INEFFECTIVE ASSISTANCE OF COUNSEL

Ineffective assistance of counsel, or bad lawyering, constitutes a violation of a criminal defendant’s Sixth Amendment right to counsel. In too many cases defendants retain or are burdened with attorneys who lack the time, experience, or professional responsibility to zealously represent their clients. The resulting representation may include failures to investigate an alibi defense, investigate prosecution witnesses, enlist experts to challenge the prosecution’s physical evidence, or even attend or stay awake for hearings. In addition, some attorneys accept cases for which they are not qualified and are thus unable to properly represent a defendant. Bad lawyering results in an unlevel playing field for the defendant and, all too often, wrongful conviction.

The problems are magnified in counties where defense counsel is allotted less money than the prosecution. This inequality gives the prosecution the resources to properly try a case but denies those same resources to the defense.

In Gideon v. Wainwright (1963), the U.S. Supreme Court held that states are required to provide counsel to all indigent criminal defendants under the Sixth Amendment’s Assistance of Counsel clause. In most counties this means a public defender’s office has been established for representation of poor people. In other counties a different scheme has been created for attorneys to accept cases on a fixed hourly fee or contract rate. Contrary to popular belief, retained attorneys, not just public defenders, have been found to provide ineffective assistance of counsel.

Not all instances of poor attorney performance entitle an inmate to relief. Strickland v. Washington (1984) states a defendant must meet two tests in order to prove counsel’s representation violated their Sixth Amendment right to counsel:

1) Counsel’s performance was deficient; and

2) Had it not been for counsel’s deficient performance, the result of the trial or sentencing would have been different.

An inmate who represents himself is not entitled to claim ineffective assistance of counsel on appeal.

In recent developments, the United States Supreme Court, in MIssouri v. Frye (2012), held the Sixth Amendment right to effective assistance of counsel applies to the consideration of plea offers that lapse or are rejected. In addition, the Court held in Lafler v. Cooper (2012) that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show three things: (1) but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court; (2) the court would have accepted its terms, and (3) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

Reversing a conviction based on ineffective assistance of counsel can be difficult. An Innocence Project study of the first 255 DNA exonerations showed that 81% of those cases had ineffective assistance claims denied by the courts. However, the Daniel Larsen case does provide hope. Larsen was convicted of possessing an knife in a parking lot outside a bar. Under the Three Strikes sentencing, Larsen received a 28-years-to-life sentence. CIP discovered two witnesses who said that Larsen did not possess the knife. Before trial, Larsen’s defense counsel was told about these witnesses but never took any steps to find or interview these witnesses. A federal judge determined that this failure to investigate was ineffective assistance of counsel.

In other wrongful conviction cases, examples of ineffective assistance of counsel have included failing to interview alibi witnesses at the defendant’s workplace, deciding not to conduct DNA testing on evidence, and not reporting a conflict of interest.