*1 H61 GROSECLOSE, E. William
Petitioner-Appellee, Warden,
Ricky BELL, Respondent-
Appellant. 95-6262.
No. Appeals, States Court
United
Sixth Circuit.
Argued April 1997. Dec.
Decided *2 Groseclose,
seclose. State v. 615 S.W.2d (Tenn.1981). Mount referred Groseclose Britt, Phillip acquaintance, to an Michael who Rickman, Eugene in Ronald turn contacted Rickman Britt’s former brother-in-law. agreed cooperation to commit the murder in agreed pay with Britt. to a cer- Groseclose briefed), Larry (argued D. and Woods Rickman, Britt, price, tain in which and Woods, Nashville, TN, for Petition- &Woods During prosecu- Mount would all share. its er-Appellee. case, tion of the the State never ascribed one (ar- Smith, Attorney Asst. Gen. Gordon W. Groseclose, particular motive to but instead (briefed), briefed), R. Pruden gued and Glenn may pointed to evidence that motives “[h]is General, Attorney Jus- of the Criminal Office apprehension that [his wife] have been Division, (briefed), tice Michael E. Moore divorce, him for obtain about sue desire to General, Nashville, Office proceeds, life insurance or inter- [substantial] TN, Respondent-Appellant. est in another woman.” Id. KEITH, RYAN, Before: and SUHRHEINRICH, Judges. Circuit The Tennessee Court described the murder as “one of the most atrocious and RYAN, J., opinion delivered inhuman conceivable.” Id. at 145. Accord- KEITH, J., court, joined. in which presented ing to the evidence State 1171-1179), SUHRHEINRICH, (pp. J. trial, the scheme was for Rickman to accost separate dissenting opinion. delivered and, day Deborah the before the murder RYAN, Judge. Circuit attempt suspicion to divert for the later Bell, Ricky husband, the warden of the Tennessee frighten murder from her “to her to Security Institution Maximum Riverbend point report that she would ... the inci- respondent proceedings, appeals in these police.” to the Id. The morning, dent next judgment granting court’s from the district couple’s Groseclose left his house with the corpus petitioner writ of habeas William son, leaving infant the back door unlocked. § pursuant E. to 28 U.S.C. house; Rickman and Britt then entered the presents Although the State Tennessee Groseclose, raped each Deborah and then respect allegations numerous of error with told her “there was ‘contract’ on her life.” for the issu- the various bases district court’s writ, ance of the we find one issue necessary appeal. to the resolution of this listening plead After to Deborah for her Because we conclude that the district court assailants, by offering money life to her Rick- correctly found that Groseclose was unconsti- “proceeded strangle man Mrs. Groseclose tutionally assistance of coun- denied effective unconsciousness,” then, into because Amendment, sel under the Sixth we will af- pulse, detected a to stab her three or four firm. times the back. Id. Rickman Britt car, placed Deborah in the trunk of her
I. dead, apparently believing her to be “and parking adjacent the vehicle to a drove lot A. Memphis Library.” main Public Id. Dur- February E. William Groseclose ing trip, Rickman learned that she Shelly County, was convicted Tennes- not in fact dead because he “could hear her see, Circuit Court of murder the first help from trunk.” cries Id. Rickman degree killing in connection with the of his Britt nonetheless left her the trunk of wife, Deborah Lee on June car; later, days her she was discovered five alleged 1977. Groseclose was to have con- testimony suggested and the medical at trial Mount, Wayne tacted Barton a naval recruit not have while she would died her Groseclose met while Groseclose was em- alone, Service, injuries ployed in the excessive heat in her car Navy Recruiting in an effort to find someone to murder Mrs. Gro- trunk caused her death. August of Tennessee in police the Middle District investigation, subsequent
During the
through
February
and Mount
Rickman
1989. In
and November
led to
were
roommate.
by Rickman’s
given
information
judgment
motions for
on the
State filed two
Britt,
Rickman,
gave
all
and Mount
Although
pleadings, alleging
pro-
did not.
police, Groseclose
to the
statements
cedurally
on several of his claims.
defaulted
Groseclose, Rickman,
all
and Britt were
In November
the district
denied
*3
degree,
in the first
charged with murder
1995,
January
these motions.
Groseclose
jointly, and convicted.
tried
summary judgment as to
filed a motion for
grant-
some of his claims. The district
B.
respect many
summary judgment with
to
ed
13,1978,
February
began on
Jury selection
claims,
it with
of Groseelose’s
but denied
February 17.
completed on
Grosec-
and
it,
others,
granting
sua
respect
to
instead
Britt,
lose,
pleaded
Rickman and
along with
sponte, to the
has not filed
State. Groseclose
February 18
began on
guilty. The trial
they
appeal
rulings,
an
from those latter
February
The
on
28.
was concluded
not at issue.
are
March
hearing was held between
sentencing
con-
April
the district court
On
wit-
presented 39
1
March 3. The State
evidentiary hearing
an
on Grosee-
ducted
trial.
guilt phase of the
during the
nesses
following
lose’s claims that
remained
during the
testified
of the defendants
None
summary judgment disposition, and
due
con-
All three defendants were
guilt phase.
course,
directing
a
an order
that writ
issued
degree.
in the first
Grosec-
victed of murder
a
issue unless the
afforded Groseclose
Rickman were then sentenced
State
lose and
Bell,
death,
a
of life
days.
Britt received
sentence
v.
while
new trial within 120
Groseclose
imprisonment.
(M.D.Tenn.1995). The court
F.Supp. 935
895
writ on the constitu-
granting
based its
the Tennessee Su
appealed to
Groseclose
tionally
assistance of Groseclose’s
ineffective
Court,
his conviction
preme
which affirmed
basis,
counsel, and,
trial
as an alternative
142. The
615 S.W.2d
in 1981.
for which
cumulative effect of the errors
Supreme
then denied Grosec-
U.S.
Court
certiorari. Grosec
petition
granted summary judg-
for writ of
lose’s
the court had earlier
Tennessee,
882,102
366,
reach, however,
v.
454 U.S.
lose
ment. The court declined
(1981).
next filed
193
Groseclose
70 L.Ed.2d
Shelby
that the
argument by
Groseclose
relief in Janu
petition
post-conviction
for
a
systematically
County
Court
discrimi-
Circuit
alia,
1982,
that he had
ary
arguing, inter
selec-
against
and women
nated
blacks
constitutionally ineffective assis
received
grand jury foremen.
tion of
holding an evidentia-
of counsel. After
tance
or amend
a motion to alter
The State filed
petition
ry hearing,
trial court denied
59,
pursuant
to Fed.R.Civ.P.
judgment,
of Criminal
in December 1982. The Court
by the district court
which was denied
February
Appeals affirmed
denial
1995,
timely ap-
filed this
August
and then
(Tenn.
Tennessee, No. 9
1984.
v.
Groseclose
judgment
stayed its
peal. The district court
1984).
Crim.App. Feb.
appeal.
pending this
subsequent ap
a
of Tennessee denied
permission
appeal,
and the
plication for
II.
petition
a
for
Supreme Court denied
U.S.
Tennessee,
v.
writ of certiorari. Groseclose
novo a dis
court reviews de
This
L.Ed.2d 436
105 S.Ct.
469 U.S.
petition
for writ
disposition
court’s
trict
(1984).
corpus,
nonetheless reviews
habeas
but
only for
findings
court’s factual
petition
the district
a second and third
Groseclose filed
court,
McQueen
Scroggy, in the state
v.
post-conviction
relief
clear error. See
system
(6th
through
Cir.1996),
proceeded
of which
cert. de
both
F.3d
—
also filed a
-,
and were denied.
nied,
U.S.
corpus,
petition
writ of habeas
state
(1997). Further,
courts
federal
L.Ed.2d 185
which was denied.
findings,
to state court factual
must defer
of correctness
according
presumption
petition for writ of
filed his
only
clear and
petitioner may rebut
District Court for
corpus in the U.S.
habeas
enactment;
instead,
AEDPA’s
those
presumption
“The
Id.
convincing evidence.
fact,
findings
logi-
implicit
applies
changes “generally apply
to cases filed
...
of the trial court’s
cally
because
at -,
deduced
after the Act became effective.” Id.
adjudge the witnesses’ demeanor
ability to
are, instead, left to
claim a mixed fact, both the state-court and dis for which subject to de determinations are trict-court court. review See Sims novo privately that his Groseclose’s contention *4 (6th Cir.1992);
Livesay, 970 F.2d
counsel,
Brack-
retained trial
Fernand D.
(6th
Jago,
v.
888 F.2d
Cir.
Smith
stone,
constitutionally ineffective
had been
1989).
initially
by
Groseclose at the time
raised
challenge
habeas
to a state
federal
[I]n
post-conviction proceeding. Ac-
of his first
judgment, a state court conclusion
criminal
representations
by
cording to
made
the State
that counsel rendered effective assistance
appeal,
his conten-
in this
Groseclose based
finding
binding
fact
on the
is not a
on ten
tion that Brackstone was ineffective
by
the
federal court to
extent stated
(1)
separate grounds:
the failure of Brack-
2254(d).
§
Ineffectiveness is not a
U.S.C.
advised;
keep
adequately
stone
“basic, primary,
question of
or historical
(2)
investigate
prepare
his failure to
and
Rather,
question
...
it is a mixed
fac[t.]”
(3)
defense;
appropriate
his failure to file
Although
of law and fact.
state court find-
(4)
motions;
pretrial
his failure to make
deciding
in
ings of fact made
the course of
(5)
objections;
timely
necessary
and
his fail-
subject
claim
an ineffectiveness
are
(6)
dire;
appropriate jury
conduct
voir
ure to
2254(d),
§
requirement of
and
deference
impeach prose-
his failure to call witnesses to
subject
although
findings
are
district
although requested
cution witnesses
to do so
clearly
to the
erroneous standard of Fed-
Groseclose; (7)
52(a),
by
independent-
failure
both the
eral Rule of Civil Procedure
performance
prejudice components
ly represent
following
and
instead
inquiry
ques-
(8)
the ineffectiveness
are mixed
attorney;
lead of Rickman’s
his failure to
tions of law and fact.
proper inquiry concerning
make
Groseclose’s
(9)
trial;
668, 698,
State-administered medication
Washington,
v.
Strickland
U.S.
(1984)
2052, 2070,
properly
104 S.Ct.
for the consisted of a total of 11 Strickland, starting point obvious is which present transcript. failing And after proper “considered] Court standards jury any evidence on his client’s behalf, judging perfor- for a criminal defendant’s contention Braekstone culminated his argument. by waiving closing requires mance his that the Constitution a conviction or death sentence to be set aside because coun evidentiary during the federal When asked sentencing sel’s assistance at the trial or hearing thought whether he Braekstone was at at ineffective.” 466 U.S. S.Ct. “competent,” attorney for “effective” or 2056. Never before Strickland had the codefendant Britt —who testified for “directly fully a claim of addressed expert responded, State as an witness — “[N]o[,] ‘actual ineffectiveness’ of counsel’s assistance According he was not effective.” 683, 104 attorney, going in a case to trial.” Id. at S.Ct. Britt’s “Braekstone was more showings, it Nonetheless, recogni- a defendant makes both less the Court’s 2062. at right Amendment that the conviction or death “that the Sixth cannot be said tion needed, exists, in order to is counsel resulted from a breakdown sentence trial,” right to a fair fundamental protect the adversary process that renders the result long line of eases” may “[i]n be observed unreliable. Id. at far back as 1932. dating as 687, 104 prong Id. at S.Ct. at 2064. The first explained, at As the Court S.Ct. showing perfor of this test —the of deficient subject evidence trial is one which a fair objective mance —is an one: “When a con an testing presented is to adversarial complains defendant of the ineffective victed resolution of issues impartial tribunal for assistance, ness of counsel’s the defendant proceeding. The in advance of defined must show that counsel’s fell role in the plays a crucial right to counsel objective standard of reasonable below in the Sixth system embodied adversarial ness,” by “prevailing pro judged simply Amendment, to counsel’s skill since access 687-88, fessional norms.” Id. at 104 S.Ct. at necessary de- knowledge to accord is Rose, 2064-65; 523 S.W.2d accord Baxter to meet “ample opportunity fendants the (Tenn.1975). 930, 936 they prosecution” to which the case of the are entitled. in undertaking cautioned that The Court review, 685, 104 “[j]udicial S.Ct. at 2063. Id. an ineffective-assistance scrutiny performance must be of counsel’s may deprived right of his A be defendant deferential,” highly and must avoid the “sec- assistance of when to effective ..., ond-guess[ing counsel’s assistance “simply of] ... to render attorney fail[ed] has ” court, ‘adequate legal easy examining assistance.’ for a it is all too [as] According to the at 2064. Strickland S.Ct. proved after it has unsuc- counsel’s defense Court, judging benchmark “[t]he cessful, particular to conclude that a act or must whether of ineffectiveness be claim unreasonable.” omission of counsel was proper conduct so undermined counsel’s Strickland, 689, 104 at 2065. process that functioning of the adversarial distorting effects of In order to avoid “the pro- having on as trial cannot be relied reviewing indulge must hindsight,” a “court is just result.” Id. This standard duced a conduct strong presumption that counsel’s “applicable] capital sentencing to a equally range of reasonable falls within the wide sufficiently like a trial proceeding,” as it “is assistance; is, the defen professional in the existence in its adversarial format and presumption dant must overcome decision, counsel’s role of standards challenged ‘might ... action be consid proceeding comparable to counsel’s in the ” *7 (citation strategy.’ Id. trial ered sound 686-87, at at 104 S.Ct. role at trial.” Id. omitted). considering whether an And omitted). (citations 2064 action, investigate, is a including a failure to a two- established The Strickland Court decision, the ef strategic one must consider part test: by conveyed the defen fect of information that coun- A claim convicted defendant’s to his counsel. dant as to re- sel’s assistance was so defective thorough in- [Strategic choices made after a conviction or death quire reversal of relevant to law facts vestigation of First, components. has two sentence virtually unchallenge- options are plausible perfor- must show that counsel’s defendant able; after less strategic choices made requires This show- mance was deficient. investigation are reasonable complete than made errors so serious ing that counsel pro- that reasonable precisely to the extent functioning that counsel was limitations support the judgments fessional by guaranteed the defendant “counsel” words, In other investigation. Second, the defendant Sixth Amendment. investiga- duty a to make reasonable has performance must show that the deficient reasonable decision tions or to make a requires This prejudiced the defense. investigations unneces- particular makes errors were so seri- showing that counsel’s case, partic- a sary. ineffectiveness of a fair deprive as to the defendant ous investigate must be not to ular decision is reliable. Un- a trial whose result 1168 prejudice for appropriate ... test [T]he reasonableness in all for
directly assessed
circumstances, applying
heavy
a
mea-
materiality
finds its roots
the test
judgments.
to counsel’s
of deference
sure
exculpatory
not disclosed to
information
of counsel’s actions
by
prosecution,
The reasonableness
and in the
the defense
substantially influ-
may
determined
be
materiality
testimony
un-
test for
made
by
own statements
the defendant’s
enced
by
available to the defense
Government
usually
are
actions
or actions. Counsel’s
deportation of a witness. The defendant
based,
strate-
quite properly, on informed
prob-
show that there is a reasonable
must
and on
choices made
the defendant
gic
that,
ability
unprofes-
but
counsel’s
supplied
the defendant.
information
errors,
proceeding
the result
sional
investigation decisions are
particular, what
A reasonable
would have been different.
critically
depends
on such infor-
reasonable
probability
probability is a
sufficient
example, when the facts that
mation. For
in the outcome.
undermine confidence
potential line of defense
support a certain
693-94,
(emphasis
at
Id. at
104 S.Ct.
2067-68
counsel because of
generally known to
are
added) (citations omitted).
said,
has
the need for
what the defendant
may
considerably
explained
apply
how to
investigation
be
The Court then
further
altogether.
eliminated
And
diminished or
general
specific
standard to
circum-
this
given
has
counsel reason
when a defendant
stances:
investiga-
pursuing certain
believe
legal
plays a
governing
standard
harmful,
fruitless or even
tions would be
defining
question
critical role
to be
pursue
investiga-
those
counsel’s failure
assessing
prejudice
asked
challenged
be
as unrea-
may
tions
not later
counsel’s errors.
a
chal-
When
defendant
sonable.
conviction,
lenges
question
a
is wheth-
690-91,
to a factual of the state court H69 court, by present State does not ignored vigorous that was the district a more chal- underlying findings argues that lenge State to the district court’s conclusion. correct, presumed been to be should have however, say, This is not to that Grosec- presumption applied, if this were it and that arguments uniformly lose’s are well-taken. prove would be clear that Groseclose failed to arguing ineffectiveness, In Brackstone’s Gro- performance prejudicially was his counsel’s mistakenly upon seclose per- tends to focus observed, already As we have defective. shortcomings may arguably ceived be however, finding there is no state-court to trial strategy, attributable such as Brack- historical fact that is inconsistent with the family stone’s failure to call certain members findings, there were no district court’s as guilt phase witnesses or the findings inappropriate- state-court were pretrial failure to file various A motions. ly by ignored the district court. And since may very better advocate well have done questions adequacy the ultimate things, these but that is not the constitutional performance prejudice to counsel’s to attorney standard which an is held under petitioner questions are mixed of law and addition, Strickland. some of argu- review, fact, subject clearly to erroneous simply ments Groseclose makes are not reli- part to that this we are constrained conclude concluding able bases for that Brackstone argument of the State’s fails. ineffective, such as Groseclose’s claims argument second is a rather State’s that Brackstone did not understand the na- procedural-default unclear claim: erroneously thought ture of the it court, “only” spe- state Groseclose raised ten proceeding. was bifurcated arguments cific connection with his inef- Turning now to an assessment of Brack- claim, fective-assistance and that the state claims, representation rejected explic- light all “either stone’s of Groseclose in those itly implicitly.” Strickland, argues requirements or The State then begin we that Groseclose is now limited to the claims performance first with prong the so-called yet that he raised state the State stated, Strickland. As the Strickland Court court — specify arguments does not which of the person happens lawyer who to be a “[t]hat court, Groseclose raised the district present alongside at trial ... accused legal by which of the bases relied on satisfy enough is not to the constitutional court, district it believes are now barred Strickland, command.” difficulty from consideration. no We have was, best, at 2063. “a concluding procedural-default con- person happens lawyer.” who to be completely lacking tention is in merit. Our conclusion, reaching this we find three as- argu- review of the record reveals that the pects of Brackstone’s in this acknowledges pre- ments that the State were (1) capital especially appalling: case to be his precisely in the state court are served those any theory failure to have defense whatsoev- that Groseclose relied on in federal court. (2) er; any meaningful failure conduct challenge, adversarial as shown his failure prose- to cross-examine more than half of the Strangely, the State has failed to of witnesses, evidence, object any cution’s any challenge fer substantive to the district witnesses, put on defense to make a ground court’s issuance of the writ on the and, closing argument, sentencing, put Conducting ineffective assistance. our own evidence; any meaningful mitigation review, de novo we are satisfied (3) perhaps importantly, most his abdication is, court’s action That district was correct. of his client’s case to Rickman’s counsel. explain, absolutely no as we shall we have significant, Also noted Strickland concluding hesitation in that Brackstone’s Court, adequately was Brackstone’s failure to performance objectively unreasonable prior *9 communicate with Groseclose to trial. minimum and well below the standards of justification for our conclusion While professional competence, competent and that that the first and second failures listed above may garnered well have a dif performance is amounted to an ineffective ferent outcome. Given the record this case, self-evident, perhaps unsurprising presumably it our third criticism note, too, Certainly, explanation. there that there is no
merits a fuller We conceivable in which defense counsel for one way are cases in which the sum of Braekstone’s defi- may defer to counsel for another defendant strategy ciencies can be ascribed to trial defendant, attorney allowing that to act as gone awry. testimony As his own in the case, But Rickman’s lead counsel. clear, post-conviction proceeding state made completely antagonistic to Gro- defense was Thus, simply strategy. he had no his inac- This was a case which a seclose’s defense. cannot judgment tion be characterized as bad attorney competent would wish defense stemming misguided, competent, from a but im- Rickman had confessed and severance. legal investigation. factual or He made no plicated on the oth- Groseclose. investigation; judgment. he made no hand, any inculpatory never made er had police, and there was little evi- statement to question The then becomes whether it is beyond tying dence him to the crime necessary for Groseclose to demonstrate Thus, coconspirators. statements of his prejudice, prong, under Strickland’s second align defense with that of Rick- Groseclose’s whether, believed, as the district court yield man and then to the adversarial lead to performance Brackstone’s inept was so as to counsel, given necessary an- Rickman’s counsel, amount to a constructive denial is, vernacular, tagonism, to use the current relieving Groseclose of the need to show mind-boggling. prejudice. dispute This is a not we need simply But Brackstone’s decision to follow decide, prejudice resulting because the from court-appointed Rickman’s coun- lead of lawyering patent. Brackstone’s is so We exceptionally egregious sel decision quite find it clear that there were defense fortunes, given for Groseclose’s the extraor- reasonably competent tactics available to a dinary employed by gentleman. tactics attorney that probability create a reasonable First, attorney Rickman’s was not a model of that, in the absence of incom- Brackstone’s Indeed, preparation. during he testified petence, jury would have a had reason- proceeding in habeas the district court that able respecting guilt. doubt Groseclose’s because he there was no defense believed tying The State’s evidence Groseclose to the guilt phase available of Rickman’s perpetrators of the relatively murder was trial, prepare simply failed to for trial. weak. A capitalized defense that on that witnesses, any He interview conduct weakness, and that marshaled evidence em- research, any legal or obtain and review it, phasizing certainly could have led to a Second, in records. what the state court Indeed, different verdict. all that Brack- “desperate” strategy, as a described Rick- stone need have done to a great- create much attorney man’s decided his client’s best probability er of a favorable verdict would hope being portrayed inwas as “subnormal.” defense, employ any have been to however therefore, strategy, His defense was to at- anemic, specifically that was tailored to Gro- tempt jury “to that we show had a sick seclose, rather than a defense that linked subnormal, boy on a abnormal human Rickman, Groseclose to lawyer man whose being my on trial.... That was whole ob- painted him ject defense, dangerous as a vile try killer. whole [to] jury convince the that we had a sick man on prejudice resulting to Groseclose end, testify trial.” To that he had Rickman lawyer’s performance is even easier to use, and, past drug about violent crimes and discern in the sentencing context of the general, repeatedly testimony elicited phase. having addition to no criminal deviant, portrayed destructive, Rickman in a history, very Groseclose was active in his terrifying light. imagine It is difficult to church, record, positive military anything more ill-considered than decision plethora family had a members willing to star; to hitch wagon to that testify on his behalf. There is a reasonable way there is no conceivable that the line of probability absent Brackstone’s utter defense attorney followed Rickman’s develop failure or even advert to anything could do these damage but further Gro- factors, ways mitigating jury seclose that a would have defense tailored to con- Groseclose would not have done. aggravating cluded the balance of
1171 (1978); Saylor the 1 see v. not warrant L.Ed.2d also Corneli- mitigating circumstances (6th Cir.1988). 1401, us, sentence. 845 F.2d 1403 death short, is, in no bar There to retrial. B. IV. unambivalent conclusion our
Given
assistance of
denied effective
was
Groseclose
constitution-
Because Groseclose received
sense, we find it
in a constitutional
counsel,
ally
we AF-
ineffective assistance of
re-
unnecessary to examine the voluminous
(cid:127)
issuance of a writ
FIRM
district court’s
for-
brought
maining assignments of error
corpus.
of habeas
Thus,
even
by
appeal.
this
ward
the State
agree
the district court
if we were to
SUHRHEINRICH,
Judge,
Circuit
know-
erroneously concluded that
State
dissenting.
misleading testimo-
presented false
ingly
29, 1977,
morning
During of June
evidence,
unconstitution-
ny
withheld
twenty-four year old
Lee
Deborah
Grosec-
ally
medication
administered
twice,
raped
strangled into uncon-
lose was
jury
or that
instructions
sciousness,
stabbed three or four times
variety ways,
would
in a
of
were flawed
house,
back, kidnapped from
and left
her
nor
appeal,
change the outcome of
not
in the trunk of her automobile which
locked
it matter whether
the district
does
in parking
Memphis,
lot in
ef- was abandoned
correctly
that the cumulative
concluded
badly decomposed
it
in a
Deborah’s
the errors
found resulted
Tennessee.
fect of
is, likewise,
constitutionally unfair
It
days
trial.
It
body was not found until five
later.
of
unnecessary to reach the merits
Grosec-
Deborah,
who was still
was determined
composition
regarding
lose’s claims
her
alive at the time
automobile was aban-
venire, despite
urging that
jury
the State’s
doned,
exposure. By
from
had died
heat
rectify
not to
we
the district court’s decision
4,
body
July
found on
time Deborah’s
judicial
econ-
reach that issue.
tenets
1977,
eyeballs
her
been eaten
omy
that we
resolve issues
mandate
not
maggots
eye
filled her
which
sockets.
our final
cannot alter
decision.
1978,
Petitioner William E. Groseclose
however,
passing,
We note
(Groseclose),
’fa-
Deborah’s husband and the
posi
complete lack of merit to Groseelose’s
Nathan,
convicted
of her infant son
ther
jury instructions
that because various
tion
hiring
murder
Ronald
degree
first
defective,
constitutionally
the Double
were
Deborah,
Eugene Rickman to kill
prohibits the
from
Jeopardy Clause
State
subsequently
jury
sentenced
Jeopardy
retrying him. The
Clause
Double
1981,
chair.
in Tennessee’s electric
die
a writ of
implicated
issuance
Supreme Court affirmed Gro-
the Tennessee
corpus when
for the issu
habeas
the basis
and Rickman’s convictions
seclose’s
insufficiency
the evidence—the
ance is an
sentences, finding
guilt
the evidence of
death
case.
prosecution
prove
its
failure of
Groseclose, 615
“overwhelming.” State v.
Arizona,
152-53,
147,
v.
476 U.S.
Poland
See
(Tenn.1981).
Today, more
S.W.2d
1749, 1753-55,
L.Ed.2d 123
106 S.Ct.
twenty years after
horrific
Deborah’s
than
(1986).
matter,
Otherwise,
general
as a
murder,
majority
present ease
in the
retrying
jeopardy
is no double
bar
“there
grant of a writ
the district court’s
affirms
has
in overturn
a defendant who
succeeded
con-
corpus overturning Groseclose’s
habeas
Missouri,
Bullington v.
ing his conviction.”
grounds
sentence on the
viction and death
430, 442,
451 U.S.
“
Amend-
was denied his Sixth
that Groseclose
(1981).
for trial
L.Ed.2d 270
‘[Reversal
of coun-
right to the effective assistance
ment
error,
evidentiary in-
distinguished asserting an
A
disagree.
defendant
sel.
sufficiency,
a decision
does
constitute
must
generally
claim
ineffective assistance
government has failed to
the effect that the
”
perfor-
that defense counsel’s
show not
(citation omitted). Er-
prove its cases.’
this defi-
but also that
mance was deficient
in the cate-
plainly
instructions
fall
roneous
prejudiced the defense.
performance
cient
v. United
gory of trial error. See Burks
668, 687,
Washington,
States,
466 U.S.
437 U.S.
Strickland
*11
1172
(1984).
2064,
2052,
which is sufficient to
confi
104 S.Ct. proceeding. Brackstone’s Id. assuming that dence the outcome the Even deficient, 694, 104 has at representation was at S.Ct. 2068. Brackstone’s not shown that Strickland, Supreme In the Court dis- addition, In actually prejudiced his defense.1 approach reviewing cussed detail the the district court’s deci- agree with do not conducting inquiry. court should take this case. For presume prejudice this sion to as follows: The Court stated reasons, reject I would
these
determination,
making
this
a court
argument.
ineffective assistance of
hearing an
must con-
ineffectiveness claim
I, therefore, respectfully dissent.
totality
sider the
of the evidence before the
judge
jury.
or
Some
the factual find-
I.
ings
by
will have been unaffected
the er-
rors,
A.
findings
and factual
that were affect-
will have been affected in
ed
different
explained in
Supreme
the
Court
United
As
ways.
perva-
will
Some errors
have had
Cronic,
648,
38,
n.
v.
466
665
104
States
U.S.
sive effect on the inferences to be drawn
(1984):
2039,
38,
657
2050 n.
80 L.Ed.2d
S.Ct.
evidence, altering
from the
the entire evi-
only
case
the commands
“We consider
dentiary picture,
will
and some
have had
We address not
of the Constitution....
isolated,
Moreover,
trivial
an
effect.
a ver-
prudent
appropriate,
but
what
is
only weakly supported
conclusion
dict or
constitutionally compelled.”2
what
is
Cronic,
right
likely
the record is more
to have been
the
also stated that “the
Court
recog
of counsel is
to the effective assistance
affected
errors than one with over-
sake,
nized not for its own
but because of the
whelming
support. Taking
record
ability
it
on the
of the accused to
effect
has
findings
given,
taking
unaffected
as a
658,
Id. at
104
at
receive a fair trial.”
S.Ct.
due account of the effect of the errors on
Therefore, notwithstanding an attor
2046.
remaining findings,
making
a court
performance,
ney’s deficient
the Sixth
prejudice inquiry
if
must ask the defendant
implicated un
generally
Amendment
is not
showing
has met the burden of
reliability
there is some effect on the
less
reasonably likely
decision reached would
generally
the trial.
Id. A defendant must
have been different absent the errors.
prove
prejudice,
any,
if
which resulted
695-96, 104
Id. at
at
S.Ct.
2069.
performance.
from defense counsel’s deficient
Fretwell,
Recently, in Lockhart v.
506 U.S.
Strickland,
692,104
466 U.S. at
S.Ct. at 2067.
364, 369-70,
838, 842-43,
prob
The defendant must show a reasonable
(1993),
explained
L.Ed.2d 180
Court
that,
ability
particular
but for counsel’s
er
prejudice inquiry
the focus of Strickland’s
rors, have had a
factfinder would
reason
solely
on outcome determination. The
respect
able doubt with
to the defendant’s
quoted
Court
it ex
Strickland where
695, 104
guilt.
at
Id.
S.Ct. at 2068-69. Simi
plained
alleging
that “a criminal defendant
sentence,
larly,
respect
to a death
prejudice must show that ‘counsel’s errors
defendant must show that there is a reason
deprive
were so serious as to
the defendant
errors,
probability
able
absent counsel’s
of a fair
a trial whose result
is reli
sentencer, including
appellate
”
369,
ablé.’
(quoting
Id.
H73 decades, challenges past over proceeding viction two result whether the unreliable, presented is de- fundamentally any exculpa- unfair or has never Groseelose or sen- To set aside conviction tory fective. evidence. Nor is there even a scintilla *12 outcome would solely because the suggest tence to of evidence that Rickman and but counsel’s error different have been planned then Britt Deborah’s murder and to the defendant a windfall may grant implicate sought to Groseelose after the fact not him. See law does entitle which the mitigate responsibility.3 their in order own 658, Cronic, at at 2046. supra, 104 S.Ct. ineffective assistance claim must Groseclose’s (internal Strickland, 696, 369-70, 842-43 fail. Id. S.Ct. at at Cf. omitted). (“a For the discussed at 2069 conclusion footnote reasons verdict or below, aspects supported by fails both like- weakly Groseelose the record is more prejudice inquiry. ly than one to have been affected errors overwhelming support.”). with record B. following summary The is a of some that majority in this case determines The overwhelming guilt evidence of Groseclose’s Attorney Brack- has shown that Groseelose introduced the at trial almost twen- State objectively was unrea- stone’s ago: ty years was defense and that Groseclose’s sonable Wayne Mount, 1. a naval recruit Barton prejudiced representation. a result of this as employed in the met while Groseelose view, evi- majority’s prosecution’s Service, Navy Recruiting testified perpetrators linking Groseelose to the dence wanted murder to Groseelose Deborah’s Maj. “relatively weak.” murders was “rape-robbery,” presumably look like a opines op. majority pp. 1170-1171. The at suspicion Mount tes- divert from himself. - this capitalized which on a defense originally that Groseelose will- tified was empha- and marshaled evidence “weakness” pay Af- ing to Deborah’s murder. $50 certainly” a produced have sizing it “could Britt Mount informed ter Groseelose p. major- Id. at 1171. The different verdict. amount, unwilling to was do it for ity need have concludes: “all the terms of Groseelose increased greater probability a much done to create up agreed pay deal. Groseelose $200 to em- a verdict would have been favorable murder, front and after the and $500 anemic, defense, ploy that was however give pistol. a caliber would also Britt .45 Groseelose____” specifically tailored that, further while he was Mount testified analysis conclusory as majority’s is on June Grosec- with Groseelose Strickland, unconvincing. In at it is U.S. automated lose withdrew from an $100 2069, Supreme at Court Hollywood teller machine the corner of attorney will recognized that some errors Memphis Roads in and bor- and James “isolated, only an trivial effect” on have Cracker rowed from friend at the $50 evidentiary picture. Such the case here is convenience Mount testified Barrel store. alleged respect with to the errors of him and then handed $150 that Groseelose Attorney Brack- Assuming that Brackstone. give money to Britt. him to instructed deficient, representation was there stone’s days Deborah’s prior This was two for this probability but a reasonable corroboration, prosecu- As murder. jury representation, allegedly deficient testimony Wayne Rob- offered the tion re- doubt with would have had reasonable of Mem- First Bank ertson of Tennessee As spect guilt in this case. to Groseclose’s Taylor. Mr. Robertson phis and Melville noted, the Tennessee from testified that was withdrawn $100 “over guilt was evidence account at and Bill Groseelose’s Deborah 615 S.W.2d whelming.” State Moreover, by use of the despite p.m. on June post-eon- 9:03 146. several were delet- gave incriminating the other co-defendants Britt state- References to and Rickman each statement. police, the redacted versions of which the murder ed from ments to the discussed sentencing hearing following Rick- suppres- implicated At the Groseelose. After full form, statements, were hearing, and Britt’s unredacted statements both in redacted man's sion jury. full. into read to the read in were admitted evidence and money gave to Bill Groseclose. Mr. where he withdrew it to issued bank card money Lindsey passed testified Mrs. who it to Rickman.5 Robertson Holly- the machine at the addition, Lindsey withdrawn Mrs. testified that she of First branch Tennes- wood and James with Rickman Britt to drove Grosec- Taylor Mr. testified that he ran Bank. see during lose’s house either the afternoon of evening June into Groseclose day Deborah murdered leaving the Cracker Barrel while following day. the afternoon of the Britt Grocery. Taylor Quick Shop Mr. testified got spoke out of the car Grosec- loaned Groseclose after Gro- $50 that he at the lose house. pay for it so that he could seclose asked mother, Watts, 3. Deborah’s Aline tes- *13 for his wife. psychiatrist for a tified that Groseclose and Deborah were degree first affirming having problems marital at the time of sentence, conviction and death murder Deborah’s murder. Mrs. Watts also testi- properly Supreme de- Tennessee telephone that she fied received call from testimony as “devastat- scribed Mount’s morning Groseclose on the of the murder. Groseclose, v. 615 S.W.2d at ing.” State Groseclose informed Mrs. Watts he Although by counsel cross-examined 145. employ- a call had received from Deborah’s defendants, testimony all three Mount’s up er after she did not show for work. that the clearly murder was demonstrates telephoned police Mrs. Watts and then by Rickman and Britt on behalf committed pick up went to Groseclose’s house to of, being procured by, after Grosec- couple’s infant child. Mrs. Watts testified Id. lose. that, house, while at the she saw Mount Lindsey, Baker Rickman’s for- 2.Pam Britt, times, separate talking friend, at trial that Rick- girl testified mer Groseclose. to her that he and Britt had man confessed Deborah, explained and he murdered Doyle Scroggins 4. testified that in they Lindsey it out. Mrs. her how carried purchased June 1975 Groseclose an insur- meetings in two also described detail she policy ance on Deborah’s life. Groseclose Shoney’s at a restaurant in the attended beneficiary policy, was the of the which days immediately preceding Deborah’s a face had value on the date of Deborah’s Lindsey Mrs. testified that the murder.4 $12,000. approximately murder of In addi- meeting days three first before the tion, James Perkins testified that he sold Rickman murder. Groseclose and talked policy Groseclose a life in insurance late Deborah, mainly about and Groseclose July August pur- or 1975. Groseclose picture Rickman a showed her. Mrs. $30,000 himself, chased of life on insurance Lindsey meeting a second attended $20,000. as well as a rider6 on Deborah for night in before the murder which Grosec- beneficiary Groseclose was the first on lose, Rickman, present. and Britt were portion policy. Deborah’s Mr. Per- Groseclose, Lindsey Mrs. stated Rick- kins testified that Groseclose contacted his man, “job” and Britt discussed a that Rick- May prior office in the month man and Britt were to do for Groseclose murder, Deborah’s and stated that there following morning. Lindsey Mrs. ex- in policy. was an error Mr. Perkins plained that Groseclose instructed Rick- testified that Groseclose contended man and Britt to arrive at his house at 6:30 policy the entire should have been on Deb- morning a.m. the next and to wait for him life, policy orah’s and he wanted the in the tool shed the back of his house. changed accordingly. Mr. Perkins stated Lindsey leaving Mrs. after testified that he convinced that it Shoney’s, she and Rickman Groseclose followed Gro- to an automatic policy seclose teller machine his best interests to leave the Lindsey 4. indicted Mrs. was not in connection the bank card issued to Bill Groseclose. The money Hollywood with Deborah's murder. was withdrawn at the James branch of First Tennessee Bank. $40 5. Mr. Robertson testified that was with- person drawn and Bill from Deborah Groseclose’s ac- 6.A "rider” is an additional insured p.m. policy. count at 6:36 on June use of the named insured’s
H75 in the Supreme Court circumstances case did warrant The Tennessee written. disagree. sentence. I to obtain death desire noted that Groseclose’s one proceeds may have been life insurance outset, clarify several At wish murder. State of the motives points respect majority’s analysis. with at 144. 615 S.W.2d did, First, fact, testify on Groseclose direct Shanks, who was recruited John stage sentencing examination Navy, for the testified Gro- previously had never been arrested or he him, in November had asked seclose prosecution indicted for crime. The 1976, if he interest- would be December Second, this on not rebut cross-examination. Michael killing ed in Groseclose’s wife. although military his actual records were not recruit, Blasco, testified that Gro- another introduced, Groseclose nonetheless testified him, May or June of had asked seclose assigned destroyer that he had been to a somebody who would do if he knew conflict, been during the Vietnam some “hit work.” combat, and had a few received wounds. testified that had been award- there is neither a reasonable Because ed.,among other things, the Vietnamese Ser- guilt probability that the outcome stars and vice Medal three bronze phase trial would have been of Groseclose’s *14 cross-examination, Medal. Good Conduct On Attorney Braekstone’s any but for different aspect prosecution question did not errors, any concluding alleged nor basis for Third, testimony either. I fundamentally un of Groseclose’s trial was that Groseelose's that unreliable, unconvinced was active in viola am Groseclose fair or no Sixth Amendment Adams, Lockhart, Gladys general his church. over- at tion U.S. inheres. Dubois, 1, 16 Memphis, in 843; of the Church of God Ten- Scarpa v. 38 F.3d seer S.Ct. at (1st Cir.1994).7 nessee, in testified the district court she neighbor. who was her son’s knew Groseclose
C.
that,
Adams testified
after Groseelose’s
Mrs.
arrest,
weekly in
she visited
him
with
prejudice resulting
majority
The
finds the
view,
jail, and,
Shelby County
in her
Grosec-
Attorney
from
Brackstone’s
was “sincere about his commitment to
lose
stage
to dis-
sentencing
at the
“even easier
Following
conviction and death
his
Christ.”
that,
opinion
majority
cern.” Id. The
states
sentence,
an ordained
Groseclose became
record,
having no
in
to
criminal
Gro-
addition
of the Church of God. Mrs. Adams
minister
church,
posi-
in his
had a
seclose was active
that the Church licensed Groseclose
testified
record,
military
“plethora”
tive
and a
of fami-
get religious
services in
desperation
“in
testify
his
ly
willing
were
on
members who
However, when asked what
that,
the Death Row.”
majority
behalf.
Id. The
concludes
prior to church Groseclose had attended
Attorney
but for
Brackstone’s “utter failure
arrest,
testify:
Adams
“He
Mrs.
could
mitigating
develop
or even advert to these
Methodist,
that he
factors,”
and I think
probability
is a
was
there
reasonable
testimony
have
that the
district court
jury
would
concluded
attend.”
Watts,
mother-in-law,
mitigating Mrs.
Groseclose’s
aggravating
balance of the
addition,
veracity.
despite rendering
unconvincing
testimony
7. Also
is the
of Grosec-
on their
court,
prejudice,
experts.
opinion
lose’s
In the district
Groseclose
as to
Mr. Marett conceded
an
Marett,
testimony
attor-
very
of William
an
offered the
that he was "not
fa-
on cross-examination
ney
represented
actually
for a
Groseclose
who
respect
case
of the
as to
miliar”
to the facts
post-
time
the 1980’s
Groseclose’s state
guilt.
expert
Groseclose
offered the
testimo-
also
proceedings. Mr.
Marett testified
conviction
ny
Charles Fels. Mr. Fels testified
on
Attorney
represen-
he
Brackstone's
believed
Attorney
perceived in
basis of
deficiencies
legal prejudice
Groseclose.
resulted in
tation
was,
performance, Brackstone
Brackstone’s
any possible
respect
With
to the existence of
fact,
“ally
prosecution”
and this was
supported
would have
Grosec-
evidence which
analysis
prejudicial.”
“inherently
seems
This
defense,
he never
lose's
Mr. Marett testified that
finding
per
prejudice
se
than
more like
however,
investigation;
any
Mr. Mar-
conducted
any
resulting
finding
prejudice
actual
opined
things"
were "a
which
ett
that there
lot of
Attorney
representation.
I
ad-
Brackstone’s
shall
brought
challenge the
could have been
out to
this issue
section II.
dress
doubt
the co-defendants and cast
statements of
gating
Mrs. Watts was asked
circumstances
the case did not war-
also instructive.
death,
any
if she was aware of
imposition
penalty.
direct examination
rant
activity
part
religious
Strickland,
on the
of Groseclose
succinctly
Mrs. Watts
re-
before his arrest.
probability,
2068-69. A reasonable
the Su-
sponded:
go
“I
never known him to
have
preme
explained,
is one which is suffi-
appears that
reli-
church.” It
cient to
undermine confidence
the out-
gious conversion did not occur until after his
jury
come.
Id. The
Groseclose’s trial
sentence for his wife’s
conviction and death
(1)
aggravating
found two
circumstances:
contract murder.
employed
another to commit the
(2)
remuneration;
why reject
reasons
I
There are several
the murder for
the mur-
majority’s
prejudice
to find
especially
decision
at the
der was
heinous in that it involved
First,
stage.
plainly
sentencing
as the facts
depravity
of mind.
conclude that there is
demonstrate, Deborah’s
murder
abso-
probability
not a
reasonable
either the
horrific,
lutely
“one
most brutal and jury
or the Tennessee
Court would
imaginable.”
atrocious
State v.
have concluded that Groseclose did not de-
Second,
at 145.
S.W.2d
penalty
serve the death
for Deborah’s mur-
Third,
the master mind behind this murder.
view,
my
aggrava-
der.
the balance of the
Deborah was Groseclose’s wife and the moth-
ting
mitigating
circumstances still would
Fourth,
er of his infant child.
in the event
penalty
have warranted the death
in the case
mitigating
additional
character evidence had
of this horrific contract murder. Because
introduced,
prosecution
been
would have
probability
there is not a reasonable
that the
court,
responded in kind.
In the district
sentencing stage
outcome of the
of Grosec-
Stanton,
Hugh
Attorney
former District
Gen-
lose’s trial would have been
different but
Shelby County,
eral for
testified that
allegedly
Brackstone’s
deficient
*15
prosecution would have attacked Groseclose’s
representation,
any
nor
concluding
basis for
by recalling
testify
character
Mrs. Watts to
that Groseclose’s death sentence was funda-
“whipped
as to how Groseclose
on” Deborah
unreliable,
mentally
reject
unfair or
I would
Fifth,
pregnant.
while she was
unlike the
Groseclose’s ineffective
challenge
assistance
below,
place
district court
I would
no reliance
Lockhart,
sentencing stage
to the
as well.
only
on the fact that Britt was
sentenced to
370, 113
S.Ct. at 843.
prison
in
opposed
penalty.
life
as
to the death
Indeed,
Supreme
as the Tennessee
Court
II.
noted,
compelling
there were
differences be-
majority
prejudice
The
that
finds
the
re-
tween Britt and his co-defendants.
Some
sulting
Attorney
represen-
from
Brackstone’s
(1)
these
only
included:
Britt was
nineteen
patent”
tation is
majority
“so
that the
need
(2)
years
murder;
old at the time of the
apparently
not consider the
more difficult
there was substantial evidence in the record
question
Attorney
of whether
Brackstone’s
subject
that Britt was
to domination and
inept
was “so
toas
amount to
(3)
Rickman;
influence
the older
un-
counsel,
a constructive denial of
relieving
co-defendants,
like his
Britt manifested re-
prejudice.”
Groseclose of the need to show
gret and remorse over the incident.
Id. at
Maj. op.
p.
majority,
at
1170. Unlike the
the
plan
149. Britt did not formulate the
to kill
district court below
Deborah,
question
reached this
nor was he the victim’s husband
baby.
prejudice per
and the father of her
concluded
there was
Attorney
se. The district court found that
legal
The
standard articulated in Strick-
Brackstone failed to remain an “active advo
“highly demanding.”
land is
Kimmelman v.
duty
cate” who
observed
“zealous and
Morrison,
477 U.S.
loyal representation” of his client. Grosec
(1986).
2586-87,
H77
explained
expansive
how
adversary.
The court
I also
these
inter-
the Government’s
in
relied,
upon
pretations
contained
large part,
dicta
dicta frustrated
in
Cronic
decision
United
Supreme
prejudice per
Court’s
principal policy underlying the
648, 104
Cronic,
466 U.S.
i.e.,
States v.
exception;
to avoid the
se
desire
cost
(1984),
upon
as
as
well
Attorney Braekstone testified that he in- attorney, Rickman’s to act as lead counsel at that he formed Groseclose had reviewed the Attorney trial. Braekstone also testified Attorney State’s evidence in the case. theory at trial “was to do the best I Braekstone testified that he told could saw,” things with what I had.” “some and he Braekstone not- advised Groseclose that Groseclose given would ed that the other defendants had eon- conclusions, majority opinion support 9. The states that "none of the As for its the district court findings primary district court’s fact apparently upon testimony relied of Grosec- measure inconsistent with the state courts’ find- post-conviction hearing lose at his state relief ings." Maj. op. p. 1166. This statement is First, points 1982. See id. Two must be made. *17 Attorney incorrect. The district court found that testimony acceptable Groseclose’s is not an basis any investigate Braekstone "failed to of the cir- concluding Attorney for that Braekstone did not Bell, cumstances of the case.” Groseclose v. 895 case, investigation respect conduct an with to the (M.D.Tenn.1995). However, F.Supp. 955 custody because Groseclose was in at that time notes, majority opinion itself the state trial awaiting trial for the contract murder of his wife concluded, previously rejecting court had Gro- possibly and could not have known what Attor- relief, petition post-conviction seclose’s for that Second, ney doing. respect Braekstone was with " 'did[,j Attorney Braekstone after numerous dis- to the district court’s conclusions as to what petitioner, with cussions gation conduct an investi- Groseclose, Attorney actually Braekstone told ” petitioner's Maj. op. p. of the case.’ apparently credibility district court made a deter- (quoting the Tennessee state court's find- self-serving, mination and found Groseclose’s un- ings). opinion The state trial court’s also dis- corroborated, testimony death row more credible investigation. cussed the elements of this id. See Attorney than I Brackstone’s. While acknowl- edge findings review that our of factual is defer- Notwithstanding testimony, the district ential, 52(a), see Fed.R.Civ.P. the basis for court concluded that "Mr. Braekstone failed to any highly district court’s conclusions working relationship form is nevertheless kind of with his event, "what, suspect. report findings client” In and failed to these do not anything, investigated my if affect or what his results ultimate determination that we should Bell, F.Supp. presume prejudice were." Groseclose v. at 955. not in this case.
H79 fessions, Attorney majority not. the district court have while Groseclose had and pointed also out that defendant Attorney found Brackstone could have trial, separate and the Mount had received presented mitigating additional evidence. actually him as a wit- prosecution had used Again, assuming Attorney Braekstone’s Attorney in the case. Brackstone testi- ness representation respect, was deficient in this bring jury to the that he tried to fied subject this error should be to the Strickland possibility “that it could have been some analysis; it not a finding preju- basis for telling a version of the codefendants different per dice se. addition, In it than told.” he[Groseclose] Brackstone, attorneys Attorney like the co-defendants, put did not on a
the other two
III.
prosecution
presented
had
defense after the
my dissenting opinion
in Rickman v.
Pera,
attorney
its case. Thomas
a trial
Bell,
I explained
although I did not
Britt, testified in the district court
defendant
Attorney Livingston’s representa-
condone
explained that this allowed the defense
case,
tion
it nevertheless
satisfied
away
Mr. Pera
to “cut
the State’s rebuttal.”
minimum
demanded
“Generally around those courts the
standard
the Consti-
stated:
way
prosecutors
they
ease,
it is
have the
Similarly,
present
do
tution.
in the
I do
they lay out
opening
argument
final
and then
necessarily approve
guilt
everything and
the case about the
provided by Attorney Brackstone.
I have
usually
you
rebuttal is when
come back and concluded, however,
Attorney
Brack-
things ...
talking
start
about the bad
representation comported
stone’s
with the
Attor-
defense doesn’t want to hear.” While
Constitution,
requirements
minimum
Attorney
ney Brackstone’s decision to allow
my inquiry.
and that is the end of
As the
counsel,
theory
his
Livingston to act as lead
Cronic,
Court declared
466 U.S.
strategic
put
not to
decision
at 665 n.
at 2050 n.
38: “We
deficient,
may
have been
there
defense
prudent
appropriate,
address not what is
why
is still no reason
these errors are not
constitutionally compelled.”
but
what is
preju-
amenable to the traditional Strickland
analysis.
Scarpa,
preju-
expected following his interviews with the *18 Attorney
witnesses. Brackstone testified thought neighbor
that he would outspoken attempt to assist Grosec-
be Attorney
lose. Brackstone also testified Navy recruiting
Chief John Purcell from the speak highly” of
station “didn’t so Grosec- stated that “he
lose. was the one I was told to look
[Chief Purcell]
up____ gave Mr. me his name.”