Rhode Island’s “Farce and Mockery” Standard for Ineffective Assistance of Counsel Claims, 0214 RIBJ, 62 RI Bar J., No. 4, Pg. 5

AuthorThomas R. Bender, Esq.

Rhode Island’s “Farce and Mockery” Standard for Ineffective Assistance of Counsel Claims: A Misleading, Incorrect, and Unconstitutional Anachronism

Vol. 62 No. 4 Pg. 5

Rhode Island Bar Journal

February, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 January, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Thomas R. Bender, Esq.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Thomas R. Bender, Esq. Attorney in Providence “The effective assistance of counsel is a defendant’s most fundamental right ‘for it affects his ability to assert any other right he may have.’” That right arises under the Sixth Amendment to the federal constitution, as applied to the states through the Fourteenth Amendment, 1 and under Article I, Section 10 of the state constitution. The Rhode Island Supreme Court has stated that, in evaluating an application for post-conviction relief based on a claim of ineffective assistance of counsel, it ‘adheres to the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 * * * (1984).”2

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Of course, for a claim made under the Sixth Amendment, it must adhere to that standard. The true import of that statement is with respect to an ineffectiveness claim brought under Article I, Section 10. It means the Court has adopted the federal constitutional standard as the state constitutional standard, and, thus, the state constitutional standard for determining the effectiveness of counsel in a state prosecution is the same as for determining the constitutional effectiveness for counsel under Strickland in a federal prosecution. Under the federal standard as set forth in Strickland, a new trial is warranted if “there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”3 The petitioner need not prove that it is “more likely than not” the outcome would be different, but only that counsel’s unprofessional errors “had some conceivable effect on the outcome of the proceedings.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0But in the years subsequent to Strickland – 1999 to be precise – a distinct and more burdensome standard slipped into Rhode Island’s ineffective assistance of counsel jurisprudence. Counsel’s errors at trial were not constitutionally ineffective unless they resulted in a trial that was “a farce and a mockery of justice.” That is not, however, a Sixth Amendment standard under Strickland and its progeny. Instead, it is a pre-Strickland Due Process Clause “fair trial” standard that was applied to counsel’s performance at trial before the Sixth Amendment right to counsel was recognized to include a constitutional right to the effective assistance of counsel. It has long since been deceased, and is not now, and has never been, part of Strickland’s Sixth Amendment ineffectiveness of counsel analysis.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Yet, despite the fact that it is not part of the Sixth Amendment analysis our state courts are bound to follow, and represents a distinctly greater burden to demonstrate constitutionally ineffective assistance than required by the Sixth Amendment, the “farce and mockery of justice” language has frequently appeared in state Supreme and Superior Court decisions since 1999, and has continued to appear in Rhode Island state court decisions as of the time of this writing. The hope author’s hope is to persuade the state courts to abandon that language, and the standard it implies, and follow the correct constitutional path.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Sixth Amendment “Objectively Unreasonable” Standard

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Both the Sixth Amendment to the United States Constitution, and Article 1, Section 10 of the Rhode Island Constitution, provide that, in all criminal prosecutions, the accused shall enjoy the right to assistance of counsel in his or her defense.5 Under Strickland, the constitutional right to counsel exists in order to protect the fundamental right to a fair trial, and accord defendants “ample opportunity to meet the case of the prosecution.”6 Both the Rhode Island Supreme Court and the United States Supreme Court have recognized that, under their respective constitutions, “the right to counsel is the right to effective assistance of counsel.”7

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the 1984 Strickland decision, the United States Supreme Court set forth a standard for evaluating whether the defendant’s counsel’s assistance was constitutionally “effective” under the Sixth Amendment, 8 and the Rhode Island Supreme Court has repeated that standard for an ineffective assistance of counsel claim under Article 1, Section 10 as well.9 The Strickland standard consists of two prongs.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For the first prong, the Sixth Amendment standard requires the petitioner claiming ineffective assistance of counsel to “show that his attorney’s representation was objectively unreasonable under prevailing professional norms and cannot be reconciled with sound strategy.”10 The second prong requires the defendant to demonstrate “that the deficient performance prejudiced the defense.”11 In this context, prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”12 But reasonable probability simply means “a probability sufficient to undermine confidence in the outcome” of the proceeding, and not necessarily that “counsel’s deficient conduct more likely than not altered the outcome of the case.13

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Stated more compactly, the inquiry is whether, given counsel’s performance, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence[, ]” and the error or errors committed by counsel need only create a reasonable possibility that the verdict is suspect...

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