Nebraska Law Review Volume 94|Issue 2 Article 3 2015 The Historical Case for Abandoning Strickland Brian R. Gallini University of Arkansas-Fayetteville School of Law, [email protected] Follow this and additional works at:https://digitalcommons.unl.edu/nlr Recommended Citation Brian R. Gallini,The Historical Case for AbandoningStrickland, 94 Neb. L. Rev. 302 (2015) Available at: https://digitalcommons.unl.edu/nlr/vol94/iss2/3 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Brian R. Gallini* The Historical Case for Abandoning Strickland TABLE OF CONTENTS I. Introduction .......................................... 302 II. The Strange Right-to-Counsel Journey................. 305 A. The Journey to Strickland......................... 305 B. Defining Who Is “Effective” Counsel ............... 313 III. Strickland’s Untold Story ............................. 321 A. Part V’s Analytical Fallacies....................... 322 1. Tunkey’s Suppression Motions, Sentencing Memorandum, and Performance at Sentencing .................................... 323 2. Character Evidence, Psychological Evidence, and Giving Up on David Washington ............... 328 3. Washington’s “Rap Sheet”...................... 335 B. The Disutility of Part V ........................... 339 C. Justice O’Connor’s Private and Unspoken War ..... 344 IV. Conclusion............................................ 354 I. INTRODUCTION Even the Justices considering Strickland v. Washington knew. “[T]his is a big case,” Justice Powell handwrote on the first page of his law clerk’s bench memorandum for Strickland v. Washington.1 In- deed, it was2—and is.3 In 1984, the Supreme Court for the first time decided who is an “effective” criminal defense attorney for purposes of the Sixth Amendment.4 Specifically, the Court held that a defendant receives constitutionally unacceptable representation when (1) coun- © Copyright held by the NEBRASKA LAW REVIEW * Professor of Law, University of Arkansas-Fayetteville School of Law. 1. Memorandum from Mark E. Newell to J. Powell (June 2, 1983) (on file with the Library of Congress, Manuscript Division, Lewis Powell Papers). 2. E.g., Linda Greenhouse, High Court Defines ‘Ineffective’ Counsel as a Basis for Appeal, N.Y. TIMES, May 15, 1984, at A14. 3. E.g., Elizabeth Gable, Wiggins v. Smith: The Ineffective Assistance of Counsel Standard Applied Twenty Years After Strickland, 17 GEO. J. LEGAL ETHICS 755, 770 (2004). 4. Strickland v. Washington, 466 U.S. 668, 702 (1984) (Brennan, J., dissenting). 302 2015] ABANDONING STRICKLAND 303 sel’s representation falls below an objective standard of reasonable- ness that (2) prejudiced the defense, and therefore had an effect on the judgment.5 From the time of its publication, the decision received mixed re- views.6 Since then, Strickland has remarkably been relied on by courts nationwide to uphold as constitutional criminal defense attor- ney conduct that includes sleeping through portions of a trial,7 re- maining completely silent during the proceedings,8 mental illness,9 alcohol use,10 and drug use.11 With those results in mind, Strickland has steadily endured com- plaints from the media,12 the bar,13 and scholars alike.14 But no arti- cle has looked back to ask a more basic question: Why? Why did the Court spend 1956–1969 expanding indigent access to justice—particu- larly in the right-to-counsel area—only to aggressively reverse course in Strickland? And a related question: Why did the opinion’s author, Justice O’Connor, go so far as to apply the new Stricklandstandard to the facts of David Washington’s case? This Article makes two arguments: First, that Strickland is best understood as a backlash case—a case designed to radically recede from the Warren Court’s more broadly conceived Sixth Amendment. By coalescing the Sixth Amendment, the Due Process Clause, the Fifth Amendment, and the Equal Protection Clause, the Warren Court issued a number of rulings that dramatically expanded indigent defendants’ right to counsel. Creating the Warren Court’s vision of that broadly conceived right took six years—from 1961–1967. But, once complete, the Warren Court’s right to counsel included access not only to attorneys at trial, in the interrogation room, at lineups, and on appeal—among other procedural phases—but it also extended more generally to things an attorney might need, like a trial transcript. 5. Id. at 687. 6. Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths—A Dead End?, 86 COLUM. L. REV. 9, 94 (1986). 7. E.g., McFarland v. State, 928 S.W.2d 482, 505 n.20 (Tex. Crim. App. 1996). 8. United States v. Sanchez, 790 F.2d 245, 248 (2d Cir. 1986). 9. Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987). 10. People v. Garrison, 765 P.2d 419, 440 (Cal. 1989). 11. Young v. Zant, 727 F.2d 1489, 1492–93 (11th Cir. 1984); People v. Badia, 159 A.2d 577, 578 (N.Y. App. Div. 1990). 12. E.g., Alan Berlow, Lose That Lawyer, SLATE (June 3, 2008, 4:04 PM), http:// www.slate.com/article/news_and_politics/jurisprudence/2008/06/lose_that_law yer.html,archived at http://perma.unl.edu/X3LG-NUVH. 13. E.g., Robert M. Andalman, Ineffective Assistance of Counsel Claims Under the Wisconsin Constitution, 67 WIS. LAWYER, Feb. 1994, at 14, 17. 14. E.g., Richard L. Gabriel, Comment, TheStrickland Standard for Claims of Inef- fective Assistance of Counsel: Emasculating the Sixth Amendment in the Guise of Due Process, 134 U. PA. L. REV. 1259, 1272–81 (1986). 304 NEBRASKA LAW REVIEW [Vol. 94:302 Yet, significant changes in Court personnel beginning in 1972 cor- respondingly altered the Supreme Court’s views about indigent de- fendants’ access to justice. By the time of Stricklandin 1984, Warren Court holdovers Brennan, White, and Marshall were overrun by new and differing views about both indigent access to counsel and, most importantly for this Article, what counsel must do in order to be “effective.” Second, this Article asserts that by applying the new Sixth Amend- ment standard to the facts in Part V of Strickland, Justice O’Connor undermined—perhaps deliberately—what could have been a standard far more demanding of defense attorneys. She did so in part by buck- ing an established Supreme Court practice that favors remanding new Supreme Court standards to lower courts in criminal procedure cases.15 Strickland’s true problem is, therefore, not the standard for effective assistance, but rather the fallout from the Supreme Court’s decision to apply that standard. This Article proceeds in two parts. Part II traces the Warren Court’s effort to establish a broad and robust right to counsel as it emerged in the 1960s. Part II then transitions to Strickland and ex- plores how a majority of the Court concluded that an experienced at- torney who felt “hopeless” about the chances of saving his client’s life nevertheless provided constitutionally competent defense representa- tion. To collectively do so, Part II considers the social and judicial cli- mates leading up to 1984 and reviews the Justices’ private Strickland papers, the Court’s exchange of Strickland-related memoranda, and the parties’ briefs and oral arguments. Part III then argues that Strickland’sbacklash against the Warren Court’s view of the right to counsel is best seen in the last section of theStrickland opinion. In Part V of Strickland, Justice O’Connor fas- cinatingly concluded that David Washington received effective assis- tance from his trial attorney, William Tunkey, despite her colleagues’ vote at the Conference following oral argument to simply remand. A detailed look at the analytical assertions in Part V, alongside Justice O’Connor’s voting history in right-to-counsel cases, explains why she sought—on her own—to undo the Warren Court’s approach to the right to counsel. Properly understanding Strickland in this broader historical context reveals new and previously undiscovered reasons for the current Court to demand more from criminal defense representation. 15. Elise Borochoff, Lower Court Compliance with Supreme Court Remands, 24 TOURO L. REV. 849, 854–55, 895–96 (2008). 2015] ABANDONING STRICKLAND 305 II. THE STRANGE RIGHT-TO-COUNSEL JOURNEY The journey to Stricklandfollows a non-linear path that, at best, is dark and poorly marked. This Part seeks to clarify Strickland’s ori- gins and, in doing so, thematically proposes that the result in Strick- land was preordained, in large part because a change in Court personnel brought with it a change in the Court’s attitude toward the Sixth Amendment. Section II.A explores the impact of the Supreme Court’s composition on the Sixth Amendment right to counsel in the years preceding Strickland. Building on section II.A, section II.B ex- plores the Strickland opinion itself in more depth. A. The Journey to Strickland The right to counsel exists in the Sixth Amendment, which pro- vides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”16 On June 6, 1983, the date upon which the Supreme Court granted the State’s writ of certiorari in Strickland,17 the strength of the Sixth Amend- ment’s right to counsel diminished. Some historical context is neces- sary to understand how. At the time of its ratification in 1791,18 the Sixth Amendment was understood to minimally provide a criminal defendant with the right to retain a private attorney.19 A more difficult question loomed for more than a century: Does the Sixth Amendment require state gov- ernments to provide an attorney when the defendant cannot afford one?20 The Court’s ambivalence about the contours of the right to counsel came to a sharp halt in 1953, following the appointment of Earl War- ren as Chief Justice. Indeed, according to one commentator, “The [Warren Court] decisions with the greatest significance are clearly the right-to-counsel cases.”21 From the time of Warren’s appointment un- til his retirement in 1969,22 the Court steadily and dramatically ex- panded the right to counsel by thematically prioritizing “the 16. U.S. CONST. amend. VI. 17. Docket, Strickland v. Washington, 466 U.S. 668 (1984) (No. 82-1554). 18. Crawford v. Washington, 541 U.S. 36, 46 (2004). 19. Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amend- ment, 78 IOWA L. REV. 433, 438–39 (1993). 20. History of Right to Counsel, NAT’L LEGAL AID & DEFENDER ASS’N, http://www .nlada.org/About/About_HistoryDefender (last visited July 20, 2015), archived at http://perma.unl.edu/X4GU-5EYT. 21. A. Kenneth Pye, The Warren Court and Criminal Procedure, 67 MICH. L. REV. 249, 258 (1968); accordSanjay Chhablani, Disentangling the Sixth Amendment, 11 U. PA. J. CONST. L. 487, 495–96 (2009). 22. See JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PRINCI- PLES, POLICIESAND PERSPECTIVES 8 (4th ed. 2010). 306 NEBRASKA LAW REVIEW [Vol. 94:302 fundamental right of access to justice . . . .”23 Indeed, rather than focusing on the Sixth Amendment’s text to expand the right to coun- sel, the Court, during Warren’s tenure, focused more broadly on the concept of equality—that is, an equal opportunity for defendants to construct a defense.24 To do so, the Warren Court relied not only on the Sixth Amendment, but also on broadly conceived notions of due process and the Equal Protection Clause.25 The Warren Court’s controversial fusing of the Sixth Amendment, Fifth Amendment, Due Process Clause, and Equal Protection Clause made a powerful impact on the rights of indigent criminal defendants. To begin with, the Court decided Griffin v. Illinois in 1956, which guaranteed to indigent defendants a free copy of their trial transcript for purposes of appeal.26 Griffin’sseemingly innocuous holding hardly appears the poster child for the so-called Warren Court’s individual rights “revolution,”27 and, perhaps as a result, it generated little commentary.28 Thus, to many, the formally termed “Warren Court” did not begin until 1961, when the Court decided Mapp v. Ohio, which applied the Fourth Amendment’s exclusionary rule to the states through the Fourteenth Amendment.29 Ironically, by 1961, the Warren Court had firmly established itself as far more than just controversial. Indeed, the Court, by that time, had endured outlandish claims that its mem- bers were Communists,30 weathered attacks from Congress,31 and withstood criticism from J. Edgar Hoover32—among other detrac- tors.33 The Court’s decision in Mapp served only to further fuel the 23. Lauren Sudeall Lucas, Reclaiming Equality to Reframe Indigent Defense, 97 MINN. L. REV. 1197, 1201 (2013). 24. See Scott W. Howe, The Troubling Influence of Equality in Constitutional Crimi- nal Procedure: From Brown to Miranda,Furman and Beyond, 54 VAND. L. REV. 359, 393 (2001). 25. E.g., Douglas v. California, 372 U.S. 353, 356–58 (1963); Griffin v. Illinois, 351 U.S. 12, 19 (1956). 26. Griffin, 351 U.S. at 19. 27. Leonard W. Levy, Introduction to THE SUPREME COURT UNDER EARL WARREN 4 (Leonard W. Levy ed., 1972). 28. SeeDavid A. Strauss, The Common Law Genius of the Warren Court, 49 WM. & MARY L. REV. 845 (2007). 29. Mapp v. Ohio, 367 U.S. 643, 655 (1961). 30. Nadine Strossen, Freedom of Speech in the Warren Court,inTHE WARREN COURT: A RETROSPECTIVE 68, 79 (Bernard Schwartz ed., 1996). 31. E.g., 104 CONG. REC. 954 (1958). 32. See J. Edgar Hoover, The Law and the Layman: Faith in the Courts Must Be Preserved, 44 A.B.A. J. 1155, 1157–58 (1958). 33. See, e.g., H.R. 11477, 85th Cong. (2d Sess. 1958); Bill Becker, Attack on Warren Boomerangs on Anti-Reds School on Coast, N.Y. TIMES, Dec. 17, 1961, at 58. 2015] ABANDONING STRICKLAND 307 critics,34 and more than sporadic claims emerged seeking impeach- ment of Chief Justice Warren, along with several Associate Justices.35 What Mapp was to the Fourth Amendment in terms of grandiose and stature, the Supreme Court’s 1963 ruling in Gideon v. Wain- wright was to the Sixth Amendment right to counsel.36 Though sub- stantially less controversial, Gideon’s holding was nonetheless momentous—promising counsel at state expense to indigent defend- ants charged with a felony.37 Writing for the majority on March 18, 1963, Justice Black reasoned, “[A]ny person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”38 Moreover, Justice Black added, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”39 Gideon, unlike Griffin, drew attention from both the media and le- gal commentators alike.40 If Gideon was not a clear manifestation of the Warren Court’s intent to expand and strengthen the right to coun- sel, the Court then decided Douglas v. California.41 Remarkably, on the same day as Gideon, a majority of the Court relied on the Four- teenth Amendment to conclude that Gideon entitles indigent defend- ants to counsel at state expense in order to prosecute their first appeals as of right.42 One year later, in Massiah v. United States,43 the Supreme Court returned to the Sixth Amendment to further expand the right to coun- sel.44 In Massiah, the Court held that the “petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”45 Massiah’snarrow impact—appli- cable only to post-indictment interrogations—hardly stemmed the ris- 34. E.g., Leonard E. Ryan, Narcotics Case Convictions Drop Since Ban on Illegal Searches, N.Y. TIMES, Sept. 19. 1962, at 35. 35. ‘Impeach Earl Warren’ Sign Posted on Highway Upstate, N.Y. TIMES, Nov. 28, 1963, at 36. 36. Gideon v. Wainright, 372 U.S. 335 (1963); see e.g., Justin Marceau, Gideon’s Shadow, 122 YALE L.J. 2482, 2485–86 (2013). 37. Gideon, 372 U.S. at 342. 38. Id.at 342–45. 39. Id. 40. E.g., Justice Mitchell D. Schweitzer, The Rationing of Justice, 65 COLUM. L. REV. 183, 184 (1965) (book review); Anthony J. Lewis, Supreme Court Extends Ruling on Free Counsel: Holds States Must Provide Lawyers for All Poor in Serious Crim- inal Cases, N.Y. TIMES, Mar. 19, 1963, at A1. 41. 372 U.S. 353 (1963). 42. Id. 43. 377 U.S. 201 (1964). 44. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2472 (1996). 45. Massiah, 377 U.S.at 206. 308 NEBRASKA LAW REVIEW [Vol. 94:302 ing tide of Warren Court criticism.46 Indeed, many viewed Massiah simplistically, as yet another case designed to expand the rights of criminal defendants.47 Further expansion of the Sixth Amendment, or so it initially ap- peared, came that same year when the Court decided Escobedo v. Illi- nois.48 After police arrested Danny Escobedo for the murder of his brother-in-law, Escobedo requested counsel.49 When officers began interrogating Escobedo, his lawyer arrived and requested permission to see him.50 Those requests were denied, and Escobedo made incrim- inating statements.51 He argued before the Supreme Court that his incriminating statements should have been suppressed at trial be- cause officers unconstitutionally denied him access to his lawyer.52 The Supreme Court agreed, holding in part that the collective circum- stances surrounding Escobedo’s interrogation denied him “‘[t]he As- sistance of Counsel’ in violation of the Sixth Amendment to the Constitution.”53 Although the law enforcement community,54 alongside the judici- ary,55 largely disapproved of Escobedo, criticism of the Warren Court had yet to peak. In 1966, two years after Massiah, the Court issued Miranda v. Arizona. In Miranda, the Supreme Court held that the Fifth Amendment required the prosecution to provide a defendant with “procedural safeguards” before using “statements, whether excul- patory or inculpatory, stemming from custodial interrogation . . . . ”56 Those procedural safeguards are the now familiar Miranda warnings, which in part require that “an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . . ”57 Put differ- 46. See James J. Tomkovicz, An Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and the Massiah Doctrine, 22 U.C. DAVIS L. REV. 1, 5 (1988). 47. E.g., Daniel Gutman, The Criminal Gets the Breaks, N.Y. TIMES, Nov. 29, 1964, at SM36 120–21. 48. 378 U.S. 478 (1964). 49. LIVA BAKER,MIRANDA: CRIME, LAWAND POLITICS 29 (1983). 50. People v. Escobedo, 190 N.E.2d 825, 826 (Ill. 1963), rev’d sub nom. Escobedo v. Illinois, 378 U.S. 478 (1964). 51. BAKER,supra note 49, at 30. 52. Escobedo, 378 U.S. at 483–84. 53. Id. at 491 (quoting Gideon v. Wainwright, 372 U.S. 335, 342 (1963)). 54. E.g., LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 391–92 (2000). 55. See, e.g., State v. Smith, 202 A.2d 669, 678 (N.J. 1964); Commonwealth v. Negri, 213 A.2d 670, 676 (Pa. 1965); Wamsley v. Commonwealth, 137 S.E.2d 865, 868 (Va. 1964). 56. Miranda v. Arizona, 384 U.S. 436, 444 (1966). 57. Id. at 471 (emphasis added). 2015] ABANDONING STRICKLAND 309 ently and more directly, the Warren Court created a FifthAmendment right to counsel.58 Critics came from all around to chastise the Court.59 The New York Times characterized the Miranda decision as providing “immu- nity from punishment for crime on a wholesale basis.”60 Shortly after Miranda, Truman Capote testified before a Senate subcommittee and asked, “Why do they seem to totally ignore the rights of the victims and potential victims?”61 Even Richard Nixon made his criticism well known on the campaign trail during the 1968 presidential election.62 To the frustration of still others,63 the Supreme Court’s 1964 “landmark”64 decision in Malloy v. Hogan ensured that Miranda’s Fifth Amendment right to counsel would apply to the states.65 Notwithstanding unrelenting criticism, the Warren Court pressed on in 1967. In a trio of cases, United States v. Wade,66Gilbert v. Cali- fornia,67 and Stovall v. Denno,68 the Court extended the right to coun- sel for indigent defendants to lineup identifications. In Mempa v. Rhay, it held the right to counsel applies at sentencing.69 Unlike the Court’s reliance on the Fifth Amendment in Miranda, it read the Sixth Amendment as broadly applicable to both cases70—a reading that was “hardly a foregone conclusion.”71 Justice Brennan, writing for a majority of the Court in Wade, spe- cifically relied on the Sixth Amendment to hold that defendants are entitled to counsel during pretrial proceedings whenever necessary to ensure a fair trial.72 Like Wade, the Court emphasized the impor- 58. E.g., Andrew E. Taslitz, Slaves No More!: The Implications of the Informed Citi- zen Ideal for Discovery Before Fourth Amendment Suppression Hearings, 15 GA. ST. U. L. REV. 709, 730 (1999). 59. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 239 (2010). 60. Arthur Krock, In the Nation: The Wall Between Crime and Punishment, N.Y. TIMES, June 14, 1966, at 46. 61. BERNARD SCHWARTZ, THE GREAT RIGHTSOF MANKIND: A HISTORYOFTHE AMERI- CAN BILLOF RIGHTS234 (1992) (internal quotation marks omitted). 62. See, e.g., The New Chief Justice, N.Y. TIMES, May 22, 1969, at 46; JAMES MAC- GREGOR BURNS, PACKINGTHE COURT: THE RISEOF JUDICIAL POWERANDTHE COM- ING CRISISOFTHE SUPREME COURT 202 (2009). 63. E.g., Anthony Lewis, Supreme Court Moves Again to Exert Its Powerful Influence, N.Y. TIMES, June 21, 1964, at E3. 64. Privilege Ruling: Justices Widen Scope of Fifth Amendment in State Actions, N.Y. TIMES, June 16, 1964, at A1. 65. Malloy v. Hogan, 378 U.S. 1, 11 (1964). 66. 388 U.S. 218 (1967). 67. 388 U.S. 263 (1967). 68. 388 U.S. 293 (1967). 69. Mempa v. Rhay, 389 U.S. 128, 137 (1967). 70. Wade, 388 U.S. at 226–27; Gilbert, 388 U.S. at272; Mempa, 389 U.S. at 134. 71. WAYNE R. LAFAVEETAL., CRIMINAL PROCEDURE §11.1(a) (3d ed. 2000). 72. Wade, 388 U.S. at 227. 310 NEBRASKA LAW REVIEW [Vol. 94:302 tance of counsel in Mempa;73 as Justice Marshall wrote, “[A]ppointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”74 Although Congress sought in 1968 to legislatively overrule both Miranda and Wade,75 the Warren Court declined to retreat from ei- ther holding. Instead, although it would not issue another right-to- counsel opinion, the Warren Court completed its tenure by continuing to expand indigent rights in a trio of 1969 opinions.76 By the time Chief Justice Warren Burger filled Warren’s position on June 23, 1969,77 the Supreme Court had replaced the case-by-case right-to- counsel approach established by Betts v. Brady78 in 1942 with a right to counsel at state expense for indigent defendants in felony cases,79 lineups,80 the interrogation room,81 post-indictment,82 and at sen- tencing.83 So intense was the Warren Court’s influence by the end of its term that President Eisenhower was rumored to say that his deci- sion to appoint Warren was “one of the two biggest mistakes I made in my Administration.”84 The transition to the Burger Court was significant. Some scholars, however, maintain that the Burger Court’s impact was blunted by its failure to overrule even one of the so-called Warren Court trilogy— Gideon, Mapp, and Miranda.85 That view, though correct, overlooks the Burger Court’s ability to limit or, in some instances, wholly stop expansion of the Warren Court’s right to counsel in felony cases, line- ups, the interrogation room, and sentencing. To begin with, the Bur- ger Court’s route to halting Gideonbegan slowly—and only after a trio 73. Mempa, 389 U.S. at 133–34. 74. Id.at 134. 75. 18 U.S.C. §§3501(a)–(b), 3502 (Supp. IV, 1968), invalidated by Dickerson v. United States, 530 U.S. 428 (2000). 76. See, e.g., Johnson v. Avery, 393 U.S. 483, 485 (1969); Williams v. Oklahoma City, 395 U.S. 458, 458 (1969); Gardner v. California, 393 U.S. 367, 370–71 (1969). 77. Linda Greenhouse, Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years, N.Y. TIMES, June 26, 1995, at A1. 78. 316 U.S. 455, 462 (1942). 79. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). 80. United States v. Wade, 388 U.S. 218, 237 (1967). 81. Miranda v. Arizona, 384 U.S. 436, 471 (1966); Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964). 82. Massiah v. United States, 377 U.S. 201, 206 (1964). 83. Mempa v. Rhay, 389 U.S. 128, 137 (1967). 84. JACK HARRISON POLLACK, EARL WARREN: THE JUDGE WHO CHANGED AMERICA 200 (1979). 85. E.g., Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices,inTHE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN’T 62, 68 (Vincent Blasi ed., 1983).