6.3.7 Attorney Incompetence

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

6.3.7 Attorney Incompetence

In order for attorney incompetence to rise to the level of ineffective assistance, the "errors [must be] so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."¹⁰⁵ As a practical matter, the most likely candidates for reversal due to ineffective assistance involve grave procedural omissions, such as the lawyer not making a motion to suppress evidence obtained in stark violation of the Fourth Amendment,¹⁰⁶ the failure to file a timely "statement of appeal,"¹⁰⁷ or the rejection of a favorable plea deal caused by poor advice from the defendant's lawyer.¹⁰⁸

With more strategic-type decisions, however, considerable deference is given to the discretion of defense counsel. Such decisions are unlikely to rise to the level of reversible ineffective assistance of counsel. For instance, the decision not to present evidence of the defendant's personal history in a capital case may not be sufficient.¹⁰⁹ As the Supreme Court has written:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.¹¹⁰

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Notes:

^[105] . Strickland v. Washington, 466 U.S. 668, 687 (1984). Padilla v. Kentucky, 559 U.S. 356 (2010), held that constitutionally competent counsel would have advised the defendant that a conviction for drug distribution made him subject to automatic deportation. Considering the severe impact on an individual, the fact that the advice would have gone to a "collateral consequence" did not eliminate it as a basis for adherence to Strickland. The justices again considered the application...