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When the U.S. Supreme Court decided Gideon v. Wainwright,¹ it declared that everyone, poor or not, has a right to a lawyer. Furthermore, everyone has a right under the U.S. Constitution to effective assistance of counsel. What does effective mean? Does it mean merely the presence of defense counsel, or something more?

Twenty years later in Strickland v. Washington,² the Court defined what effectiveness means - not very much when analyzing whether a defendant received that constitutional guarantee. Courts are deferential to the job done by an attorney and rarely disturb convictions on that basis. In order for a convicted person to succeed with an ineffective assistance of counsel claim, a defendant must prove (1) that her counsel’s performance fell below an objective standard of reasonableness; and (2) the substandard representation so prejudiced her that there is a reasonable probability that the outcome would have been different.³ A defendant does not have to show that the outcome more likely than not would have been different, but rather that counsel’s errors undermine confidence in the outcome.⁴ 

The legal effect is that the standard has become a floor below which a lawyer may not fall rather than a standard to which the lawyer should aspire. Worse yet, even if a court finds that a lawyer’s performance fell below that floor, to succeed in obtaining a new trial the defendant must show prejudice. Some have commented that effective assistance of counsel is like a “foggy mirror” test - if defense counsel would fog up a mirror held beneath his nose, that’s good enough.

There are many examples of how poorly a lawyer may perform and still not fall below the standard of reasonableness. For example, the U.S. Supreme Court denied certiorari where the Court of Criminal Appeals of Texas held that counsel’s sleeping through parts of a trial could have been a strategic move and held that the presence of counsel at all times during trial, combined with a failure to show prejudice, did not mean the defendant was ineffectively represented.⁵ The Illinois Supreme Court held that presenting conflicting theories to a jury (he didn’t do it, but if he did he was insane) was not ineffective assistance of counsel and affirmed the conviction and death sentence.⁶ Any person would understand these behaviors to “fall below” ordinary care, but the courts did not.

As a result, most claims of ineffective assistance of counsel fail. Courts defer to “strategic choices” by defense counsel - even foolish ones. Usually, the only claims that have a chance of being successful are claims alleging failure to investigate, and of course such claims require someone to discover that there has been a failure to investigate in state postconviction proceedings.

Nonetheless, defense counsel’s overarching duty is to advocate the defendant’s case.⁷ Counsel also has a duty to bring to bear such skills and knowledge as will render the trial a reliable adversarial testing process.⁸ “[A]n attorney who fails to even interview a … witness [who] may potentially aid the defense, should not be allowed automatically to defend his omission simply by raising the shield of ‘trial strategy and tactics.’”⁹ 

However, as there is no right to a lawyer beyond direct appeal, most postconviction petitions are filed prose, and usually by inmates at correctional institutions who could not conduct an investigation even if they had the skills and resources to do so. In other words if an inmate was poorly represented at the trial level, and is indigent, he cannot likely succeed in state postconviction. And since the advent of the Antiterrorism and Effective Death Penalty Act of 1996,¹⁰ he cannot raise issues for the first time in federal court. The only exception to this bar came in 2012 in Martinez v. Ryan,¹¹ holding that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” This holding does not require the state to provide counsel on collateral review, it simply excuses the default.

So what is the answer? Because “effectiveness” has been so diluted by the courts, and is thus inconsistent with the constitutional obligations defense lawyers have to their clients, defense lawyers must hold themselves to a higher standard of effectiveness at the trial level. Effective representation requires a team; it requires investigation, motions litigation, creative thinking and a nonassembly line mindset. ¹² Providing good representation would require expending more of the ever-scarcer resources. ¹³ Might it not also mean, however, that there would be fewer wrongful convictions and fewer societal and financial costs?

In a study of the costs of wrongful convictions, John Conroy and Rob Warden documented that “[w]rongful convictions of men and women for violent crimes in Illinois have cost taxpayers $214 million and have imprisoned innocent people for 926 years, according to a seven-month investigation by the Better Government Association and the Center on Wrongful Convictions. … The joint investigation, which tracked exonerations from 1989 through 2010, also determined that while 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies. Moreover, the 97 felonies in that crime spree may be just a fraction of the total number of crimes committed by the actual perpetrators. The investigation found that the 85 exonerations left 35 murders, 11 rapes, and two murder-rapes with no identified perpetrators and thus no way to add up their accumulated crimes.” ¹⁴ Although there are many causes for these wrongful convictions, including prosecutorial, police and forensic misconduct, ¹⁵ as the report found, ineffective lawyering had a role as well.

Chart reprinted with permission of John Conroy, Rob Warden, and the Better Government Association. ¹⁶ 

Ineffective lawyering compounds each of the causes of wrongful convictions listed in the chart above. How can this be? Because investigation, thorough motions practice, and zealous advocacy are the greatest checks on our system. If the defense attorney is pushing hard for Brady material, insisting on litigating the admissibility of evidence or the right to present a defense, and asking the tough questions both in and out of court, there is a smaller chance that the other causes of wrongful conviction will prevail. Defense lawyers cannot engage in this kind of advocacy when caseloads are monstrously high, resources such as investigators and experts are in short supply, and the view prevails that if the defendant did not commit this crime, he probably did something else. Effective assistance of counsel benefits everyone, not just the accused. A society that cannot trust its criminal justice system fails.

Having a lawyer who merely shows up in court to say something - be it stupid, unsupported factually, or misguided legally - is not the quality of defense anyone would want. A lawyer who does the bare minimum, perhaps between naps, is not providing effective representation. Minimal due process is not good enough. It is time for the criminal justice system to aspire to a higher standard of effectiveness.

Notes

1. 372 U.S. 335 (1963).
2. 466 U.S. 668 (1984).
3. Id at 687.
4. Id. at 694.
5. McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) (per curiam), reh’g denied, 928 S.W.2d 482 (Tex. Crim. App. 1996), cert. denied sub nom. McFarland v. Texas, 519 U.S. 1119 (1997).
6. People v. Whitehead, 169 Ill. 2d 355, 375 (Ill. 1996).
7. Strickland, 466 U.S. at 688.
8. Id. 
9. Crisp v. Duckworth, 743 F.2d 580, 584 (7th Cir. 1984).
10. 28 U.S.C. § 2254.
11. 566 U.S. ____, 132 S. Ct. 1309, 182 L.Ed.2d 272 (2012).
12. See Jennifer M. Allen, Free for All a Free for All: The Supreme Court’s Abdication of Duty in Failing to Establish Standards for Indigent Defense, 27 Law & Ineq. 365 (Summer 2009) (in which the author explains that the courts have abdicated responsibility in this regard by being results-oriented regarding the trial outcome, rather than the constitutional right).
13. Note, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 Harv. L. Rev. 1731, 1732 (2005) (in which the author argues that funding is unlikely to arise under the Strickland test for evaluating effective assistance of counsel because the test is oriented towards the ends rather than the means).
14. The High Cost of Wrongful Convictions (http://www.bettergov.org/investigations/wrongful_convictions_1.aspx).
15. Id. 
16. Id.

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