“Flagrant Conduct” and the Perfect Prosecution, Part 1

By David Yin

My colleague Peter Dunne previously blogged about University of Minnesota Law professor Dale Carpenter‘s new book, Flagrant Conduct, on the Lawrence v. Texas (2003) decision. (Full disclosure: I attend UMN myself, and in fact took Constitutional Law last semester with Prof. Carpenter). While both Peter and Prof. Mike Dorf agree that the particular facts of a case perhaps ought to matter less to the Supreme Court, for better or for worse that is not how the judicial branch works. The Supreme Court not only cannot issue advisory opinions on merely hypothetical cases (hence the standing doctrine, mootness, ripeness, etc.), but also it has shown itself to be particularly sensitive to the factual disposition of the cases before it.

For example, the claim of ineffective assistance of counsel is governed by Strickland v. Washington (1984), where the defendant must show that counsel’s performance (a) fell below an objective standard of reasonableness, and (b) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.Strickland came out of the 11th Circuit, included crimes of murder and kidnapping, and involved a defendant acting against counsel’s explicit advice in voluntarily confessing and waiving his right to a jury. The defendant was convicted, but at sentencing, his attorney may have failed to investigate all avenues of mitigating evidence. The 11th Circuit ultimately rejected Strickland’s claim on the basis of the aforementioned two-pronged test, which was later upheld and adopted by the Supreme Court. However, as recently as a couple of years prior, the 11th Circuit’s ineffective assistance of counsel claim was defined by Goodwin v. Balkcom (11th Cir. 1982). In that capital case, the 11th Circuit found that there had been ineffective assistance of counsel because the defense attorney failed to examine procedures for jury selection and thus did not object to conspicuous racial and gender problems with the jury, and failed to investigate the facts to raise a second defense. That court concluded that under the “totality of the circumstances” and “taken together” counsel’s actions deprived Goodwin of the representation due any client. The speculation is that if Goodwin (or another case) had come up to the Supreme Court instead of Strickland, the current standard for ineffective counsel may very well have been different, and perhaps more generous to defendants.

A better example may be in the run-up to Gideon v. Wainwright (1963), the landmark case that extended the 6th Amendment right to counsel for criminal defendants to state courts, and overturned Betts v. Brady (1941). By the early 1960s, the Supreme Court had determined that it was ready to abandon Betts, and cast about for a good test case to do it with. As one law review article recounts it, “Chief Justice Earl Warren made clear that he believed that an accused in a state prosecution had a right to counsel and his clerks remained on alert for a vehicle through which the Court might overrule Betts.” A case came up, Carnley v. Cochran (1962), which seemed to present that very opportunity. But Carnley, a case involving allegations of incestuous child sexual abuse, repelled Justice Frankfurter, who declared that it was impossible to “imagine a worse case, a more unsavory case to overrule a long standing decision.” And for that unsavoriness, justice for indigent criminal defendants was delayed for another year, until Gideon.

The facts of the case have been, and will continue to be important. Real people need to suffer real injuries to bring a case to court, and a judge’s opinion and leaning will be inevitably colored by the facts and circumstances before her. Good facts, and “perfect plaintiffs”, are crucial in garnering public support, judicial sympathy, and popular acceptance.

Next week, I’ll return to Flagrant Conduct and discuss the other side of the perfect test case: finding the perfect prosecution.


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