State and Federal Law Addressing Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution and Article I, section 15, of the California Constitution guarantee a criminal defendant the right to an attorney during significant stages of the criminal process. This can be either retained counsel or counsel appointed by the court for a defendant who cannot afford one. Giving these provisions some teeth, the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) held that a defendant has the right to “effective” assistance of counsel. An incompetent or ineffective attorney does not satisfy the constitutional guarantees. The Supreme Court stated that:

The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution to which they are entitled.”

California law echoes this requirement of effectiveness, which is necessary to ensure a fair trial. Thus, the issue in a claim of ineffective assistance of counsel is whether counsel’s ineffectiveness so “undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

  1. State and Federal Law Addressing Ineffective Assistance of Counsel
  2. When a Claim of Ineffective Assistance of Counsel Can be Raised
  3. How to Get a Judgment or Sentence Reversed for Ineffective Assistance of Counsel
  4. Applying the Strickland Test
  5. Learn How a Criminal Appeals Lawyer Can Help in Your Case

When a Claim of Ineffective Assistance of Counsel Can be Raised

A person charged with a crime, whether a misdemeanor or a felony, is entitled to effective representation at all critical stages of the criminal process — that is, whenever there may be significant consequences for the defendant. Counsel must be effective when informing a defendant of the charges against him, when advising them of the advisability of entering a plea, when selecting the jury, or when the trial has commenced. A defendant is also entitled to effective assistance of counsel on a first, direct appeal.

Making a Marsden Motion Before or During Trial

If the claim of ineffective assistance of counsel is raised before or during trial, the defendant may seek to substitute another attorney or have another attorney appointed by making what is known as a Marsden motion to dismiss their attorney.

Claiming Ineffective Assistance of Counsel on Direct Appeal

A claim of ineffective assistance of trial counsel may also be raised on direct appeal of a judgment or sentence if the ineffectiveness is demonstrated on the record. For instance, if the attorney failed to cross-examine key witnesses or made no closing argument, those may be acts that demonstrate the ineffectiveness of counsel and can be raised on appeal.

Submitting a Petition for a Writ of Certiorari

If the conduct allegedly constituting ineffective assistance occurs off the record, for example, if the attorney did not investigate the circumstances of the charged crime or interview available witnesses for the defense, then a claim of ineffective assistance of counsel may be raised in what is known as a petition for a writ of certiorari. This is a proceeding in which off-record matters may be raised with a court.

Ineffective assistance of counsel may come into play when a defendant is charged with a crime and an earlier felony conviction is being used to enhance the defendant’s sentence in the current case. The defendant is permitted to challenge the sufficiency of the representation provided in the earlier felony conviction.

  1. State and Federal Law Addressing Ineffective Assistance of Counsel
  2. When a Claim of Ineffective Assistance of Counsel Can be Raised
  3. How to Get a Judgment or Sentence Reversed for Ineffective Assistance of Counsel
  4. Applying the Strickland Test
  5. Learn How a Criminal Appeals Lawyer Can Help in Your Case

How to Get a Judgment or Sentence Reversed for Ineffective Assistance of Counsel

Keeping in mind the goal of ensuring a fair trial, courts require a defendant claiming ineffective assistance to prove two elements:

  1. That counsel’s performance was deficient
  2. That the deficiency prejudiced the defendant to the point that they were denied a fair trial.

Defense Counsel’s Performance was Deficient

First, the defendant must demonstrate that counsel’s performance was, in fact, ineffective. This does not mean that counsel was unsuccessful in obtaining a “not guilty” verdict for the defendant or a short prison term via a plea agreement. It means that counsel’s performance was deficient and that they made errors so serious that they fell below an objective standard of reasonableness.

In order to show that the defense counsel’s performance was deficient, the defendant must identify the acts or omissions that they claim demonstrate ineffective assistance.

The standard an attorney must meet is “reasonably effective assistance.” The fact that an attorney made errors at trial is not, by itself, enough to show that counsel’s performance was deficient. Judicial review of the attorney’s conduct is “highly deferential.” A defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

An attorney’s performance is more likely to fall below this standard if the attorney:

  • Failed to attempt strategies in defending the client
  • Failed to investigate the case
  • Missed clear chances to object to questionable actions by the prosecution

Examples of when a defense attorney’s performance could be considered below the standard of reasonableness and thus constitute ineffective assistance of counsel include the following:

  • The defense attorney failed to object to evidence that should not have been admissible.
  • The defense attorney failed to make reasonable investigations into the facts of the case.
  • The defense attorney failed to take effective steps to rebut evidence offered by the prosecution, e.g. by failing to request DNA testing.

However, the court reviewing the defendant’s claim must presume that any act of the attorney that the defendant challenges falls within the wide range of reasonable professional assistance. A court’s review of counsel’s performance, as stated above, is highly deferential, meaning the attorney will be given the benefit of the doubt in any challenge to their actions at trial. In fact, a reviewing court in California will not reverse a judgment or conviction on appeal because of acts or omissions of the attorney unless a review of the record shows that no possible tactical reason could have existed for the attorney’s conduct.

Pointing to alleged errors made by trial counsel is not enough to establish ineffectiveness. While some errors may be so obviously unreasonable that they establish ineffective assistance, others may require that a defendant use another attorney or an expert witness to testify that the trial attorney’s performance fell below an objective standard of reasonableness. In rare cases, the defendant’s trial attorney may admit to overlooking evidence or opportunities to counter the prosecution’s case. The defendant must be prepared to point out errors and have evidence to show that counsel’s conduct fell below the objective standard of reasonableness.

If the claimed errors involve the attorney’s lack of action, for example, failing to call a witness or introduce evidence, the defendant must be prepared to present the witness’s testimony or the evidence to the court and demonstrate how the testimony would have affected the outcome of the trial. A court will not speculate, based solely on the defendant’s assertion, what that testimony or evidence would have entailed.

The Defendant was Prejudiced by Defense Counsel’s Ineffective Performance

Second, the defendant must show that the deficient performance prejudiced the defense, that is, harmed them in some way. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. If the defendant was not prejudiced by counsel’s ineffective performance, a court will not reverse a conviction or judgment.

Even if counsel’s performance was deficient, a court will not reverse a judgment unless the deficient performance prejudiced the defendant. That is, it impacted the outcome so that the trial cannot be relied on as having produced a just result. A defendant need not show that their attorney’s deficient representation “more likely than not” impacted the outcome in the case.

They must show only that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the trial would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Proving that counsel’s performance impacted the outcome of the trial or, in the case of a plea agreement, the decision to plead guilty, is up to the defendant.

Not every error that could possibly have influenced the outcome of a trial undermines the reliability of the result of the proceeding. However, in some extreme situations, a court will presume that errors affected a trial’s outcome. For example, the following may be presumed errors that constitute prejudice:

  • If the state interferes with the defendant’s right to counsel
  • If counsel had a conflict of interest
  • If counsel failed to inform a defendant of the immigration consequences of accepting or rejecting a plea bargain

Courts are likely to find prejudice when the error committed by the attorney was more than just a tactical error and resulted in the introduction of evidence supporting the prosecution’s case or in the exclusion of evidence relevant to the defense. Strategic decisions, such as failing to cross-examine a witness or put the defendant on the stand, are not likely to convince a court that counsel was ineffective.

A court may first consider whether the acts complained of by the defendant were, if true, prejudicial without ever reaching the question of whether counsel’s performance was below the required standard of representation. In such an analysis, the court considers whether counsel’s performance prejudiced the defendant. Again, allegations of egregious conduct by the attorney may lead a court to find prejudice. A court cannot find that counsel’s performance negatively affected the outcome of the trial and then find that counsel’s performance was adequate.

In theory, the question of counsel’s performance and the question of prejudice are two separate inquires, but in practice, courts often collapse these analyses. If a court finds that counsel’s performance fell below an objective standard of reasonableness, it is more likely to find that the sub-par performance prejudiced the defendant. Likewise, if the court finds that errors identified by the defendant did not affect the outcome of the trial, it will generally find that counsel was not ineffective.

  1. State and Federal Law Addressing Ineffective Assistance of Counsel
  2. When a Claim of Ineffective Assistance of Counsel Can be Raised
  3. How to Get a Judgment or Sentence Reversed for Ineffective Assistance of Counsel
  4. Applying the Strickland Test
  5. Learn How a Criminal Appeals Lawyer Can Help in Your Case

Applying the Strickland Test

In cases in which the evidence against the defendant seems to clearly establish guilt, the court may not always find in favor of the defendant even if there was ineffective assistance of counsel. This can create a difficult situation when a defendant complains that counsel was ineffective for failing to object to evidence or testimony, but the court finds that such failure was not prejudicial because the evidence against the defendant was overwhelming. However, if counsel had objected to the evidence or testimony, the overwhelming nature of the case again the defendant may not have existed. This is where the prejudice prong of Strickland as applied can go awry for a defendant.

As stated above, a court may first consider whether the acts complained of by the defendant were, if true, prejudicial without ever reaching the question of whether counsel’s performance was below the required standard of representation. Strickland, the Supreme Court case setting the standards for ineffective assistance of counsel, encourages this course of review. In such an analysis, the court considers whether the deficiencies of counsel’s performance as alleged by the defendant show a reasonable probability that, but for the deficiencies, the result of the trial would have been different. Again, allegations of egregious conduct by the attorney may lead a court to find prejudice.

If a defendant claims that their attorney’s performance fell below the standard of reasonableness in recommending the rejection of a plea agreement, they must show the following:

  1. But for the ineffective advice, there was a reasonable probability that the plea offer would have been presented to and accepted by the court; and
  2. The conviction and/or sentence under the plea’s terms would have been less severe than the actual judgment and sentence imposed.

The Difficulties of Meeting the Strickland Test

Demonstrating ineffective assistance of counsel under the Supreme Court’s Strickland test can be complicated. Having to meet both prongs of the test, counsel’s substandard performance and prejudice, are daunting tasks.

The courts endorse a presumption that counsel’s representation was effective, and a defendant must produce evidence to overcome that presumption. Demonstrating that counsel’s errors made a difference in the outcome of the trial requires persuading the court that the jury would have decided differently had competent counsel tried the case. Linking counsel’s errors to the result of the trial is difficult and prevents success in many ineffective assistance claims.

Sample Cases of Claims of Ineffective Assistance of Counsel

Whether counsel’s performance was ineffective and whether that ineffective assistance prejudiced the defendant depends on the unique facts of each case. Similar facts can result in different outcomes. For instance, in one case, a court found that there was no ineffective assistance of counsel even though trial counsel fell asleep during cross-examination of the defendant. In another, the court found that counsel was ineffective when he repeatedly fell asleep during the trial.

Some cases in which the court found ineffective assistance of counsel include the following:

  • Counsel failed to object to the introduction of recorded incriminating testimony of the defendant obtained without counsel present (what is called a Massiah claim).
  • In a molestation case, counsel failed to obtain photographs from examination of the victim or to obtain an expert to review the photographs (trial counsel admitted she had no tactical reason for failing to obtain the evidence and an expert testified that his findings were contrary to the prosecution’s expert).
  • Counsel forgot to request a jury instruction on a viable defense of “claim of right” in a charge of grand theft auto involving arising from an improper lien sale.
  • Counsel failed to research the law of search and seizure, which would have led to exclusion at trial of primary inculpatory evidence.

Some cases in which a court found no ineffective assistance of counsel:

  • Counsel failed to object to an inculpatory statement as involuntary; while the record did not reflect counsel’s tactical reason for the failure to object, court said he could have believed that the defendant’s recollection of the interrogation was flawed.
  • Defendant and his counsel disagreed on trial tactics; the trial court held that the trial attorney was responsible for legal strategy. Defendant also questioned counsel’s failure to call character witnesses; court deferred to counsel’s determination that the witnesses would have provided no benefit to the defense.
  • Defense counsel called a witness who gave damaging testimony to the defendant; the record showed that the defendant insisted that the witness be called despite warnings from his counsel.
  1. State and Federal Law Addressing Ineffective Assistance of Counsel
  2. When a Claim of Ineffective Assistance of Counsel Can be Raised
  3. How to Get a Judgment or Sentence Reversed for Ineffective Assistance of Counsel
  4. Applying the Strickland Test
  5. Learn How a Criminal Appeals Lawyer Can Help in Your Case

Learn How a Criminal Appeals Lawyer Can Help in Your Case

Having an experienced, skilled attorney who can scour the record for counsel’s errors and show how those errors impacted the outcome of the trial gives a defendant the best chance of demonstrating ineffective assistance of counsel.

The award-winning criminal appeals lawyers at Spolin Law P.C. successfully win cases because:

  • We know the law. Spolin Law P.C. understands how to prove the elements of ineffective assistance of counsel, and we know how the Strickland Test works.
  • We fight for every client. Our attorneys will dive into the details of the court transcripts and determine any errors that were made. We protect our clients’ right to effective counsel and fight for an acceptable resolution.
  • We know how to win. Spolin Law P.C. has a record of success that proves we have the experience it takes to win cases like yours. Although past success does not “guarantee” an outcome in a future case, it does evidence skill and experience.

Attorney Aaron Spolin and his team of legal professionals are here to help you. Contact Spolin Law P.C. today at (310) 424-5816.