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The Tough Battle Of Legally Proving Ineffective Assistance Of Counsel

I am in the midst of challenging the validity of a guilty plea that according to the family members were pushed on my client by her public defender. She is presently incarcerated in a California prison with a 16 months state prison to fulfill. But based on my review of the case, extreme errors were made in her case. Mind you, this is a woman with no prior criminal record and arguably could, through her attorney negotiated a deal for a reduction of the criminal charges, no prison term, and no deportable consequence. Little to no investigation and/or effort by her attorney to argue numerous mitigating factors in her case were ever made to the District Attorney and to the judge.

Withdrawing a guilty plea is a tough battle to fight but an even tougher fight is to have the court rule that your attorney provided you with ineffective assistance of counsel. So, words to heed—PICK YOUR ATTORNEY VERY WELL. I will briefly go through the pros and cons of a court appointed attorney (ie.. Public Defender, Alternate Public Defender or a Panel Attorney) vs. hiring a private criminal defense attorney.

But let me just start by citing examples in case laws where the courts have decided that notwithstanding the attorney’s behavior, the defendant’s Sixth Amendment right to effective assistance of counsel was not violated and thus did not require reversal:

  1. “Although defense attorney slept through portions of the trial, the court still found the attorney provided defendant meaningful representation."

  2. “Proof of defense attorney’s use of narcotics during trial does not amount to per se violation of constitutional right to effective counsel."

  3. “Defendant charged with murder was not deprived of effective assistance of counsel, though counsel was an alcoholic."

  4. “Attorney’s indifference to defendant’s clothing which was the same sweatshirt and footwear in court that he wore on the day of the crime, did not constitute ineffective counsel."

So you are asking yourself what examples would constitute a violation of the Sixth Amendment requiring a reversal. Here are some examples and please note how blatant it must be before the courts conclude that the attorney is incompetent:

  1. “Defense attorney’s closing argument admitted client’s guilt without client’s consent and argued that …. society in general should be blamed."

  2. “Attorney during jury selection informs the prospective jurors that he himself was convicted of a drug offense charge."

  3. “Suggesting that if defendant had testified, he would have lied."

  4. “Failure to challenge the jurors for cause or by preemptory which resulted in nine of the twelve jurors having friends or relatives on various police agencies."

In a long line of cases that includes Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963) has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. But the case of Strickland v. Washington, 466 U.S. 668 (1984) sets forth the two prong tests.

First, the defendant must show that the attorney’s performance was deficient. The errors made must be proven to be so serious that counsel was not functioning as the “counsel" as constitutionally guaranteed. Second, the defendant must show the deficient performance prejudiced the defense. The errors must be so serious as to deprive the defendant of a fair trial. Unless the defendant proves both, a criminal conviction, whether it resulted in a life term or death sentence will not be reversed by the courts.

Simply, the first test is an objective question of whether your attorney acted as a “reasonable competent attorney." Reasonableness is compared to what is the prevailing professional norm. There must be basic functions that the attorney performed such as duty of loyalty, assist the defendant, duty to avoid conflicts of interest, duty to possess basic skill and knowledge. As many of you correctly concludes, what is only required is a basic competency standard--nothing more, nothing less. So it is up to the client who hires the attorney to make sure that he or she is aware of the attorney’s experiences and abilities. The courts are even reluctant to scrutinize attorneys and create rigid requirements. As the famous saying goes, “buyer beware", is clearly applicable to hiring an attorney.

The law is clear that the second test must also be proven. An attorney’s error, even if professionally unreasonable must be shown to have had an effect on the final judgment. The defendant must show the mistakes were so prejudicial that the outcome would have been different but for the grave errors made by his/her attorney. This is not easy. The defendant must show with reasonable certainty that the errors were material and a different result would likely have had a reasonable doubt to conclude guilt.

What should be very clear to all of you is that making sure you have adequate representation by attorney is a duty placed on you and not necessarily by the courts. Even though it is clear that the courts have followed the landmark case of Gideon v. Wainwright, which helped pave the way for all to be guaranteed an attorney at a criminal trial, the courts do not insure that the level of competency is highly measured.

I have many questions of whether they should “stick with their public defender" (alternate public defender or court appointed bar panel attorney) or hire their own attorney. In my 12 years in the criminal law arena, I have worked with many good public lawyers but the problem lies with the fact, that the client does not have a choice which public attorney he/she gets. You get the attorney assigned in that court room or whoever is available. They are overworked, understaffed and have limited resources. Many, if not most, public lawyers enjoy some form of civil service protections, such as they may not be fired unless for “good cause" and many belong to unions which means more additional protection.

As in my case that I pointed out above, the family and friends of my client never received a telephone call nor were their calls returned by the public defender assigned to the case. Is this type of behavior the norm amongst all public lawyers, I don’t think so, but if you are paying for your own private criminal defense attorney, the likelihood of accountability and responsiveness to you is greater. As the old saying goes, “you get what you pay for."

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