Criminal Law

Ineffective Assistance of Counsel- Defense Attorneys, If You Happen to Fall Asleep at The Defense Table Make Sure It’s Not During An Important Part


Determining ineffective assistance of counsel is very uncertain, particularly when there is not complete agreement on a defense counsel’s responsibilities regarding advising the client about different consequences that a guilty plea later brings to the table.[1] One thing that is certain in the American legal system is the Sixth Amendment’s guarantee of the right to counsel.[2] The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”[3] Additionally, courts have described the core of the Sixth Amendment as traditionally being and remaining as, “the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.”[4]

The Sixth Amendment has also been interpreted to mean that, in absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel.[5] Most importantly, the right to counsel extends to the “critical stage”[6] of accepting a plea bargain.[7]

The landmark United States Supreme Court case that set the test for ineffective assistance of counsel requires the petitioner to establish (1) that counsel’s performance was deficient and contained errors so serious as to deny the protections of the Sixth Amendment, and (2) the results of the proceedings would have been different, were it not for the errors of counsel.[8] In applying this Strickland test, first the court must determine if counsel’s representation “fell below an objective standard of reasonableness.”[9] In determining the first prong of constitutional deficiency, the norms of the legal community must be looked at.[10] Although only a guide, the American Bar Association standards accurately reflect “the prevailing professional norms of effective representation.”[11]

The second prong is an extremely high standard. Where the court must determine “there is a reasonable probability that, but for counsel’s unprofessional errors”[12] the outcome of the case would have been different. In establishing this prong, “a defendant must make more than a bare allegation that he would have pleaded differently and gone to trial.”[13] Justice Marshall’s dissent in Strickland discussed the hardship of determining prejudice after the fact, and how there is “the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel.”[14] As one commentator opined, because the appellate courts only review the record, it is ludicrous for a reviewing court “to determine how counsel erred.”[15]

[1] 5 Wayne R. LaFave, Jerold H. Israeal, Nancy J. King & Orin S. Kerr, Criminal Procedure§ 21.3(b) 710 (3rd ed. 2007).

[2] See Erwin Chemerinsky, Constitutional Law, Principles and Policies 980 (3rd ed. 2006).

[3] U.S. Const. amend. IV.

[4] Kansas v. Ventris, 129 S. Ct. 1841, 1845 (2009) (quoting Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176 (1990)).

[5] Fellers v. United States, 540 U.S. 519, 124 S. Ct. 1019 (2004).

[6] See Michigan v. Johnson, 475 U.S. 625, 106 S. Ct. 1404 (1986) (holding that after initiation of adversary judicial proceedings, the Sixth Amendment provides the right to counsel at “critical stages,” even when there is no interrogation and no Fifth Amendment applicability); see also People v. Killebrew, 16 Mich. App. 624 (1969) (explaining the phrase “critical stage” means prosecutorial activity that had some effect on determination of guilt or innocence, which could properly be avoided, or mitigated, by presence of counsel); compare to People v. Sawyer, 222 Mich. App. 1 (1997) (finding that a post-lineup witness interview is not a critical stage requiring a defense attorney’s presence); compare with Hansel v. Bisard, 30 F. Supp. 2d 981 (E.D. Mich. 1998) (finding there is no right to counsel where a driver in a traffic accident had no reason to believe he was a criminal suspect).

[7] See 5 Wayne R. LaFave, Jerold H. Israeal, Nancy J. King & Orin S. Kerr, Criminal Procedure§ 21.3(a)  (3rd ed. 2007).

[8] Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

[9] Id. at 688.

[10] Padilla, 130 S. Ct. at 1482.

[11] Id.

[12] Id. at 694.

[13] People v. Cristache, 29 Misc.3d 720, 740, 907 N.Y.S. 2d 833, 848 (2010) (quoting Boakye v. United States, 2010 WL 1645055, *6 (S.D.N.Y.2010)).

[14] Strickland, 466 U.S. at 694.

[15] See Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 Crim. L. & Criminology 242, 243 (1997).

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