Guidelines from the Supreme Court

By Michael S. Serrill

The Justices rule on lawyer competency and other matters

During ten days in September 1976, David Leroy Washington went on a bone-chilling crime spree across Dade County, Fla., that included torture, kidnaping and three murders. After turning himself in, Washington insisted on confessing to all three murders and pleaded guilty. His lawyer, William Tunkey, opposed the guilty pleas. But then, at the special sentence hearing required in capital cases, Tunkey offered no character witnesses, introduced no expert psychiatric evidence and requested no presentence report that might have been used to mitigate the punishment. Washington was condemned to death, and later appealed, arguing that his Sixth Amendment right to competent legal counsel had been violated.

The U.S. Supreme Court has never established a specific test that defines the constitutional right to effective legal representation in criminal cases. But last week the court finally set forth its guiding principles and swept away a variety of state and lower federal court standards that had grown up in the absence of a firm ruling from the high bench. The landmark that David Washington helped establish, however, did not save him. His death sentence stands.

Justice Sandra Day O'Connor, writing for an 8-to-1 majority, formulated a simple, two-pronged system for establishing incompetency claims. First, the court ruled, the criminal defendant must prove that his lawyer's performance is so shoddy that it falls below "prevailing professional norms." Second, said O'Connor, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In the Washington case, the court found that neither of the new standards was violated. Attorney Tunkey's performance had not been inept, O'Connor wrote; he had deliberately chosen not to use psychiatric evidence and a presentence report, for fear that they would hurt rather than help his client's plea for mercy. Furthermore, O'Connor noted, the aggravating circumstances of Washington's crimes were so "overwhelming" that the omitted evidence might not have saved him from death row.

Critics of the decision, including dissenting Justice Thurgood Marshall, favored a more detailed and demanding set of requirements. University of Southern California Law Professor William Genego, who heads an American Bar Association lawyer-competency committee, thinks that the court is letting "defendants pay for the mistakes their lawyers make." His committee will suggest some stiffer, nonbinding guidelines for attorneys at least to consider. Law Professor Gary Goodpaster of the University of California at Davis worries about applying the new rules to the two stages of death-penalty cases. "Many attorneys are capable of attacking the state's case at the guilt phase," he says, "but they're incapable of presenting an affirmative case for life at the sentencing phase." They often have neither the temperament nor the resources for such a task, and in his view many attorneys who fail to dig deeply enough will not be caught by the court's new test.

Reaction to the high court ruling among anti-death-penalty activists was subdued. Lawyer incompetency is a common claim made by death-row inmates, notes Steven Winter of the NAACP Legal Defense and Educational Fund. But while he considers many of the claims justified, "very few of those win, and I don't think the Washington case is going to change the percentage, up or down."

The court took a number of other noteworthy actions last week:

Judges Can Be Sued Too. While it is often said that no one in the U.S. is above the law, judges have long been immune from harassing damage suits by those who believe they have been wronged in court. The U.S. Supreme Court, however, has now ruled that even judges can sometimes be sued. While the court reaffirmed the ancient English common law doctrine of judicial immunity from damage suits, it held that a citizen may seek an injunction in federal court to order a state judge to stop violating civil rights. It also ruled that state judges are not immune from a 1976 law that forces the losers in such actions to pay legal fees to the winner.

The case involved Gladys Pulliam, a Virginia magistrate who ordered two men held in jail because they could not make bail, even though they were charged with minor offenses that carried no jail terms. The two men got a federal injunction forbidding such jailing by Pulliam in the future, and a later order assessing the judge more than $7,000 for their legal fees. The four dissenters, led by Justice Lewis Powell, feared that judicial independence would now be eroded by "the ever present threat of burdensome litigation." But Justice Harry Blackmun, writing for the majority, could find no historical basis for blocking injunctions against judges.

Beauty and Free Speech. It is a time-honored way to run a local political campaign: paste pictures of your candidate on anything that does not move. But in 1979, when a group called Taxpayers for Vincent stapled City Council Candidate Roland Vincent's posters on utility poles, Los Angeles workers tore them down. They were enforcing a city ordinance forbidding the posting of signs on public property.

Taxpayers for Vincent sued, saying their right to free speech had been abridged. The Supreme Court ruled, 6 to 3, that it had not been. The court found that the ordinance was narrowly tailored to meet Los Angeles' legitimate and significant goal of protecting the city's aesthetics. The First Amendment was not violated, because the ban applied equally to everyone and Vincent's backers could have advertised their candidate's virtues elsewhere and in other ways. To a disappointed Vincent, who lost the election as well as the decision, the court's belief in the ban's equal impact seemed to consider rich and poor alike. Said he: "The city council campaign costs a quarter of a million dollars if it costs a dime. People who don't have that kind of money resort to signs."

A Drunk's Castle. Edward Welsh was already in bed when the police came pounding on his door in Madison, Wis. They had been alerted by a motorist who saw him driving erratically. The officers, who had no warrant, were admitted to Welsh's home by his stepdaughter. They went to his bedroom and arrested him for drunk driving. In Wisconsin, a first drunk-driving conviction is a civil offense that carries no jail sentence. Welsh appealed the legality of his arrest all the way to the Supreme Court. He was vindicated when the Justices ruled, 6 to 3, that police without a warrant can almost never arrest a person in his home for a minor offense. Though he concurred in the decision, Justice Blackmun observed that he thought it "amazing" that the "great state" of Wisconsin had failed to make a first drunk-driving offense a crime. Ironically, if it had been a more serious offense the Justices might have upheld the right of police to intrude on the home's sanctity because of the probability that important evidence, the suspect's level of inebriation, could have disappeared by the time a warrant was issued.

Jailing Moon in June? When the Rev. Sun Myung Moon was convicted of filing false income tax returns in 1982, he was among the most criticized and reviled religious leaders in America. Nonetheless, a variety of national religious groups, ranging from liberal Protestant to fundamentalist, joined in to give moral support to his defense. Reason: they maintained that the Government had no right to interfere in the internal financial operations of Moon's church, which sanctioned his practice of holding in his own name $1.7 million, among other church assets, and using some of the money for personal purposes. The jury was convinced that Moon was illegally dodging the IRS. Despite the leader's ecumenical bandwagon of support, the court rejected his petition for a hearing. Moon's lawyers, led by Harvard Professor Laurence Tribe, say they will now go back to the trial court to make new arguments that the Government improperly sought to persecute him. Unless Tribe succeeds, Moon will enter a federal prison next month to serve his 18-month sentence. Unification Church officials say he has already accepted the likelihood and has ordered his 40,000 American followers to "carry on" without him.

--By Michael S. Serrill.

Reported by Alain L. Sanders/New York

With reporting by Alain L. Sanders