Correspondence from Liebman to Capital Punishment Attorneys; Memorandum on Ineffective Assistance of Counsel

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Lega,U&*n*H.
MEMORANDUM

TO: Capital Punishment Attorneys

FROM: James S. Liebman

RE: Circuit-by-circuit analysis of ineffective
assistance of counsel decisions

DATE: July 7, 1982

Early this summer, two summer associates at the Iaw
firm of Fried, Frank, Harris, Shriver E Jacobson--David
Dranoff and Heren Gredd--prepared a series of memoranda
on the raw of ineffective assistance of counsel in the
various circults. (Fried, Frank's summer assoclates are
assistlng the Legal Defense Fund on various projects thls
summer. ) Although the lmmediate focus of their work was
on a case I am working on in Georgia, its wider concern
with general ineffectlve assistance i-ssues, and partlcu-
Iarly wlth the duty to investi-gate the facts and law of
the case, should prove useful in all of our ineffective-
ness cases. The memoranda are attached.

You will note that the memoranda are keyed to photo-
coples of the cases. Those cases are not attached, to
save photocopying expenses, but they are available at the
Legal Defense Fund, if necessary.

JSL

Attachments

Cmtributiona are ded.tutihlelor U.S. irumne ta! Wrpo8es

The NAACP LEGAL DEFENSE & EDUCATIoNAL FUN0 is not part ot the National Association for the Advancement ol Colored People although it
was founded by it and shares tts commitment to equal rights. LDF has had for over 25 years a soparate Board, program, stall, office and budget.

NAACP LEGAL OEFENSE AND EDUCATIONAL FUND, INC.
10 columbus circte, New york, N.y. .10019. (21 2) 596-9397



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\' First Circuit - Table of Cases

Appendix
U.S. v. Bosch, 594 F.2d llt3 (1929) l_I
U.S. v. Maquire, 600 E.2d 330, cert. denied,

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444 U.S. 876 (1979) t-Z

I - U.S. v. Talavera, 669 F.2d 625 (19g2) I-3

U.S. v. Gerardi, 586 F.2d g9G (1979)

U.S. v. Ritch, 583 p.zd 1179, cert. denied,

439 U.S. 97O (1978)

. U.S. v. Thomann, G09 F.2d 560 (1979)

lr't.. .

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First Circuit

Preliminary Note:

The First Circuit has been extremelv unreceptive to

claims of ineffective assistance. No cases were found in

which an attorneyr s assistance was held to have been in-
effective because of a failure to investigate. Two were

found in which allegations relating to unpreparedness figured

in the claim of ineffective assistance, but in both cases the

assistance was held to have been effective. These two opin-

ions are reproduced in Appendices L-2 and 1-3 and are dis-
cussed in Section IIf.

However, a case that is more likely to be useful to
the preparation of the Mitchell brief is one in which the

claim of ineffective assistance was based not on a failure to

investigate, but on the :ttorney's admission into evidence of
references to the defendantrs past convictions (an action that
is arguably analogous to the state.rnent made by the Mitchell
attorney at Ehe pre-sentencing heari.rg). Tbat case, U.S. v.

Bosch, 584 F2d 1113 (1978), is reproduced in Appendix

*1-1 and is described in Section If.

f. Standard of Effective Assistance of Counsel

Until 1978, the First Circuit held to the stringent
requirement that the ehallenged representation be such as to
render the proceedings a mockery, a sham or a farce. See,

e.q., U.S. v. Riteh, 583 F.2d 1179, cert. denied, 439 U.S. 970

2



(-

.

(1978 )

court

. In United States v Bgsch, 584 F.2d 1113 (1978), the

announced that it would

follow the lead of most other circuits and adopt
the treasonably competent assistancer standard,
which is shorthand for the tenet that the quality
of a defense counselr s representation sbould be
within the range of competence expected of
attorneys in criminal cases. Bosctl, =gpra, dt
1121.

Despite the shift in standard, however, the First
Circuit has remained unreceptive to claims of ineffective
assistance. Every case that has been found in which the

Eoscb standard was applied held that the defendant received

effective assistance of counsel. See, e.9., U.S. v. Thomapn

509 F.2d 550 (1979), U.S. v. Ge!!!!i 585 t.2d 895(1978), and

the cases discussed in Section IIf.

fI. United States v. Bosch

Bosch represents the only recent First Circuit case

s assistar:cethat has been found in which the defense counsell

was held to be ineffective.

fn Bosch, the defense counsel attempted to prove at
appellant's trial for possession of narcotics that the

government had altered the date on its indictment after a

U.S. marshall had overheard the defendant and bis counsel

discussing an alibi defense for the original date. To

establish that the defendant had been in court on the date

that the marshall was supposed to have overheard the

conversation, counsel introduced a copy of a motion filed on

that date for reduction of bail despite the fact that
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the motion contained references to the defendantrs prior
convictions. During their deliberations, tbe jurors sent a

message to the judge indicating that they had been lnfluenced

by this information and asking whether this was permissible.

Defense counsel failed to move for a mistrial or to

reguest an instruction to the jurors to disregard the

information. The defendant was convicted.

In holding that Ehe defendant had received in-
effective assistance of counsel, the court declared that:

Our reading of the colloquy between defense
counsel, the court and the prosecutor leads to the
conclusion that defense counsel was so captivated
by his own theory of government foul play that he
failed to recognize the import of what the jury was
saying. .

**:t

[I]t would have been clear to a reasonably
competent cri.minal attorney that admission of
these notations of past, related convictions could
only cause significant harm to appellantr s case.

***

[T]riaI counsel's offer of these references into
evi.denee clearly resulted from neglect or
ignorance, rather than from informed professional
deliberation, and tbus deprived Ernesto Bosch of
his sixth amendment right to effective asslstance
of counsel. Bosch, supra, dt 1120,LL22.

Iff. Duty to fnvestiqate

First Circuit case law offers little definition of
the nature and extent of an attorneyr s duty Eo investigate.
Bosch suggests a possible, but very general, standard in its
quoting of the case of Cooper v. Fitzharrisr 55l F.2d 1162



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(9th Cir. L9771 z

rt is sufficient if [counserl is prepared and
conducts the defense with reasonable- knowledge andskill with an exercise of knowledgeable choiles oftriar tactics. Bosch, 594 F2d. a! LL2L-LL22.

But as noted earlier, no cases have been found in which an

attorneyt s assistance hras herd to have been ineffective be-
cause of a failure to investigate.

Two cases grere found in which attorney preparerJness

vras among the issues discussed: u.s. v. Maquire, 500 F.2d
330(L9791, cert denied, 444 U.S.876, (Appendix * L-Z), and

U.S. v. Talavera , 668 F.2d 625 (Appendix # 1-3) .

In Maquire, appellant unsuccessfullv challenged the
effectiveness of his representation in a tiiat for armed

robbery on the ground that his attorney had not met with hin
to discuss the merits of his case until just before trial.
The court discussed the Decos!_qr standard on preparedness,

u.s. v. DeCoster , 497 F.2d 1197 (D.c. cir. 1973) ) , which ir
attermed 'the most liberar standard on this issuer, GoO F,2d

332t and concluded that rIt]he obvious competence of triar
counsel in court and the total lack of any record evidence
that counser lacked significant information distinguishes
this case f rom United Slatss_-y_r__Decoster . . . " Id. Ihe
court did not, however, indicate whetber it
adopted the DeCoster standard if it had not
case distinguishable.

would have

considered the

In U.S. v. Talavera, GGg F.2d 625 (1992),

appellants unsuccessfully claimed ineffective assistance at



their trial for various drug-related offgnses. The court
held that the allegation that counsel had failed to become

sufficiently familiar with the prosecutionrs case $ras

unsupport,ed by the record, "which shows that counser sought

and received many documents from the government prior to
trialr" 558 t.2d at 632i that counserrs failure to become

aware of and pursue an alibi defense that a co-defendant rrras

planning to present was not 'an error that I clearly resulted
from neglect or ignorancert" id., quoting U.S. v. Bosch, 594

F.2d 1113 | LL2l, since the alibi was only tangentially
relevant to the appeliantrs defense and since counsel had no

apparent reason to know of its existence; and that counserrs

failure to present an entrapment defense and his decision to
concede that appellant had had possession of the drugs in
question rrrere 3

trial tactics which, in ligbt of the evidence
presented at triaI, seem to have been intelligent
and fu).ly consistent with the most zealous deiensepossible. The decisions easily satisfy the
reguirement that counsel Iquoting again from Boscb,
584 E.2d at LL22l rconduct the defense with
reasonable knowledge and ski1l with an exercise of
knowledgeable choices of trial tactics. r Talavera,
558 r.2d at 632.

It could be argued that these cases define, by

negative implication, several aspects of a duty to
investigate that is recognized by the First circuit. But

such an interpretation is, of course, highly speculative.

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Second Circuit,- Table of Cases

Saltvs v. Adams, 465 P.2d 1023 (1972)

U.S. v. Yanishef sky, 500 F.2d L327 (1974)

U.S. ex rel. Marcelin v. Mancusi, 462 F.2d

36 (Le72l

Llfuma v. 9o ,

State of New York, 550 F.2d 84, cert. denied,

434 U.S. 851 (L9771

U.S. v. Aule!, 618 F.2d 182 (1980)

U.S. v. Wiqht, L76 F.2d 376 (1949), cert.
denied, 338 U.S. 950 (f950)

U.S. v. WiLliams, 575 F.2d 388, cert. denied,

439 U.S. 842 (1979)

Appendix

2-L

2-2

2-3

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Secoird Circuit

r- standard for Effective Assistance of counsel

The second circuit has adhered to the reguirement
established in u.s. v. wiqht, L76 E.2d 376 (1949), cert.
denied 338 u.s. 950, (1950), that in order for assistance
to be held ineffective, the proceeding must have been a

'farce and mockery of justice." See, e.q., U.S. v. Aulet,
518 E.2d 182 (1980), in which the second circuit again de-
clined to abandon the "farce and mockery" standard in favor
of that of reasonably'competent assistance. very few claims
have succeeded under this standard.

II. Dutv to fnvestiqate

Most of the Second Circuit's ineffective assistance
cases dealt with trial performance rather than pretrial inves-
tigation, and the decisions have not yierded useful generar

ranguage abouE, reguirements of preparedness. seez €.e.7
u.s- v. [filIillms, 575 F.2d 3gg, cert. denied, 43g u.s. g42

(1978) (allegations of ineffective cross-examination, tardy
motions, and inadeguate summation did not establish inade-
quate assistance), Lipuma v. commissigner, Dept. of corrections
state of New York, 560 p.2d 84, cert. denied , 434 u.s. g6l (Lg77)
(failure to make a motion to suppress did not constitute inef-
fective assistance).

llo$rever, three cases were found which relate to the
duty to investigate. rn saltvs v. Adams, 465 F.2d 1023



(Lg|Zt (appendix *2-Ll , it, was held that the defendant had

been deprived of effective assistance of counsel in his

trial for robbery because his attorney failed to pursue

the possibility that the identification testimony which

constituted the whole of the stater s evidence against

the defendant could have been suPpressed.

Counsel apparently made no effort to inguire
about the circumstances surrounding the photographic,
bullpen, and pretrial courtroom identifications.
Although apparently petitioner did not mention
to trial counsel the absence of a lawyer at the
bullpen and courtroom identifications. . . . Counsel
should have inquired, since, irrespective of the
limitations I{j5Dy has placed on WaQe, there was
plainly a higEl{f viable Wade und-@b".! argument
available to him, a line of defense that prior
to Kirby might have been impregnable.

We cannot see what conceivable trial strategy
was followed in, or what tactical advantage
could obtain to Saltys from failing to object-
we might add with vigor-on Wade and Gilber!
grounds to the admission of the identification
testimony. Saltys, 455 F.2d at, 1028, \029"

A dissenting opinion took issue with the ma jori.ty's claim that

a viable Wade and Gilber! argument could be made despite f.he

holding in Kirby and saw "no basis for condemning counsel for

not arguing it." 465 F.2d at 1030.

f n U,S. v. Yanishef skv, 500 F.2d L327 (f974) (appendix

*2-2), the defendant challenged her narcotics ccnviction,

claiming she had received ineffective assistance because her

attorney failed, inter aIia, to interview all one hundred

visitors to the detention center where the offense had



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allegedly taken p1ace. The court rejecte.d her c1aim,

saying ? ,

[aJppellantrs argument that this investigation
lras essential because counsel might have beenable I to locate someone who mighl have observed
something relating to the incident and who might
be _able to give testimony exculpatory to the
defendantr clearly does not proviae ; basisfor theconclusion that the failure to do so
amounted to a failure of constitutional magnitude.
Yanishefsky, 500 F..2d at 1332.

Final1y, in U.S. ex rel.Marcelin v. Mancusi, 462

?.2d 35 (L9721 (Appendix *Z-3) , the court considered--and re-
jected--appellantrs craim that he had been denied effective
counsel at his trial for first-degree murder because of his
attorneyrs alleged failure to investigate the possibirity of
presenting an insanity defense.

The factors that the court weighed in making its de-

termination included: the possibility that a capital sentence

would be imposed; the" air-tight" nature of the

prosecution's case; the defendantrs absolute refusal to coop-

erate or communicate with his counsel; the results of the

two cornpetency examinations that counsel had earlier
reguested; counserrs knowledge of a psychiatric examination

that had been made in connection with a previous indictment
of the defendant on charges of rape; and the failure of the

defendantrs family to provide counsel with informatlon about

the defendantrs psychiatric history--despite repeated

requests by counsel for any information that would be helpful
to the defense.



(\ ' The court concluded that it was. "Dot altogether
- unreasonable' for counsel to assume that any symptoms of

. lega1 insanity would have emerged during the competency exami-

nations and that counselrs failure to investigate sufficient-
Iy to discover that the defendant had been voluntarily admit-

- ted to Bellevue the previous year and bad been diagnosed as

having a "paranoid reaction personality' did not represent "a

failure of constitutional magnitude" under the Second

Circuitr s "farce and mockery standardi or any of its
var iants.

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Third Circuit - Table of Cases

Moorel. -U_.$. , 432 F.2d 730 (1970) (en banc)

U.S. ex rel. Green v. Rundle | 434 t.2d 1112

(Ie70)

U.S. ex. rel. Green v. Rund1e ? 326 F. Supp.

456 (E.D.Pa. 1971)

United States v. Bavnes , 622 p.2d GG (1990)

United Etates_ v=_ $IilIems, 53I F.2d 198 (1980)

284 (1978)Boyer v. Patton, 579 F.2d

Append i x

3-I

3-2

3-3

3-4

3-5

3-6



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I Third Circuit

f. standard for Effective A sistance of counsel

The current standard in the third circuit
established in the case of Moore v u.s. , 432 F.2d
(en banc) (Appendix * 3-I) ,

was

730 (1970)

. . .the standard ofin other professions
customary skill andprevails at the time
736.

adeguacy of legal services asis the exercise of the
knowledge which normally
and place. Moore , 432 p.2d at

ff. Counselrs Dutv to fnvestiqate
A. Dutv to fnvestiqate Facts

Moore v. U.S. r suprE, held tha.t seemingly
effective performance at trial does not establish effective
assistance of counsel.

fhe exercise of the utnost ski-rr cruring thetriar is not enough if counser- bas .r"gi""t.a
the. necessary investigation anrj prepai"iionof the case or faired- to intervilw Lssenii"rwitnesses or to arrange for their attendance.Moore, 432 F'.2d at 739.

The government's bank robbery case against Moore depended

entirely upon identification testimony by three eyewitnesses.
(a fourth witness could not identify him as Ehe robber, and
a fifth could testify only that he resembled the robber.)
Moore claimed that the government's three witnesses had been
unable to identify him in two earlier line-ups and had, on

the third try, been able to identify him only after an FBr
agent bad pointed him out at an arraignment on other charges.



The court found no indication in the record that
the defense counsel bad investigated this claim, and it
remanded the case for an evidentiary hearing on whether this
omission caused counselrs representation to fal1 below the

standard of 'normal competency. " An additional factor which

influenced the courtts decision was defense counselrs failure
to call--or, Et least, to refer to the governmentrs own

failure to call--two other known eyewitnesses.

U.S. eI rql.Green v. Rgndle, 434 E.2d 1112 (1970)

(Appendix * 3-21. suggests that counsel may not always be

able to accept uncritically defendantrs judgment as to when

certain evidence is worth pursuing. Green had offered an

alibi defense at his trial for armed robbery and conspiracy.

A preliminary attempt at corroborating Green's claim that be

bad been at work failed because his employer $ras uncoopera-

tive. fn justifying his decision not to pursue a search for
payroll records, the attorney testified that it was his sense

from his conversations with Green that Green thought it would

be fruitress to pursue the effort. The court noted that the

attorney could have issued a subpoena duces tecumr of,

explained its possible use to Green.

A normally competent attorney sbould know that
such records, kept in the ordinary course of
business by a disinterested third party, would be
highly corroborative of his client's alibi
testimony. This attorney allowed his client, who
would not be expected to be so knowledgeable,
to proceed to trial that morning without the
records and without having investigated their
contents. . we must therefore remand for
a determination whether in all the circumstances

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. of the case the attorney's conduct with respect tothe aribi witness or records farr below [the-standard of normal competenceJ. Green , i3A F.2d at11ls

on remand, the District court granted Green a nee, trial. see
326 F. Supp. 456 (8.D. pa. 1971) (Appendix #3-3).

United States v. Bavnes, 622 F.2d GG (19g0)

(Appendix * 3-4). Governmentrs sore e.ridence against
appellant in his trial for drug-rerated offenses was an

electronically intercepted telephone conversation. The

government had obtained a voice exemplar from appellant for
purposes of verifying the identity of the voices on the
wiretap. Appel}ant believed the exemplar would exonerate him
and claimed to have repeatedly urged his attorney to obtain
a copy- The attorney did not; nor did the government

introduce the exemplar into evidence"

Although the decision wheti:rer or not to utilize aparticular itern of evider:ce rnay be a matter oftriar strategy within the acceltabre bounds oftrial counsel's discretion, we berieve the failureto investigate a crit.icar source of potentiallyexculpatory evidence malr p.resent a case ofconstitutionarly defective representation. Baynes,622 F.2d at G9.

The court remanded the case for a "fu1l inquiry into the
facts surrounding trial counselrs alleged failure to investi-
gate and utilize the voice exemplar., rd. at 70.

united states v. williamsr 53l E.2d lgg (1gg0)

(Appendix * 3-5). Appellant was convicted of drug-related
offenses on the basis of testimony by two key witnesses.
Prior to trial, appellant had somehow obtained signed affidavits



of ttrese witnesses in which they denied tlre existence of the

transactions with whicb apperlant was charged. Appelrant

demanded that defense counsel use the affidavits to impeach

the witnesses. counsel did not do so because he had been

informed by the government that it was prepared to prove that
the affidavits had been made under duress. counsel did not

investigate whether the affidavits had been validly obtained,

and appellant cited this fairure as the basis for a claim of
ineffective representation. The court held that this failure
to investigate did not constitute ineffective assistance.

The factors considered by the court in reaching

its decision included the ski1l and experience of the

attorney; appellantr s failure to attempt to have the

affidavits introduced at Eriar and his fairure to object
until his appeal; the considerabre number of attorneys that
appellant had arready discharged; the satisfaction tbat
appellant bad expressed with counselrs work at the end of the

trial; and trial counselrs testimony that regardless of
whether the affidavits were validr ES long as the government

claimed they were not, appellant would have to take the stand

to rebut that clain and would be subject to "potentiarry
fatal cross-examination" 631 F.2d at 2oLt a chance which

counsel thought it better not to run.

The dissent in williams emphasized the magnitude of
the strategic decision at issue; the constitutional considerations
regarding whose decision it was; the claim that counsel



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had never made it clear to appellant that the affidavits

would not be used; and the ethical and constitutional duty of

the attorney to make an investigatlon of potentially

exculpatory evidence.

B. Dutv to fnvestiqate the Applicable Law

E'ryrv.Patton,57gE..2d284(1978)(Appendix3-
5). Appellant attacked his conviction for prison breach'

claiming ineffective assistance of counsel because his

attorney failed to object to a prison guardrs testimony

referring to appellantr s si-lence at the time of his arrest'

At the Post-convictj.6n hearing, counsel admitted that such a

reference ,might well be objectionabler' 579 F.2d at 285, and

could give no reason for his failure to object. ApPlying the

Moore stanclard of 'normal competencer' the court held that

counsel was not under a "strict duty' to know what the then-

developing supreme court case law "would become in its

fruition." fd. at 288. The court went on to hold, however,

that counsel should have known that such testimony was

without doubt objectionable under state law. The court

characterized the attorneyrs attitude as:

"at best . . .languid and uninspired and, at worst,
n"gfig"nt and conititutionally deficient' And
hoiaiig counsel to a higher standard under these
circumstances does not iequire him or her to be a
crystal gazer, it merely regYires him or her to
a;f.a in idequately inteiested and informed position
on the client's bihalf. Bover, 579 F.2d at 288'



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TABLE OF CASES FOURTH CIRCUIT

cert.

1975

329,
(197e)

F. Supp
opinion,

38 (re81)

Coles v. Pevton, 389 f.2d 224,
denied, 393 U.S. 849 (1968)

EglI v.: State of. North'Carolina,
SIi.p opinS-on, No. 75-L750, July 25,

Marzullo v. Maryland, 561 F.2d 540,
cert. denied, 435 U.S. 1011 (L977)

Prof f itt v. U. S . , 582 f'. 2d 854 (reh.
ffic denied,), cert.

denied, 447 u.s. 910 (1980jllTeh.

Wood v. Zahradnick, 578 F.2d 980 (1978)

Springer v. Collins, 586 F.2d
cert. denied, 440 U.S. 923

Brennan v. elenlcsn-ship. , 472
hout

624 F.2d 10em9'80r-
Taylgr v. Starnes, 550 F.2d

Appendix

4-1

4-2

4-3

4-4

4-5

4-5

4-7

4-8

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Fourth Circuit

I. standard for Effective Assistance of coursel

The measure used by the Fourth circuit is whether

,the defense counselrs representation [was] within the

range of competence demanded of attorneys in crirninal

cases [,], Marzullo v.fXtate of Maryland, 551 F.2d 540,

543 (tg77), cert. denied,435 u.s. 1011 (1978) (Appendix

#4-3).

By this standard, effective rePresentation
i; not the same as errorless rePresentation.
An attorney may make a decision or give advice
which in hindsight proves wrong A convict
generally must estaLtish that his counselrs
error was so flagrant that a court can conclude
that it resulted from neglect or ignorance
rather than from informed, professional deli-
beration. Marzul1o, suPra, of 544.

Marzullo also expressly approved the use of the ABA

standards and ,cther outsicle sources as guidelines for deter-

mining whether an attorneyts representation falls within the

range of t'normal comPetencY. "

In exercising its discretion, a trial court may
refer to other sources to determine the normal
competency of the bar. Among these a-re precedent
froir stat6 and federal courts, state bar canons,
the American Bar Association standards Relating
to the Defense !'unction tApp. Draft 19711 and in
some instances, expert testimony on the particular
conauct at issue. These, of course, do not supplant
the test that we have prescribed, but they can aid
in objectively ascertaj.ning the range of cornpe-
tency'normall! "*pe"ted 

of attorneys practicing
criminal law.

561 F.2d at 545-5.



II. Counselts Dutv to Investigate

A. Genera1Iv

Coles v. Pevton, 389 E'.2d 224, cert. denied, 393

u.s. 849 (1968) (appendix *4-1) looked to the "principres to
be distilled" from Fourth Circuit case law and set forth a list
of specific requirements for counsel's preparation of his
client's defense:

Counsel for an indigent defendant should be
appointed promptry. counsel should be afforded
a reasonable opportunity to prepare to defend,
an accused. Counsel must confer with his
client without undue delay and as often as
necessary, to advise him of his rights and to
elicit matters of defense or to asiertain thatpotential defenses are unavailable. Counsel
rnust conduct appropriate investigations, both
factual and legal, to determine if matters of
defense can be deveroped, and to a11ow himself
enough time for reflection and preparation fortriar. An omission or failure Lo lui-ae ny these
requirements constitutes a deniar of effeltiverepresentation of counsel

Supra, at 226.

In Co1es, the court held that the appellant had

been denied effective assistance of counsel in his trial for
rape because his attorney did not investigate the reprrtation
of the prosecutrix; did not atternpt to determine the identity
of , or interview, the prosecutrixts mare companion r.rho, the
appelrant claimed, witnessed the exchange in which the prose-
cutrix allegedry offered her services to the apperlant for
two dollars; did not attempt to interview the person whose

house was near the alley in which the rape alregedly had taken
place and who had called the police to report the disturbance;

-2-



t did not explain the elements of forcible rape to appellant,

includ5.ng ttre requirement of proof of penLtration, and did,

not question him in regard to. this requirement; and did not

attempt to determine whether the prosecutrix had been medically

examined.

Colers listing of a defense counselrs duti.es pre-

dates the Fourth Circuitrs adoption of the "normal competency"

standard for effective assistancg but the court in Marzullo

made it clear that the listing remains authoritative:

We adhere to this statement, for it is a
definitive, objective description of the
competency normally demanded of counsel
in cer'tain aspects of their service.

I"larzullo, 55I f'. 2C at 544.

In BeII v. North Carolina, slip opinion, No. 75-1750

(July 25, L975) , appellant clairned that he had received inef-

fective assistance of counsel at the time he pleaded guilty to
the charge of accessory before the.fact to rape. His plea had

been entered no more than thirty minutes after counsel was

appointed. The court reversed the lower court's summary dis-
position of the case and remanded for a determination of
whether BelIrs attorney had made an adequate investigation of
the facts, circums'bances, and law before advising BeII to

plead. guilty. The court noted that " [b] efore an attorney

decides that any evidence is rover:vrhelmingr r he must attempt

to determine who the witnesses are, how believable they are,

and most importantly, what they have to say. " BeII, supra.

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B. 'D.uts to Investiqate the Possibilitv
of A Defense Based on fnsanitv

There are several cases in the Fourth Circuit
which concern an attorneyts duty to pursue an insanity
defense.

fn Proffit v. United States, 582 F.2d 854 (reh. and

reh. en banc denied) (1978), cerl. denied, 447 U.S. 9I0, reh.

denied 448 U.S. 913 (1980) (Appendix #4-4), appellanr,s
court-appointed attorney made his investigation and presenta-

tion of an insanity defense conditional upon the payment of a

fee. (His justification for this was that the potentiaJ. sllc-
cess of the defense depended heavily on the element of surprise,
and that he could not pursue the defense as a court-appointed
attorney without arerting the prosecution to his p1ans.) lhe
defendant was not able to pay the fee, and. the defense was not
pursued. The court held that the defendant had not received

effective assistance of counsel.

Comparatively few defendants exhibit
symptoms of mental illness, and the.re
is no obligation on conscientious
defense counsel to seek the services
of an expert in most cases. But when
it appears to counsel that the accused
is mentally ill and that he cannot
afford, to consult a psychiatrist, it
is counselrs duty to inform the court
of this situation and move for apsychiatric examination. proffitt,
582 F.2d at 858-859.

In Wood v. Zahradnick, 57 8 F.2d 980 (1978) (Appendix #4-5),
the court held that the senselessness of the crime with
which Wood had. been charged was itself sufficient to

-4-



I triEger a duty to investigate the possibility of an insanity

defense.

The lawYer ... was not entitled to
rely op6n his unsubstantiated belief
aUout tfre defendantts mental condition
at the time of the raPe' What Wood

had. done $ras so senseless that any
lawyer should have sought available
exPert assistance to exPlore -thepossibility that Wood was suffering
i.ritfr a transitory PSYchosis '
578 F.2d at 982.

The circumstances which the court viewed as making the

crime "particularly bizarren were: the defendant had

twice had sexual relations with his girlfriend that

evening before leaving her house to commit the crime,

his victim was a 67-year-o1d woman who had known the

defendant since he was a child, he made no attempt to

concealhisidentity;heseverelybeatboththerape
victim and the woman- with whom she shared a house; he

briefly abducted, bottr, and eventually fled in their

automobile; he rnade no attempt to escaPe when arrested

several hours later while d,riving the stolen automobile;

the next day he professed, to have no recollection of the

crime but said. that he had taken heroin and had drunk

alargeamountofmoonshinewhiskeythatevening.
HoweverronlyseveralmonthsaftertheWood

decision, the Fourth circuit held in.sPringer v. collins,

586 F.2d 32g (1978), cert- denied, 44'O U'S' 923 (1979)

(Appendix #4-6) that counsel did not have a duty

-5-



i to investigate the possibility of an insanity defense
for a defendant charged with rapingr the c.t even-
year-old daughter of his girrfriend while under the
influence of alcohor and drugs. rn distinguishing vlood,
the court did, not indicate how or whether it considered
the offense in SPringer to be less ',senseIess, but focused
instead on the fact that the attorney in wood had apparently
made no pre-triar preparation except for a single interview
with his crient, whereas the attorney in springer had con-
ducted pre-trial investigation and preparation that the
court found to be "wer1 within the rrange of competencer
demanded by Marzulro." 5gG F.2d at 332. The court arso
noted that the attorney in Springer had knoqnr his client
for ten years and during that period had seen no evidence
of mental problems.

TIr" only possible basis for suggestingthat counsel should have consii6red,the defense of insanity is the factthat he knew Springer had used alcoholand drugs and had been using ttremexcessively at the time of ttre offense.

In our opinion, to grant relief in thiscase would be tantamount to establishing
a- per ?e rule that in any case in whichthere is evidence that a defendant wasintoxicated by drugs or alcohol at th;time of the alleged offense, the ;.""g"
of competence" test would require tfr"ian attorney obtain a psychiatric exam-:-nation of his client and cons-i.d,er thepossibil+ty, indeed the probability, ofan insanity defense. 5gB F,.2d at :jr.-

-6-



I

Fina11y, in Brennan v. Blankenship, 472 F. supp.
149 (w.D. Va. 19791 , af f 'd withour op., 624 F.2d 1093 (t9g0)
(Appendix #4-7) trre court held that aespiie appellantrs
indication to his attorneys that he wanted to avoid, any

defense that wourd result in a determination of continuing
insanity, the failure of his attorneys to continue their
investigation of the possibility of presenting an insanity
defense constit_uted -ineffective assistance.

The court considered it significant that there was

no other viabre defense to the shooting with which appellant
'tras charged; that the attorneys knew that one of the psychia-
trists who had examined the appellant was of the opinion that
he had been psychotic on the day of the shootj_ng; that pend.-

ing trial appellant had been ordered confined in the maximum

security area of st. Albans Hospital; that the character of
appellantr s communi-cations to his attorneys should itself
lhave been sufficient to alert any trained attorney to the
possiL'ility of an insanity defens€r,' 472 F. supp. at I55; and

that there was no indication in the record that the attorneys
had ever exprained appellantts legar alternatives to him

and particularly that they had apparentry never explained,

that under virginia Iaw, the length of apperlantts commitment

after being acquitted by reason of insanity would depend on

whether his impairment was deemed transitory and,/or remediable.

While this court does not adopt
the argument that defense counsel
had an affirmative duty to enter
pleas of insanity notwithstanding
defendantts wishes, it is clear

-7-



e that a professional duty was breached
ifri""gh tt " total f ailure of def ense
."""""f to develop the potential of
Dr. Scottts testimonY.

***

While a client may Prove obstinate,
it is still the resPonsibilitY of
defense counsel to Pursue all
i't "ttr"" 

leading t,o that clientIs
best interest. 472 F. SuPP' at L57 '
158.

C. Duty to Investigate the ApPlicab1e Law

Taylor v. Starnes, 550 F.2d 38 (1981) (APpendix

#4-8). Defense counsel in a trial for malicious wounding had

deliberately failed to request that the jury be instructed on

the included, misdemeanor offense of assault and battery' He

did so in an attempt to induce error, believing that the duty

to instruct the jury about lesser offenses res'ced with the

judge. In fact, the defendant was not entitled to sgch an

instruction unless it was requested by defense counsel' The

district court found nothing in the record to indicate that

d.efense counsel had researched the applicable iarv, and it

held that the defendant had received ineffective assistance

of counsel. The court of Appeals affirmed i:he decision,

declaring that " [a] n attorney undertaking to rePresent an

accused should acquaint himself wit.h the rules of the juris-

diction in which the case is brought to trial, together with

the applicable substantive law pertinent thereto.l' 650 F'2d

at 41.

-8-



TABLE CASES FIFTH CIRCUITOF

Appendix

5-1

5-2

5-3

5-4

5-5

5-6

5-7

5-8

5-9

s-10

5-11

5-12

5-13

5- I4

5-15

Batv v. Balkcom, 561 l'.2d 391 (I9Bl)

Batv v. Balkcom. 494 F.Supp. 9G0 (1980)

carawav v. Beto, 421 F.2d 535 (1970)

Gaines v. Hopper, 575 t.?d tI47 (1978)

Her.ring v. Esteller 491 F.2d, L2S,reh. den. 493 F.m 664 (1974)

Hglli+gshead v. wainwrighr, 423 F.2d 1059
(1970 )

Kemp v. Legqett, 635 F.2d 543 (1981)

Lee v. Hopper, 499 F.2d 45d (re4. den.),
cert. deniEE, 4L9 U.S. 1053 Eg'Zal-

Lcyett v. State of Florida, 627 F.2d 706 (1e80)

Mqson v. Balcom, 531 F.2d 7L7, reh. den.1
534 E.2d L4A7 (1976)

Rummel v. EsteI.Ie, 590 F.2d 103 (I979)

.nutteaqe v. Watnwr , 625 F.2d I2OO (l9g0)

Vovles v. Watkins, 489 F.Supp. 901 (19g0)

WilFerEon v. United States, 59I F,.2d 1046,reh. den; W1979)
oa s Istate or ar.aama, 59 6 8.2d, L2L4,
va,:ated as moot, 445 U.S. 903 (1980)



\

TABLE OF CASES (continued)

Ba1dwin.v. B1acEburql 653 f'.2d 942 (I98I)

Beavers v. BaUcgoru, 635 F.2d 114 (f 981)

Bell v. Georqia, 554 F.2d 1360 (1977)

Brooks v. State of Texas, 381 F.2d 619 (1e67)

Brown v. Blackburn, 525 F.2d 35 (1980)

Bush v. McCollum, 23L F,Supp. 560 (1964)
@, 344 s.zd,-672 (1965)

, aff rd sub nom.

Cqqks v. United States, 461 F,2d 530 (1972')

Dozier v. United States District Court,

Easter v. Este11e, 509 f'.2d 756 (1980)

Greer v. Betot 379 F.2d 923 {L967)

Lovett v. State of Florida, 627 F.2d 705 (le80)

l"lacKenna v. E_4is', 280 F.2d 592, cert. denied,
ffi6ol , modified en-E?Ec,-'

289 F.2d 928 (.1e511

Nelson v. Estel1e, 642 F.2d 903 (1981)

United States v. Ed]rqrds, 4BB F.2d 1154 (.19i4)

Washinqton v. Watkins, 555 F.2d 1346, reh. den.,

United Stat,es v. Gray, 565 F.2d Bg1,
cert. denied | 435 U.S.' 955 (I978)

*.**oaorr, rr. 
"ra"r-r-" 

, 648 F.2d 276 (1981) ,cert. denied t. _. U.S. , L}Z S.Ct. 402 (1991)..,...:-
Washington v. Strickland, 673 F'.2d, g7g (1982)



368 U.S. 877 (1950), modified en banc on

fifth Circuit
f. Standard for Effective Assistance of Counsel

The standard that is observed in the Fifth Circuit was

592, cert. denied,

other grounds, 289

announced in ! 4rctte:rna v. Ellis , 280 F.2d

r.2d e28 (1951) :

We interpret the right to counsel as
the right to effective counsel. We
interpret counsel to rnean not error-
less counsel, and not counsel judged
ineffective by hindsight, but counsel
reasonably likellz to render and render-
ing reasonably effective assistance.

280 F.2d, at 599.

Courtsin the fifth Circuit determine whether reasonably

effective assistance has been rendered by looking at the

"totality of the cireumstancesr" U.S. v. Gray, 565 F.2d

88I, cert. denied, 435 U.S. 955 (1978) (ttre amount of time

spent in preparation of the defense, and the illness of the

defense counsel, $rere factors to be considered in determining
whether effective assistance had been rendered, but they were

not dispositive of the issue). Accord, Nerson v. Esterle,
642 F.2d 903 (1981); Washington v. Watkins, 655 F.2d I34G

reh. den.,662 F.2d 1115 (1981); Washington v. Estelle,
548 r.2d 276 (198f) cert. denied, u.s. , L02 s.ct. 402

(Ie81).



II. Counselrs Duty to Investigate
'A. Generally.

[a]n attorney cannot render reasonaUty
effective assistance unless he has ac-
quainted himself with the law and facts
of the case. Ca@, 42L F.2d
636,637 (19701@).
An: attorney does not provide effective
assistance if he fails to investigate
sources of evidence which may be help-
fu1 to the defense. Davis v. State of
Alabama, 596 F.2d L2tW
vacated as moot, 446 U.S. 903 (1980)
(Appendix #5-15).

fnformed evaluation of potential defenses
to criminal charges and meaningful dis-
cussion with one's cli-ent of the realities
of his case are cornerstones of effective
assistance of counsel. Gaines v. Hopper,
575 P.2d. 1147, t).49-50 (ffi'
#s-4).

Effectiveness of counsel is not tested
merely by counsel's performance in the
courtroom but must also be measured by
the attorneyrs famiiiarilty with the
facts and the law of l:he case. Holling
head v. Wainwright, 423 t.2d, 105il6T6-
@s-6).
Since "investigation and pr:eparation
are the keys to effective :cepresentationr"
ABA Projects on Standards for Criminal
Justice court-appointecl counsel have
a d.uty to interview potentlal witnesses
and "make an independent examination of
the facts, circumstances, pleadi-ngs and
Iaws involved." Rummel v. Estelle, 590
F.2d 103 (1979), @ v.
Gil1ies, 382 U.S. 708, 72rc
3T6;-82, .92 L.Ed. 309, 319 (1948) .

Any experienced trial lawyer knowsa purported trial without adequatepreparation amounts to no triJl at

that

all.
(1957).Brooks v. Texas, 381 F.2d 619, 624



case

r. 2d

B. Counselts Dutv to Make an fndependent fnvestiqation

i) Gaines v. Hopper, 575 F. 2d 1147 (1978) (Appendix

*5-4) Defense counsel in a murder trial relied on version of

events given by prosecuting attorney and police officers despite

its inconsistency with the version told by his client, despite

counsel's awareness that the shooting took place in front of a

crowd, and despite the fact that the grand jury indictment

listed the names of thirteen potential witnesses. HeId:

counselts failure to conduct an adequate pre-tria1 investi-
gation deprived defendant of effective assistance of counsel.

"Gaines' trial counsel did not fully consider the possibilities

of his client's case and could not have done so because he had

not set about to learn the facts from witnesses." Gaines, 575

F.2d at 1149, quoting from the opinion of the lower court.

ii) Baty v. Balkiom, 651 F.2d 391 (198f ) (reh. and reh"

en banc denied) (Appendix *5-I) Defense counsel in a trial for

armed robbery relied on information supplied by a co-defendant's

attorney, who had withdrawn from defendantrs case due to con-

flict of interest. Counsel conducted no independent pre-trial

investigation; di.d not intervieh, any witnesses; could. not

remember having read the transcript of the preliminary hearing;

and communicated $rith his client only briefly before tria1.
Held: "... Taylor had so little fimiliarity with his client's

as

at
to violate Baty's right to effective counsel." 561

395.
I

-3-



C. Duty to Interview Witnesses

I f'ailure to investigate a client's alibi def ense by not

attempting to interview designated alibi witnesses has been

held to constitute, or contribute to, a finding of ineffective
assistance of counser. see, e.g., BeI1 v. Georgia, 554 F.2d

1360 (1977), Brown v. Blackburn, 625 F. 2d,35 (1980), Caraway

v. Beto ' 42L F. 2d 636 (1970) . Failure to interview witness€s

listed on an indictment has contributed to a finding of in-
effective assistance of counsel. see caraway v. Beto, suprai

Gaines v. Hopper, supra.

In Kemp v. L.elgett, 535 F. 2d 453 (I9BI) (Appendix

#5-7), counser in a murder trial did not interview known eye-

witnesses, failed to call several character witnesses who were

in court at the defendantrs request, did not discuss possible

defenses with his client, did not introduce evidence to support

a verdict of mansraughter, and had had very rit,tre trial ex-
perience. His assistance h/as found to have been ineffective.

But in Ea.ster v. EF_te11e, 509 F' .2d 756 (1980) , an-

other case involving a murder trial, the court held that counsel's

"faiI[ure] to interview and sr-rbpoena certain witnesses con-

stituted triat strategy since to d.o so would have opened the

door to introd.uction of Easter's prior conviction for chird
molestation. " 609 F .2d at 759.

D. Duty to Investicrate a Defense Based on Insanit
See:

Bush v. McCollum, 231

-4-

F.Supp 560 (1964), aff 'd.



sub. nom.

: - Green v. Beto , 379 F.2d 923 (1.957) .

Brooks v. State of Texas, 381 F.2d 619 (1957).

(le74).

vacated

United States v. Edwards, 488 E..2d 1154

Davis v. Aleberne, 596 F.2d L2L4 (1979),

as moot, 446 U.S. 903.

Beavers v. Ea,tkcoq, 535 F.2d 114 (1981) .

E. Duty to Investigate the Applicable Law

i) Cooks v. U.S., 46L F.2d 530 (1972t. Defendant

(na virtual illiterate with a minimal, sixth-grade education")

received ineffective assistance of counsel when he pleaded

guilty after his attorney told him that if he did not do so

he would be subject to a sentence that was, in fact, six
times more severe than the law would al1ow. The court stated
that "although counser need, not be a fortune-teller, he must

be a reasonably competent regal iristorian." 46r F.2d at s;2,
ii) Herring v. Estel1e, 491 F.2d L2S, reh. den. 493

r.2d 664 (L974) (AppLndix #5-5). "It is [counsel's] job ro
provide the accused t an understanding of the raw in relation
to the facts.r" 491 F.2d at L28, quoting walker v. caldwerl,
476 F.2d 213, 224 (1973). "And a lawyer who is not familj-ar
with the facts and law rerevant to his clientrs case cannot

meet that required minimum level." Herring, 491 F.2d at Lzg.

iii) Rutledge v. Wainwright, 625 F.2d 1200 (I9BO)

(Appendex #5-12). Defendant, who pled nolo contendere to

McCollum v. B-llEh, 344 F.2d 672 (1965).

-5-



robbery charges, received effective assistance of counsel

despite having been given erroneous advice about his speedy

trial and conflict of interest claims. The constitutional
minimum regarding competent legal advice depends, in partr on

the clarity of the lavr.

F. Dutv to fnvestigate Before Advisinq Client to Plead

Guilty

AJ.though the amount of investigatory effort
required to render an attorneyrs advice on
how to plead competent'will necessarily
vary with the difficulty of the factual and
legal bases of. the charges r €rrr examination
of recent decisions indicates that less than
the exhaustive and, plenary investigation that
would accompany a trial will satisfy the con-
stitutional mandate.

€rr 499 F.zC 456, 462 (reh. denied), cert. denied,
10s3 (1974).

Mason v. Balcom, 531 E'.2d 7L7 reh. den., 534 F.2d L407

(L976) (Appendix #5-10). Counsel did not inform defendant of
grand. jury process available to defendants who plead not guilty;

did, not investigate possible defenses of duress, coerci.on, and

intoxication; did not pursue defendantr s claim that he was

physically coerced into signing a confession; did not present

character witnesses oll defendant's behalf or exercise his

right of allocution to beg for a lenient-sentence.

llatts just di.d. not take the time to
familiarize himself with the circum-
stances surrounding Masonrs case... .
[Ie failed to give Mason considered
legal ad,vice and to present him with
all the options available to him.

Mason, 531 F.2 at 724.

-6-



a- G. Effective Assistance at the Sentencing Stage

. i) Voyles v. Watkins, 489 F.Supp 901 (1980)

(Appendix *5-13). Counsel for defendant convicted of murder

failed to present any evidence of mitigating circumstances,

although witnesses were readily available; and failed to make

an appeal to spare defendantrs life. "here, trial counsel,

for all practical purposes, did rstand still and do nothing'

at sentencing. This amounts to a clear violation of petitioner's

constitutional right to effective assistance of counsel and due

process." 489 F.Supp. at 9L2. (Note: lhe Voyles courtrs argu-

ment for a stricter standard of effective assistance in capital

cases was rejected by the Court of Appeals in Washington v. ?Ialkins,

655 F.2d 1346, reh. d.en. 662 E.2d 1115 (1981) . t{owever, the

court went on to note that the seriousness of the charges against

the defendant is part of the "Lotality of circumstances.")

ii) Dozier v. United States District Court , 656 F. ?C

990 (1981). Appellant was not deprived. of effective assistance

of counsel because"counsel failed to bring appellant's heroi-n

addiution to the attention of the trial judge in order to ob--

tain rehabilitative sentencing.

iii) Washington v. Strickland,673 F.2d 879 (1982)

(vacated and. ordered reheard en banc). Held that counsel

representing a convicted client at a sentencing proceeding has

a "duty 'to make an independent search for witnesses with

knowledge of the defendant's character, disposition to commit

crimes [andl extenuating circumstances' in order to develop

-7-



III. Limitations on the Duty to Investigate

A. Lovett v. State of Florida, 627 8.2d, 706 (1980).

" [C]ounsel for a criminal defendant is not required to pursue

every path until it bears fruit or until all conceivable hope

withers." 627 F.2a, at 708. Defense counsel's assistance was

not ineffective because of his failure to retain a grapholo-

gist, and to locate three witnesses who, appellant claimed,

could corroborate his defense of mistaken identity.
B. Wi-lkerson v. United States , 591 F . 2d 10 4 5 reh. den . ,

595 F.2d 7221 (1979) (Appendix #5-15). Defendant was not de-

prived of effective assistance because of his attorneyrs fail-

ure to investigate the background of the key prosecution wit-

ness in ord.er to impeach his testimony.

Effer:tive corrnsel need only have "an
opportuni ty to investigate Ithe
charqes against the defendantl if
necessary ... " (emphasis added)I
t^iG-aom v. Cook, 5 Cir. 1970, 423
W quoting from Callo-
Iil_J.__Bowefl, 5 Cir. 1958, 393 F.2d
886, 688. Under the circumstances,
counsel may rightly have concluded
that his time was better spent in
lega1 research than in fruitless
l.egwork.

Wilkerson. 59I F.2d, at 1047.

evidence which might mitigate punishment. "

quoting the opinion of the lower court.

673 F.2d at 892,

d,ecid.e the Mitchell case, relied
in Baty v. Balkco1, 494 F.Supp.

Although the Baty decision was

(uote: Judge Bowen,

on Wilkers-crn to deny

who will
relief

*s-2) .960 (f980) (Appendix

-8-



subsequently reversed by the Court of Appeals (see

supri, wilkerson was still cited by that.Court for
tion ttrat 'counsel need only cond,uct investigation

necessarJ. r 661 F.2d at 395, fn. 8. )

C. See also:

i) Baldwin v. Blackburn,

ii)
eJJ t' . -s sJzv r 3. :::=..
662 P.2d 1115 (1981).

iii)

discussion

the proposi-

to extent

Gray v. Lucas, slip
opinion, No. 81-4018,
June I0, 1982.

-9-



I

Eleventh Circuit
Fifth Circuit decisions handed down on or before

september 30, 1981, are binding as precedent in the Eleventh
circuit. Bonner v. citv of prichard | 66L F.2d 1206 (lrth
Cir. 1981).

lhe bandful of ineffective assistance cases that
bave, to date, been decided in the Ereventh circuit are

straightforward applications of the principles developed in
the Fifth circuit. see, e.q., Roberts v. wainwriqht , G66

P.2d 5L7 (I1th cir. 1982) (effectiveness of assistance is
determined by looking at the 'totality of the circum-
stances'; case was remanded for evidentiary hearing) . The

cases shed no additionar light on tbe duty io investigate

I

(



Sixth Circuit

Beaslev v. U. S. , 49L E.2d 687 (6tn Cir. 1974)

CaldwelL v. U.S., 551 t.zd 429 (6th Cir.),
g!. denied, u. s.

L.Ed. 2d 220,L02 S.Ct. 4L2 (1981)

Canarv v. B1and, 583 F.2d 887 (6th Cir. 1978)

Maqlava v. Buchkoe, 515 E.2d 265 (5th Cir.) ,

U. S. v. Yelardv, 567 P.2d 863 (6th Cir.) , cer-E.

.denied, 439 U. S. 842 (1978)

Wilev v. Sowders, 647 ?.2d 642 (5th Cir.), cert.

9s&l', u. s. L.Ed. 2d

630, L02 S. Cr. 655 (1981)

Wilson v. Cowan, 578 ?.2d 155 (5th Cir. 1978)

cert. denied, 423 U. S. 931 (1975) 5-6

Rav v. Rose, 535 E.2d 965 (5th Cir.), eert.
denied, 429 U. S. 1026 (1975)

Schaber v. Maxwell, 348 P.2d 564 (5th Cir. 1965) 6-3

U. S. v. Dinapoli, 519 ?.2d I04 (5th Cir. 1975) 6-7

U. S. v. QooQyin, 531 F.2d 347 (5tb Cir. 1.975) 6-2

Attached Case #

6-1

6-s

6-4



Sixth Circuit
I. Standard: 'Reasonably likely to render and rendering

reasonably effective assistance.' Beasley v. u. s. , 491 p.2d

687, 695 (6th Cir. 1974).

fI. Major Cases:

A. Beaslev v. United States, 49I F.zd 697 (6th

Cir. L974) (attached case # 5-1). The key question in the

case concerned the sufficiency of identification evidence in
a conviction for bank robbery. The court held that defendan!,

was ineffectively assisted by counsel because his lawyer:

1. Made onl1' a cursory investigation of the

background facts,

2. Called only one witness, who counsel had not
interviewed and who testified favorably for the prosecution,

3 - Failed to interview or call any other res
qestae witnesses, many of whom would have testified tbat they
could not positively idenLi.fy defendant. counsel neglected

to call these witnesses because he mistakenly believed that
under Federal law, the prosecution was obrigated to carl all
res qestae witnesses.

4. Did not request an independent test of critical
fingerprint evidence. such a test wourd bave revealed a

defect in the government's fingerprint evidence.

Defendant claimed that his J.awyer breached his dutl-

in several other ways, but the court focused on the above

factors. while the court did not indicate which of the



factors it considered most important, it stressed the effect
of the lawyerrs actions on the defendant: ,We hold that
petitioner did not receive the effective assistance of
counsel before and during the tria1. potentially exonerating

defenses were not explored by counsel and hrere not deveroped

at triaI."
Id. at 596.

B. U. S. v. Goodwin, 531 F.2d 347 (Gth Cir. 1975)

(attached case # 5-2). Defendant was convicted of v.iolating
the Dyer Act. Despite tbe attorney's experience at defending

persons charged under the Act, he failed to realize that
under tbe statute knowledge of the erime is eguivalent to its
'actual comnission. Ee did no researeh into either law or
fact concerning the knowledge offense. His investigation of
the case was rimited to a five minute conversation with the
defendant, despite the fact tbat the defendant and other
witnesses were readily available for more extensive

interviews. Defendant's trial testirnony amounted to a

virtual confession of knowredge of tbe crime. The court held

that assistance had been ineffective because the attorney:
1. Failed to research the casei

2. FaiLed to explain the law to the defendant; and

3. Eailed to understand the law himself.
Herer ds in Beasley, the court seemed to focus on

the effect of the lawyer's actions on the course of the

defendantr s trial.



IIf. Duty to investigate:

A. Duty to investigate the applicable law.

1. Standard: "ft is a denial of the right
effective assistance of counsel for an attorney to advise

client erroneousl.y on a clear point of law if this advice

leads to the deprivation of his client's right to a fair
trial.' Beaslev v. United States, 49L F.2d 687, 696 (6th

Cir. L974) . The duty to investigate is not mentioned

explicitly in the cases, but can be implied from the more

clearly stated duty of the attorney to know the law. See

infra Section III A. 2.

2. Applications:

a. Slhaber v. Maxwell, 348 F.2d 664 (6th

Cir. 1965) lattached case # 6-3). Attorney in murder case

conceded his clientr s guilt, limiting his presentation to an

orally raised insanity defense. He failed to realize that
the apPlicable statute implied an irrebuttable presumption of
sanity unless an insanity defense was pleaded in writing. The

trial court construeci the statute technieally and disregarded

the insanity defense. fhe 6th cireuit held that the J.awyerf s

error of law deprived the defendant of his only availab1e

defense and, thus, constituted ineffective assistanee of
counsel. (Case was decided under pre Beaslev 'farce and

mockery of justice' standard.)

b. Beaslev v. United States, 491 t.2d 687

(5tn Cir. L974) (attached case * 6-1). Attorney failed to

to

his



subpoena (and, thus, to interview) res qestae witnesses
' because he erroneously believed that the government $ras

required to do so (as was the practice in the courts of his
home state). The court concluded, inter alia, that the

attorney had provided ineffective assistance because such
I witnesses would have been able to testify that they could not

positively identify defendant as the perpetrator of the

crime. Thus, the attorneyrs action deprived the defendant of
a substantial defense.

c. U,S. y, Gped1qin, 531 F.2d 347 (5th Cir.
L976) (attached case # 6-2). Despite attorney's experience

in defending persons charged under the Dyer Act, he failed to

realize that under the statute, knowledge of the crime was

equivalent to its actual commission. At the trial
defendant virtually confessed to knowledge of the crime.

The court held that the lawyer's assistance had been

ineffective because his lack of knowledge of the law had led

to an inadvertent admission of guilt.
B. Duty to investigate the surrounding facts.

1. Standard: The cases contain no explicit
statement of a standard. A duty to investigate facts can be

implied from the necessity for lawyers to know enough about

surrounding circumstances to apply relevant law and

intelligently employ trial tactics (See Section IIf. C.

infra). Tvro cases hold that lawyers must do tresearcht, but

the cases do not distinguish between lega1 and factual



investigation. See U.S. v. Goodwin, 531 F2d 347 (5tb Cir.
Lg76) (attached case * 6-2)i Beaslev v. U.S., 491 F.2d 598

(5th Cir. L974) (attached case * 51). In both cases the

context suggests that lawyers must investigate the relevant

factual backgrounds (See also discussion of cases in Section

fI, supra).

Cf. U.S. v. Dinapoli,519 f.2d 104 (5th Cir. 1975)

(attached case #6-7). Counsel failed to make adequate

investigation of mitigating cireumstances for purposes of
sentencing in a marijuana possession case. While Dinapoli

was not a case of ineffective assistance of counsel, sinee

the reason for the failure was the judge's refusar to secure

a presentence report or allow couhsel adequate time to
prepare statements on sentencing, the court vacated the

sentence due to abuse of judicial discretion. The case

-implies that <iefendants have tbe right to adeguate

preparation by their attorneys in the sentencing context.

2. Limits on the duty to investigate facts.
a. The obligation to investigate is re-

duced if counsel reasonably believes that defendant is guilty
of the offense with wbich he is charged.

(i) U. S. v. Yelardy, 567 E.2d 863

(5th Cir.), cert denied, 439 U. S. 842 (1978) (attacbed case

# 5-4). Attorney inspected prosecution evidence, but did no

other research or investigation because he was convinced

his client was guilty as charged. The court held that assistance



of counsel had been effective and noted that: "[als a matter

of both practical and eonstitutional significance, . . .

counselrs obligation to conduct an independent, factual
investigation is substantially diminished onqe counser has

reasonable cause to believe his client guilty." rd. at 965,

n. 2.

(ii) Caldwell v. U. S., 55L F.2d 429

(5th Cir.), cert. denied, , U' S. ,70
t.Ed.2d to 20,102 S.Ct. 4L2 (1981) (attached case # G-5).

Attorney felt client's alibi was guestionable, so tre eschewed

interviewing aribi witnesses and concenf-rated on reguiring
the prosecution to prove its case. The court beld that the
failure to investigate did not constitute ineffective
assistance since the testimony of alibi witnesses would have

encouraged perjury. The case holds, in effect, that the

lawyer does not have to investigate if he is reasonabJ.l'sure

before the fact that an investigation will not yield usable

results.

b. There is no independent obligation to
investigate if the attorney can reasonably rely on a prior
attorneyrs work product. gE Rav v. Rose, 535 E.2d 96G (6th

Cir.), cert. denied, 429 U. S. 1025 (197G).

c. Duty to investigate facts and law which affect
tactical and strategic decisions.

1. Standard: 'Defense strategy and tactics
which lawyers of ordinary training and skill in the criminal



law wouLd not consider competent deny a criminal defendant

the effective assistance of counsel, Lf some other action

would have better protected a defendant and was reasonably

foreseeable as such before trial." Beasley v. U. S., 491

F.2d 587, .605 (5th Cir. 1974).

2. Application:

a. If attorneys do not'know the applicable
1aw and facts, their decisions cannot be competent: "Defense

counsel must investigate all apparently substantial defenses

available to the defendant.r Beaslev v. U. S., 49L f.2d 687,

596 (5th Cir. L974).

b. Courts occasionally hold that attorney

tactics are totally unreasonable. Seer €.e., Wilson v.

CowaE,578 F.2d L55 (5th Cir. L978) (failure of attorney to
raise an available alibi defense when defendant has no other

Cefense); Schaber v. Maxwellt 348 ?.2d 664 (5th Cir. 19€5)

(attached ease # 5-3) (attorney mistake of law invalidated

only available defense); Wiley v. Sowders, 647 E.2d 642 (6th

Cir.), cert. denied, U. S. 7 0 t.Ed. 2d

530, L02 S.Ct. 655 (1981) (stipulations of fact which are

functiorrally eguivalent to a guilty plea); Canarv v. B1and,

583 F.2d 887 (5th Cir. 1978) (failure to challenge sentencing

of defendant as habitual criminal despite obvious fact that
previous conviction was defective) .

3. In some circumstances legitimate tactical
decisions can be predicated on lirnited investigation.

7



d. Caldwell v. U. S., 551 F.2d 429 (5th

Cir.), cert. denied, u. s. ,70 L.Ed.

2d to 20,102 S.Ct.4L2 (1981) (attached case # 6-5) Attor-
ney can decide not to investigate defendantrs alibi if he

feels that investigation would be fruitless and would

' encourage witness perjury.

b. Maslaya v. Buchkoe, 515 F.2d 265 (5th

Cir.), cert. denied, 423 U. S. 931 (1975) (attached case

# 5-6). Attorney can decide not to reguest psychiatric

records of sole prosecution witness who had history of 
-_=-

mental instability if he had tried unsuccessfully to obtain

the same records in a previous robbery prosecutioir and 
'\'

facts concerning witnesst prior mental history were covered

at the trial.
But see McCree, J. dissenting, to the

effect that the failure to reguest records was critical to

tbe case, and stemmed from inadequate attorney preparation

understanding of the circumstances. Id. at 269-275,,

a



Seventh Circuit Attached Case

Matthews v. U. S., 518 F.2d L24S (Zth Cir. 1975) 7-5

U. S. v. Berry, 561 t.zd 618 (Zth Cir. 1981) 7-4
U. S. v. F'leminq, 5g4 P.2d 598 (7th Cir.), cert.

denied | 442 V. S. 93I (1979)

U. S. v. Garcia, 625 ?.2d L62 (7th Cir.), cert.
denied, 449 U. S, 923 (1980)

U. S. v Earris, 558 F.28 366 (7th Cir. L977)

(7th Cir.), cert. denied, 434 U. S. 974 (L977) 7-3

U. S. el_rel Heral v. Franzen, 667 g.zd 533

U. S. v. Krohn, 550 ?.2d 293 (Zth Cir.) , cert.
denied, 435 U. S. 895 (L977)

g. S. ex rel Healev v. , 553 p.2d 1052

(7th Cir. 1981)

U. S. ex rel Spencer v. Warden, pontiac Corr. Ctr.,
545 E.2d 2L (7th Cir. L976)

U-S. ex re1 Williams v. Twomev, 510 g.Zd 634

7-6

7-2

(7th Cir.), cert. denied, 423 U, S. 976 (1975) 7-L



Seventh Circuit
f. Standard: Whether counsel's performance 'meets a minimum

prof essional standard. " U.S. ex. reI. Williams v. Twourey, 510

F.2d 534 , 640 (7th Cir. ) , cert. denied | 423 U.S. 867 (1975)

(attached case * 7-I). The Seventh Circuit test looks to the

totality of the eircumstances. E, Ag. , U.S. ex. rel
Heral v. Franzen,667 F.2d 533 (7th Cir. 1981); U.S. ex. re1.

Spencer v. Warden, Pontiac Corr. Ctr., 545 F'.2d 2l (7th Cir.
1975) (attached case * 7-2) . Relevant factors include the

nature of the charge, the evidence known to be available to
the prosecution, tbe evidence susceotible to being produced

by the defense and the experience and capacity of counsel.

U.S. ex. reI. Williams v. Twomey, 510 T.2d 634, 53$ (7th

Cir.), qe!t. denied | 423 U.S. 876 (1975). The factor of the

ex.

(7th

complexity of the evidence is added to the list by U.S.

rel. Spencer v. Warden, Pont-Lgglgg._C!9" , 545 E .2d Zl

Cir. 1975) .

ff. Maior Cases

A. U.S. ex. reI. Willians v. Eomey, 510 F.2d 634,

(7th Cir. ) , cert. denied | 423 U.S. 876 (1975) (attached case

* 7-1). Defendant was found guilty of burglary and claimed

ineffective assistance on the following grounds:

I. Failure of counsel to interview or call any

of several known witnesses. One such witness, the co-

defendant, subseguently was determined to have in his
possession evidence which would have exculpated the defendant-

1



'-. 2. Failure of counsel to present evidence that
the burglary took place during mass rioting and looting, tbus

, haking identification of the burglar suspeet.

3. Failure of counsel to move for a

continuance to allow time to prepare and interview witnesses.

4. Failure of counsel to move for a

continuance when the prosecution produced surprise witnesses.

5. Failure of counsel to advise defendant that
he testified, his criminal record could be introduced into

evidence.

The court held that under the totality of

circumstances, especially considering the failure of. counsel

to move for a continuance, assistance of counser had been

consti tutionally inef fective.
ffI. Dutv to Investiqate

fn general, the Circuit has been reluctant to find
ineffective assistance of counsel. As the court in williams
stated'[W]e have not gone to the point, urged upon uSr of
declaring that there is at least a presumption of failure to
meet the constitutional guarantee of assistance of counsel

merely because defendant's attorney has been appointed on the

day of triaLr oE is inexperienced in litigation, or makes

egregious errors, tactical or strategic, in preparation, in
conference, in examining witnessesr or not investigating or

calling potential witnesses.' t .S. ex. rel. Wi11i"nlg_g.@gI,

,

510 F.2d 634, 540 (7th cir.) , cert. denied, 423 u.s. 875 (1975).



A. Duty to investigate the applicable law.

1. Standard: The cases do not state an

explicit standard for the duty to investigate the applicable

. Development:

E. A duty to know the law can be inplied
from the Due Process Clause. U.S. ex. reI. Healey v. Cannon,

553 
".2d 

1052 (7th Cir.), cert. denied, 434 u.S. 874 (1972)

attached case # 7-3). After his intoxication defense was

rejected by the court, defendant wished to preserve

constitutional objections to the rejecEion of the defense.

He pleaded guilty after counsel advised him that such a plea

wouLd Preserve his objections on appeal. Under state law,

however, a guilty plea waived constitutional objections. The

court noted that an uninformed guilty plea violates due

Process and held that the plea was not conscious aa.J informed

because it was made in reliance upon ineffective counsel.

Counsel was characterized as ineffective because he faited to

advise defendant about the conseguences of making the guilty
' plea and about feasible alternative pIeas.

b. The Circuit has been reluctant to
recognize derelictions of duty to know the law in the Sixth
Amendment eontext. See, -U.. U.S. v. Berrv, 55I F.2d 618

(7th Cir. 1981) (attached case # 7-4). At defendant's trial
for possession and distribution of stolen cbecks, defense

counsel elicited from defendant testimony concerning

3



defendantrs ten year o1d convictions for marijuana

Possession, which had subseguently been held constitutionally
invalid. The testimony was included as part of the

defendantfs entrapment defense. ?he court held that this was

a legitirnate trial tactic designed to prevent the government

' from itself introducing evidence to impeach defendantts

cbaracter and indicate his predisposition to criminal
conduct. The court concluded that counsel's performance did

not violate the Willians standard.

Wood , J. , dissenting, argued that the assistance of
counsel h,as ineffective for three reasons. First, Rule

509 (b) of the Federal Rules of Evidence arguably prevented

the government from introducing evidence of ten year oId

convictions. Second, it was not a perrnissibl.e trial tactic
for defense counsel to impeach his own client. fhird,
evidence of. the marijuana convictions had no relevancc to the

offence with which defendant was charged. Therefore, the

dissent concluded, defense counsel was'ineffective because he

lacked knowledge of tbe Federal Rules and of the

' circumstances of the case. !]. at 62L-623. The dissent tbus
' irnplied a duty to know legal rulesr ED issue whicb the

majority avoided.

B. Duty to Investigate Relevant Factual Background

t. Standard: No standard is explicitly stated

in the cases.



2. Case Developnent:

a. F'ailure of counsel to make any prepara-

tion for trial. u.s. ex. rel. spencer v. warden, pontiac

corr. ctr., 545 F.2d 2L (7th cir. Lg75) (attached case * 7-
2). Defendant was charged with armed robbery and did not

receive appointed counsel until the day before the trial. The

attorney did no preparation, his discussion with tbe
defendant was limited, and he was unable to interview any

witnesses. counser attempted to get a continuance, but the

court and the defendant refused the reguest. conseguently,
the attorney waived his opening statement, ca11ed no

witnesses, and failed in an attempt to suppress identifi-
cation testimony. The defendant was found guilty- The court
held that the conduct of the state in making such a late
appointment, the lack of opportunity for the attorney to
prepare, and the seriousness cf the charge combined to make

counsel ineffective under the Williams standard. Wbile it is
impossible to determine the effect of the late apgrcintment on

the court's decision, the attorneyrs lack of preparation

seems to be the key to the decision.

b. The failure to interview witnesses.

U.S. ex. re1. Williams v. twomev, 510 g.2d G34 (7th Cir. ) ,
cert. denied, 423 U.S. 876 (1975) (attached case * 7-L),
suggests that the failure to interview witnesses is a key

factor, at least where the testinony of such witnesses would

be belpful to the defendant. But if the defendant does not



allege "that any such lhelpful] evidence or witness existed,
or was made known to the attorney, or could have been

discovered by an investigationr" there is no duty to have

interviewed or discovered such witnesses. Matthews v. U.S.,

5I8 F.2d L245t L246 (7th Cir. 1975) (attached case # 7-5) .

See also U.S. v. Harris, 558 E.2d 366 (7th Cir. Lg77) . Cf .

,.t. * -;, 560 F.2d zg3 (7th cir.), cert. denied, 43s

U.S. 895 (L977 ) (attached case * 7-6) (There is no duty to
call a fingerprint expert to rebut the testinony of the

governmentr s expert unless specific weaknesses in the

testimony of the government witness are asserted).

Counsel has no duty to search for witnesses who

might testify falsely for the defendant. If the defendant

admits his guilt, therefore, the attorney's duty to
lnvestigate is linited. See Matthews v. U.S., 518 ?.2d L24S

(7th Cir. 1975) (attached ease * 7-5).

C. Duty to investigate before making tactical
decis ions.

1. Standard:

enunciated by the cases.

Tbe standard is not specifically

2. Case Development: fn general, courts will
not second guess trial tactics of attorneys. E, e.q.,
U.S. v. Berrv, 66L F.2d 518 (7th Cir. 1981) (attached case

# 7-4); U.S. v. Garcia, 525 F. 2d 162 (7th Cir.), cert.
denied, 449 U.S.

(7th Cir.), cert.
923 (1980); U.S. v. Krohn, 550 E'. 2d 293

denied, 435 U.S. 895 (L977) (attached case

6



t

* 7-6) i U.S. v. Flemins, 594 F.2d 598 (7th Cir.), cert.
denied | 442 U.S. 931 (1979). Courts appear to be reluctant
to second guess the use of trial tactics even when they

appear to be based on inefficient investigation and

preparation. U.S. v. Berry, 561 F.2d 518 (7th Cir. 1981)

(Wood , J. , dissenting) (attached case * 7-41. Courts will
usually only examine tactics closely if they can be

characterized as totaIl-y unreasonable. Seer €.e. r

U.S. v. Krohn, 550 F.2d 293 (7th Cir. ) , cert. denied, 435

U.S. 895 (L977 ) (attached case * 7-6) (counsel may not sit
silently observing the commissi.on of what be claims at the

appellate leveI is reversible error unless the error was

obvious, clearly affected the substantial rights of the

accused, and if uncorrected, would be an offense to the

integriEy of judicial proceedings). See also U.S. ex rel.
Williams z. Twomey, 513 F "2d 534 (7tt Cir. ) , eert. denied,

423 U,S. 8I5 (L975) (attached case # 7-1) (failure of counsel

to ask for continuance); U.S. ex re1 Healy v. Cannonr 553

?.zdi-52 (7th Cir. ) , cert. denied , 434 U.S. 874 (L977)

(attached case * 7-3) (attorney error of 1aw led to
involuntary guilty plea) .

7



8th circuit

Benson v. U.S. | 552 E.2A 223 LEth cir.), 8-3

cbrr. denied, 434 u-s. 851 (1977)

Beran v. U.S., 580 P.2d 324 (8th Cir. 1978)

cert. denied, 440 U.S. 946 (1979)

Eldridge v. Atkins, 565 8.2d. 228 (8rh cir. 1981) 8-8

cert. . denied, U.S._, 72 L. Ed. 2d,

. 168, l.o2 s. er. 1750 (1982)

Ford v. parrarr, 538 F.2d. I1I5 (8rh Cir. I98f) g-G

vacated on other qror:nds , V.S._.,
70 L.Ed. 2d.242, I02 s. cr. 457 (1982)

Garza v. I.io-Iff , 528 F.2d. 2AB (8ttr Cir. 1975)

Ilarshaw v. U€. , 542 F.2d. 455 (8rh Cir. 198f)

Hawkman v. parratt, 66I F.2d ltGI (8th Cir. 19BI) g-7

Johnson v. U.S- 505 ?.2d.640 (8th Cir. L974)

cgrt. denied, 420 U.S. 978 (I975)

Lindhorst v. iJ. S. , 658 F.2d 598 (8th Cir. IgBI)

cert. denieC, U.S._, 7L L.Ed. 2d 309,

L02 s. cr. l-024 t1982)

McQueen v. Swenson, 498 F.2d 207 (8th Cir. L974) 8-5

Monteer v. Benson, 574 F.20 447 (8th Cir. 1978)-

t"lorrow v. Parratt, 57 4 F.2d 4I1. (8th cir. 1978) 8-2

Pinnell v. Cauthron, 540 P.2d 938 (8th Cir. L9761- 8-11-

Attached.
Case *

i

Plant v. Wvrick, 636 r.2d I88 (8th Cir. I98O)



8tlr Circuit

Rewnolds v. Dtab:nr, 574 g'.2d-.g78 (Bth Cir. I9Z8) g-lo

Ri-aehart v. Brerer, 561 r.2d, L2G (8th Cir. Lg77)

Ehomas v. !{yrick, 535 ?.2d.. +O7 (8th Cir. ) , g-4

cert. deaieA, 429 U-S- 868 (1975)

U.S. v- Crawford., 501 F.zd 952 (8ttr Cir. 1979)

cert- de''ied, 444 t.S. I020 (1980)

U.E v. Easter, 539 P.2d 553 (8ttr Cj.r. L976) B-l
cert. deni.ed, 434 tr. S . 844 ( 19 7 7 )

U.S. v. Mcttt:t.l4t, 506 E.2d 245 (8th Cir. L979)

!41ker v. So3.ern, 548 E-zd 1188 (8rh Cir. f98I)
rfolfs v. Brittoa, 509 r.zd 304 (8rh cir. t975) g-g

t

Attached
C?se #

(:,

-2-



8th'Circuit
1. Standard:

whether the trial counsel exercised "the customary

skills and diligence that a reasonably competent attorney would

perform under similar circumstances.n united states v. Easter,
539 E.2d 653 (8trr cir. 1976) , cert. 'denied, 434 u.s. 944 (1977)

(attached case #8-I). While Eas:ter introduced this standard,
it held that failure to meet the standard r,r,ad€ the proceeding

a farce and mockery of justice, a reference to the previous

standard for ineffective assistance of counsel. Later cases

abandoned this ranguage. see, e.g., Morrow 'r. parratt, 574

F'-2d 411 (8th cir. 1978) (attached case #g-2) ; Benson v. oni.ted

States, 552 f.2d 223 (8th Cir.)r'cert. denied, 434 U.S. g51

(1977) (attached case #8-3). The cases place a heavy burden on

the defendant to prove ineffective assistance, based upon a

rebuttable Presumption ttrat counsel has rendered effective
assistance. see Thomas v.__!ryrrsE, 535 F.2d 407 (8th cir.) r

cert. denied,, 429 U.S. 858 (1975) (attached case #B-4).

The idea that counsel could be heLd to a minimum

lever of effectiveness has been traced in the 8th circuit
to the supreme court decision in poweIl v. Alabama, 287 u.s.
45 (1932). In Mceueen v. Swenson, 498 F.2d ?07 (gth Cir.
L974) (attached case #8-5), the court held that defendant

has a right to the assistance of counsel "whose quality of
performance does not faIl below a minimum level of effective-
ness." rd. at 213. The court cited Powe11, and the supreme



\,- court decision in McMann v. Richardson, 397 u.s. 759 (1970) .

rd. rn McQueen the language was used to justify a searching
evaluation of attorney competence under the "mockery of
justice" standard.

When the Easter court introduced the customarl

diligence standard, it cited to language in McMann to the
effect that effective assistance of counsel means representa-
tion "within the range of competence demanded of attorneys
in criminal cases.' McMann v. Richard.Eep, 397 U.S. 7Sg,

77L (1970) quoted in u.s. v. Easter, 539 F.2d 663 (gth cir.
L9761, cert. denied, 434 u.s. 844 (L977) (attached case

#8-1). See also Ford v. Parratt 538 E.2d 1115, 1117 (8th

Cir. 1981), vacated, on other grounds , _ U.S. _, 70 L.Ed.

2d 242, L02 S. Ct. 467 (1982) (attached case #8-6);
Hawkman v. Parratt, 66L F.2d 1161, 1155 (8th Cir. f98f)
(attached case #8-7).

The courtg. have also expressed this standard in
the somewhat different formulation that the performance of at-
torneys must equal "the degree of competence prevailing

among those licensed to practice before the Bar. The

standard, would refer more precisely to the professional

competence of one who has completed a long and arduous

course of study for professional license, and who has ac-

quired some experience in applying legal principals and

conducting court trials." Johnson v. United States, 506 F.2d

640, 646 (8th Cir. L9741, cert. denied, 420 U.S. 978 (1975).

The courts in Easter, Thomas, McQueen, and Hawkman aII cite

this formulation of the standard favorably. Whatever the
-2-



.'(,

words used, the Eighth Circuit courts clearly anply an

objective test to measure attorney effectiveness.
rr. Major Cases

A- Wolfs v. Britton, 509 r.2d 304 (8th cir. 1975)
(attached case *B-9). Defendant was accused of assault
with intent to kiLr. Eis. attorney $/as appointed L-L/z days

prior to trial and a continuance was denied by the judge.

The attorney made some investigation, but the court herd it
to be inadequate under the totality of the circumstances
because the attorney had, insufficient time to i) interview
prosecution witnesses or investigate to see i.f defense

witnesses existed; 2) prepare insanity defense through the
use of psychiatric testimony; 3) develop adequate evidence
in mitigation of the sentence.

B. Thomas v. Wyrick, 53S F.2d 407 .(gth Cir.),
cert. denied., 42g u. s. 868 (197G) (attactrec case #e-4) .

Defendant was found guilty of murder and sentenced to life
imprisonment. His attorney had failed to lnterview any

witnesses who might have supported defendantrs testi.nony
that he was not present when the victim was kiIled, <Iespite
the fact that the defendant identified three different
groups of possible witnesses. one such witness uras the co-
defendant who testified unfavorabry to the d.efendant at
trial and later recanted his statements implicating defendant
in the murder. The attorney was fulfilling a serf-imposed
policy of not interviewing witnesses. He limited his investi-

-3-



gation to examination of Prosecution files and a brief con-

ver5ation with the defendant. The court held the assistance

of counsel was ineffecti.ve because of the attorneyIs policy

of not interviewing \./itnesses. The court added a caveat to

the effect that the lawyer may legitimately exercise his

professional judgment and decide not to interview a parti-

cular witness in a particular circumstance.

C. McQueen v. Swenson, 498 F.2d 207 (8th Cir.

L974) (attached case #8-5). Defendant was found guilty of

murder. The attorney had failed. to interview any of 4I

possible prosecution witnesses or any defense witnesses,

following a personal policy of not intervieririg witnesses.

He limited his investigation to an interview with the de-

fendant. At trial, he called no witnesses except the de-

fendant and introduced no evidence. The court held that

the lack of pre-trial investigation, under the circum-

stances of the case, constituted ineffective assistance of

counsel. The court applied the mockery of justice standard

'searchingly.' Id. at 214.

D. Eldridge v. Atkins, 665 F.2d 228 (8th Cir' 1981),

cert. denied., U.S. , 72 L.Ed.2d 158, L02 S'C'L' L760

(1982) (attached case #8-8). Defendant was charged with

robbery. His lawyer failed, to investigate the case and

failed to interview known witnesses. He thus failed to dis-

cover or present a defense of mistaken identification, which

was strongly suggested by the available testimony and evidence.

The court found that the attorney had previously decided

that the defendant was guilty and that any further investi-

-4-



gation would be useless. The attorney's predisposition
caused him to ignore a number of reasonable investigatory
leads with which he was presented and tius, the court herd,

the assistance of counser wag ineffective. The case impries

a duty to investigate prior to making practical and

strategic decisions.

III. Duty to fnvestigate Law and Facts

A. Standard: In the Eighth Circuit, the duty

to investigate is explicitly stated.

1. The duty is traced to the Supreme Court,s
language in Powell and McMann. See suprg section I.

2. A minimum leve1 of effectiveness requires

some investigation of facts and law. The McQueen court
stated that "failure to investigate may amount to ineffec-
tive assistance of counsel." McQueen v. Swenson, 498 F.2d

207, 2L7 (8th Cir. L974) (attached case #8-5). See also

Walker v. So1em, 648 F .2d 1188 (8tir Cir. 1981) .

3. -. Particular standards employed by the courts.

a. American Bar Associati.on Standards

Relating to the Prosecution Function and the Defense Function.

The McQueen court cited the ABA Standards favorably, but

failed. to adopt them explicitly. t'IcQueen v. Swenson 498

F.2d 207, 2L6 (8ttr Cir. L974) (attached case +8-5) . A

number of courts have explicitly adopted the ABA Standards,

S 4.1, as a binding statement of the duty of the lawyer to
investigate: "It is the duty of the lawyer to conduct

a prompt investigation of the circumstances of the case

and explore a1l avenues leading to facts relevant

-5-



to guilt and degree of !ui1t or penarty. The investigation
shourd always incrude efforts to secure lnformation in
possession of the prosecution and law enforcement author-
ities. The duty to investigate exists regardless of the

accusedrs admissions or statements to the lawyer of facts
constituting guilt or his stated desire to plead guilty.',
American Bar Association Project on standards for criminal
Justice, standards Relating to the prosecution Function

and the Defense Function, S 4.I (Approved Draft I9Z1). See

e.9., Eldridge v. Atkins , 665 F.2d 228 (8th Cir. 1981),

cert. denied, U.S. , "72 L.Ed.2d l5g, LO2 S.Ct. 1760

(1982) (attached case #8-8); neynofas v. ltaUry, 574 F.2d g7g

(8th cir. 1978) (attached case #8-r0); wolfs v. Britton,
509 r'.2d 304' (8th Cir. 1975) (attached case #g-9); Garza v.
wolff, 528 F.2d 208 (8rh Cir. 1925).

b. The requirement of an in depth investi-
gation. "ordinarily, the reasonabry competent attorney
conducts an in-depth investigation of the case, including
independent interviewing of witnesses.', Benson v. united
states, 552 F.2d 223, 225 (gth cir.), cert. denied, 434

U.S. 851 (L977, (attached case #8-3). See .afso Morrow

v. Parratt, 574 F.2d 411, 413 (gtrr cir. Lg78) (attached

case #8-2). The standard, was arternately formurated in
wglfs v. Britton, 509 F.2d 304 (gth cir. Lg75) (attached

case #8-9): "Effective assistance refers not only to
forensic skills but to painstaking investigation and pre-
paration for trial. " Id. at 309.

-6-



L . B. Application of the Standard. The test in the
Eighth circuit looks to the context of the particular case.

McQueen v. Swenson, 498 F.2d 207, 2L7 (8th Cir. L974)

(attached case #8-5). See also !{orrow v. Pafratt', 574 F.2d

411 (8th Cir. 1978) (attached case *8-2); Thomas v. Wyrick,

535 F.2d 407 (8th Cir.), cert. denied, 429 U.S. BG8 (1976)

(attached case *8-41. The Wolfs court most explicitly
stated the totality of circumstances test: defendantrs

claim for ineffective assistance of counsel "must neces-

sarily be decided on an ad hoc basis. rn each case we must

weigh, Ermong other factors, the ti:ne afforded, counsel, the

experience of counsel, tlg gravity of the charge, and the
compiexity of the possible defenses as weLl as the

accessability of witnesses to counsel." Eolfs v. Britton,
509 r.2d 304, 309 (8th Cir. 1975) (attached case #8-9).

The f act that the t,otality of ci rcumstances test
is actually applied..is apparent frorn the different results
in cases using one standard, the ABA Standards for the

Defense Function. Compare Eldridge v. Atkins, 665 F.2d 228

(8tn Cir. 1981) cert. denied, u. s. , 72 L. Ed. 2d

168, 102 S. Ct. 1750 (1982) (attached case #8-8); Wolfs v.

Britton, 509 F.2d 304 (8tn Cir. 1975) (at-tached case #8-9) ;

Garza v. Wolf , 528 E' .2d 208 (8th Cir. I.975); with Relznolds v.

Mabry, 574 F.2d 978 (8th Cir. 1978) (attached case #8-I0).

makes litt1e

assiting his

1. Limited fnvestigation. If the attorney

or no investigation, he is not effectively
client. In Pinnell v. Cauthron, 540 F.2d



L 938 .(8th cir. 1976) (attached case #8-r1), defendant was

convicted of assault with a deadly weapoir. The attorney
had "interviewed no witnesses, had minimal or no d,iscussion

with his client about possible defenses, had not discussed

the tapes [incriminating wiretaps] with his cIlent, had

not discussed with his cLient his clientts possibre testi-
mony, and failed to object to the admission of the tapes

and the reading of the transcripts, had cross-examined and

then only briefly and perfunct orally one witness, had,

6iled to give an opening or closing argument and, in the
word,s of Mr. Parker [attorney for co-defendant], tdid not
represent the man [the defendantJ at the trial.r,' fd. at
942. The attorney!s contact with his client was limited
to requests for more money. The court held that counsel

had ineffectively assisted his client, but it is impossible
to teIl if the decision wourd have been the same if the
court had not found.that counsel was mainry motivated by

pecuniary interests. rd. see also lr{ceueen v. swenson, 4gg

F.2d 207 (8tn cir. l.g74) (attached case #g-5) (ttre failure
to undertake any investigation constitutes ineffective
assistance) .

2. The Failure to Interview Witnesses

E. General Policy of Not fnterviewing
Witnesses.

(i) McQueen v. Swenson , 498 F.2d 207

(8tn cir. L974) (attached case *g-5) . The lawyerr €rs a

matter of policy, <lid not go out and attempt to interview

-8-



any witnesses. Ile hj-rnself characterized .such activity as

the duty of a detective and not the duty of a lawyer. E.
at 2L2. The court held that the lawyer had afforded hLs

client ineffective assistance and, characterized his policy

of not interviewing witnesses as "an absurd and dangerous

policy which can only be viewed as an abdication - not an

exercise of his professional judgment." Id. at 2L6.

(ii) Thomas v. Wyrick, 535 r.2d 407 (8th

Cir.), cert. denied, 429 U.S. 858 (f975) (attached case

#8-4). The lawyer in Thomas folLowed a policy similar to

that of the lawyer in l{cQueen. The court held that such a

policy'constituted ineffective assistance of counsel in at

least two ways. First, the policy constituted a breach of

the attorneyr s duty tc his clientr ES rePresented by the ABA

Code of Professional Responsibility. Second, the policy had

the effect of eroding the presunption of regularity and com-

petence which normally attaches to an a'btorney's decisions.

Id. at 413. The court emphasi.zed that it might be a matter

of discretion for the attorney to choose not to interview

witnesses in a particular circumstance and, to rely on other

sources of information. An exercise of legitimate professional

judgment is to be distinguished from a general policy of not

interviewing witnesses. Id. at 413, n. 7.

The cases lead to the conclusion that when counsel

interviews not witnesses as part of a general policy he is

regarded as per se ineffecLive.

-9-



b. The key factors in determining whether

an attorney is guilty of ineffective assistance when he

fails to interview witnesses in a particular circumstance

are whether the witness was known to the attorney and whether

the testimony of the witness would be likely to help the

defendantr s case. By requiring the defendant to prove both

of these facts, the courts telescope the prejudice issue into
the question of ineffectiveness of counsel. If the failure
to call witnesses could, have affected defendant's trial, the

court holds that ineffective assistance occurred. [Note:

the Thomas court correctly employed the two step ineffectiveness/
prejudice test in its decision. The court found, first, that

the assistance of counsel was ineffective because of the

failure to interview witnesses. The court heId, second,

that the ineffectiveness of counsel was prejudicial because

the witnesses were identified, and their testimony would have

been helpful to the defendantrs case.l

(i) Cases finding ineffective assistance.

Morrow v. Parratt, 574 F.2d 411 (8th Cir. 1978)

(attached case #8-2). Defendant was charged with robbery.

IIis attorney investigated by talking to the defendant and

looking at police reports. The attorney advised a guilty
pIea. He failed to interview eyewitnesses or attempt to

develop evidence to support defendant's assertion that he

had not participated, in the robbery. Since the witnesses

were identified and their testimony could have helped

- t0-



defehdant, the court held that it was incumbent upon the

attorney to further investigate the facts. Id. at 413.

Garza v. I{olff , 520 F.2d 208 (8th Cir. 1975).

The defendant was charged with rape. [Iis attorney failed
to call essential witnesses the other occupants of the

car at the time of the rape - who could have testified in
defendant's favor. Since the witnesses were identified and

their testimony could have helped defendant, the court found

ineffective assistance.

Eldridge v. Atkins, 664 F.2d 228 (8tn Cir. 1981)

,'12 L.Ed.2d, 158, 102 S.Ct.cert. denied, U. S.

1760 (1982) (attached. case *8-8). The attorney failed to

talk to existing witnesses who could have suoported the

defendantr s theory of mistaken identitlz.
(ii) Cases finding effective assistance:

If the attorneyrs decision not to interview witnesses can be

Iegitimately characterized as a tactical decision, the

courts will be reluctant to second guess that decision at

a later time. See Thomas v. Wyrick, 535 P.2d, 407, 413 n.7

(8th Ci-r.), cert. denied, 429 U.S. 868 (L976) (attached

case #8-4). See also P1ant v. Wyrick, 636 F.2d 188 (8th

Cir. 1980) (failure to interview witnesses will only rarely

be sufficient to warrant reversal). For case examD1es,

see, €.9., Monteer v. Benson, 574 F.2d 447 (8tfr Cir. 1978)

(the failure to find alibi witnesses was irrelevant where

-11-



there. is no crear aribi defense in the case. The attorney

is not responsible to manufacture defenses if conversation

wittr the defendant does not suggest that such defenses actu-
ally exist); Lindhorst v. united States, G5g F.2d 59g (gth

Cir. 1981), cert. denied,, u.s. _, 7L L.Ed. 2d, 309,

102 s.ct. Lo24 (1982) (failure to interview and investigate
witnesses is not ineffective assistance if the defendant

already has witnesses. In this case, the attorney already

had, found four alibi witnesses); Benson v. United States,

552 F.2d 223 (8th Cir.), cert. d.enied, 434 U.S. 851 (L977)

(attached case #8-3) (it does not constitute ineffective
assistance when the counsel fails to interview witnesses

if there is no proof of what information would be available

through further investigation); Plant v. Wyrick, 636 f.2d
188 (8tn Cir. 1980) (no information available from the

defendant could reasonably lead the attorney to believe that
further investigati6h was necessary. Therefore, decision

not to interview witnesses was a legitimate tactical
decision) .

3. Other investigatory devices. The language in
the standard mandates some investigation, but unless the

lawyer makes it a general practice not to investigate or

there is a telescoped prejudiced determination, the court

will not usually find ineffective assistance of counsel

See Beran v. United States, 580 F.2d 324 (8th Cir. I9ZB)

cert. denied, 440 u.s. 446 (1979).

-r2-



i

: ". If the attorney fails to investigate
pursuant to a general policy, he is not mdking a legitimate
tactical decision. See sgplg Section IIf, 8.3.

f .lf .n attorney fails to do enough inves-
tigation to be able to reasonably decide whether or not further
investigation is necessary, it constitutues ineffective assist-
ance of counsel. Ford v. ParFatt, 638 F.2d 1115 (8th Cir.
1981), vacated on other groundg, _ U.S. _, 70 L.Ed. 2d

242, L02 S.Ct. 467 (1982) (attached case #8-G). The defendant

r^las charged with rape. The attorney failed to investigate an

unsubstantiated. rumor that the victim was pregnant, yet he

used that ru$or to get his client to plead guilty. The court
held that counsel had ineffectively assisted his client. The

court stated that "when an unsubstantiated issue is deemed

by both counsel and client to be significant enough to
trigger the decisiorr to plead guilty, then there arises
a duty on the part of 'Ehe defense cor:nsel to obtain the

specifics surrounding E,he key factual issue. Such a duty

necessarily demands thorough investigation. . . . llere,

counselrs failure to investigate and determine the truth
of the rumor of pregnancy, in conjunction with his using

the rumor to persuade Ford to plead guilty, constitutes

failure to exercise the customary ski1l and diligence that
a reasonably competent attorney would perform under similar
circumstances." fd. at 1118. See also_ Eldridge v. Atkins,

555 F.2d 228 (8ttr Cir. 1981) , cert. denied,

-13-

U.S. ,



i 71 D..Ed. 2d 309, 102 S. Ct. L024 (1982) (attached case #8-8)

(An attorney cannot d,ecide not to investigate promising

leads just because he thinks his client is probably guilty);
Thomas v. Wvrick, 535 F.2d 407 (8th Cir.), cert. denied,

429 U.S. 868 (1976) (an attorney cannot fail to e>rplore

defendantrs proffered line of defense if that defense is
reasonable under the circumstances), Concerning failure
to e>cplore reasonable defenses, see also Wolfs v. Britton,
509 I'.2d 304 (8th Cir. 1975) (attached case #8-9); McQueen

v. Swenson, 498 F.2d 207 (8ttr Cir. L974) (attached case

#8-5) .

c. It is not necessary to investigate if
investigation would be fruitless or the issue is irrelevant.
In Harshaw v. U.S., 542 I'.2d 455 (8tn Cir. L976), the

attorney did no pretrial investigation except for examinine

the prosecution's files and. speaking with defendant, but the

court held that the.assistance of counsel was effective
because there were no aLlegations of what evidence might

have been uncovered or how helpful that evidence would have

been. In Reynold,s v. I'labry, 574 F.2d 987 (8th Cir. 1978)

(attached, cased *8-10), the lawyer had neglected to investi-
gate the circumstances of defendant's arrest. The court

held that if there was no evidence seized at the time of
the arrest and used in the trial, the defense counsel was

under no obligation to investigate the circumstances. The

court held that here was no general duty to investigate

- 14-



defenses that were unreasonable or unlikely to win. see

also U.S. v. Crawford, 60l F.2d 962 (8th Cir. 1979), eert.

{enied, 444 U.S. 1020 (1980).

On balanc€, the attorney must do enough research

so that he may make a reasonable decision on whether to
proceed, further. Thus, the cases in this section are not

really in conflict. When the attorney has sufficient informa-

tion to allow him to make a reasonable decision, he need

gather no more information and do no further investigation.

[Wote: If the attorney is not given enough time to adequately

develop his d.efense, the courts may find that the assistance

of counsel was ineffective. See, €.9., Wolfs v. Britton,
509 F.2d 304 (8th Cir. 1975) (attached case #8-9) (attorney

had insufficient time to prepare possible defense, interview
witnesses, or develop factors in mitigation of the sentence) . l

C. The Duty to fnvestigate P;rior to

1. Generally, tactical decisions are not second-

guessed by court,s, unless they are totally unreasonabler or

are not based on adequate preparation. See, e.9., McQueen

v. Swenson, 498 F.2d 207 (8ttr Cir. L974) (attached case

*8-5); Beran v. U.S., 580 F.2d 324 (8th Cir. 1978), cert.
denied, 44A IJ.S. 946 (1979) . For examples of totally

unreasonable tactics, see Garza v. Wolff, 528 E..2d 208

(8th Cir. 1975) (failure to call essential witnesses);

Rinehart v. Brewer, 56I F.2d L26 (8th Cir. L977) (failure

-15-



It

to pursue suppression motion); Eawkman v. Parratt, 561 F.2d

1151 (1981) (attached case *8-7) (failure to plea bargain).

[Note: In alI of the above cases, the tactic is only unrea-

sonable when considered in the totality of the circumstancest.

2. Tactics must be based on a reasonable investiga-
tion.

a. Guilty pleas must be based on reasonable

investigation. See Ford v. Parratt, 538 f.2d 1115 (8th Cir.
1981), vacated on other grounds, U. S. , 7O L.Ed.

2d,242, L02 S.Ct. 467 (1982) (attached, case #8-6) (guilty
plea based on unsubstantiated rumor); Hawkman v. Egfratt,
551 r.2d IL61 (8tn Cir. 198L) (attached, case #8-7) (failure

to determine the -nature of eyewitness testimony prior to

ad.vising a guilty plea).

b. Lawyer'cannot decide to forego investiga-

tion of defenses simply because he believes defendant i.s

guilty. See rldridcb v. atkins, 665 F.2d 228 (8th Cir. 1981),

cert. denied,, U. S. , 72 L.Ed. 2d I58, I02 S. Ct.

1760 (1982) (attached case #8-8).

c. Attorney cannot decide not to call witrresses

or introduce evidence if he has d,one no background, investiga-

tion. See McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974)

(attached case #8-5).

d. If the quality of the

equivalent to having no representation

representation is
at all, then the

(

- 16-



t.
attoineyrs decisions are not tactl,cal in.nature. See

Pinnell v. Cauthronr 540 r.2d 938 (8th Cir. Lg76t [t..n.a

""* 
-t**

3. fhe failure of the, lar'ryer to investigate before
' *aking tactical decisions does not constitute ineffective

a - i assistance if no reasonable defenses exist. See Relmolds v.

Mq$fr 574 F.2d, 978 (8ttr Cir. 1978) (attached case *8-10) .

(r

t

!a



9th Circuit

Attached Case #

Brubaker v. Dickson, 310 F.2d 30 (9th Cir. L9621, 9-5

cert. deniedt 372 U. S. 978 (f953)

Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. (en 9-1

banc) , cert. denied | 44O U.S. 974 (1978)

Ewing v. Williams, 595 F.2d 391 (9th Cir. L979\ 9-2

Garrison v. McCarthy, 653 F.2d 374 (9tn Cir. 1981)

Gravenmeir v. U.S., 399 F.zd 677 (gth Cir. 1968)

Gust6,ve v. U. S., 627 F.2d 901 (9th Cir. 1980)

U.S. v. Altamirano, 633 F.2d L47 (9th Cir. 1980) 9-4

cert. denied, U. S. ,70
L.Ed. 2d, L2O, 120 S. Ct. 145 (1981)

Vizcarra-De1gadillo v. U. S., 395 F.2d 70 (9th Cir. 9-6

cert. dismissedr 393 U.S. 957 (1968)

Wilson v. Rose, 366 F.2d 611 (9tn Cir. 1956) 9-3



9th Circuit
I. St,andard:

The 9th Circuit has adopted an objective standard

for measuring the effectiveness of counsel, but the precise

formulation of that standard is somewhat uncertain. For a
nurnber of years, gn ban-c. courts svrung back and forth between

the nmockerlr of justicer standard, see Vizcarra-Delgadillo

v. U.S., 395 F.2d 70 (9th Cir.), cert. dismissed, 393 U.S.

957 (1968) (aLtached case #9-5), and the more common 'reason-
ably likely to render and renderfng reasonable assistance'

standard, see Brubaker v. Dickson, 3I0 F.2d 30 (9th Cir.)
(1962), cert. denied, 372 U.S. 978 (1963) (attached case *9-5).
In Cooper v. Fitzharris, 586 F.2d 1325, (9th Cir.) (en banc),

cert. denied, 440 U.S. 974 (1978) (attached case #9-1) [here-
inafter referred to as Cooper IIl, and subsequent casesr' the

circuit has expressly rejected, previous formulations and

adopted a "reasonably competent and effective representa-

tiontr standard,. fd,. a.t 1328. The court stated. that in order

to find ineffecd; assistance of counsel, "errors or omis-

sions must reflect a failure to exercise the skiIl, judg-

ment, or d,iligence of the reasonably competent criminal
defense attorney they must be errors a reasonably compe-

tent attorney acting as a diligent, conscientious advocate

would not have made. " Id. at 1330. The Cooper fI court
traced tlre duty of reasonable competence to the Supreme Courtrs
language in McMann v. !,ichardson, 397 u. s . 7 59 ( 19 70 ) trrat



_. 
\ effec.tive assistance means assistance "within the range of

mpetence demanded of attorneys in crimihal cases* Id. at 77L.

See Cooper v. Fitzharris, 585 F.2d 1325, L329 (9tfr Cir.)
(en banc) , cert. denied, 440 U.S. 974 (1978) .

The effectiveness of attorneys is based on a
totality of the circumstances test. The Cooper II
court refused to identify specific factors that would

be employed in such a test. fd. at 1330. Other courts have

described the inquiry into the totality of the circumstances

as a determination of the overall fairness of the trial.
See, e.9. Ewing v. Williams, 596 F.2d 39I (9th Cir. 1979)

(attached case #9-2) i Brubaker v. Dj-ckson, 310 F.2d 30 (9ttr

Cir. Lg62), cert. denied, 372 U.S. 978 (1953) (attached
' case #9-5). The Brubaker court went on to list some critical

factors, including "whether the defendant had a defense which

was not presented; whether trial counsel consulte<l sufficientlv
with the accused, ..9 adequately investigated the facts and

the law; whether the omissions charged to trial counsel

-osulted from inadequate preparation rather than from unwiseI ru-

' choices of trial tactics and, strategy. " Id. at 32.

. II. Major Cases:

, 596 F.2d 391 (9th Cir. LgTg) (attached

case #9-2). Defendant was convicted of conspiracy_to import

marijuana. The trial court founcl and the Appeals Court affirmed



i

that'counsel was totally unprepared and thus constitutionally
ineffective in the following ways:

1. Counsel faiLed to move to dismiss arguably duplicatirre- Counts.

2. Counsel failed to interview key government witness or any

potential defense witnesses.

3. Counsel failed to move to supress an in-court identification.
4. Counsel failed to cross examine the key prosecution witness

with respect to possible bias.
5. Counsel failed to adequately oppose government bfforts to

impeach it,s own witness who testified favorably to defendant.

5. Counsel failed to call any witnesses for the defendant.

The court concluded that counsel was totally unprepared

at trial and thus was constitutionally ineffective. The court

relied on the totality of circumstances approach and did not

indicate the weight to be given Lo each of the listed factors.
B. Wilson v. Rose, 365 F.2d 611(9th Cir. 1955)

(attached case #9-3).. Defendtrnt was charged with kidnaoping

and assault. His counsel advised him to plead guilty on the

grounds that probation was guaranteed. Counsel, however,

had no assurance that probation rvould actually be granted,

had not checked the statute, (rvhich prevented probation for one

of the charges), had. failed to determine what other sentences

were possible, and had failed to make any inquiries, either

1egal or factual, into the merits of the defendantrs assertion

-J-



of innocence. The court held that the assistance was inef-
fective, and characterized the representation as a total
failure to present the case for the accuded in,any funda*

mental respect. fd. at 614.

C. Brubaker v. Dickson, 310 F.2d 30 (9tn Cir. L962)

cert. deniedr 372 U.S. 978 (1953) (attached case #9-5). Defen-

dant was found guirty of first d,egree murder and sentenced to
death. He alleged that his attorney failed to investigate and

to discover two substantial defenses to the charges of murder.

1. The attorney failed, to develop the defense of lack of intent.
The attorney was Eware that defendant had a history of seizures
and abnormal conduct, which stemmed from brain dannage. The

attorney hras aware that the defendant was hypersensitive to
alcohol and had been dn:nk at the time of the crime. Finally,
the attorney was aware of the existence of psychiatric reports
which concluded that the defendant was emotionally unstable.
Despite these facts , counsel faited to elicit the de-fendant's
personal history, made no inquiry of friends and family, despite
receiving their names from the defendant, and failed to arrange

for a private examination of the defendant by a psychiatrist.
At trial, counsel failed to d,evelop the defense of lack of intent.
2. Despite defendantis claims that his confession was extracted
by questionable and unconstitutional means, including threats of
Physical violence and the refusal of the police to provide him a

lawyer, the attorney did not pursue or charlenge the admissibirlty

-4-



of the confession. Defendant was found guilty at trial.
' Four days after the trial, the court held a sentencing

hearing. Prior to the sentencing hearing, the attorney,s only

investigation was a five minute conversation with defendant.

At the sentencing hearing, the state offered evidence in
aggravation of the penalty, but counsel offered none in miti-
gation. As defendantrs present counsel pointed out to the

court, substantial evidence in mitigation could have been se-

cured by reasonable diligence. For instance, counsel could

have introduced evidence relating to defendant's brain damage,

unstable personality, hypersensitivity to alcohol, background

and personal history, the absence from the record of any prior

convictions of felony, and the reputation he bore among his
work supervisors, felrow employees, friends and neighbors.

The court in Brubaker employed l4th Amendment Due

Process, rather than 5th Amendment effective assistance of
counsel, analysis in concluding that defendant had been inade-
quately assisted hy his iawyer. The tests for due process and

effective assistance, however, do not appear to be distinguish-
" ab1e, at least in the 9th Circuit. The language in the Brubaker

, case is id.entical to that of courts employing a strict 6th Amend,-

' ment approach. The court held that if defendantts allegations were

true, the defendant did not receive a fair trial because substan-

tial defenses and factors in mitigation were available and were

not investigated or presented by the attorney. The attorney did
not make a deliberate informed choice of tactics or unrfertake inves-
tigation and research essential to adequate trial preparation.

-5-



.' (9th

L20,

was

two

and

The

The .court remanded, for the trial court to determine if
defendantts allegations were actually trUe.

ITI. Dutv to Investigate

The only general. formulation of the duty to in-
vestigate is found, in Ewing v. Williams, 596 f.2d 391 (9ttr

Cir. L979) (attached case #9-21: A.ttorneys have "an ethical
duty to investigate the case thoroughly.' Id. at 395 n.5.

The dissent in the same case .rglrJd that the attorney I s

duty to investigate is described by the ABA Project on

Standards for Criminal Justice, in its "Standards Relating

to the Prosecution Function and the Defense Functionr"

S4. t, Ewing v. l.{il1iams, 596 F.2d 391, 398 (9th

Cir. L979) (ffy, J. dissentirg), but the majority rejecLed

a categorical approach.

A. Duty to Investigate the Applicable Law

1. Standard: No explicit standard of a

duty to investigate the Law ernerges from the cases.

2. Case Application:

a. U.S. v. Altamiranor.S33 F.2d L47

Cir. 1980), cert. denied, U.S. , 70 L. Ed.2d

L20 S. Ct. I45 (1981) (attached case #9-4). Defendant

found guilLy of heroin' sa1es. He was represented by

attorneys, one whom the court found highly competent

the other whom the court found totally incompetent.

secon<l, attorney evidenced littIe knowledge of either

-6-



relevant law or procedure and his performance was character-
ized. by the court as "shameless.'r Id. at 149-150, I54.

The court, however, held that defendant failed to prove

prejudice, because of the presence of the other lauryer and

the fact that the unprofessional conduct of the second

lawyer did not obscure defendantts basic defense.

b. Wilson v. Rose, 366 F.2d 511 (9th

Cir. 1965) (attached case *9-3). Attorneyrs lack of
krrowledge of the law caused him to advise his client to
plead guilty because he thought his client wourd automatic-

a1ly receive probation. The attorney failed to make any

investigation into either fact or 1aw, howeverr so it is
impossible to determine the specific weight which the

court gave to the failure of the attorney to investigate

the relevant lega1 background.

B. Dgty to hvesti.gate th

investigation

presentation.

I. Standard: Attorneys must "undertake the

and research essential to adequate trial

" Brbl:aker v. Dickson, 310 I'.2d 30, 38 (9th

Cir. L962), cert. .&nied, 372 U. S. 978 (1953) (attached

case #9-5).

2. Application of the Standard: The standard

enunciated in Brubaker is obviously quite vague. The

court seems to apply a totality of the circumstances

approach to determine if the attorney has done enough

investigation of the facts. In general, the Ninth Circuit
only finds ineffective assistance when the attorney has

-7-



\

I

done no real investigation.
Er. If the attorney is tcitalty unprepared,

the courts are likely to find that the assistance of counsel

was ineffective. .g Brubaker v. Dickson, 310 F.2d 30 (9th

Cir. L962), cert. denied, 372 U.S. 978 (1953) (attached case

#9-5) (attorney made no investigation into the facts, despite

the existence of several possible defenses and a number of
mitigating circumstances); Ewing v. Wi11iams,596 F.2d 391 (9th

cir. L979) (attached case #9-2) (counsel did no investigation
into the facts whatever); Wilson v. Rose, 366 F.2d 51I (9th

Cir. 1955) (attached case #9-3) (attorney did not investigation
into defendantr s assertion of innocence).

b. In some circumstances, a minimal

amount of investigation may be sufficient to avoid a holding

of ineffective assistance.

(i) If the attorney reasonably

believes that the client is guilty, there is a lessened

duty to investigate. Vizcarra-Delgadillo v. U.S. , 395 F.2d

70 (9ttr Cir.),cert. d,ismissed, 393 U.S. 957 (19G8) (attached

case #9-6). Defendant was charged with aiding and abetting
the alteration ahd possession of a false immigration document.

The attorney's investigation was limited to looking at the

prosecutionfs files and interviewing the defendant. In the

discussion between the attorney and the defendant, the

-8-



defendant confessed to the crime. The prosecutionrs files
and.the confession combined to make the attorney convinced

that the defendant was actually guilty dnd no defense

existed. Thus, the court concluded, the attorney had no

duty to make any further investigation: " [TJhe extent and

nature of the factual investigation necessary to an tinformed

opinionr essential to the rendition of teffective assistance

of counselt 'obvirbuslyzwill vary from case to case. counsel

must of course be inquisitive but he need not be omniscient.

In this case counsel cannot be faulted for relying in Iarge

measure upon his client, particularly when latterts inculpatory
admissions freely aired to the prosecuti.on, were corroborated

by the statement of another and echoed the ring of Lruth."
Id. at 72.

(ii) The attorney has no duty to investi-
gate where no relevant evidence $rould have been uncovered

by such an investigation. Gravenmeir v. U. S., 399 F.2d 677

(9th Cir" 1968). The defendant claimed the existence of
alibi witnesses. The attorney failed to interview or inves-

tigate such witnesses. The court held that there was no duty

to investigate because the witnesses were unknown to both

the attorney and the defendant and their testimony was also

unknown. See also Gustave v. U. S., 627 F.2d 90I (9th Cir.
1980).

C. Duty to Investigate Prior to Making
Tactical or Strategic Decisions

1. Standard: The cases do not yield an explicit

of a standard.

-9-



2. Case Application:

a. TacticaL decisions

they are unreasonable.

374 (9th Cir. 1981) ; Gustave v. U.S.,

Cir. 1980).

b, Decisions based on inadequate prepara-

tion are not considered tactical. Therefore, failure to do

adequate preparation before making a tactical decision may

lead to a holding of ineffective assistance of counsel. In
wilson v. Rose | 366 F.2d 6rl (9th cir. 1966) (attached case

#9-3), the defendant pleaded guilty, based solely on his
attorneyrs uninformed advice. The court held that, the

assistance of counsel was ineffective and guoted the

Supreme Court in Von Moltke v. Gillies , 332 U.S. 708 (1948):
u [P] rior..to a=r"r. d, t,o iely Lrpon his
counsel to make an independent examination of the facts,
circumstances, pleadings and, Iaws involveC and then to
offer his informed opinion as to what pleas should be

entered." fd. at 72L, cited in Wilson v. Rose, 366 F'.2d

511, 6L4 (9th Cir. 1966) (att,ached case #9-3) . See also
Brubaker v. Dickson,3lO '8.2d: 30 (9th Ci'r. 19621 , cer!. _@1s9,

372 U.S. 978 (1963) (attached case #9-5) (defendant's

defenses were withheld solely because of trial counsel's

failure to prepare the case. The court held that counsel

are generally un-

See Garrison v.reviewable unless

McCarthy, 553 F.2d

627 t.2d 901 (9rh

-r0-



had not made a deliberate informed choice of tactics and

was therefore guilty of ineffective assistance).

c. The decision to proceed without
preparation might be a tacticil- position. See Ewing v.
Wil1iams, 595 F.2d 391 (9ttr Cir. L979) (attached case

#9-2), where the court indicated that the decision to

proceed in an unprepared state may have been a tactical
decision of a trial attorney confronted with overwhelming

.evidence., Id. at 396. The statement by the Ewing court
does not mean, however, that such a tactical d.ecision

would be a legititnate one.:- A court might hold that such

a decision would be the sort of unreasonable.tactic which

prompts courts to intervene and, second-guess attorneyrs

tactical decisions. Alternatively, a court might find
that a tactical decision to proceed wit,hout investigation

constitutes ineffective assistance of counsel under the

circumstances of the case, but is a mitigating factor going

to the issue of whether or not that lack of investigation
prejudiced, the defendant.

-11-



U
Dver v. Crisp, 513 F.zd, 275 tlOth cir.)

(en banc), cert. denied, 445 t.S.
945 C1980)

Ellis v. Oklatroma, 430 F.2d. 1352 (IOttr Cir.),
cert. d.eqied, 40I U. S . 1010 (19 70 )

GaineE v. Eess, 662 F.2d L364 (IOtfr Cir. l9B1)

Lorraine v- U:E., 444 F.zd L (10th Cir. I97I)
!{ul1ins v. Evans | 622 p.zd 504 t10th Cir. l98O)

U.S. v.- Dirlqrle, 546 E.2d 1378 (10th Cir. 1976)

U. S. v. Gohrb, 5'38 F. 2d I85 (IOtfr Cir. 19 BO )

. U.S. v, Kins, 664 F.2d tL71 tl0th Cir. tgSl)

( . U.S. v. Lliller, 643 F.2d 713 (IOrh Cir. 198I)
\-

U.S. v. Olivas, 558 F. Zd L366 Llorh Cir. Lg77) ,

cert. denied, 434 U.S. 8GO (1978)

U.S. v. Pavne, 64L ?.2d 856 (10th Cir. 198I)

U.S. Porterfield, 524 F.2d L2Z (lOrh Cir. 1980) 10-2

t

I

10th Circrrlt
Attached
Case +

10.-L

10-3



TENTH CTRCUIT
(

I. STANDARD

Defense counsel must. exercj-se the "ski1l, judgment

and d.iligence of a reasonabllz competent defense attorney."
Dver v. Crisp, 513 F. 2d 275, 278 (IOth Cir.)(en banc), cert.

' noes .to the total;9enied, 445 U.S- 94i (1980). . Tl" rest goes ro rhe

of the circumstances, U.S- v- Go1ub,638 F. 2d,185, I89 (10th

cir. 1980) (attached ceqe +10-1), and the courts put a hear4g

burden on the defendant to prove ineffective assistance. See

Ellis v. Oklatroma, 430 F. 2d, 1352 (IOth Cir: ), cert. denied,

401 u.s. 1010 (1970).

assistarce are rare in
II. MAJOR:.-CASES

Consequently, cases finding ineffective
this Circuit.

I

These cases contai4 clearly unusual circumstances.

The impact of the rules outrined. in the cases is most likely
limiled by the outrageousness of the attorney.'s conduct in the
particular case-

A. U.S. v. Porterfield, 524'F; 2d L22- (10th Cir.
1980) (attached case *10-2). Defendant was found guilty of
tl-e sale of narcotics. He raised two charges of ineffective
assistance of counsel:

1. Failure to make any factual investigation
prior to t}-e trial, including the failure to speak to the

defendant himserf, and ttre consequential failure to subpoena

key witness.

2. Failure to know and research the law re-



garding a motion under the Speed,y Tria1 Act.

The court d.id, not reach, the second issue, but held
that the attorney had. a duty to investigate and stated tkrat

the d,uty was defined by ttre.ABA Standards of Criminal Justice,
S 4.1. fd. aL L24. Since the attornelr failed to make any

factual investigation whatsoever prior to the triaI, his sub-

sequent tactical decisions were not informed decisions. Thus,

the court held, the attorney did. not effectivery represent

his client.

B. .U.S. v.-Golub , 639 F. 2d 195, lgg (10th cir'.
1980) (attached caqe *10-r). Defe:rdant r,.ras convicted for.
mail fraud. Prior to the trial, his counsel resigned for
lack of palnnenL. The trial judge insisted. that the case go

to trial as scheduled., so a rerative of the defendant agreed

to becomej cor:nsel five days before tria.l. The judge refused
a request for a .continuallce. The attorney and the defend.ant

claj-med inaCequate assistance on three g::ounds

I. Lack of time for the attorney to contact

prosecutionts out-of-state witnesses to interview them or to
investigate ttreir testimony.

2. Insufficient time for the attorney to learn
about evid.ence favoring th-e defendant.

3- Ttre inexperience of the attorney in
crimi'nal cases which prevented. him from submitting jury

instructions, questioning the voir dire r oE producing effec-

(

I

t

-2-



tive cross-examination questions.

the totality o-' circuf,nstances, the

i.nsufficient.

III. DUTY TO INVESTIGATE

Tlr-e court held that under

assistance of counsel .was

A. Dutv to Investigate ttre Legal Backgiround.

Few cases in'tb.e circuit refer specifically to the

d.uty to investigate the law. In Porterfield, the d.efend,ant

raised an argument of his .aaotrr.ffinowledge of

the law, but whj.le the court suggested that this fact "re-

flects in an unfavorable way on lcounsel's]...comPetence,"

u.S. v. Porterfield., 624 F. 2a L22, L24 (lotfr Cir. 1980)

attached, case # f0-2), it failed to reach that issue in find-

ing thpt ttre attorney was ineffective. In Golub, tLre court

held. tJ:at ttre lack of faroiliarity of counsel with the crim-

inal law.and with the particular statute in question were

relevant facts in the totality of circumstances leading to

tlee conclusion of ineffective. assistance. It is impossible

to teIl how much weight each of tLrese factors had in Lhe

court's decision, especially given tlre aggravating circum-

stance of the limited tj-me which the attorney had in that case.

U.S. v. Golub, 638 F. 2d.185, I9O (IOth Cir. 1980) (attached,

case # I0-1). The case does imply, however, that counsel

should. be familiar with the relevant Iaw.

B. Duty to fnvestigate the Background Facts

I. Standard.: The d.uty to investigate stems from

-3-



the requirement of adequate ease preparation d.eveloped. in
Powell v. Alabana, 278 U.S. 45 (1932). See U.S. v. King,

654 F. 2d 1171 (IOth Cir- 1981) (attached case * IO-3). The

sort of investigatioa requi=ed has been stated. variously by

tl:e Golub court:
(a) - .The americr:. Bar Association,s Stand.ard.s

Relating to the Defence Fuoction, S 4.1: "ft is the duty of.
ttre lawyer to conduct a prorapt investigation of the circum-
stances of the case anrd. expLore a1r avenues lead5-ng to facts
relevant to guilt and. d,egree of guirt or penalty. The in-
vestigation should always iaclude efforts to secure info:ma-
tion in the Possession of tbe prosecution or law enforcement

autiorities. The duty to-i-ovestigate exists regardless of the
accused's admissions.or state-ments to the lawyer of facts
constituting guilt or his si.atec desire to plead guilty."
u.s. v. Go1ub,'638 p. 2d 185, l9o (r0rh cir. 1990) (artached

case # 1o-1). ALt]:ough. the court did not specifically adopt

the Standard.s, it quoted them farzoasplr. There is a strong
imprication that tb.e sta-nca-rd.s wilr be used. by the court in
the future in j-neffective assistance cases. In Onited.States
v. Porterfield., 524 F. 2a Lz2 (r0th cir. 1980) (attached. case

+ 10-2) , tlre court usec tb.e A3A standards as an ind.ependent

means to es+-ablish ttre necessity for investigation. once

again, however, the court fai'ted to specifically adopt the
standards as Iaw.

-4-



(b) The standard.s in Wolfs v. Britton, 509

F. 2d 304 (8rh Cir. 1975):

"1. the

and

2. Ihe

3. Ihe

. _the
and

time afforded. for investigation
preparation.;

experience of counsel;

gr3\rity of the charge; 
. . -

complexity of possible defenses;

U. S. v. Golub,

5. the accessibility of witnesses to
counsel. "

638 P. 2d, I85, 189 (10th Cir. 19B0) (attached

case # 10-1). The

standard.s in ord.er

ineffective. fd.

Golub court specifiealllz applied the Wolfs

to firrd t}at the assistance of counsel was

(c) The standard in Mceueen v. Swenson, 4gg

F. 2d. 207 (8ttr .Cir. 1974): ,,Effective assistance refers not
alone to forensic skiIIs, but to painstaking investigation in
preparation for triaI, as wel1.,' U.S. v. Golub, 539 F. Zd.

185, 189 (10th Cir. 1980) (atrached case + 1O-I). The Golub

court cited the Mceueen standard, favorabry, but did not adopt
or apply it.

Trre three sets of rures suggests that counser must

always make some investigation. But tLre degree of investiga-
tion necessary wilr probably varf, with the circumstances of
the caser ds the Golub cotrrt's stress on the totality of the
circumstances irnplies .

O

-5-



Particular Case Application of the Stand.ard.

[aL Failure to make any investigation consti-
ineffective assistance. -ss= u.d'. v. poslerfieia, 624

L22 (l0th Cir. 19.80) Cattached case + IO-2).

2.

tutes

F- 2d

[bI Counsel must be.provided adequate time to-
prepare th.e case. courts will. use the worfs standards, supra
Secticn IIf B 1. (b), to dete:mine if there was ad.equate time
to prepare. See U.S. v. Gglub, 538 F. 2a 185, IB9' (I.Orh Cir.
1980) (attached case * 10-i); u.s. v. King, 664 F. zd, 1171

(10th Cir. 1981). (.artached case # 1O-3) (inadequate time for
preparation); u.s; v. olivas, 559 p. 2d L356 (-10th cir. Lg77) ,
cert. deqied., 434 U. S- .860 (1978) (preparation ti_me adequate
under the circumstances because counsel was experienced an4

the case was not complex).

tc) rf iJre defendant argues inadequate repre-
sentation,

Lorraine v.

he must prove t-hrat favorable evidence is avairabre,
U.S., 444 F. 2d, l- (lOtn Cir. 1971), unless no

evidence at all was gatllerec, u.s. 11. porterfierd, 624 F. 2d,

L22 (10th cir. 1980) (attacfied. case # ro-r), or could be

gathered., U.S. v. Golub, 6:B F. Zd I85, 189 (10tir Cir. .1980)

(attached. case # 10-1L.

tdl Failure to interview alibi witnesses is not
ineffective assistance if
collateral witnesses. See

CIOth Cir. 198I).

those wi'tnesses are not key but

Gaines v. Hess , 662 F. 2d, 1364

-6-



(

C. Duty to fnvestigate Prior to }laking Tactical

t. Standard an@

-

The circuit gives very wide latitude to attor-
neys to make.t *"J"aJ. decisions and. will rarely second.-guess

tactics except i-n unusual circr.:mstances. see u.s. v. payne,

541 F. 2d. 855 (l0th C1. 1981) (defense limited ro forcing
government to prove its case); U.S. v. Dingle, 546 F. 2d. 1378

(10th Cir. L9'76) (defense Iiuited to attacking the credib.i-lity
of government witnesses) .

With ttre exceptj-on of tactical d.ecisions based on

absolutely no research at rl1, see U.S. v. porterfielC, 624

F. 2d. L22 (10th Cir. 1980f t.tt""i.. e are

no case examples of the cou=t find.ing that the attorney did

insufficient research before naking a tactical decisicn.

For cases involwi_ng' r-rnusual circr:mstances, see U.S. v.

Miller, 643 F. 2d, 713 (I0'& Cir. 1981) (a decision on whether

to call a particular wrt:ress is a tactical decision r:nless

the witness would present the only defense available to ,;he

defendant) ;'l4ullins v. Bvan-s, 622 F. 2d 504 (10th Cir. 1980)

(defense cor:nsel set out to make sure his client was convicted

of first degree mr:rder, leading the court to characterize

the trial as a charade).



i

D. C. Circuit

U. S. v. Brown, 653 t.2d, 229 tD. C. Cir. 19 81)

U.S. v. ButleI/ 504 8.2d. 220 (D.C. Cir. L974)

U.S. v. Clayborne., 509 p.2d, 473 (o.C. Cir. L974) DC-7

U.S- v. Decoster, 487 P.2C 1197 (D.C. Cir. 1973) OC-t

U.S. v. Decoster, 524 F.2d I95 (O.C. Cir. L976) DC-2

U. S. v. Decoster, 624 p.2d. L9G (D. C. Cir. ) nn- ?

(en banc) , cert. denied., 444 U.S. 944 (1979)

U. S. v. Green,, Slip Opinioa *80-24G1

(D. c. Cir. 19 82 )

U.S. v. Ilinton, 531 F.2d 759 (D.C. Cir. 19B0)

u. s . v. Lucas , 513 F. 2d 509- (o. c. cir. 19 75.) DC.6

U.S. v. Moore , 554 F.2d 1085 (D.C. Cir. I97G) DC-B

U.S. v. Pptterson, 552 ?.2d, 1045 (O.C. Cir.).,
cert. ' denied, U. S .-_ , 7A L. Ed. 2d.

223, L02 s. :ct. 412 tr981)

U.S. v. Pinknev, 551 !.2d L24l (D.C. Cir. L976) DC-5

U.S. v. Smirh, 551 r.2C 348 (o.C. Cir. 197O)

U.S. v. Woocl , 628 F.2d 554 (o.C. Cir. 1980)

(en banc) DC-4

Attached
Case #



i
)

D.C..Circuit
Preliminary Note:

The D.C. Circuit is quite confused regarding the
rules for the duty in investigate. virtually every decision
results in at l-east two opinions, if not en banc considera-
tion. Much of the d,isagreement within the circuit concerns

whether prejudice must be shown and, if sor which party must

shoulder the burden of proof. Those issues wirl be rjealt
with only peripherally. For the most part, non-majority or
prurality opinions will be ignored, in favor of an attempt

to succinctly state the emerging majority ru1es.

I. Standard:

The standard in the D.C. Circuit has undergone a

number of formulations. rn the united states v. Decoster,

487 F.2d LL97 (D.c. circuit 1973) (atrached case #Dc-l)

lhereinafter referred to as Decoster r], the court stated
that "a defendant is'entitred to the reasonabry competeni,

assistance of an attorney acting as his diligent and con-

scientious advocate. " rd. at L202. This formuration was

explicitly accepted by a majority of the en banc court in
uni.ted states_ \rr_ !eseE!q!, 524 F.2d, 196 (D.c. circuit) (en

banc), cert. denied, 444 U.S. 944 (1979) (attached case

#DC-2) lhereinafter referred to as Decoster rrr], in the

opinions of MacKinnon, J. concurring (with three judges) and

Wright, C.J., Statement (with three judges) .

-t-



: The prurality in Decoster rrr stated that the stan_
dard' involves 'a discerning exanination and appraisal of the
specific circumstances of the given case to see whether there
has been serious imcompetency, inefficiencyr oE inattention
of couns.el -- behaviour of counser falling measurably below
that which might be expected from an ordinary fallabre law-
yer. " Decoste-Ir at 206. The court in united states v.
wood, 628 F.2d.554 (D.c. circuit 19go) (en banc) (attached
case #Dc-4), defined the standard. emerging from Decoster rrr
as a search for a substantial breach in the duty owed to the
d.efendant by competent counsel.

While the wording of the standard differs from case
to case, all of the opinions end,orse an objective approach to
determining the effectiveness of counsel. The court in u.s. v.
Ilinton, 63r F.2d 769 (o.c. circuit rggo) stated, that the dif_
ferent formulas for the standard were essentially the sarne:

"Regardress of precise formulation, however, it is crearry
accep'Eed in this circuit that counsel is expected, to serve
with diligence and conscientiousness, and to render assistance
that is not seriously incompetent.', rd. at 7go. see also
U. S. v. Wood , 628 F. 2d 554 (D. C. Circuit 19 BO ) (en banc)
(attached case #DC-4).

The rure which emerges from the Decoster rrr and

I^iood requires that defendant show that
breach of duty prejud.iced defenCantrs

counselr s substantial

case. See U.S. v.

-2-



wood, 628 F.2d 554, 559 (D.C. Circuit 19gO) (en banc) (at-
tached case #DC-4); Decoster r-rr at 2og (Leventhar, J.);
Decoster rrr at 320 (McKinnon, J. concurrirg). The existence
of prejudice is usuarly measured by a test looking to a dif-
ference in the outcome of the case. see Decoster rrr at 2L5.

other circuits which employ a test for prejud,ice

tend to use a two-step approach. The defendant must first
prove ineffective assistance, and, then, must indicate how

that ineffective assistance prejudiced his case. see, €.g.,
Cooper v. Fitzharris, 5BG F.2d 1325 (9th Cir.) (en banc),
cert. denied,, 440 U.S. 974 (1979). The D.e. Circuit approach

telescopes these two issues into one, making it more diffj.cuLt
for defendants to establish constitutionally effective as-
sistance of counsel. see u.s. v. Decoster , 624 !-,2d 19G

(D.C. Circuit 1975) (attached case #DC-2) [herej-nafter.re.-
ferred to as Decoster rrl; Decoster rrr (Bazel.on, J. ,Jissenti.g).

An example'of the way in which the telescoped,

test functions can be found in the decision in united
states v. Green, srip opinion #go-2401 (D.c. circuit 19gz).
Defendant was found guilty of armed rape, armed robbery,
armed burgulary and assauLt with and possession of a

dangerous weapon. Defendant claimed that his lawyer had

failed to show him a copy of the presentencing report on

the basis of which he was sentenced to 10 to 30 years in
prison. Assuming that this question of fact was resolved
in defendantrs favor, the court found that assistance of

-3-



counsel was not ineffective because there was no prejudice.
First, the defendant did not prove that the presentencing

report was inaccurate in any hray. Thus, showing it to the

defendant would not have affected the outcome of the sentenc-

ing hearing. second, the defendant could not prove that the
sentencing report had any effect on the sentence itself,
especially since the judge craimed that she did not rely on

the report when she formurated the sentence. The court con-

cluded that even if defendant had, shown that prejudice was

possible, he had failed to show that it was likely and,

therefore, had not proved that the assistance of counsel

was ineffective. see also u.s. v. patterson, 652 F.2d 1046

(D.c. Circuit L981), cert. denied, _ U.S. _, 70 L.Ed.2d

22, I02 S.Cr. 4L2 (1981).

The court in Decoster I suggested some categorical
guidelines to help determine if assistance of counser was

ineffective. The guideLines were based on the American Bar

Associaticn standards for the Defense Function, and included,
inter alja, the duty to confer with the client, the duty to
ad.vise the client of his rights and take all actions necessaxy

to preserve them, and the duty to conduct factual and legal
investigations. see also united states v. pinkney, 551 F.2d

L24L (D.C. Cj-rcuit L976) (attached, case #DC-5). Decoster II
took the guidelines a step further and described them as mimimum

requirements of competent counsel. Decoster rr at 305.

Decoster rrr, however, rejected such an approach outright.

-4-



whilA the pl-urality d,id not deny the relevance of categorical
guidelines, it did not accept their rigid application.
Decoster rrr at 203, 208-210, 2].4-2l-6. Regarding the non-
formuLaic use of such guidelines, see u.s. v. Greenr slip
Opinion # 80-2461 (D.C. Circuit 1982) (aaa Sran<iards) . The

Decoster rrr court rejected categoricar rules because they
do not respond to the circumstances of individuar cases.

fnstead, the court applied a totality of the circum-

stances test, with the aim of providing basic fairness to
the defendant. Decoster rrr at 2og-210 , 2L4-2L6. The court
noted that the relevant factors include the str:ength of the
government case and the information available to the attorney.
rd. at 2og-2h0. The court commented that .nnrr""tion of the
test would result in the court only condenuring a performance

by counser that was egregious and, prejudiciar. rd. at 206.

At least one court in the circuit has helrl t-hat
the standard for ineffective assistance of counser is es-
sentially equivalent to the standard for civil marpractice.
see Mccord v. Bailey, 636 F.2d 606 (D.c. circuit 1980) .

II. Major Cases.

A- Decoster r. Defendant was charged with aiding
and abetting armed robbery and assault with a deadry weapon.

Defendant claimed seven different areas of ineffective as-
sistance of counsel, but the court concentrated on only oD€. --
the failure of counsel to investigate and interview eyewit-
nesses. The court pointed out that it would not second guess

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la$,ybrsr tactical decisions. But if choices hrere uninformed
' because of Lack of preparation, they would amount to ineffective

assistance of counsel. rn the instant case, the court heId,
it was impossible to tell whether the attorney,s decisions

' h'ere practical or hrere based on inadequate preparation. There-

- fore, the case was remanded for the trial court to determine
if the attorney had made ad,equate preparation on which to
base his decision not to investigate or interview witnesses.

B. Decoster rr. on remand, the district court
found that the assistance of counsel was effective. The

appeals court reversed on the grounds that the lawyer had
failedto adequately prepare the case. The court stated that
attorneys must do substantial investigation into cases,(
particularly concerning the interviewing of, and investiga-
t'ion for, possible witnesses. The court characterized the
j'nstant case as a total failure to conduct any investigation
and held. that under the circumstances of the case, the de-
fendant did not have to prove prejudice. The court formu-

- l-ated the standard for investj-gation very broadly and ex-
{ pressly adopted categorical rules to guide attorneys' conduct

c. Decoster rrr. Decoster rrr was an en banc con-
sideration of the rules set down in Decoster rr. The plurality
opinion adopted the Decoster r standard, but rejected the cat-
egorical approach of Decoster fI. In addition, the plurality
required the defendant to show prejudice as part of his proof
of the existence of ineffective assistance of counsel. Despite

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I

the lack of investigation, the court held that
assistance was not proved, because prej,raice had

shown.

ineffective
not been

1- Failure of counser to interviev, prosecution
witnesses was not prejudicial because counser was aware of
the main points of their testimony prior to triar.

2- The failure of counser to locate and inter-
view potential eyewitnesses to defendantrs arrest was not
prejudiciar because there was no craim that there was any
issue in the case regard,ing the arrest. Defendant claimed,
that such witnesses would provide demeanor testimoDy, but
the effect of such testimony would be too speculative. The

court pointed out that counser was not required to search
for a needle in a haystack.

3. The failure of counsel to locate alibi
witnesses was not prejudiciaL becar-rse there r.ras no identifi-
cation of any such witnesses by defendant.

4. The failure of counsel to interview co_

defendants before trial was not prejudicial. one of the
codefendants, called by defense counsel, testified unfavor-
abry for defendant. The court found no prejudice because
counser had spoken with the codefendant directly before his
testimony, although during the triar, and the information
which the codefendant gave to counser during the interview
conflicted, wiLh his trial testimony. Thus, there was no

reason to believe that an earrier interview wourd have dis_
closed the contents of codefendantrs triar testimony. The

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concl,usions of the court were vigorously
Robinson, J., concurring in the result,

.contested by

and Bazelon , J.,
dissenting. See al-so Decoster ff .

D. United States v. Wood, 628 F.2d, 554 (D.C.

circuit 1980) (en banc) (attached, case #Dc-4). After being

institutionalized. following a successfur insanity defense

in a criminal case, defendant escaped and, was rater charged,

with armed robbery and escape from custod,y. His onry de-

fense was insanity and the court found him guirty of both

charges. Defendant asserted, that his attorney was guilty
of ineffective assistance because he had failed to seek a
continuance when he learned that defendantr s psychiatrist
would not be accepted as an expert witness because he had

been dismissed from his post at the mental hospital as unfit
to practice psychiatry. The attorney researched the law,

checked the hospital records, and, interviewed witnesses from

the hospital. At trial, he calLed, hospital medical witnesses

who had examined the defendant, incruding three psychiatrists,
all of whom claimed that defendant was not mentarry i11. The

defense counser concentrated on a tactic of suggesting that
the psychiatrists wanted the defendant out of the hospital
because he was too much of a disciprinary probrem. The

counsel tried to link evidence of the disciprinary probrems

to his characterization of the defendant as mentally unfit,
but the court accepted the prosecution witnesses who claimed

that the defendant was sane. The court of appeals applied

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Decodter fII and, found that counsel had not ineffectively
assisted his client. First, he had developed a rational
theory to try to secure an acquittal in the face of ad,verse

medicar opinion. The tactical choice was fu1Iy supported

by the attorneyr s investigation of the law and the facts of
the case. second, the court found that defendant had not
proved that the attorneyrs choices had, prejurliced him in any

way.

IIf. The Duty to Investigate.

A. Standard.

The cases do not provide an express standard.

Decoster rr specifically requires a totarity of the circum-
stances test based "not on abstractions as to duty, but on

an appraisal of consequences.,' Decoster IIf at ZO9.

B. Application of-the Standarj.

L. Total failure to investigate constitutes
ineffective assistanbe. Decoster rrr suggests that a total
failure to investigate may be "so egregr-ous as to command

judicial correction without more. " Decoster rrr at zog.

The court pointed to the type of situation where the defense

counsel had adopted a blanket policy of refusal to interview
witnesses. McQueen v. swenson, 4ggt p.2d 20g (gth circuit
L972). But the court suggested that a per !e approach would,

rarely be employed because most claims of failure to investi-
gate would not involve clearcut situatj_ons such as that in
McQueen. But see Decoster If, where the majority characterized,

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the ittorney's actions as a total failure to investigate.
see arso united states v. T,ucas, 513 F.2d 509 (D.c. circuit
1975) (attached case #DC-6).

2. There is a limited duty to pursue investi-
gation beyond the information offered by the crient. The

Decoster rrr court stated the rimited duty as folrows: ', [AJ

d,efense attorney develops his case in rarge part from informa-
tion supplied by his client tclhoices based on such

information should, not rater provide the basis for a claim
of ineffectiveness even though that basis would have been

undercut by inquiry of others. Judiciar intervention to
require that a lawyer run beyond, or around, his crient,
would, raise ticklish questions of intrusion into the attorney/
client relationship, and should be reserved for extreme cases

where an effect on the outcome can be demonstrated. " Decoster

rrr at 209-2L0. see also u.s. v. clayborne, 509 F.2d 473

(D.c. circuit L974) '(attached case #Dc-z). (r'ailure to inter-
view witnesses is not ineffective assistance if defend,ant had

frequent contact with the witnesses and was in a position to
relate their accounts to his cor.rnsel) .

3. There is a limited duty to investigate and

interview witnesses. rn cases where the attorney absolutely
fails to investigate, the courts wirr find ineffective as-

sistance for failure to interview witnesses. See section
rrr.B.1 supra. But where the witnesses are not identified
and their testimony is unknown or where the witnesses are

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identified and their testimony is independently known, there

is no'duty to investigate. There is also.no duty in either

case where failure to investigate is not prejudicial. See

Decoster IfI. Stated more succinctly, the duty to investigate

is limited when the subject of the investigation is either

independently knownr o! completely speculative. See also

U.S. v. Clayborne, 509 F.2d 473 (D.C. Circuit L974) (attached

case #pC.7) (Client as independent source of information

for attorney).

4. There is no duty to assist the client in

fabrication of a defense but, there is a duty to investigate

when an alternati've defense is aPprarently available. See

Decoster III. But see Decoster II at 308., arguing that there

is a duty to investigate to see it any nonfabricated defense

actually exists.
5. The strength of the j-nformation available

to the government modifies the duty to investigate. See

Decoster III at 210.

5. The duty to investigate is limited if the

attorney is unlikely to find any useful information. There

is no duty to find "a needle in a haystack" Decoster III at

211. But the attorney cannot fail to interview a witness

simply because he expects the witness to deny the existence

of information which he seeks. The attorney's speculation

cannot substitute for failure to find, out if the speculation

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is ccirrect as long as the issue and the witness are known

to the defendant. See United, States v. I4oore, 554 F.2d. fOge

(D.C. Cir. L976) (attached case * DC-8). lNote: Wtrile

Moore is a pre-Decoster IfI case, it would appear to
still be good law because it does not impose a duty to
investigate unless the information which the attorney seeks

to discover is likeIy to be helpful to the defendant].

7. In a sentencing hearirg, the attorney

must do adequate preparation to be able to "present to the

court all the factors and circumstances necessary to insure

a reasonably meaningful hearing on sentence." U.S. v. Pinkney.,

551 F. 2d L24L, I25l- (D. C. Cir. 1975 ) (attached case #DC-5 ) .

C. The Duty to Investigate Prior to Making
Tactical or Strategic Decisions.

1. Standard,: Tactics must be the result of

an informed decision. " [W]hen counselts choices are unin-

formed because of inadequate preparation, a defendant is
denied the effective assistance of counsel." Decoster I at

1201. Counsel's choices must be "the product of deliverate

and informed decision, not oversight or advertence. " United,

States v. Smith, 551 F.2d 348, 353 (o.C. Cir. 1975). See

also United States v. Moore, 554 F.2d 1085 (D.C. Cir. 1976);

United States v. But1er, 504 F.2d 220 (D.C. Cir. 1974) ; U. S.

v. Hinton, 531 F.2d 769 (o.C. Cir. 1980); U.S. v. Brown,

663 ?.2d,229 (D.C. Cir. 1981).

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2. Application of the Standard.
: a. Courts usually do not ,second-guess

the trial d,ecisions of attorneys unless those decisions
are manifestly unreasonable, U.S., v. Moore, 554 F.2d 108G

(D.C. Cir. L976) (attached case #DC-8), or are not the
result of informed decision makirg, see U.S. v. Hinton, 631

P.2d 769 (D.C. Cir. 1980); Decoster I. fn either case, the

courts wi.ll only find ineffective assistance when there is
actual prejudice to the defendant's case. See U.S. v. Clay-

horne, 509 F.2d 473, 479 (p.C. Cir. 1974) (attached case

#Dc-7) ("reversar should never be based upon the good faith
tactics of defense lawyers except upon the clearest proof

of actual prejudice.") i Decoster IIf.

For an example of manifestly unreasonable

attorney conduct, see U.S. v. Butler, 504 F.2d 220 (p.C.

Cir. L974) (failure of attorney to object to hearsay testi-
mony, fai-Iure to cross-examine key witnesses despite conflict-
ing testimonlz, and. attorney rnisrepresentation about his
membership in the Bar. It is impossible to teII from the

opinion how the court weighted these factors).

b. Cases finding inadequate information

on which to base tactical decisions.

(i) United States v. Hintonr S3l

F.2d 769 (p.C. Cif. 1980). Because counsel failed to request

time to stud,y Jencks Act material in bank robbery case he

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was unable to adequately cross-examine the prosecution witnesses,

so he waived cross-examination. The "ooit held that the de-

fendant was deprived of counselfs tactical judgrment on whether

to cross-examiner so the assistance of counsel was ineffective.
(ii) U.S. v. Moore, 554 F.2d 1085

(D.C. Cir. L976) (attached case *DC-8) . Attorney failed to

interview witnesses because he speculated that the witnesses

testimony would not be he1pful. The court held that. this
hras an inadequate basis on which to base the decision.

c. Cases finding that attorney Prepara-

tion was adeguate basis for tactical decisions.

(i) U.S. v. Smith, 551 F.2d 348 (D.C.

Cir. L9761. Attorney failed to move to suppress identifica-
tion based on photo array and bank surveillance photography.

The attorney $ras familiar with the law and felt that the

identifications vrere constitutional, so his failure to not'e

to suppress hras "the product of a deljJcerate and informed

decision, not oversight or advertence." rd. at 353. Ihe

court held that it is not necessary for an attorney to Pursue

futile defenses. It is not clear from the court's opinion

whether the lawyer would have been obliged to have made the

motion for suppression if the appeals court had itself thought

that the identifications were arguably unconstitutional.

Thus, it is impossible to know how much weight the court

gave to the attorneyrs determination that pursuing this

-r4-



t particular defense would be futile.
(ii) U.S. v. Clavborne, 509 F.2d 473

(O.C. Cir. L974) (attached case #DC-7). Defendant, was

found guilty of second degree murder. His attorney failed
. to cross-examine a key witness despite apparent contradictions

. i. her testimony because of his fear that she would testify
to facts which would implicate defendant on a charge of first
degree murder. The court held that this was effective as-

sistance of counsel, characterizing it as speculative to
conclude that the reason that the attorneys failed to cross-

examine the witness was a lack of adequate preparation.

The court stated that "knowing when not to cross-examine an

, adverse witness is the art of cross-examination at its high;
(

est." fd. at 47g. See also U.S. v. Moore, 554 F.2d 1085

(D.C. Cir. L976) (att,ached case #D.C.-8); U.S. v. Brown,

653 g.2d 229 (u.C. Cir. 1981); U.S. v. Woocl , 628 F.2d 554

(p.c. cir. 1980) (,en banc) (attached case #Dc-4).

I

t

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