Stati Uniti riconosce all’imputato il diritto costituzionale di “rifiutare la tutela di
un avvocato”, e di difendersi da solo in una pendenza giudiziaria di natura penale. Syllabus: The Sixth Amendment as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self- Representation and that he may proceed to defend himself without counsel264 when he voluntarily and intelligently elects to do so, and, in this case, the state courts erred in forcing petitioner against his will to accept a state- Appointed public defender and in denying his request to conduct his own defense.
40.6 NIX V. WHITESIDE, 475 U.S. 157 (1986)265.
La sentenza tratta del significato da attribuire al diritto di essere assistito da un avvocato, ed in particolare del diritto di essere assistito da un legale competente che esperisce la propria attività secondo le norme di legge e alla ricerca della verità.
Syllabus: Whiteside went to Calvin Love’s apartment to engage in a marijuana transaction. An argument ensued and Love went to reach behind his pillow and Whiteside stabbed him in the chest, killing him. Robinson represented Whiteside as his defense counsel in a murder trial. Whiteside told Robinson that he believed Love had a gun, but hadn’t seen one in his hand. He later told Robinson that he had seen something metallic in Love’s hand. Robinson told Whiteside that if Whiteside perjured himself on the stand, he would be forced to report this to the Court. Whiteside applied for a writ of Federal Habeas Corpus, claiming that Robinson’s threats deprived him of effective counsel under the Sixth Amendment.
Held: An attorneys duty is limited to lawful conduct: “Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.”
40.7 STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984)266.
264
Il tema dell’autodifesa è trattato mediante l’uso di flowcharts molto chiari da STEVEN L. EMANUEL, Criminal Law – CrunchTime, Aspen Publishers, New York, 2007, pag. 14 e ss. 265 Per una disamina compiuta del caso in lingua originale vedi anche WEINREB L. L., Leading
Constitutional Cases on Criminal Justice, Thompson Reuters press, New York, 2008, pag. 642 e
Si tratta di un caso fondamentale per quanto concerne l’ineffective assistance. La sentenza della Corte Suprema degli Stati Uniti, per come è stata interpretata dalla dottrina, individua un test (a two-part test) per verificare la presenza dell’ineffective assistance basato sulla presenza contestuale di:
1) “Proper standard for judging attorney performance fell below an objective
standard of reasonableness”.
Ovverosia analizza la performance dell’avvocato in termini di “standard
oggettivi di ragionevolezza”.
2) “Showing of prejudice requires a reasonable probability that for counsel’s
unprofessional errors, the result of the proceeding would have been different”.
Ovverosia verifica se l’operato dell’avvocato abbia creato un pregiudizio per l’assistito. Il test dello “Showing of prejudice” va a verificare se la performance carente dell’avvocato abbia portato ad un risultato processuale diverso267, secondo criteri di ragionevolezza.
In definitiva il test richiede che l’avvocato abbia esperito “reasonable
investigations268“, in mancanze delle quali siamo in presenza della c.d. “ineffective assistance” che, nell’ordinamento americano e diversamente dal sistema italiano, costituisce motivo di impugnazione.
Il test Strickland v. Washington, risulta più difficile da provare del test United
States v. Cronic, sebbene statisticamente più frequente.
Syllabus: Respondent pleaded guilty in a Florida trial court to an indictment that included three capital murder269 charges. In the plea colloquy, respondent
266 Fonte: http://supreme.justia.com/us/466/668/. Sul punto e più estesamente, vedasi MUSSO R. G., Il processo penale statunitense. Soggetti ed atti, Giappichelli, Torino, terza edizione, 2006, pag. 170. Per una disamina compiuta del caso in lingua originale vedi anche WEINREB L. L.,
Leading Constitutional Cases on Criminal Justice, Thompson Reuters press, New York, 2008,
pag. 627 e ss.
267 Ovvero che abbia comportato un danno processuale per l’assistito che si trasformi in una mancata assoluzione o in una pena più severa.
268 Il tema, ritenuto di particolare rilevanza dallo scrivente, costituisce, come si vedrà più oltre, elemento fondante le conclusioni stesse della presente tesi.
269 Per il corrispondente concetto di omicidio, vedasi CANESTRARI S., GAMBERINI A., INSOLERA G., MAZZACUVA N., SGUBBI F., STORTONI L., TAGLIARINI F., Diritto
told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record and that, at the time of his criminal spree, he was under extreme stress caused by his inability to support his family. The trial judge told respondent that he had “a great deal of respect for people who are willing to step forward and admit their responsibility.”
In preparing for the sentencing hearing, defense counsel spoke with respondent about his background, but did not seek out character witnesses270 or request a psychiatric examination. Counsel’s decision not to present evidence concerning respondent’s character and emotional state reflected his judgment that it was advisable to rely on the plea colloquy for evidence as to such matters, thus preventing the State from cross-examining respondent and from presenting psychiatric evidence of its own. Counsel did not request a presentence report, because it would have included respondent’s criminal history and thereby would have undermined the claim of no significant prior criminal record (vedasi FRE 404 (A)(1)271). Finding numerous aggravating circumstances and no mitigating circumstance, the trial judge sentenced respondent to death on each of the murder counts. The Florida Supreme Court affirmed, and respondent then sought collateral relief in state court on the ground, inter alia, that counsel had rendered ineffective assistance at the sentencing proceeding in several respects, including his (1) failure to request a psychiatric report, (2) to investigate and present character witnesses, and to (3) seek a presentence report. The trial court denied relief, and the Florida Supreme Court affirmed. Respondent then filed a habeas corpus petition in Federal District Court advancing numerous grounds for relief, including the claim of ineffective assistance of counsel. After an evidentiary hearing, the District Court denied relief, concluding that, although counsel made errors in judgment in failing to investigate mitigating evidence further than he did, no prejudice to respondent’s sentence resulted from any such error in judgment. The Court of Appeals ultimately reversed, stating that the Sixth Amendment accorded criminal defendants a right to counsel rendering
270 Sul più esteso tema delle character evidence, vedasi in lingua originale MUELLER C. B., KIRKPATRICK L. C., Federal Rules of Evidence, Aspen Publishers, New York, 2008, pag. 296, e Sul ruolo della giuria nel sistema statunitense, vedasi FEINBERG R., PALMER S. H., Evidence –
Finals, Kaplan, New York, 2007, pag. 14 e ss.
271
Cfr. MUELLER C. B., KIRKPATRICK L. C., Federal Rules of Evidence, Aspen Publishers, New York, 2008, pag. 76.
“reasonably effective assistance given the totality of the circumstances.” After outlining standards for judging whether a defense counsel fulfilled the duty to investigate nonstatutory mitigating circumstances and whether counsel’s errors were sufficiently prejudicial to justify reversal, the Court of Appeals remanded the case for application of the standards.
Held: 1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The same principle applies to a capital sentencing proceeding -- such as the one provided by Florida law -- that is sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsel’s role in the proceeding is comparable to counsel’s role at trial.
2. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
(a) The PROPER STANDARD for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case..
(b) With regard to the required SHOWING OF PREJUDICE, the proper standard requires the defendant to show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
3. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial.
4. The facts of this case make it clear that counsel’s conduct at and before respondent’s sentencing proceeding cannot be found unreasonable under the above standards. They also make it clear that, even assuming counsel’s conduct was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence.