On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting.
Adhering to my view that the death penalty is under all
circumstances cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments, I would vacate the judgment of the
Florida Supreme Court insofar as it left undisturbed the death
sentence imposed in this case. Gregg v. Georgia,
428 U.S.
153, 231, 2973 ( 1976) (MARSHALL, J., dissenting). However,
even if I believed that the death penalty could constitutionally be
imposed under certain circumstances, I would nevertheless grant
certiorari because petitioner's Sixth Amendment right to effective
assistance of counsel required that he be given access to his trial
counsel's work files for use in his state habeas corpus hearing in
which he alleged that trial counsel's representation was
constitutionally deficient.
I
Petitioner was convicted of murder and sentenced to death after
a jury trial. The Supreme Court of Florida affirmed his conviction
and sentence on direct appeal.
443 So. 2d 967
(1983). Fol-
Page 479 U.S.
972 , 973
lowing the issuance of a death warrant, petitioner sought habeas
corpus relief in state court. After a hearing, the habeas petition
was denied; the Supreme Court of Florida again affirmed.
490 So. 2d 927
(1986).
The petition stated a claim for ineffective assistance of trial
counsel, challenging counsel's failure to make certain motions and
objections in the course of petitioner's defense. The habeas
petition also alleged that trial counsel, engaged in his first
attempt to defend a client on capital charges, inadequately
investigated petitioner's background in preparation for the penalty
phase of the trial. 490 So.2d, at 932-933.
Prior to the hearing, petitioner's trial counsel refused habeas
counsel's informal request to produce work files pertaining to
petitioner's defense. Time constraints did not permit habeas
counsel to subpoena these materials before filing petitioner's
motion for habeas corpus relief. [
Footnote 1] When the trial attorney testified at the
hearing, he admitted denying access to the requested files and
again refused production. He offered this justification for his
refusal:
"It is my reason and belief that . . . if I'm going to divulge
or reveal or to allow people to inspect my files it should be done
by court order from either side and the reason for that belief is
that I think and believe wholeheartedly that if an attorney who's a
trial attorney is preparing his case for trial that if its going to
be subject to review a couple of years later it may put a chilling
effect on an attorney making notes or work product or whatever have
you.
"In other words, that attorney may not be as free to express
himself within his own confines of his file and, consequently,
until a court orders me to do so and that's determined to be a
lawful order, I have refused permission to turn it over to you."
App. to Pet. for Cert. 19-20.
Habeas counsel then moved to compel production of the trial
attorney's entire file. The state court denied this motion "based
upon [ trial counsel's] rationale." Id., at 20.
Without the file, petitioner was unable to demonstrate the
alleged deficiency of trial counsel's representation, particularly
with respect to his preparation for the penalty phase of
petitioner's trial.
Page 479 U.S.
972 , 974
This was due in large part to the attorney's apparent inability
to recall important details of his representation. For example: "Q:
Did you obtain a release from Mr. Maxwell to try to take a look at
any of [the state's] records? A: I don't have any recollection of
that. Q: So you didn't even obtain a release from Mr. Maxwell? A: I
didn't say that. Q: You said you didn't have any recollection? A:
Exactly. Q: Would it be in the file if you had? A: You're asking
hypothetical questions and I don't know. I make notations on
actions that I take in a great majority of times. Sometimes I don't
make notations. So it's hard for me to answer that. Q: Something
like a release of medical information? A: That should be in the
file. Q: Did you try to obtain or review any of Mr. Maxwell's
medical records? A: I have no recollection of that. * * * * * Q:
Other than the motions and memoranda you filed in the court file to
the penalty phase, did you prepare any internal memorandum
regarding the appliation of the aggravating and mitigating
circumstances to this case? A: I had a lot of law or some law-the
word "a lot" is relative-into that case and whether I dictated
memorandums or not, I don't remember. If I have them, I have them.
If I don't, I don't. Q: But again those would be in your file;
wouldn't it? A: Yes. . . . * * * * * Q: Do you recall finding out
about any traumatic experiences Mr. Maxwell had? A: I may or may
not have. Q: You may or may not? A: I'm sure I dealt in that area
though. Q: Did you speak with any teachers Mr. Maxwell had? A: I
have no recollection doing that at all. Q: Ministers? A: Now Joseph
Maxwell was very religious and I don't remember whether I talked to
a minister
Page 479 U.S.
972 , 975
or priest or clergyman in that area or not. I don't specifically
remember although it's possible.
You have to remember its three years I have not looked at the
file and there's just things I don't remember because of the
multitude of things that have happened since then.
Q: I understand. If we had the file, would we be able to find
out the answers to some of these questions?
A: I'm afraid not. In some areas, yes, in some areas, no,
because I don't make extensive notes on what I don't do. What I do
is make notes on what I do do. And when you're coming from a
negative position, I will not necessarily have notes to protect
myself. More or less, I don't prepare a case to protect myself.
So I may not have those kinds of notes. I would have notes as to
what I did do." App. to Pet. for Cert. 27-28, 36, 44-45.
On appeal to the Florida Supreme Court, petitoner argued that
the denial of his requests for access to his trial attorney's files
had impaired his due process right to a full and fair evidentiary
hearing on his claim of ineffective assistance of counsel. The
court rejected this argument with no substantive discussion,
holding simply that "the hearing on the motion comported with due
process principles." 490 So.2d, at 932.
II
An essential element of our society's protection of citizens
accused of crime is the right to effective assistance of counsel.
Strickland v. Washington,
466 U.S. 668 (1984);
Gideon v. Wainwright,
372 U.S. 335 (1963).
"Counsel is provided to assist the defendant in presenting his
defense, but in order to do so effectively the attorney must work
closely with the defendant in formulating defense strategy. . . .
Moreover, counsel is likely to have to make a number of crucial
decisions throughout the proceedings on a range of subjects that
may require consultation with the defendant. These decisons can
best be made, and counel's duties most effectively discharged, if
the attorney and the defendant have a relationship characterized by
trust and confidence." Morris v. Slappy,
461 U.S.
1, 21, 1621 (1983) (BRENNAN, J., concurring in the result).
Counsel's duty to maintain this trust and confidence extends beyond
the trial itself. Though he may not continue to represent the
defendant following conviction and the disposition of post-trial
motions,
Page 479 U.S.
972 , 976
he must nevertheless cooperate with defendant's attempts to
challenge the conviction or sentence, especially if he possesses
unique information about a claim the defendant seeks to raise. Use
of this informaton may be the decisive factor in determining the
defendant's failure or success ondirect or collateral review.
A defendant's interest in the information in his trial counsel's
exclusive possession is of even greater significance when the
defendant alleges ineffective assistance by trial counsel.
Providing access to such information unquestionably advances the
inquiry this Court identified in Strickland v. Washington, supra,
466 U.S., at 689-66, as essential to determining whether counsel
has rendered ineffective assistance: "A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." There is no more accurate or
reliable evidence of trial counsel's actual perspective and the
extent of preparation undertaken than the contents of his client's
case file. Access to these materials is critical where, as here,
trial counsel's testimony rests on little more than vague
recollections. Indeed, with respect to petitioner's allegations
that his trial attorney did not adequately prepare for the
sentencing proceeding, petitioner's need for access to the work
files is of paramount importance. Denying access to what may be the
most relevant evidence of the adequacy of legal representation is,
in this respect, "fundamentally incompatible with the Eighth
Amendment's heightened 'need for reliability in the determination
that death is the appropriate punishment. . . .' " Caldwell v.
Mississippi,
472 U.S.
320, ___, 2645 ( 1985) (quoting Woodson v. North Carolina,
428 U.S.
280, 305, 2991-92 (1976)). [976-Continued.]
The courts below erred, in violation of petitioner's Sixth
Amendment rights, in accepting trial counsel's reasons for
withholding petitioner's files. [
Footnote 2] The right to effective assistance fully
encompasses the client's right to obtain from trial counsel the
work files generated during and pertinent to that client's defense.
It further entitles the client to utilize materials contained in
these files in any proceeding at which the adequacy of trial
counsel's representation may be challenged. [
Footnote 3]
I would grant the petition for certiorari.
Footnotes
Footnote 1 Habeas counsel
agreed to represent petitioner on October 30, 1984. The State of
Florida had scheduled petitioner's execution for November 7,
1984.
Footnote 2 To the extent the
Florida courts accepted trial counsel's suggested work-product
doctrine, their rulings vastly misconstrue this doctrine's
underlying purpose; the privilege to withhold an attorney's work
product belongs to the client, and in this case petitioner seeks
access to files retained by his own attorney. Cf. Spivey v. Zant,
683 F.2d
881, 885 (CA5 Unit B 1982)(interpreting Fed.R.Civ.P. 26(b)(3)).
The attorney's asserted need to ensure that he is "free to express
himself" within the confines of a written file is likewise without
merit. He seems to claim that if his recorded thoughts are not
protected from discovery, he will be less likely to inform himself
and consider along with his client the various defensive strategies
that might be available. In other words, he argues that he will be
less likely to provide effective assistance of counsel, and yet
this is precisely the issue petitioner wishes to investigate. I
cannot accept that a lawyer should oppose the disclosure of
recorded thoughts that do not evidence ineffective assistance; nor
can I accept that petitioner's Sixth Amendment rights do not
prevail over his lawyer's asserted privacy interests where that
lawyer's recorded thoughts may reflect that ineffective assistance
has in fact been rendered.
Footnote 3 Though states are
not constitutionally required to establish avenues for seeking
post-conviction relief from an erroneous conviction, " when a State
opts to act in a field where its action has significant
discretionary elements, it must nonetheless act in accord with the
dictates of the Constitution-and, in particular, in accord with the
Due Process Clause." Evitts v. Lucey,
469 U.S.
387, 401, 839 (1984).
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