USA > US Constitution > 6th Amendment > Effective Assistance of Counsel

Effective Assistance of Counsel

Effective Assistance of Counsel. — "[T]he right to counsel is the right to the effective assistance of counsel."243 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords "effective aid in the preparation and trial of the case."244 Of course, the government must not interfere with representation, either through the manner of appointment or through the imposition of restrictions upon appointed or retained counsel that would impede his ability fairly to provide a defense,245 but the Sixth Amendment goes further than that. "The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance."246 That is, a criminal trial initiated and conducted by government is state action that may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the possible fact that government did nothing itself to bring about the unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a trial.247chanrobles-red

243 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).

244 Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942).

245 E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial court required defendant and codefendant to be represented by same appointed counsel despite divergent interests); Geders v. United States, 425 U.S. 80 (1976) (trial judge barred consultation between defendant and attorney overnight); Herring v. New York, 422 U.S. 853 (1975) (application of statute to bar defense counsel from making final summation).

246 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).

247 446 U.S. at 342-45. But see Wainwright v. Torna, 455 U.S. 586 (1982) (summarily holding that defendant may not raise ineffective assistance claim in context of proceeding in which he had no constitutional right to counsel).

The trial judge must not only refrain from creating a situation of ineffective assistance, but may well be obligated under certain circumstances to inquire whether defendant's counsel, because of a possible conflict of interest or otherwise, is rendering or may render ineffective assistance.248 A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent enough to provide effective assistance. While the Court touched on the question in 1970,249 it was not until 1984, in Strickland v. Washington,250 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings.251chanrobles-red

248 Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender representing three defendants alerted trial judge to possibility of conflicts of interest; judge should have appointed different counsel or made inquiry into possibility of conflicts); Cuyler v. Sullivan, 446 U.S. 335 (1980) (trial judge had no obligation to inquire into adequacy of multiple representation, with possible conflict of interest, in absence of raising of issue by defendant or counsel); Wood v. Georgia, 450 U.S. 261 (1981) (where counsel retained by defendants' employer had conflict between their interests and employer's, and all the facts were known to trial judge, he should have inquired further); Wheat v. United States, 486 U.S. 153 (1988) (district court correctly denied defendant's waiver of right to conflict-free representation; separate representation order is justified by likelihood of attorney's conflict of interest); Mickens v. Taylor, 122 S. Ct. 1237 (2002) (failure of judge who knew or should have known of an attorney's conflicting interest to inquire as to whether such conflict was prejudicial not grounds for automatic reversal).

249 In McMann v. Richardson, 397 U.S. 759, 768-71 (1970), the Court observed that whether defense counsel provided adequate representation, in advising a guilty plea, depended not on whether a court would retrospectively consider his advice right or wrong "but on whether that advice was within the range of competence demanded of attorneys in criminal cases." See also Tollett v. Henderson, 411 U.S. 258, 266-69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976).

There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. Although the gauge of effective attorney performance is an objective standard of reasonableness, the Court concluded that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strategic choices made after thorough investigation of relevant law and facts are "virtually unchallengeable," as are "reasonable" decisions making investigation unnecessary.252 In order to establish prejudice resulting from attorney error, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."253

In Strickland, neither part of the test was satisfied. The attorney's decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant's criminal history was deemed "the result of reasonable professional judgment," and prejudice could not be shown because "the overwhelming aggravating factors" outweighed whatever evidence of good character could have been presented.254 In Lockhart v. Fretwell,255 the Court refined the Strickland test to require that not only would a different trial result be probable because of attorney performance, but that the trial result which did occur was fundamentally unfair or unreliable.256chanrobles-red

250 466 U.S. 668 (1984).

251 Strickland involved capital sentencing, and the Court left open the issue of what standards might apply in ordinary sentencing, where there is generally far more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466 U.S. at 686.

252 466 U.S. at 689-91. Compare Wiggins v. Smith, 539 U.S. 510 (2003) (attorney’s failure to pursue defend-ant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable) with Woodford v. Visciotti, 537 U.S. 19 (2003) (state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors). The obligation is to stay within the wide range of legitimate, lawful, professional conduct; there is no obligation to assist the defendant in presenting perjured testimony. Nix v. Whiteside, 475 U.S. 157 (1986). See also Georgia v. McCollum, 505 U.S. 42 (1992) (no right to carry out through counsel the racially discriminatory exclusion of jurors during voir dire). Also, "effective" assistance of counsel does not guarantee the accused a "meaningful relationship" of "rapport" with his attorney such that he is entitled to a continuance in order to change attorneys during a trial. Morris v. Slappy, 461 U.S. 1 (1983). See also Jones v. Barnes, 463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous issues requested by defendant; appointed counsel may exercise his professional judgement in determining which issues are best raised on appeal). Yarborough v. Gentry, 124 S. Ct. 1 (2003) (deference to attorney’s choice of tactics for closing argument).

253 466 U.S. at 694.

254 466 U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence). In Hill v. Lockhart, 474 U.S. 52 (1985), the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty.

255 506 U.S. 364 (1993).

256 506 U.S. at 368-70 (failure of counsel to raise a constitutional claim that was valid at time of trial did not constitute "prejudice" because basis of claim had since been overruled).

However, the Court has since held that Lockhart was merely intended to prevent a defendant from benefitting from undeserved "windfalls" in the trial process,257 and was not an invitation to courts to weigh and discount the prejudicial effect of a changed trial result.258 Further, there are times when a court is required to presume prejudice, i.e. there can be "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified."259 These situations include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution's case to meaningful adversarial testing.260 However, "[a]part from circumstances of that magnitude . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice]."261chanrobles-red

257 Williams v. Taylor, 529 U.S. 362, 391-93 (2000). See, e.g. Nix. v. Whiteside, 475 U.S. 157, 175-76 (1986)(a defendant cannot benefit from the fact that counsel's interference with his perjured testimony would have affected a trial's outcome.)

258 See, e.g., Glover v. United States, 531 U.S. 198 (2001) (6 to 21 month increase in prison term is sufficient "prejudice" under Strickland to raise issue of ineffective counsel).

259 United States v. Cronic, 466 U.S. 648, 658 (1984).

260 But see Bell v. Cone, 122 S. Ct. 1843 (2002) (failure to introduce mitigating evidence and waiver of closing argument in penalty phase of death penalty case was not failure to test prosecution's case, where mitigating evidence had been presented during guilt phase and where waiver of argument deprived skilled prosecutor an opportunity for rebuttal); Mickens v. Taylor, 122 S. Ct. 1237 (2002) (failure of judge who knew or should have known of an attorney's conflicting interest to inquire as to whether such conflict was prejudicial not grounds for automatic reversal).

261 Also not constituting per se ineffective assistance is a defense counsel's failure to file a notice of appeal, or even to consult with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam).

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