Annotation 10 - Sixth Amendment

  ASSISTANCE OF COUNSEL

  Development of an Absolute Right to Counsel at Trial

Neither in the Congress which proposed what became the Sixth Amendment guarantee that the accused is to have the assistance of counsel nor in the state ratifying conventions is there any indication of the understanding associated with the language employed. The development of the common-law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases, a rule ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of ''legal questions.'' The colonial and early state practice in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained. 191 Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions which seemed to indicate an understanding that the guarantee was limited to assuring that a person wishing and able to afford counsel would not be denied that right. 192 It was not until the 1930's that the Supreme Court began expanding the clause to its present scope.

  Powell v. Alabama .--The expansion began in Powell v. Alabama, 193 in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried-out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and ''the right to the aid of counsel is of this fundamental character.'' This observation was about the right to retain counsel of one's choice and at one's expense, and included an eloquent statement of the necessity of counsel. ''The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'' 194  

The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances--''the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives''--''the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.'' The holding was narrow. ''[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law . . . .'' 195  

  Johnson v. Zerbst .--Next step in the expansion came in Johnson v. Zerbst, 196 in which the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, ''is necessary to insure fundamental human rights of life and liberty.'' Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland's invocation of the necessity of legal counsel for even the intelligent and educated layman and said: ''The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.'' 197 Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel. 198  

  Betts v. Brady and Progeny .--An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady. 199 Justice Roberts for the Court observed that the Sixth Amendment would compel the result only in federal courts but that in state courts the Due Process Clause of the Fourteenth Amendment ''formulates a concept less rigid and more fluid'' than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might ''in certain circumstances'' be a violation of due process. The question was rather ''whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.'' 200 Examining the common-law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the ''considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right essential to a fair trial.'' Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule. 201 Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the States and required the appointment of counsel, but that even on the Court's terms counsel was a fundamental right and appointment was required by due process. 202  

Over time the Court abandoned the ''special circumstances'' language of Powell v. Alabama 203 when capital cases were involved and finally in Hamilton v. Alabama, 204 held that in a capital case a defendant need make no showing of particularized need or of prejudice resulting from absence of counsel; henceforth, assistance of counsel was a constitutional requisite in capital cases. In non-capital cases, developments were such that Justice Harlan could assert that ''the 'special circumstances' rule has continued to exist in form while its substance has been substantially and steadily eroded.'' 205 The rule was designed to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in ''fundamental fairness.'' Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant which made it unlikely he could obtain an adequate defense of his own, 206 (2) the technical complexity of the charges or of possible defenses to the charges, 207 and (3) events occurring at trial that raised problems of prejudice. 208 The last characteristic especially had been utilized by the Court to set aside convictions occurring in the absence of counsel, 209 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950. 210  

  Gideon v. Wainwright .--Against this background, a unanimous Court in Gideon v. Wainwright 211 overruled Betts v. Brady and held ''that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.'' 212 Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an ''abrupt break'' with earlier precedents, citing Powell and Johnson v. Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is ''fundamental'' and the Fourteenth Amendment does make the right constitutionally required in state courts. 213 The Court's opinion in Gideon left unanswered the question whether the right to assistance of counsel was claimable by defendants charged with misdemeanors or serious misdemeanors as well as with felonies, and it was not until recently that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed--that no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right. 214 The right to the assistance of counsel exists in juvenile proceedings also. 215  

Because the absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court, Gideon has been held fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable, 216 but also may not be subsequently used either to support guilt in a new trial or to enhance punishment upon a valid conviction. 217  

  Protection of the Right to Retained Counsel .--The Sixth Amendment has also been held to protect absolutely the right of a defendant to retain counsel of his choice and to be represented in the fullest measure by the person of his choice. Thus, in Chandler v. Fretag, 218 when a defendant appearing to plead guilty on a house- breaking charge was orally advised for the first time that, because of three prior convictions for felonies, he would be tried also as an habitual criminal and if convicted would be sentenced to life imprisonment, the court's denial of his request for a continuance in order to consult an attorney was a violation of his Fourteenth Amendment due process rights. ''Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. . . . A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.'' 219 But the right to retain counsel of choice does not bar operation of forfeiture provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States, 220 the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a ''continuing criminal enterprise,'' 221 even though a portion of the forfeited assets had been used to retain defense counsel. While a defendant may spend his own money to employ counsel, the Court declared, ''[a] defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.'' 222 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act, 223 the defendant has no right to give them to a ''third party'' even if the purpose is to exercise a constitutionally protected right. 224  

Whenever defense counsel is representing two or more defendants and asserts in timely fashion to the trial judge that because of possible conflicts of interest between or among his clients he is unable to render effective assistance, the judge must examine the claim carefully, and unless he finds the risk too remote he must permit or appoint separate counsel. 225 Subsequently, the Court elaborated upon this principle and extended it. 226 First, the Sixth Amendment right to counsel applies to defendants who retain private counsel as well as to defendants served by appointed counsel. Second, judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined ''special circumstances'' that no conflict exists. Third, to establish a violation, a defendant must show an ''actual conflict of interest which adversely affected his lawyer's performance.'' Once it is established that a conflict affected the lawyer's action, however, prejudice need not be proved. 227  

''[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments.'' 228 So saying, the Court invalidated a statute empowering every judge in a nonjury criminal trial to deny the parties the right to make a final summation before rendition of judgment which had been applied in the specific case to prevent defendant's counsel from making a summation. The opportunity to participate fully and fairly in the adversary factfinding process includes counsel's right to make a closing argument. And, in Geders v. United States, 229 the Court held that a trial judge's order preventing defendant from consulting his counsel during a 17-hour overnight recess between his direct and cross-examination, in order to prevent tailoring of testimony or ''coaching,'' deprived defendant of his right to assistance of counsel and was invalid. 230 Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the Amendment. 231 Governmental investigative agents may interfere as well with the relationship of defense and counsel. 232  

  Effective Assistance of Counsel .--''[T]he right to counsel is the right to the effective assistance of counsel.'' 233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords ''effective aid in the preparation and trial of the case.'' 234 Of course, the government must not interfere with representation, either through the manner of appointment or through the imposition of restrictions upon appointed or retained counsel that would impede his ability fairly to provide a defense, 235 but the Sixth Amendment goes further than that. ''The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.'' 236 That is, a criminal trial initiated and conducted by government is state action which may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the possible fact that government did nothing itself to bring about the unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a trial. 237  

The trial judge must not only refrain from creating a situation of ineffective assistance, but may well be obligated under certain circumstances to inquire whether defendant's counsel, because of a possible conflict of interest or otherwise, is rendering or may render ineffective assistance. 238 A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent enough to provide effective assistance. While the Court touched on the question in 1970, 239 it was not until 1984, in Strickland v. Washington, 240 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings. 241  

There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. Although the gauge of effective attorney performance is an objective standard of reasonableness, the Court concluded that ''[j]udicial scrutiny of counsel's performance must be highly deferential.'' Strategic choices made after thorough investigation of relevant law and facts are ''virtually unchallengeable,'' as are ''reasonable'' decisions making investigation unnecessary. 242 In order to establish prejudice resulting from attorney error, 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.'' 243 In Strickland, neither part of the test was satisfied. The attorney's decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant's criminal history was deemed ''the result of reasonable professional judgment,'' and prejudice could not be shown because ''the overwhelming aggravating factors'' outweighed whatever evidence of good character could have been presented. 244 In Lockhart v. Fretwell, Supp.6 the Court refined the Strickland test to require that not only would a different trial result be probable because of attorney performance, but that the trial result which did occur was fundamentally unfair or unreliable. Supp.7  

There are times when prejudice may be presumed, i.e. there can be ''circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.'' 246 These situations include actual or constructive denial of counsel, and denial of such basics as the right to effective cross-examination. However, ''[a]part from circumstances of that magnitude . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice].'' 247  

  Self-Representation .--The Court has held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself. 248 It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.

The essential elements of self-representation were spelled out in McKaskle v. Wiggins, 249 a case involving the self-represented defendant's rights vis-a-vis ''standby counsel'' appointed by the trial court. The ''core of the Faretta right'' is that the defendant ''is entitled to preserve actual control over the case he chooses to present to the jury,'' and consequently, standby counsel's participation ''should not be allowed to destroy the jury's perception that the defendant is representing himself.'' 250 But participation of standby counsel even in the jury's presence and over the defendant's objection does not violate the defendant's Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks. 251  

Footnotes

[Footnote 191] W. Beaney, The Right to Counsel in American Courts 8-26 (1955).

[Footnote 192] Section 35 of the Judiciary Act of 1789, ch.20, 1 Stat. 73, provided that in federal courts parties could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of court. The Act of April 30, 1790, ch.9, 1 Stat. 118, provided: Every person who is indicted of treason or other capital crime, ''shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours.'' It was apparently the practice almost invariably to appoint counsel for indigent defendants charged with noncapital crimes, although it may be assumed that the practice fell short often of what is now constitutionally required. W. Beaney, The Right to Counsel in American Courts 29-30 (1955).

[Footnote 193]   287 U.S. 45 (1932).

[Footnote 194] Id. at 68-69.

[Footnote 195] Id. at 71.

[Footnote 196]   304 U.S. 458 (1938).

[Footnote 197] Id. at 462, 463.

[Footnote 198] Id. at 464-465. The standards for a valid waiver were tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right. See also Von Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506 (1962).

[Footnote 199]   316 U.S. 455 (1942).

[Footnote 200] Id. at 461-62, 465.

[Footnote 201] Id. at 471, 473.

[Footnote 202] Id. at 474 (joined by Justices Douglas and Murphy).

[Footnote 203]   287 U.S. 45, 71 (1932).

[Footnote 204]   368 U.S. 52 (1961). Earlier cases employing the ''special circumstances'' language were Williams v. Kaiser, 323 U.S. 471 (1945); Tompkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271 (1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen, 332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared in several cases thereafter suggesting an absolute right to counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a waiver of the right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946).

[Footnote 205] Gideon v. Wainwright, 372 U.S. 335, 350 (1963).

[Footnote 206] Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan, 329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and insanity or mental abnormality (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 U.S. 134 (1951)), were commonly-cited characteristics of the defendant demonstrating the necessity for assistance of counsel.

[Footnote 207] Technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Williams v. Kaiser, 323 U.S. 471 (1945)), or the technicality of a possible defense (Rice v. Olson, 324 U.S. 786 (1945); McNeal v. Culver, 365 U.S. 109 (1961)), were commonly cited.

[Footnote 208] The deliberate or careless overreaching by the court or the prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 U.S. 736 (1948); Palmer v. Ashe, 342 U.S. 134 (1951); White v. Ragen, 324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959); Gibbs v. Burke, supra), and questionable proceedings at sentencing (Townsend v. Burke, supra), were commonly cited.

[Footnote 209] Hudson v. North Carolina, 363 U.S. 697 (1960), held that an unrepresented defendant had been prejudiced when his co-defendant's counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. The case seemed to require reversal of any conviction when the record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962), reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced.

[Footnote 210] Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio v. New York, 327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 (1947); Gayes v. New York, 332 U.S. 145 (1947); Bute v. Illinois, 333 U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728 (1948). Cf. White v. Ragen, 324 U.S. 760 (1945).

[Footnote 211]   372 U.S. 335 (1963).

[Footnote 212] Id. at 344.

[Footnote 213] Id. at 342-43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but for purposes of delivering the opinion of the Court followed the due process absorption doctrine. Justice Douglas, concurring, maintained the incorporation position. Gideon, supra, at 345. Justice Harlan concurred, objecting both to the Court's manner of overruling Betts v. Brady and to the incorporation implications of the opinion. Id. at 349.

[Footnote 214] Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972), which had held counsel required if imprisonment were possible.

[Footnote 215] In re Gault, 387 U.S. 1 (1967). See also Specht v. Patterson, 386 U.S. 605 (1967).

[Footnote 216] Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. Maxwell, 376 U.S. 202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). See Linkletter v. Walker, 381 U.S. 618, 639 (1965).

[Footnote 217] Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior counselless conviction at trial with instruction to jury to regard it only for purposes of determining sentence if it found defendant guilty but not to use it in considering guilt inherently prejudicial); United States v. Tucker, 404 U.S. 443 (1972) (error for sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930's; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented). But see Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) provides that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty enhancement upon a subsequent conviction).

[Footnote 218]   348 U.S. 3 (1954).

[Footnote 219] Id. at 9, 10. See also House v. Mayo, 324 U.S. 42 (1945); Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 (1961).

[Footnote 220]   491 U.S. 617 (1989).

[Footnote 221] 21 U.S.C. Sec. 853.

[Footnote 222]   491 U.S. at 626 .

[Footnote 223] The statute was interpreted in United States v. Monsanto, 491 U.S. 600 (1989), as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense.

[Footnote 224] Dissenting Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, described the Court's ruling as allowing the Sixth Amendment right to counsel of choice to be ''outweighed by a legal fiction.'' 491 U.S. at 644 (dissenting from both Caplin & Drysdale and Monsanto).

[Footnote 225] Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by the court.

[Footnote 226] Cuyler v. Sullivan, 446 U.S. 335 (1980).

[Footnote 227] Id. at 348-50. For earlier cases presenting more direct violations of defendant's rights, see Glasser v. United States, 315 U.S. 60 (1942); United States v. Hayman, 342 U.S. 205 (1952); and Ellis v. United States, 365 U.S. 674 (1958).

[Footnote 228] Herring v. New York, 422 U.S. 853, 857 (1975).

[Footnote 229]   425 U.S. 80 (1976).

[Footnote 230] Geders was distinguished in Perry v. Leeke, 488 U.S. 272 (1989), in which the Court upheld a trial court's order that the defendant and his counsel not consult during a 15-minute recess between the defendant's direct testimony and his cross-examination.

[Footnote 231] E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where defendant was prevented by statute from giving sworn testimony in his defense, the refusal of a state court to permit defense counsel to question him to elicit his unsworn statement denied due process because it denied him assistance of counsel); Brooks v. Tennessee, 406 U.S. 605 (1972) (alternative holding) (statute requiring defendant to testify prior to any other witness for defense or to forfeit the right to testify denied him due process by depriving him of decision of counsel on questions whether to testify and when).

[Footnote 232] United States v. Morrison, 449 U.S. 361 (1981) (Court assumed that investigators who met with defendant, on another matter, without knowledge or permission of counsel and who disparaged counsel and suggested she could do better without him interfered with counsel, but held that in absence of showing of adverse consequences to representation, dismissal of indictment was inappropriate remedy).

[Footnote 233] McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).

[Footnote 234] Powell v. Alabama, 287 U.S. 45, 71 -72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942).

[Footnote 235] E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial court required defendant and codefendant to be represented by same appointed counsel despite divergent interests); Geders v. United States, 425 U.S. 80 (1976) (trial judge barred consultation between defendant and attorney overnight); Herring v. New York, 422 U.S. 853 (1975) (application of statute to bar defense counsel from making final summation).

[Footnote 236] Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).

[Footnote 237] Id. at 342-45. But see Wainwright v. Torna, 455 U.S. 586 (1982) (summarily holding that defendant may not raise ineffective assistance claim in context of proceeding in which he had no constitutional right to counsel).

[Footnote 238] Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender representing three defendants alerted trial judge to possibility of conflicts of interest; judge should have appointed different counsel or made inquiry into possibility of conflicts); Cuyler v. Sullivan, 446 U.S. 335 (1980) (trial judge had no obligation to inquire into adequacy of multiple representation, with possible conflict of interest, in absence of raising of issue by defendant or counsel); Wood v. Georgia, 450 U.S. 261 (1981) (where counsel retained by defendants' employer had conflict between their interests and employer's, and all the facts were known to trial judge, he should have inquired further); Wheat v. United States, 486 U.S. 153 (1988) (district court correctly denied defendant's waiver of right to conflict-free representation; separate representation order is justified by likelihood of attorney's conflict of interest).

[Footnote 239] In McMann v. Richardson, 397 U.S. 759, 768 -71 (1970), the Court observed that whether defense counsel provided adequate representation, in advising a guilty plea, depended not on whether a court would retrospectively consider his advice right or wrong ''but on whether that advice was within the range of competence demanded of attorneys in criminal cases.'' See also Tollett v. Henderson, 411 U.S. 258, 266 -69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976).

[Footnote 240]   466 U.S. 668 (1984).

[Footnote 241] Strickland involved capital sentencing, and the Court left open the issue of what standards might apply in ordinary sentencing, where there is generally far more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466 U.S. at 686 .

[Footnote 242]   466 U.S. at 689 -91. The obligation is to stay within the wide range of legitimate, lawful, professional conduct; there is no obligation to assist the defendant in presenting perjured testimony. Nix v. Whiteside, 475 U.S. 157 (1986). See also Georgia v. McCollum, 112 S. Ct. 2348 (1992) (no right to carry out through counsel the racially discriminatory exclusion of jurors during voir dire). Also, ''effective'' assistance of counsel does not guarantee the accused a ''meaningful relationship'' of ''rapport'' with his attorney such that he is entitled to a continuance in order to change attorneys during a trial. Morris v. Slappy, 461 U.S. 1 (1983). See also Jones v. Barnes, 463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous issues requested by defendant; appointed counsel may exercise his professional judgement in determining which issues are best raised on appeal).

[Footnote 243]   466 U.S. at 694 .

[Footnote 244]   466 U.S. at 699 . Accord, Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence). In Hill v. Lockhart, 474 U.S. 52 (1985), the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty.

[Footnote 6 (1996 Supplement)] 506 U.S. 364 (1993).

[Footnote 7 (1996 Supplement)] 506 U.S. at 368-70 (1993) (failure of counsel to raise a constitutional claim that was valid at time of trial did not constitute ''prejudice'' because basis of claim had since been overruled).

[Footnote 245] Deleted in 1996 Supplement.

[Footnote 246] United States v. Cronic, 466 U.S. 648, 658 (1984).

[Footnote 247]   466 U.S. at 659 n.26 (finding no inherently prejudicial circumstances in appointment of real estate attorney with no criminal law experience to defend mail fraud ''check kiting'' charges with approximately one month's preparation time). On the other hand, an attorney's failure to advise a client of his right to appeal, and of his right to an attorney on appeal, amounts to ''a substantial showing'' of denial of the right to effective counsel. Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam).

[Footnote 248] Faretta v. California, 422 U.S. 806 (1975). Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. Id. at 834-35 n.46. Related to the right of self-representation is the right to testify in one's own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule excluding all hypnotically refreshed testimony violates right).

[Footnote 249]   465 U.S. 168 (1984).

[Footnote 250] Id. at 178.

[Footnote 251] Id. at 184.


 

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