300
Souter, J., dissenting
It is true, of course, that before relief is normally granted for want of adequate assistance of trial counsel, a defendant must show not only his lawyer's failure to represent him with reasonable competence (demonstrated here by the failure to file an advocate's issue-spotting brief), but also a "reasonable probability" that competent representation would have produced a different result in his case, see Strickland, 466 U. S., at 694. But the assumption behind Strickland's prejudice requirement is that the defendant had a lawyer who was representing him as his advocate at least at some level, whereas that premise cannot be assumed when a defendant receives the benefit of nothing more than a Wende brief. In a Wende situation, nominal counsel is functioning merely as a friend of the court, helping the judge to grasp the structure of the record but not even purporting to highlight the record's nearest approach to supporting his client's hope to appeal. Counsel under Wende is doing less than the judge's law clerk (or a staff attorney) might do, and he is doing nothing at all in the way of advocacy. When a lawyer abandons the role of advocate and adopts that of amicus curiae, he is no longer functioning as counsel or rendering assistance within the meaning of the Sixth Amendment. See Cronic, 466 U. S., at 654-655. Since the apparently missing ingredient of the advocate's analysis goes to the very essence of the right to counsel, a lawyer who does nothing more than file a Wende brief is closer to being no counsel at all than to being subpar counsel under Strickland.
This, I think, is the answer to any suggestion that a specific assessment of prejudice need be shown in order to get relief from Wende. A complete absence of counsel is a reversible violation of the constitutional right to representation, even when there is no question that at the end of the day the smartest lawyer in the world would have watched his client being led off to prison. See Cronic, supra, at 658- 659; cf. Rodriquez v. United States, 395 U. S. 327 (1969). We do not ask how the defendant would have fared if he had
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: October 4, 2007