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.
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