Marzullo v. State of Md.

Decision Date02 September 1977
Docket NumberNo. 76-1946,76-1946
Citation561 F.2d 540
PartiesVictor Dennis MARZULLO, Appellant, v. STATE OF MARYLAND, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Samuel H. Carter, Third Year Law Student (Randall M. Chastain, Columbia, S. C., U. S. C. Law Center on brief), for appellant.

Bruce C. Spizler, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Chief, Crim. Div., Baltimore, Md., on brief), for appellee.

Before WINTER and BUTZNER, Circuit Judges, and FIELD, Senior Circuit Judge.

BUTZNER, Circuit Judge:

Victor D. Marzullo's appeal from the denial of his application for a writ of habeas corpus raises this question: What is the appropriate standard for determining when criminal defendants have been denied their constitutional right to the effective assistance of counsel? We conclude that the standard applied by the district court is no longer acceptable, and that properly tested, the representation Marzullo received was ineffective.


In considering whether Marzullo had been denied effective assistance of counsel, the district court applied the standard set forth in Root v. Cunningham, 344 F.2d 1, 3 (4th Cir. 1965):

Ordinarily, one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial.

The farce and mockery of justice test to which Root referred gained wide currency in the era when an accused tried in a state court had no constitutional entitlement to counsel unless he could satisfy the requirements of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). 1 That case compelled him to show circumstances rendering the lack of counsel so "offensive to the common and fundamental ideas of fairness and right" as to deny him due process of law. 316 U.S. at 473, 62 S.Ct. at 1262. The overruling of Betts by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), foretold a different standard for determining counsel's adequacy. Following Gideon, courts and commentators recognized that the right to counsel assured by the sixth and fourteenth amendments lacks substance unless counsel is reasonably competent. 2

We implicitly departed from the farce and mockery test when, in Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), we imposed specific requirements for counsel's preparation of his client's defense. Coles has been cited frequently as offering an improved measure for counsel's performance. 3 Nevertheless, some of our subsequent opinions quoted the older test, and district courts, justifiably relying on them, have continued to apply it. 4 In other instances, we have not referred to that test. 5 Our decisions, however, have been more consistent than reference to the test or lack of it would indicate. Since Coles, we have usually judged effective representation by determining whether counsel furnished reasonably adequate services instead of inquiring whether the representation was so poor as to make a farce of the trial. 6 Be that as it may, our ambivalence has persisted long enough. We now expressly disavow the farce and mockery of justice test which we approved in Root v. Cunningham, 344 F.2d 1 (4th Cir. 1965).


Two years after Coles, the Supreme Court decided McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), which dealt with the validity of a guilty plea following a coerced confession. There the Court reiterated that defendants "are entitled to the effective assistance of competent counsel." It explained that a court should not measure the competency of counsel's advice by retrospectively considering whether it was right or wrong. The proper test, the Court stated, is whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." 397 U.S. at 770-71, 90 S.Ct. at 1449.

Though McMann involved an attorney's advice about pleading guilty, many courts have recognized that it provides a suitable general standard for determining whether the representation afforded the accused satisfied his constitutional right to effective counsel. One of the first courts to adopt the McMann standard was the Court of Appeals for the Third Circuit in Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (en banc). Numerous other courts have followed Moore's lead in adopting some version of the normal competency test: United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (1973); Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974); Williams v. Twomey, 510 F.2d 634, 641 (7th Cir. 1975); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); United States v. Easter, 539 F.2d 663, 665-67 (8th Cir. 1976); but see Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62 (2d Cir. 1976).

We, too, are persuaded that McMann furnishes the proper standard for determining the effectiveness of counsel. Therefore, paraphrasing the Court's opinion, we adopt as an appropriate measure: Was the defense counsel's representation within the range of competence demanded of attorneys in criminal cases? See 397 U.S. at 771, 90 S.Ct. 1441.

By this standard, effective representation is not the same as errorless representation. An attorney may make a decision or give advice which in hindsight proves wrong. Such errors, as McMann pointed out, are not necessarily grounds for post-conviction relief. 397 U.S. at 770-71, 90 S.Ct. 1441. 7 A convict generally must establish that his counsel's error was so flagrant that a court can conclude that it resulted from neglect or ignorance rather than from informed, professional deliberation. 8

The McMann normal competency standard is similar in many respects to those which judges must apply in other contexts. 9 Moreover, because it measures an attorney's conduct by comparison with the competence generally found in the profession, it requires an objective assessment of counsel's adequacy. 10 While the normal competency standard does not purport to list the things counsel should or should not do, it does not preclude resorting to specifics for ascertaining the "range of competence demanded of attorneys in criminal cases." For example, in Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968), we said:

Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.

We adhere to this statement, for it is a definitive, objective description of the competency normally demanded of counsel in certain aspects of their service.

The normal competency standard is necessarily broad and flexible because it is designed to encompass many different factual situations and circumstances. Consequently, its fair and effective administration rests primarily on the district judges. Speaking for the Court in McMann on this subject, Mr. Justice White said:

(W)e think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts. 397 U.S. at 771, 90 S.Ct. at 1449.

In exercising its discretion, a trial court may refer to other sources to determine the normal competency of the bar. Among these are precedent from state and federal courts, state bar canons, the American Bar Association Standards Relating to the Defense Function (App. Draft 1971), and in some instances, expert testimony on the particular conduct at issue. These, of course, do not supplant the test that we have prescribed, but they can aid in objectively ascertaining the range of competency normally expected of attorneys practicing criminal law.


Although this appeal was not heard en banc, all of the judges of the court approve Parts I and II.


We now apply the normal competency standard to Marzullo's claim of ineffective representation.

The Public Defender named an attorney to represent Marzullo in the Circuit Court of Baltimore, Maryland, where he had been charged in separate indictments with raping two women. Shortly after the appointment, Marzullo complained in a letter to the trial judge about the lawyer: "The impression he gave me by talking to him, I really don't think for one minute he is going to try and defend me adequately except to go through the formalities of my trial." The court denied Marzullo's request for a substitute, and subsequently, Marzullo alleged many deficiencies in the representation he received. We believe that only his complaint about the selection of the jury merits discussion.

When the first rape case was called for trial, the prosecuting witness told the judge, in the presence of the jurors, that she could not identify Marzullo as her attacker because she did not see his face. The prosecutor responded that she had previously said she could identify him, but the case was dismissed with the State's consent.

The prosecutor then announced that the State was ready to proceed on the second indictment charging Marzullo with rape, assault with intent to rape, common law assault, statutory mayhem, and perverted sexual practice. Marzullo was arraigned and pled not guilty. The court, observing that only 19 jurors were present, noted that this was insufficient to allow all peremptory...

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