What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one?

Dissenting opinion

Justice Marshall dissented from the majority's holding. He objected that the Court's newly crafted test was unlikely to "improve the adjudication of Sixth Amendment claims." In his view, the performance standard was "so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts." What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one? After all, Marshall pointed out, "a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case." Marshall also disputed that counsel's performance must be given especially wide latitude, since "much of the work involved in preparing for trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards."

Marshall also disputed that it should be made the defendant's burden to show prejudice from an allegedly incompetent attorney's performance. Nor should prejudice be measured solely with respect to the fairness of the outcome of the trial; the fairness of the procedure matters just as much. "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree."

Marshall worried that the Court's admonition to future judges, presented with ineffective assistance claims should defer to counsel's strategic judgments, placed too heavy a burden on defendants making such claims.

Finally, Marshall took issue with the Court's conclusion that the same standard for ineffectiveness should apply in a capital sentencing proceeding that applies at an ordinary trial. The capital sentencing process is intended to be especially reliable, and "reliability in the imposition of the death sentence can be approximated only if the sentencer is fully informed of all possible relevant information about the individual defendant whose fate it must determine." The defendant's attorney is responsible for doing this. For this reason, and in light of the "severity and irrevocability of the sanction at stake," the standard for effective assistance in capital sentencing proceedings must be especially stringent. Accordingly, Marshall believed that a person on death row seeking relief from his death sentence on grounds of ineffective assistance should not have to show a reasonable probability that he would not have received a death sentence if counsel had presented more mitigating evidence. Because it was clear that Washington's attorney had failed to investigate and then present large amounts of information to the sentencing judge, Marshall concluded that Washington's lawyer was ineffective.

[edit] See also

AGIF News Bulletin~April 1955~ AN ARTICLE ENTITLED "EDGAR TAKEN TO FEDERAL COURT ON SEGREGATION CASES"

EDGAR TAKEN TO FEDERAL COURT ON SEGREGATION CASES

Commissioner of Education J. W. Edgar was made a defendant in two school segregation suits filed in Federal District Courts in Austin and Corpus Christi on April 19 and 23 respectively.

In both suits Edgar was made a defendant respectively in conjunction with the trustees of the Carrizo Springs Independent School District and those of the Kingsville Independent School District.

In both suits Edgar is charged with having been advised that segregation of children of Mexican descent existed and with failure to take any action. Consequently, by failing to discharge his duties under the law Edgar is charged with condoning, aiding, and abetting the two school districts in the violation of the law.

The petition also charged that Edgar participated in the customs, usages, and practices in Carrizo Springs and in Kingsville which resulted in segregation, and that Edgar did this "in utter disregard, violation and contempt of a permanent injunction granted against his predecessor in office, the State Superintendent of public Information, and equally applicable to Edgar."

The Carrizo Springs case involves segregation of children of Mexican descent in the first three grades. This case was filed in Austin by Attorney Chris Aldrete of Del Rio, former state chairman of the American GI Forum of Texas.

While Edgar has not held a hearing on the Carrizo case, he was advised last fall by Aldrete of the practice of segregation. subsequently a member of Edgar's own staff investigated the situation and reported to Edgar that he had found that segregation did exist.

The Kingsville case was appealed and heard by Edgar earlier this year. It involves gerrymandered school zones laid down for the purpose of getting a segregated junior high school in Kingsville.

Under the excuse that the stenographer who took the proceedings has not been able to transcribe the record, Edgar has ignored the pleas of Attorneys Gus C. Garcia and Homer M. Lopez of Kingsville for a ruling on the case.

The Kingsville case was filed in Federal Court in Corpus Christi by Attorneys Garcia and Lopez.

Both cases have the backing and sponsorship of the American GI Forum of Texas.

Plaintiffs in the Carrizo case include ten school children who are represented by their respective parents for purposes of the suit. Plaintiffs in the Kingsville case include five school children represented in the same fashion.

To be Continued.......

This researcher has acquired exclusive access to a private archive who wishes to remain anonymous, for teens then and especially now .........

Teenager's Lament
Originally published in April 1955 issue of the American GI Forum News Bulletin
Austin, Texas.

It was so short a time ago I was a young Lad. The world was a place of intrigue and adventure. I was going to do great things as a man. School held for me a library of knowledge and adventure and I was sure that behind each book case I would slowly step into another yardstick of manhood. My home was a place of love and understanding. A stronghold against the evils of the world. I was so ambitious. But alas! I was a dreamer. Today I am a youth, tomorrow a man. Yet I am so lost in a community of adults. I have lost sight of my goal. I have no place to go. School occupies so few of my hours. my community has failed me as a youth. I must wander in the streets as there is no recreation hall where I may meet my friends. there are no jobs for me. First because of my lack of experience; second because I am only a youth.

The recreation Hall for youth would teach me a trade. I am too big for playing in the park, I am too old for swimming in a park pool. What can I do? If I am caught wandering I am a vagrant;if I sleep, I am lazy. Can you help me? If I have no car, I am a square, yet I am a solid youth. Won't you give me a chance?

I am the one who will help you run your community. Won't you give me a back-log of knowledge so that I may do the job right? Won't you help me become a responsible citizen so that I too can be proud? Won't you give me a fulfilled dream to hand to my children?

Please, won't you help? I am only a youth and the world is before me.

~~~~~~~This short article was submitted by Mrs. Ann Dominguez of Pueblo, Colorado, who is herself an ex-teenager. It is reprinted to show the value of the Junior GI Forums in giving young people the backlog of knowledge which will prepare them for adulthood.