Commonwealth v. Washington , 583 Pa. 566 ( 2005 )

Justice CASTILLE,

concurring in part and dissenting in part.

I join the Majority Opinion’s learned explication of the governing law in this area, but because I do not believe that appellant is entitled to a remand for another evidentiary hearing on the basis of the proffer forwarded here, I respectfully dissent from its application of that law.

The Majority does not reach the merits of any of appellant’s eleven boilerplate claims of “layered” ineffective assistance of counsel because it concludes that one of those claims — a claim deriving from an assertion that trial counsel breached his Sixth Amendment “duty of loyalty” to his client — is a “predicate” for the others and warrants the grant of another evidentiary hearing. This claim is presented by current counsel in hyperbolic terms which are more appropriate for pulp fiction than a legal pleading. The actual “factual” basis for the breach of loyalty claim is a letter that trial counsel wrote to a prospective defense psychiatric witness at the pre-trial stage, in which counsel stated that he hoped that appellant had “some redeeming qualities,” but feared that appellant “may epitomize the banality of evil.” This no doubt is a fear shared, if not often expressed or committed to writing, by many lawyers.

To appellant, counsel’s expressed fear somehow reveals a nefarious plot to railroad him. Appellant thus leaps to the conclusion that the “banality of evil” reference, which invokes the well-known subtitle of Hannah Arendt’s literary account of the Adolph Eichmann trial,¹ proves that trial counsel “hated” him. In an even greater leap in logic, appellant then declares that counsel’s hatred “treacherously” led him to seek to undermine the defense so as to ensure a verdict of first degree murder and a death sentence. Appellant further declares that the litany of other deficiencies he has now belatedly discovered concerning counsel’s trial performance prove that counsel deliberately undertook to “sabotage” his defense, because of his animus.

I agree with the Majority that a “duty of loyalty” claim of this sort is governed by the actual Sixth Amendment test for counsel ineffectiveness set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rather than a diluted test that would “presume” prejudice from belatedly-discovered evidence that an attorney supposedly disliked, or even “hated” his client. Thus, I join the Majority in its recognition: that the Sixth Amendment does not establish a right to a “meaningful” or “interpersonal” relationship between an accused and his counsel; that in order to sustain an ineffectiveness claim premised upon a breach of the “duty of loyalty,” the accused must show an actual conflict of interest that adversely affected the outcome of the case; and that prejudice cannot be presumed in this area.

Notwithstanding the Majority’s recognition that mere discord or dislike between counsel and client is no basis for a Sixth Amendment claim under Strickland, it remands for a hearing on just such a claim, on the theory that it is the predicate for appellant’s actual claims of deficient performance. I respectfully disagree that this overwrought, bald proffer entitles appellant to an evidentiary hearing so that he may explore counsel’s reference to Ar-endt’s subtitle. It is notable that, although appellant has prepared a lengthy Appendix which contains numerous “declarations” from witnesses, he includes no proffer from trial counsel or direct appeal counsel ■with respect to this claim. Instead, appellant’s “case” against trial counsel is entirely a function of bringing his lawyer’s imagination to bear upon counsel’s letter. The Majority’s remand essentially allows appellant to engage in a fishing expedition with trial counsel, in the hopes that he might find something to substantiate what is at present merely rank, reckless and implausible speculation against another member of the Bar.

If counsel had made this reference to his client during his examination of a witness at trial, or in remarks to the jury, appellant’s claim might warrant a hearing. When such a remark is made privately to a prospective defense professional witness, however, it simply does not warrant the Majority’s current assumption — as a matter of law — that the attorney must have deliberately sought to “sabotage” the defense. Lawyers are not required to have even an iota of affection for their clients in order to perform competently; indeed, if that were a requirement, many criminal defendants would be hard-pressed to secure adequate representation. Persons working in the criminal justice system, and particularly those working on the most serious of cases, may perforce become somewhat jaded. In this day and age, where merely robbing and shooting a person are not enough, but a gratuitous coup de grace is too often delivered, it is not surprising to think of the increasing banality of such evil acts. But the mere fact that a lawyer perceives this fact, and privately gives expression to the perception, does not prove that attorney’s “disloyalty,” much less does it prove “disloyalty” to the extent that counsel should be presumed to have ignored his professional responsibilities and deliberately sought to “sabotage” his client’s case. Appellant has leveled a very serious charge of professional misconduct here, and there should be some support for the charge beyond fevered speculation before an evidentiary hearing is awarded.

More fundamentally, I disagree with the Majority’s easy acceptance of appellant’s theory because it is not a distinct legal claim at all, much less a predicate or “backdrop” claim that must be resolved before this Court can proceed to appellant’s actual claims. A lawyer’s animosity toward his client, standing alone, is no basis for any collateral attack: as the Majority recognizes in setting forth the parameters for review, whether counsel was ineffective depends upon his actual performance, not his subjective beliefs or the “political correctness” of his correspondence. Nor is the purpose of PCRA evi-dentiary hearings to chastise lawyers for their impolitic commentary. Here, counsel committed something to writing which perhaps was flippant and ill-conceived, but he did so in a letter to a prospective defense witness. The fact of counsel’s letter suggests nothing concerning counsel’s preparation for or performance at trial. The Majority, thus, gets it backward: it is appellant’s actual claims that are the “backdrop” for his collateral attack; the question of counsel’s supposed “reasons” for trying the case as he did are a matter we need not reach unless one or more of those predicate claims prove to have arguable merit. No such finding has been made here. And so, I fear the Majority has been led astray by appellant’s exaggerations; the remand in this case is in my mind an overreaction to isolated commentary which may well prove to be entirely unrelated to, and unsupportive of, appellant’s actual claims.

Justice EAKIN joins this concurring and dissenting opinion.

1 . Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil.