On Petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Petitioner in this case, James Messer, was sentenced to death by
a jury that was unable in any meaningful fashion to give him the "
individualized consideration" to which he has a constitutional
right, Lockett v. Ohio,
438 U.S.
586, 605, 2965 ( 1978) (plurality opinion), because of
egregiously unprofessional assistance by his trial counsel. I
believe that petitioner has clearly met the standard that this
Court set in Strickland v. Washington,
466 U.S. 668 (1984), for
establishing ineffective assistance during the sentencing phase of
his trial, and I would accordingly grant the petition and vacate
petitioner's sentence. [ Messer v. Kemp
474
U.S. 1088 (1986) ][1088-Continued.]
I
Petitioner was convicted of kidnaping and murdering his
8-year-old niece. After his conviction and sentence were affirmed
on direct review, he sought a writ of habeas corpus in state court,
alleging, inter alia, ineffective assistance of counsel. The court
declined to hold a hearing, made no findings, and denied the writ.
Petitioner then sought federal habeas relief. The Magistrate to
whom the case was referred recommended that the writ be granted as
to the sentence, concluding that petitioner had received
ineffective assistance during the penalty phase. The District Court
nevertheless denied the writ. It concluded that petitioner had not
established prejudice, as required by Strickland, supra, and
therefore did not reach the question whether counsel gave adequate
assistance. The Court of Appeals affirmed,
760
F.2d 1080 (CA11 1985), with one judge dissenting, id., at 1093
(Johnson, J.).
II
The only factfinder that has considered the question, the
Federal Magistrate, found that petitioner has met the first
Strickland criterion- that counsel's performance at the sentencing
phase was "outside the wide range of professionally competent
assistance,"
Page 474 U.S.
1088 , 1089
Strickland, supra, 466 U.S., at 690. Even the most cursory
review of petitioner's trial demonstrates that the Magistrate's
conclusion was inescapable.
At petitioner's hearing before the Magistrate, counsel testified
that he had decided as a matter of strategy to adopt a "low-key"
approach during the guilt phase, in hopes of establishing
credibility with the jury . He had then hoped to "humanize"
petitioner during the sentencing phase and try to convince the jury
to spare petitioner's life. 760 F.2d, at 1088. Both the majority
and the dissenter in the Court of Appeals concluded that this
strategy was not unreasonable in light of the overwhelming evidence
of petitioner's guilt. Id., at 1090, 1095.
Counsel succeeded admirably in implementing the first part of
his strategy. He made no opening statement and put on no case in
chief. He performed only cursory cross-examination, and did not
object to any evidence. Id., at 1089. Counsel's attempts to carry
out the second prong of his strategy, however, were piteously
deficient. His brief summation during the guilt phase, after
acknowledging his "frustration" with the case, App. B to Pet. for
Cert. 14 (opinion of District Court), went on to " emphasize the
horror of the crime," 760 F.2d, at 1095 (Johnson, J., dissenting),
to the very jury that would soon be called upon to determine
whether the murder was "outrageously or wantonly vile, horrible, or
inhuman," Ga.Code Ann. 17-10-30(b)(7) (1982).
During the penalty phase, counsel put on a single witness,
petitioner's mother. She testified concerning petitioner's
childhood, which was marred by mistreatment at the hands of his
father and his parents' subsequent divorce. The effect of this
implied plea for pity, however, was then destroyed when counsel,
despite having previously warned the witness to avoid the topic,
asked her what petitioner had told her about his expectations. She
replied "he and I both, my sister, and my mother expect the death
penalty here." 760 F.2d, at 1096.
It was counsel's summation during the penalty phase, however,
that led the Magistrate to conclude that petitioner's Sixth
Amendment right to counsel had been violated. His statement, which
the Magistrate called a " nonargument," id., at 1097, made no
mention of petitioner's mother's testimony nor of any other
mitigating
Page 474 U.S.
1088 , 1090
evidence.* Counsel did not inform the jury, during summation or
at any other time, that petitioner had no prior criminal history,
had been steadily employed, had an honorable military record, had
been a regular churchgoer, and had cooperated with the police. See
id., at 1096, n. 2. Counsel did not give the jury a single reason
why it should spare petitioner's life. As the Magistrate noted,
counsel "utterly failed to point out any matters which were
favorable to [petitioner]-to 'humanize' him, even though this was
his alleged 'tactic.' " App. C to Pet. for Cert. 51 (Magistrate's
Report and Recommendation). Instead, counsel repeatedly hinted that
death was the most appropriate sentence for petitioner. He "
focused on the awesome burden placed on the jury in determining
Messer's fate and the fortitude that would be required of a juror
to decide to let him live, as if the easiest and most obvious
verdict were the death sentence." 760 F.2d, at 1097.
The net result was that petitioner was without an advocate at
the sentencing phase. "No one addressed the jury and said that
Messer did not deserve to die." Ibid. Like the Magistrate and the
dissenter in the Court of Appeals, I cannot help but conclude that
a total breakdown in the adversarial process occurred in this
case.
III
The District Court rejected the Magistrate's conclusion because
it felt that petitioner had not established the second Strickland
criterion- that there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different," Strickland, supra, 466 U.S., at 694. The
Court of Appeals held that counsel's performance was not
constitutionally deficient. Yet it never even mentioned counsel's
summation nor the Magistrate's finding that the summation was
unreasonable and ineffective. I can only presume that the Court of
Appeals failed to find prejudice as to the summation, based on its
conclusory statement that "petitioner has failed to show that
[counsel's] performance during the sentencing phase was deficient
to the extent that this court cannot rely on the result as being
just." 760 F.2d, at 1092 (citation omitted).
Page 474 U.S.
1088 , 1091
The result below is thus an example of the gross unfairness that
results when the Strickland prejudice standard is applied without
regard to the special characteristics of a capital sentencing
proceeding. See Strickland, 466 U.S., at 715-717-2080 (MARSHALL,
J., dissenting). Those proceedings have a much different function
than the relatively mechanical inquiry of the guilt phase, and the
likelihood that an appellate court can accurately divine a jury's
probable response to evidence or arguments is accordingly less.
Just last Term this Court reiterated that a capital defendant has a
constitutional right to the consideration of "[w]hatever
intangibles a jury might consider in its sentencing determination."
Caldwell v. Mississippi,
472 U.S. 320, 105 S. Ct.
2633 (1985); see also Lockett v. Ohio,
438 U.S. 586 (1978)
(defendant has constitutional right to consideration of mitigating
factors). Yet as applied by the courts below, Strickland permits
unprofessional conduct by trial counsel to deprive a capital
defendant of that right.
Viewed in the correct light-that is, considering what the jury
in this case might have done if presented with a true adversarial
debate on the appropriateness of sentencing petitioner to death-one
cannot possibly conclude that there is no "reasonable probability"
that the outcome would have been different. This is not a case in
which, despite unreasonable errors by counsel, the jury was
presented with a substantially accurate picture of the defendant
and with some cogent argument in favor of life. The jury here was
never apprised of several substantial mitigating factors . More
important, counsel presented the jury with no reasons to spare
petitioner's life and, indeed, strongly intimated that he could
think of none.
Despite these strong indicia of unreliability, the District
Court found the absence of prejudice as to the sentencing phase
based primarily on its conclusion that the evidence of petitioner's
guilt was overwhelming, App. B to Pet. for Cert. 3, and the Court
of Appeals blithely assumed the jury's role, finding the result
"just," 760 F.2d, at 1092. If the Strickland prejudice standard has
any vitality at all, it requires a more searching inquiry than
that. I dissent.
APPENDIX TO OPINION OF MARSHALL, J., DISSENTING
"Your Honor, ladies and gentlemen,
since ya'll were selected I might add I haven't taken the
opportunity to talk to ya'll a lot
Page 474 U.S.
1088 , 1092
but I have been honest and in that honesty I haven't tried in
any form or fashion to do anything other than see that the facts in
this case were presented and they were very ably presented, there's
no question about that.
"Now, I knew that when I got involved
in this case at the beginning they would be. The question in this
case is not the facts. Twenty-nine times I said 'no questions.'
Thirty times I said 'no objections' to a witness being excused.
Each and every one of us knows the young girl died . Like Mr.
Foster, I have two young children of my own and believe you me that
makes it more difficult for me to stand here in front of you all
right now, each and every one of you, than it does for Mr. Foster,
I dare say. I don't ask you to appreciate that. I don't ask for
that at all. I just want to be straight up and honest about this
whole thing and where we're all coming from. Each and every one of
you in this jury box know before this case started, or had some
slight idea, that we were going to be at this point today where we
are now and the decision was going to come down to the twelve of
you and what you determine to be Mr. Messer's fate.
"I dare say, and it has been
suggested to me, and I say this in all humble candor, by some both
here and in Rome that I ought to argue to this jury to leave him
alive is a more cruel punishment because he's got to live with it,
so I don't know what to say to you. I really don't. I know that at
this particular point there is no question in my mind that the
verdict this jury spoke in this court room today was the truth. I
don't contest that at all. The question is when the judge tells you
what the law is in this situation and what is considered to make
something aggravating circumstances, what is considered to mitigate
circumstances, he's also going to tell you that in a situation like
this you can almost disregard those and leave it up to yourselves,
your gut feeling as to what it is you feel speaks the voice of the
community.
"Now, the community, a great part of
the community, has been here in this court room as potential jurors
and as members of the audience, and it concerns Polk County.
Interestingly enough Judge Winn told me two weeks ago that he
didn't think there would be anyone here by the end of the trial
that it had been a long time since there had been a trial like this
and the last time a good many years ago he could remember that
there just wasn't ten or fifteen people by the time the trial got
done with, people were just that uninterested. But that's not true
in this situation
Page 474 U.S.
1088 , 1093
because people have been very interested, and very interested
right now with what is this community's voice through ya'll going
to be.
"Unfortunately I do not agree again
with Mr. Foster as to his position that each and every one of you
by rendering a verdict that speaks for the death penalty are being
brave. In not doing that you're showing people outside of Polk
County that you don't know how to deal with people who take the
lives of others in Polk County. That's not the issue. Nor is it the
bravest thing to do in this situation to vote the death penalty. It
would take a heck of a lot more guts to say that there's something
in that human being who sits over there, sits over there having to
remember what ya'll have just learned about him. There's something
that put him on this earth and it's worth leaving on this earth.
Ya'll have the power to extinguish him from this earth, a legal
right to do that if you so desire. The District Attorney does not
have that right. You are but his implement to do that, each one of
you, all twelve of you, to the extent that you choose to use that
the law allows each and every one of you to do it. That's an
awesome responsibility and I dare say I would rather be over here
than in ya'll's seats, because as a parent under these
circumstances . . . but that's for ya'll to decide. Please however,
as the judge will charge you, the decision is each and everyone of
yours individually and then as a group, your decision be it give
him life or death is your decision, you need not worry about what
happens after that decision as to how it's carried out. That makes
it a lot easier as far as the decision is concerned in having to
live with it but it's still your decision, and if your decision is
life that is a decision that you have come about to make freely and
honestly based upon all that you've heard in the case and there
might be some reason to leave this man on the face of the earth
then hold onto that decision, if not then let it go, but make it
your own decision each and every one of you, don't make it a
decision of your friends and neighbors that you just adopt. I dare
say ten years ago had any of you ever pictured yourselves being in
this situation and having to make this decision ten years from then
you wouldn't.
"Thank you."
Justice BLACKMUN dissents from the denial of the petition for
writ of certiorari.
Footnotes
[
Footnote *] Counsel's summation at
the penalty phase, in its entirety, is set out in an Appendix to
this opinion.
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