Sixth Amendment
Effectiveness of Counsel
United States v. Cronic (1984)
466 U.S. (1984)
Vote: 9-0
Decision: Reversed and remanded
Majority: Stevens, joined by Blackmun, Brennan, Burger, White, O’Connor, Powell, and Rehnquist
Concurrence: Marshall
JUSTICE STEVENS delivered the opinion of the Court.
Respondent and two associates were indicted on mail fraud charges involving the transfer of over $9,400,000 in checks … in 1975. Shortly before the scheduled trial date, respondent’s retained counsel withdrew. The court appointed a young lawyer with a real estate practice to represent respondent, but allowed him only 25 days for pretrial preparation, even though it had taken the Government over four and one-half years to investigate the case and it had reviewed thousands of documents during that investigation. The two codefendants agreed to testify for the Government; respondent was convicted on 11 of the 13 counts in the indictment and received a 25-year sentence.
The Court of Appeals reversed the conviction because it concluded that respondent did not “have the Assistance of Counsel for his defence” that is guaranteed by the Sixth Amendment to the Constitution. This conclusion was not supported by a determination that respondent’s trial counsel had made any specified errors, that his actual performance had prejudiced the defense, or that he failed to exercise “the skill, judgment, and diligence of a reasonably competent defense attorney”; instead, the conclusion rested on the premise that no such showing is necessary “when circumstances hamper a given lawyer’s preparation of a defendant’s case.” The question presented by the Government’s petition for certiorari is whether the Court of Appeals has correctly interpreted the Sixth Amendment.
The indictment alleged a “check kiting” scheme. At the direction of respondent, his codefendant Cummings opened a bank account in the name of Skyproof Manufacturing, Inc. (Skyproof), at a bank in Tampa, Fla., and codefendant Merritt opened two accounts, one in his own name and one in the name of Skyproof, at banks in Norman, Okla. Knowing that there were insufficient funds in either account, the defendants allegedly drew a series of checks and wire transfers on the Tampa account aggregating $4,841,073.95, all of which were deposited in Skyproof’s Norman bank account during the period between June 23, 1975, and October 16, 1975; during approximately the same period, they drew checks on Skyproof’s Norman account for deposits in Tampa aggregating $4,600,881.39. The process of clearing the checks involved the use of the mails. By “kiting” insufficient funds checks between the banks in those two cities, defendants allegedly created false or inflated balances in the accounts. After outlining the overall scheme, Count I of the indictment alleged the mailing of two checks each for less than $1,000 early in May. Each of the additional 12 counts realleged the allegations in Count I except its reference to the two specific checks, and then added an allegation identifying other checks issued and mailed at later dates.
At trial, the Government proved that Skyproof’s checks were issued and deposited at the times and places, and in the amounts, described in the indictment. Having made plea bargains with defendants Cummings and Merritt, who had actually handled the issuance and delivery of the relevant written instruments, the Government proved through their testimony that respondent had conceived and directed the entire scheme, and that he had deliberately concealed his connection with Skyproof because of prior financial and tax problems.
After the District Court ruled that a prior conviction could be used to impeach his testimony, respondent decided not to testify. Counsel put on no defense. By cross-examination of Government witnesses, however, he established that Skyproof was not merely a sham, but actually was an operating company with a significant cash flow, though its revenues were not sufficient to justify as large a “float” as the record disclosed. Cross-examination also established the absence of written evidence that respondent had any control over Skyproof, or personally participated in the withdrawals or deposits.
The 4-day jury trial ended … and respondent was sentenced on August 28, 1980. His counsel perfected a timely appeal. … Two months later, respondent filed a motion to substitute a new attorney in the Court of Appeals, and also filed a motion in the District Court seeking to vacate his conviction … he also challenged the competence of his trial counsel. The District Court refused to entertain the motion while the appeal was pending. The Court of Appeals denied the motion to substitute the attorney designated by respondent, but did appoint still another attorney to handle the appeal. Later it allowed respondent’s motion to supplement the record with material critical of trial counsel’s performance.
The Court of Appeals reversed the conviction because it inferred that respondent’s constitutional right to the effective assistance of counsel had been violated. That inference was based on its use of five criteria:
“‘(1) [T]he time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.'”
Under the test employed by the Court of Appeals, reversal is required even if the lawyer’s actual performance was flawless. By utilizing this inferential approach, the Court of Appeals erred.
An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases “are necessities, not luxuries.” Their presence is essential because they are the means through which the other rights of the person on trial are secured. …
The special value of the right to the assistance of counsel explains why “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson (1970). …
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Thus, in McMann, the Court indicated that the accused is entitled to “a reasonably competent attorney,” whose advice is “within the range of competence demanded of attorneys in criminal cases.” In Cuyler v. Sullivan (1980), we held that the Constitution guarantees an accused “adequate legal assistance.” And in Engle v. Isaac (1982), the Court referred to the criminal defendant’s constitutional guarantee of “a fair trial and a competent attorney.”
. … The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. …
While the Court of Appeals purported to apply a standard of reasonable competence, it did not indicate that there had been an actual breakdown of the adversarial process during the trial of this case. Instead, it concluded that the circumstances surrounding the representation of respondent mandated an inference that counsel was unable to discharge his duties.
In our evaluation of that conclusion, we begin by recognizing that 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. Moreover, because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation. There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. 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 testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. …
Circumstances of that magnitude may be present on some occasions when, although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama (1932), was such a case.
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[In this case] the Court did not examine the actual performance of counsel at trial, but instead concluded that, under [the related] circumstances, the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair. …
But every refusal to postpone a criminal trial will not give rise to such a presumption …
Thus, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.
The Court of Appeals did not find that respondent was denied the presence of counsel at a critical stage of the prosecution. Nor did it find, based on the actual conduct of the trial, that there was a breakdown in the adversarial process that would justify a presumption that respondent’s conviction was insufficiently reliable to satisfy the Constitution. The dispositive question in this case therefore is whether the circumstances surrounding respondent’s representation — and in particular the five criteria identified by the Court of Appeals — justified such a presumption.
The five factors listed in the Court of Appeals’ opinion are relevant to an evaluation of a lawyer’s effectiveness in a particular case, but neither separately nor in combination do they provide a basis for concluding that competent counsel was not able to provide this respondent with the guiding hand that the Constitution guarantees.
Respondent places special stress on the disparity between the duration of the Government’s investigation and the period the District Court allowed to newly appointed counsel for trial preparation. The lawyer was appointed to represent respondent on June 12, 1980, and on June 19, filed a written motion for a continuance of the trial that was then scheduled to begin on June 30. Although counsel contended that he needed at least 30 days for preparation, the District Court reset the trial for July 14 — thus allowing 25 additional days for preparation.
Neither the period of time that the Government spent investigating the case nor the number of documents that its agents reviewed during that investigation is necessarily relevant to the question whether a competent lawyer could prepare to defend the case in 25 days. The Government’s task of finding and assembling admissible evidence that will carry its burden of proving guilt beyond a reasonable doubt is entirely different from the defendant’s task in preparing to deny or rebut a criminal charge. Of course, in some cases, the rebuttal may be equally burdensome and time-consuming, but there is no necessary correlation between the two. In this case, the time devoted by the Government to the assembly, organization, and summarization of the thousands of written records evidencing the two streams of checks flowing between the banks in Florida and Oklahoma unquestionably simplified the work of defense counsel in identifying and understanding the basic character of the defendants’ scheme. …
The significance of counsel’s preparation time is further reduced by the nature of the charges against respondent. Most of the Government’s case consisted merely of establishing the transactions between the two banks. A competent attorney would have no reason to question the authenticity, accuracy, or relevance of this evidence — there could be no dispute that these transactions actually occurred. As respondent appears to recognize, the only bona fide jury issue open to competent defense counsel on these facts was whether respondent acted with intent to defraud. When there is no reason to dispute the underlying historical facts, the period of 25 days to consider the question whether those facts justify an inference of criminal intent is not so short that it even arguably justifies a presumption that no lawyer could provide the respondent with the effective assistance of counsel required by the Constitution.
That conclusion is not undermined by the fact that respondent’s lawyer was young, that his principal practice was in real estate, or that this was his first jury trial. Every experienced criminal defense attorney once tried his first criminal case. Moreover, a lawyer’s experience with real estate transactions might be more useful in preparing to try a criminal case involving financial transactions than would prior experience in handling, for example, armed robbery prosecutions. The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.
The three other criteria — the gravity of the charge, the complexity of the case, and the accessibility of witnesses — are all matters that may affect what a reasonably competent attorney could be expected to have done under the circumstances, but none identifies circumstances that, in themselves, make it unlikely that respondent received the effective assistance of counsel.
This case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel. The criteria used by the Court of Appeals do not demonstrate that counsel failed to function in any meaningful sense as the Government’s adversary. Respondent can therefore make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel. In this Court, respondent’s present counsel argues that the record would support such an attack, but we leave that claim … for the consideration of the Court of Appeals on remand.
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Strickland v. Washington (1984)
466 U.S. 668 (1984)
Vote: 8-1
Decision: Reversed
Majority: O’Connor, joined by Blackmun, Burger, Powell, Rehnquist, Stevens, and White
Concurrence/Dissent: Brennan
Dissent: Marshall
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.
During a 10-day period in September, 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders. … The State of Florida indicted respondent for kidnaping and murder and appointed an experienced criminal lawyer to represent him.
Counsel actively pursued pretrial motions and discovery. He cut his efforts short … when he learned that, against his specific advice, respondent had also confessed to the first two murders. … Respondent waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges.
In the plea colloquy, respondent told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record, and that, at the time of his criminal spree, he was under extreme stress caused by his inability to support his family. He also stated, however, that he accepted responsibility for the crimes. …
Counsel advised respondent to invoke his right under Florida law to an advisory jury at his capital sentencing hearing. Respondent rejected the advice and waived the right. He chose instead to be sentenced by the trial judge without a jury recommendation.
In preparing for the sentencing hearing, counsel spoke with respondent about his background. He also spoke on the telephone with respondent’s wife and mother, though he did not follow up on the one unsuccessful effort to meet with them. … Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems.
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At the sentencing hearing, counsel’s strategy was based primarily on the trial judge’s remarks at the plea colloquy as well as on his reputation as a sentencing judge who thought it important for a convicted defendant to own up to his crime. Counsel argued that respondent’s remorse and acceptance of responsibility justified sparing him from the death penalty. Counsel also argued that respondent had no history of criminal activity, and that respondent committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. …
. …
. … With respect to each of the three convictions for capital murder, the trial judge concluded:
“A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances … to outweigh the aggravating circumstances.”
Washington v. State (1979). He therefore sentenced respondent to death on each of the three counts of murder and to prison terms for the other crimes. The Florida Supreme Court upheld the convictions and sentences on direct appeal.
Respondent subsequently sought collateral relief in state court on numerous grounds, among them that counsel had rendered ineffective assistance at the sentencing proceeding. …
The trial court denied relief without an evidentiary hearing, finding that the record evidence conclusively showed that the ineffectiveness claim was meritless. …
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… [T]he trial court concluded that respondent had not shown that counsel’s assistance reflected any substantial and serious deficiency measurably below that of competent counsel that was likely to have affected the outcome of the sentencing proceeding. …
The Florida Supreme Court affirmed the denial of relief. …
Respondent next filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. He advanced numerous grounds for relief, among them ineffective assistance of counsel based on the same errors. …
[T]he District Court concluded that “there does not appear to be a likelihood, or even a significant possibility” that any errors of trial counsel had affected the outcome of the sentencing proceeding. The District Court went on to reject all of respondent’s other grounds for relief, [and] accordingly denied the petition for a writ of habeas corpus.
On appeal, [t]he full Court of Appeals developed its own framework for analyzing ineffective assistance claims and reversed the judgment of the District Court and remanded the case for new factfinding under the newly announced standards. …
. …
The Court of Appeals thus laid down the tests to be applied. … Summarily rejecting respondent’s claims other than ineffectiveness of counsel, the court accordingly reversed the judgment of the District Court and remanded the case. …
Petitioners, who are officials of the State of Florida, filed a petition for a writ of certiorari seeking review of the decision of the Court of Appeals. The petition presents a type of Sixth Amendment claim that this Court has not previously considered in any generality. The Court has considered Sixth Amendment claims based on actual or constructive denial of the assistance of counsel altogether, as well as claims based on state interference with the ability of counsel to render effective assistance to the accused. … With the exception of Cuyler v. Sullivan, (1980), however, which involved a claim that counsel’s assistance was rendered ineffective by a conflict of interest, the Court has never directly and fully addressed a claim of “actual ineffectiveness” of counsel’s assistance in a case going to trial. …
In assessing attorney performance, all the Federal Courts of Appeals and all but a few state courts have now adopted the “reasonably effective assistance” standard in one formulation or another.
Yet this Court has not had occasion squarely to decide whether that is the proper standard. With respect to the prejudice that a defendant must show from deficient attorney performance, the lower courts have adopted tests that purport to differ in more than formulation. …
For these reasons, we granted certiorari 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. …
In a long line of cases … this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. …
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Because of the vital importance of counsel’s assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. …
For that reason, the Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson (1970). … Counsel … can also deprive a defendant of the right to effective assistance, simply by failing to render “adequate legal assistance,” Cuyler v. Sullivan [(1980)]. …
The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in … those presenting claims of “actual ineffectiveness.” In giving meaning to the requirement, however, we must take its purpose — to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
The same principle applies to a capital sentencing proceeding such as that provided by Florida law. …
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. … When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.
More specific guidelines are not appropriate. The Sixth Amendment refers simply to “counsel,” not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. … In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. … 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. Any such set of rules would interfere with the constitutionally protected independence of counsel. …
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. …
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Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. … At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance. …
These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. … [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
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An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. … Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan [(1980)].
Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. … Even if a defendant shows that particular errors of counsel were unreasonable … the defendant must show that they actually had an adverse effect on the defense.
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… [T]he appropriate test for prejudice [is that] the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.
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The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer … would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. … [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
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Application of the governing principles is not difficult in this case. The facts as described above, make clear that the conduct of respondent’s counsel at and before respondent’s sentencing proceeding cannot be found unreasonable. They also make clear that, even assuming the challenged conduct of counsel was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence.
With respect to the performance component, the record shows that respondent’s counsel made a strategic choice to argue for the extreme emotional distress mitigating circumstance and to rely as fully as possible on respondent’s acceptance of responsibility for his crimes. … Counsel’s strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable.
The trial judge’s views on the importance of owning up to one’s crimes were well known to counsel. The aggravating circumstances were utterly overwhelming. Trial counsel could reasonably surmise from his conversations with respondent that character and psychological evidence would be of little help. … On these facts, there can be little question … that trial counsel’s defense, though unsuccessful, was the result of reasonable professional judgment.
With respect to the prejudice component, the lack of merit of respondent’s claim is even more stark. … Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed. …
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Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure. More generally, respondent has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance. Respondent’s sentencing proceeding was not fundamentally unfair.
We conclude, therefore, that the District Court properly declined to issue a writ of habeas corpus. The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE MARSHALL, dissenting.
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. … For the most part, the majority’s efforts are unhelpful. Neither of its two principal holdings seems to me likely to improve the adjudication of Sixth Amendment claims. … Most importantly, the majority fails to take adequate account of the fact that the locus of this case is a capital sentencing proceeding. Accordingly, I join neither the Court’s opinion nor its judgment.
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My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave “reasonably” and must act like “a reasonably competent attorney,” is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes “professional” representation. …
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The majority suggests that, “[f]or purposes of describing counsel’s duties,” a capital sentencing proceeding “need not be distinguished from an ordinary trial.” I cannot agree.
The Court has repeatedly acknowledged that the Constitution requires stricter adherence to procedural safeguards in a capital case than in other cases.
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The performance of defense counsel is a crucial component of the system of protections designed to ensure that capital punishment is administered with some degree of rationality. “Reliability” in the imposition of the death sentence can be approximated only if the sentencer is fully informed of “all possible relevant information about the individual defendant whose fate it must determine.” Jurek v. Texas (1976). … The importance to the process of counsel’s efforts, combined with the severity and irrevocability of the sanction at stake, require that the standards for determining what constitutes “effective assistance” be applied especially stringently in capital sentencing proceedings.
. … In my view … if the defendant [on death row] can establish a significant chance that the outcome would have been different, he surely should be entitled to a redetermination of his fate.
Measured against the standards outlined above, respondent’s contentions are substantial. Experienced members of the death penalty bar have long recognized the crucial importance of adducing evidence at a sentencing proceeding that establishes the defendant’s social and familial connections. … Counsel’s failure to investigate is particularly suspicious in light of his candid admission that respondent’s confessions and conduct in the course of the trial gave him a feeling of “hopelessness” regarding the possibility of saving respondent’s life.
That the aggravating circumstances implicated by respondent’s criminal conduct were substantial, does not vitiate respondent’s constitutional claim; judges and juries in cases involving behavior at least as egregious have shown mercy, particularly when afforded an opportunity to see other facets of the defendant’s personality and life. Nor is respondent’s contention defeated by the possibility that the material his counsel turned up might not have been sufficient to establish a statutory mitigating circumstance under Florida law; Florida sentencing judges and the Florida Supreme Court sometimes refuse to impose death sentences in cases
“in which, even though statutory mitigating circumstances do not outweigh statutory aggravating circumstances, the addition of nonstatutory mitigating circumstances tips the scales in favor of life imprisonment.”
Barclay v. Florida (1983) (STEVENS, J., concurring in judgment) (emphasis in original).
If counsel had investigated the availability of mitigating evidence, he might well have decided to present some such material at the hearing. If he had done so, there is a significant chance that respondent would have been given a life sentence. In my view, those possibilities, conjoined with the unreasonableness of counsel’s failure to investigate, are more than sufficient to establish a violation of the Sixth Amendment and to entitle respondent to a new sentencing proceeding.
I respectfully dissent.
