Nearing Thirty Years: The Burger Court, Strickland v. Washington, and the Parameters of the Right to Counsel

I. INTRODUCTION The right to a fair criminal trial--including the right to be represented by counsel (1)--is a cornerstone of American democracy. As the Supreme Court held in Gideon v. Wainwright, (2) the fourteenth amendment right to counsel applies in all state felony trials, requiring the states to provide counsel to indigent and poor defendants. Although it overturned Betts v. Brady, (3) which had held that the fourteenth amendment did not require states to provide defense counsel to indigent defendants in non-capital trials, Gideon was not as controversial as other Warren Court decisions. (4) It was, however, to become one of the more influential decisions in modern judicial history. Gideon did not address the minimum competency or performance standards required of defense counsel, but the decision would be further expanded to cover all criminal proceedings, which would in turn affect the threshold question of competency and effective representation. In 1967, the Court applied Gideon to juvenile proceedings. (5) In 1970, the Court determined that the right to counsel encompassed the right to effective assistance of counsel in guilty pleas. (6) In 1972, the Court extended Gideon to misdemeanor trials; (7) although Justice Black and Chief Justice Warren had retired from the Court by then, a majority of Justices appeared to accept the principle that the right to counsel is given a maximum interpretation whenever the deprivation of liberty is involved. As a result, it is clear that all persons, regardless of economic standing, have the right to the assistance of counsel in criminal trials. None of these decisions, however, described the degree of competent representation to which a defendant is entitled. Twelve years later, in Strickland v. Washington, (8) the Court issued a standard for determining when defense counsel's ineffective performance, through no direct fault of the prosecution, law enforcement, public, or judiciary, undermined the fairness of a trial such that a conviction or sentence had to be rendered as a violation of due process. The standard requires a demonstration that counsel's representation "fell below an objective standard of reasonableness," and then a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (9) Federal and state appellate courts have cited Strickland over 10,000 times, and there are hundreds of law review articles directly stemming from the decision. However, none presents Strickland's judicial history. Those articles that approach a historical analysis do not utilize primary sources such as the conference memoranda and correspondence of the judges and Justices involved in the decision. This article begins to fill that gap. Part II provides a historical backdrop to Strickland, including an analysis of how judicial standards governing ineffective-assistance assertions evolved in the appellate courts after Powell v. Alabama, (10) Importantly, prior to Strickland, the Court denied certiorari in several cases involving claims of ineffective counsel. (11) Part III examines United States v. DeCoster, (12) a thrice reviewed D.C. Circuit decision that several circuits adopted prior to Strickland, but which was expressly rejected by a Fifth Circuit panel, the en banc Eleventh Circuit and, in some measure, ultimately the Supreme Court. (13) Notably, DeCoster developed an outcome-determinative test for prejudice, which the Court in Strickland found problematic. Part IV summarizes Strickland's appellate traverse from the state trial through the en banc Eleventh Circuit, including an analysis of judicial intent in the majority, concurring, and dissenting judges of the en banc Eleventh Circuit. Part V analyzes the conference deliberations within the Supreme Court, discerning how the majority, concurring, and dissenting opinions in Strickland were initially drafted and then modified through a process of compromises. …