STANFORD LIBRARIES

As previously stated, the standard of effectiveness applied in

the Sixth Circuit is assistance "reasonably likely to render and rendering 89/

reasonably effective assistance." This is the standard which the court applied when ruling on a charge of ineffective assistance of counsel in connection with the guilty plea entered by James Earl Ray. In Ray v. Rose,

the court stated:

Several attorneys testified at the evidentiary hearing
that they considered the advice to plead guilty sound.
Even Hanes, who hoped for an acquittal, admitted he had dis-
cussed the possibility of a guilty plea with Ray. We think
it clear in this case that the advice which Ray received was
"within the range of competence demanded of attorneys in
criminal cases." 91/

The court cited McMann v. Richardson and Brady v. United States, and
held that even though the government's case against Ray was not a perfect

one, the attorney's advice to plead guilty rather than proceed to trial
94/

was competent.

90/

CONCLUSION

The United States Constitution guarantees to every person charged

with a crime the right to consult with and have the assistance of counsel

95/

in the preparation of a defense to the crime charged. The right to have the

assistance of counsel is the right to have effective assistance and repre96/

sentation. In the absence of a national standard by which to measure ef

97/

fective assistance, the Federal Courts of Appeal have developed and applied varying standards. Although the Supreme Court has held specifically that assistance of counsel in connection with the entering of a plea of guilty to a criminal charge must be within "the range of competence demanded of 98/ attorneys in criminal cases," it has allowed the Courts of Appeals to define "the range of competence demanded." Thus, each of the Circuits has continued to apply its own test of effective assistance in guilty plea cases, ranging from the "farce or mockery" test to a test requiring reasonably competent assistance of an attorney acting as a diligent and conscien99/ tious advocate. The Sixth Circuit, specifically, uses a standard requiring that assistance is "reasonably likely to render and rendering reasonably 100/

101/

standard in Ray v. Rose,

in which the court held that the advice of coun

sel that Ray plead guilty to the charges against him was competent advice.

Kathicen mig Parkins

Kathleen Imig Perkins
Legislative Attorney
American Law Division
March 2, 1978

101/ Supra note 90.

SUBJECT:

American Law Division

The Legal Responsibility of the Federal Bureau of Investigation
To Protect Threatened Civil Rights Leaders Such As Dr. Martin
Luther King, Jr.

This will respond to the request of February 15, 1978 enclosing your inter-office memorandum from Peter Beeson to Jim Wolf of February 8. Specifically, you ask the following questions:

(1) What was the extent of the FBI's official responsibility for the protection of important civil rights figures such as Dr. King in 1968? (2) Has the jurisdiction of the FBI in this area changed since

that time?

(3) If Dr. King was planning a visit to city A, did the local FBI office have the authority to take measures, such as the gathering of intelligence, to investigate the possible existence of threats to his well-being from suspect organizations or individuals?

Your

(4) If intelligence were gathered which indicated a threat to his well-being, did the FBI have the authority to act on its own to prevent harm to him, or did this authority lie solely with local agencies? memorandum stresses that your concern at this time is the authority of the FBI to protect Dr. King, not its moral responsibility to take action.

STANFORD LIBRARIAS

FBI INVESTIGATORY AUTHORITY

FBI authority now, as in 1968, flows directly from statute as well

as from delegations of authority by the Attorney General and the President. General statutory authority for FBI activities is found in Chapter 33 of

Title 28 of the United States Code.

FBI in the Department of Justice.

Section 531 of that Title places the Section 533 constitutes the basic

authority of the FBI to conduct investigations.

Attorney General may appoint officials:

...

It provides that the

(1) to detect and prosecute crimes against the United States;
(2) to assist in the protection of the person of the President;

and

(3) to conduct such other investigations regarding official
matters under the control of the Department of Justice and the
Department of State as may be directed by the Attorney General...

This broad grant of investigative authority is thus only such as may be
delegated by the Attorney General. Of the authority there given to "detect
crimes against the United States" one Attorney General has said: "It
is pursuant to this provision of the statute that the FBI performs most of
namely, investigating persons or incidents when there is reason
its work --
to believe that a Federal crime has been or is likely to be committed so
that the violators can be prosecuted or the crime prevented." Statement of
Attorney General Edward H. Levi Before the Subcommittee on Civil Rights and
Constitutional Rights of the House Judiciary Committee, on FBI Operations,
There is little in Chapter 33 that defines the specific
February 27, 1975.
duties or functions of the FBI.
However, Section 535 does specifically

authorize investigation by the FBI of "any violation of Title 18 [Crimes
and Criminal Procedure] involving Government officers and employees."