not preclude consideration
of relevant mitigating factors.”). Therefore, the attorney must conduct an exceedingly thorough inves-
tigation of the defendant’s life, leaving no stone unturned. See Gary Goodpaster, The Trial for Life:
Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 324 (1983) (“There must
be an inquiry into the client’s childhood, upbringing, education, relationships, friendships, formative
and traumatic experiences, personal psychology, and present feelings.”).
33. See Goodpaster, supra note 32, at 318. “If counsel fails to develop and present a potentially
beneficial mitigating case when one exists, an apparently principled, but in fact disproportionate, death
sentence will survive proportionality review and will stand.” Id. at 319.
34. ABA Guidelines, supra note 31.
35. See Goodpaster, supra note 32, at 325 (“Counsel can increase the probability that the penalty
hearing will be meaningful through voir dire and has an obligation to attempt to obtain a jury of per-
sons open to an appeal for a life sentence.”). To obtain such a jury, counsel must try to prevent the dis-