Standards of Effectiveness of Criminal Counsel
| Publication year | 1983 |
| Pages | 264 |
| Citation | Vol. 12 No. 2 Pg. 264 |
1983, February, Pg. 264. Standards of Effectiveness of Criminal Counsel
More legal malpractice cases have been reported at the appellate level in the last fifteen years than in the preceding seventy years.(fn1) American legal malpractice law has not been shaped by charges of courtroom incompetence, but rather by bungling committed at the office.(fn2) The question raised is whether professional negligence in the defense of criminal prosecution should stand on the same legal footing as incompetence in the handling of civil matters.
This article discusses the standards imposed upon criminal defense lawyers in both the criminal and civil malpractice settings. Considerations and issues raised as to each are also discussed.
The Sixth Amendment to the United States Constitution and Article II, § 16 of the Colorado Constitution guarantee that "(1) in all criminal prosecutions the accused shall enjoy the right to ... the Assistance of Counsel for his defense."(fn3)
Development of the constitutional right to assistance of counsel has focused on two major areas: the right to counsel and the right to effective counsel.(fn4) Although each principle is a distinct concept, right to counsel cases often emphasize the importance of the right to effective counsel. In the decision of Gideon v. Wainwright, the U.S. Supreme Court held that the Sixth Amendment guarantee of the right to counsel extended to the states through its incorporation into the due process clause of the Fourteenth Amendment.(fn5)
Gideon followed the landmark case of Powell v. Alabama where the Court recognized that the Constitution not only provides for the right to assistance of counsel in criminal cases, but also the right to effective assistance of counsel.(fn6)
The right to counsel is more fully developed than the right to effective counsel. The Court on numerous occasions directly addressed the issue of whether the right to counsel should be extended and, as a result, it has enumerated specific situations in which an accused must be provided with counsel. In addition, the Court has established a general criterion for determining other situations in which an attorney must be provided.(fn7) However, with the right to effective counsel, the Court has done little more than recognize that there is such a right. Therefore, it has been left up to the federal circuit courts and the states to determine their own criteria of what constitutes ineffectiveness of counsel. As a result, there is confusion and a lack of uniformity in this area.(fn8)
Initially, federal courts employed the so-called "farce and mockery test": counsel's ineffective assistance violated the defendant's Sixth Amendment right only if the lawyer's incompetence was so gross that it rendered the proceedings "a farce and mockery of justice."(fn9) Until 1973, the "farce and mockery" standard was employed by all eleven federal circuit courts, but recognition of this standard soon led "itself to a mockery of the sixth amendment."(fn10)
After the decision of McMann v. Richardson, nine circuits have expressly rejected that standard---the only courts to retain it are the tenth and second circuits. In McMann, the Supreme Court held the determination of whether an attorney was incompetent in advising a defendant to plead guilty depended on whether that advice was within the range of competence demanded of attorneys in criminal cases.(fn11) Several of the federal courts have extended the scope of McMann to apply to situations other than that of the guilty plea.(fn12) The McMann standard does not limit itself to the attorney's conduct during trial as the "farce and mockery" test does, but also includes pretrial motions and pretrial investigation.
In applying the standards, all courts have tended to utilize the same three sources as guidelines: the ABA Code of Professional Responsibility (1978); ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function; and Restatement (Second) of Torts (1965).
Colorado has adopted the McMann standard in determining ineffectiveness of counsel. In People v. Blalock, the Supreme Court stated: "the court must determine, when faced with a claim of ineffective assistance of counsel, 'whether the advice was within the range of competence demanded of attorneys in criminal cases.'"(fn13)
In Blalock, the defendant was convicted by the jury of first-degree sexual assault and second-degree kidnapping. The defendant's motion for post-conviction relief was based upon the fact that his defense counsel had sexual intercourse with the victim prior to the time he undertook to represent the defendant and had a conflict of interest which denied the defendant effective assistance of counsel. When defense counsel cross-examined the victim, he asked some questions which might not have been asked if his relationship with the witness was not buttressed by a background of sexual intimacy.
In affirming the defendant's motion for post-conviction relief, the court stated: "The representation in this case not only failed to meet our standard which requires reasonably effective assistance of counsel, but also falls in that category of representation that has been described as being a sham and a farce."(fn14)
Certain advantages to the reasonableness standards are recognized. First, the standards, at least on their face, are more generous to the defendant bringing a claim of ineffectiveness than the mockery of justice standard. Second, they allow the court to make more serious evaluations of the claims than does the mockery test. Third, the reasonableness standards allow a court to overturn a conviction for something less than the attorneys' serious breach of duty which deprived the defendant of a fair trial. In other words, the reasonableness standards move away from the policy, reflected in the "farce and mockery" standard, that finality in criminal cases outweighs the consequences of inferior representation. Fourth, the reasonableness standards, unlike the mockery standard, take the emphasis off the trial proceedings and allow ineffective assistance claims to be brought concerning all areas of the law. Some commentators have argued that the flexibility of the reasonableness standards is an advantage rather than a disadvantage.(fn15).
Criticisms of the reasonableness standards are some of the same criticisms directed at the "farce and mockery" standard; namely, the standards are too vague and lack any clear criteria which the courts can use in applying them. Some critics have argued that, in application, the...
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