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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, April 18, 2016

Ineffective Assistance of Counsel

Today's subject is the ineffective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984) holds that 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. Justices fear that if it is too easy for assistance of counsel to be ineffective, any trial error by a defense lawyer could be a get-out-of-jail-free card for a violent felon (Notwithstanding that ineffective-assistance-of-counsel practically always result in new trials rather than rendered not-guilty verdicts.). The opinion has a non-exhaustive, incomplete list of things effective counsel might want to do at a trial:
  • consult with the client in an overnight trial recess,
  • give a summation in a bench trial,
  • call the defendant as a witness other than the first one, or
  • directly examine the defendant.
An attorney might cause the client to have ineffective assistance if the lawyer is in a conflict of interest with the client.

Washington claimed ineffective assistance in his Florida capital sentencing proceeding. SCOTUS said the effective assistance requirement applied to such a proceeding.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
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.

Counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

A state court's finding of effective assistance of counsel is not binding on a federal court.

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