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Friday May 27, 2016

Ineffective Assistance of Counsel: Unsatisfied Customers v. Constitutional Violations
posted by Jessica C. Durden
Tags: In the news 

The Sixth Amendment grants an accused person the right to counsel in a criminal proceeding. That means from the start of a criminal case, from arraignment to sentencing, the Constitution mandates the assistance of a defense attorney. That right to counsel is, specifically, the right to effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). So what happens when the “assistance” of counsel in a given case is lacking? When can an appeals court step in and reverse a conviction because of counsel’s error?

The Supreme Court set the standard in Strickland v. Washington (1984), which established a two part test for ineffective assistance of counsel—that is, counsel so ineffective as to be the same as denying the defendant his Sixth Amendment rights. (Kentucky adopted the same standard in Gall v. Commonwealth). First, the defendant must show that his counsel’s performance was actually deficient. Second, the defendant must show that his trial counsel’s deficient performance “was so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” See Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985), quoting Strickland, 466 U.S. 668, 693 (1984). The defendant must demonstrate a “reasonable probability” that the counsel was deficient and that it prejudiced his defense. If the defendant does not make both showings, the conviction and/or sentence will survive the appeal.

Courts, on ineffective assistance of counsel appellate review (28 U.S.C. 2255 or Kentucky Criminal Rule 11.42) grant a great deal of latitude to defense counsel. Strickland is not intended to allow a defendant to question all matters of strategy with the benefit of hindsight. Defense counsel are graded, instead, on whether their assistance fell within the normal range of reasonable strategy or typical defense practice. The deficiency must be so great as to have snatched the victory from the jaws of defeat. Courts have found counsel be to constitutionally ineffective in a number of circumstances:

1. Failure to advise a defendant of the immigration consequences of a guilty plea (Padilla v. Kentucky)

2. Failure by defense counsel to fully investigate (Wiggins v. State—defense counsel promised the jury to present mitigation evidence and then never did; the Court found counsel never grasped the actual circumstances surrounding their client because they failed to investigate)

Courts have upheld convictions in which counsel:

1. Did not call additional character witnesses to speak regarding the victim (Saylor v. Commonwealth)

2. Did not advise client of the collateral consequences of a guilty plea (Strickland)

So, practically speaking: what does this mean for a defendant who believes his counsel was ineffective? Strickland sets a high bar and will automatically weed out claims that the defendant “didn’t get a real lawyer” because they were appointed a public defender (a common cry which demonstrates a fundamental misunderstanding of how important PDs are) or claims that the defendant just didn’t like the result. Strickland (and Gall, in Kentucky) are intended to kick in to provide relief only when it is demonstrated the conviction and/or sentence are constitutionally unreliable. Except in the most egregious of cases, ineffective assistance of counsel is an incredibly difficult route to travel in the appeals process. Defendants (and their families) should, when approaching an appeal under 28 USC 2255 or Ky Cr 11.42, go in with eyes wide open regarding their chances of success. However: thorough review of the trial record and a creative argument by appellate counsel can go a long way toward giving a convicted defendant a fighting change with the appeals court.  Please contact Jessica Durden for assistance in this area.