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.247
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.251
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 and decisions selecting which issues to raise on appeal.62 Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate: “Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”63 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 This standard does not require that “a defendant show that counsel's deficient conduct more likely than not altered the outcome in the case.”64 Also, presentation of a plausible mitigation theory supported by evidence does not foreclose prejudice based on counsel's earlier failure to have conducted an adequate mitigation investigation.65 Nevertheless, defendants frequently fall short on the prejudice requirement, with the Court posing it as a threshold matter and failing to find how other representation could have made a significant difference.66
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.256
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.
* Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference to attorney’s choice of tactics for closing argument).
252 Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors); Schriro v. Landrigan, 550 U.S. 465 (2007) (federal district court was within its discretion to conclude that attorney’s failure to present mitigating evidence made no difference in sentencing). But see Wiggins v. Smith, 539 U.S. 510 (2003) (attorney’s failure to pursue defendant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable); Rompilla v. Beard, 545 U.S. 374 (2005) (attorneys’ failure to consult trial transcripts from a prior conviction that the attorneys knew the prosecution would rely on in arguing for the death penalty was inadequate); Porter v. McCollum, 130 S. Ct. 447 (2009) (per curiam) (attorney's failure to interview witnesses or search records in preparation for penalty phase of capital murder trial constituted ineffective assistance of counsel); See also Sears v. Upton, 130 S. Ct. 3259 (2010).
62 There is no obligation to present on appeal all nonfrivolous issues requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal).
63 466 U.S. at 689. Strickland observed that "American Bar Association standards and the like" may reflect prevailing norms of practice, "but they are only guides." Id. at 688. Subsequent cases also cite ABA standards as touchstones of prevailing norms of practice. E.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545 U.S. 374, 387 (2005). But in Bobby v. Van Hook, the Court held that the Sixth Circuit had erred in assessing an attorney's conduct in the 1980s under 2003 ABA guidelines, and also noted that its holding “should not be regarded as accepting the legitimacy of a less categorical use of the  Guidelines to evaluate post-2003 representation.” 130 S. Ct. 13, 17 n.1 (2009) (per curiam).
253 466 U.S. at 694.
64 Strickland, 466 U.S. at 693. See also Porter v. McCollum, 130 S. Ct. 447 (2009).
65 Sears v. Upton, 130 S. Ct. 3259 (2010) (counsel presented evidence of supportive family ties as a mitigating factor in the penalty phase of a capital case, but a fuller investigation by counsel would have uncovered evidence of physical abuse, pronounced brain damage, and significantly diminished mental functioning).
66 E.g., Smith v. Spisak, 130 S. Ct. 676, 685-88 (2010). See also Hill v. Lockhart, 474 U.S. 52, 60 (1985).
254 466 U.S. at 699. Accord, Wong v. Belmontes, 130 S. Ct. 383 (2009) (per curiam); 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. Compare Sears v. Upton, 130 S. Ct. 3259 (2010).
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],"261 and consequently most claims of inadequate representation are to be measured by the Strickland standard.70 Criminal prosecutions in the United States most commonly result in guilty pleas. In considering a plea, an accused is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. In Padilla v. Kentucky, however, the Court held that defense counsel's Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.67 Because of its severity, historic association with the criminal justice system, and increasing certainty following conviction and imprisonment, deportation was found to be of a “unique nature”: the Court pointedly stated that it was not addressing whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel's constitutional duty in a criminal case.68 Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to Padilla that he did not have to worry about deportation because of the length of his legal residency in the U.S. The Court emphasized that this conclusion was not based on the attorney's mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.69 Silence is not an option. On the issue of prejudice to Padilla from ineffective assistance, the Court sent the case back to lower courts for further findings.
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). In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), the Supreme Court noted that it has never ruled on whether, during a plea hearing at which the defendant pleads guilty, defense counsel’s being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in such poor performance that Cronic should apply. The fact that the Court has never ruled on the question means that “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’” and, as a consequence, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), the defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), as to which see “Limitations on Habeas Corpus Review of Capital Sentences” under Eighth Amendment).
261 Cronic, 466 U.S. at 659 n.26.
67 130 S. Ct. 14731 (2010).
68 130 S. Ct. at 1481.
69 130 S. Ct. at 1484-86.
70 Strickland and Cronic were decided the same day, and the Court’s opinion in each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. The Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for “claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666 n.41. The narrow reach of Cronic has been illustrated by subsequent decisions. Not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or in some circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). See also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant has failed to consent to a tenable strategy counsel has adequately disclosed to and discussed with him). A standard somewhat different from Cronic and Strickland governs claims of attorney conflict of interest. See discussion of Cuyler v. Sullivan under “Protection of Right to Retained Counsel,” supra.
Last modified: June 9, 2014