Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel

• Author: Sara Mayeux
• Position: 2013-14 Berger-Howe Legal History Fellow, Harvard Law School. Ph.D candidate & J.D., Stanford University
• Pages: 2161-2184

2161

Ineffective Assistance of Counsel Before

Powell v. Alabama: Lessons from History for

the Future of the Right to Counsel

Sara Mayeux

INTRODUCTION .................................................................................... 2162

I. THE COMMON LAW AGENCY RULE STARTS TO BEND, 1882–1924 ..... 2169

A. THE COMMON LAW RULE: COUNSEL INCOMPETENCE IS NOT

GROUNDS FOR REVERSAL ................................................................ 2169

B. THE EXCEPTION: STATE V. JONES, 1882 ........................................ 2171

C. STATE COURTS EMBELLISH THE COMMON LAW RULE,

1883–1924 .................................................................................. 2173

II. THE COMMON LAW AGENCY RULE SNAPS, 1924–1927 ....................... 2174

A. ILLINOIS DEPARTS FROM THE COMMON LAW RULE: PEOPLE V.

NITTI, 1924 ................................................................................. 2175

B. INDIANA FOLLOWS: SANCHEZ V. STATE, 1927 ................................ 2178

III. THE SUPREME COURT RATIFIES THE NEW RULE: POWELL V.

ALABAMA, 1932 .................................................................................... 2180

CONCLUSION ....................................................................................... 2182

 2013–14 Berger-Howe Legal History Fellow, Harvard Law School. Ph.D candidate &

J.D., Stanford University. Thank you to the staff of the Iowa Law Review for organizing this

Symposium and for their insightful feedback and careful editing; to my fellow Symposium

participants for their helpful comments; and to Barbara Babcock, Marsha Berzon, Dan Ernst,

Bob Gordon, Norm Spaulding, and Bob Weisberg for sugg estions. This paper also benefited

from presentations to the Western Association of Women Historians and the Stanford U.S.

History Workshop. A special thanks to John Reinhardt and other staff at the Illinois State

Archives for their extremely effective assistance in locating and digitizing archival materials

related to People v. Nitti.

2162 IOWA LAW REVIEW [Vol. 99:2161

INTRODUCTION

Isabella Nitti—the first woman sentenced to death in Illinois—was

national news in her time.1 Today she is remembered (if at all) as one of the

notorious “husband killers” who inspired the Broadway play Chicago.2 Less

well remembered is that Nitti was also one of the first Americans to have her

conviction reversed, and her death sentence vacated, on the basis that her

lawyer was grossly incompetent.3 Reviewing Nitti’s trial on appeal, the Illinois

Supreme Court described her attorney as “ignoran[t],” “stupid[],” and

“unfamiliar with the simplest rules of evidence.”4 To uphold Nitti’s

conviction under these circumstances, the court reasoned, would reduce the

federal and state constitutional guarantees of the right to counsel to “mere

empty formalities.”5

What may surprise lawyers and legal scholars about People v. Nitti is not

its Broadway-ready facts, but its date: 1924. Today, we would classify Nitti as a

case about “ineffective assistance of counsel” (“IAC”). Although rarely

successful,6 IAC claims now comprise the majority of challenges to criminal

convictions in the United States.7 Yet legal scholars typically frame IAC

doctrine as a more recent invention. Some date its origins as recently as

1984, when the Supreme Court announced its modern restatement of the

1. DOUGLAS PERRY, THE GIRLS OF MURDER CITY: FAME, LUST, AND THE BEAUTIFUL KILLER S

WHO INSPIRED CHICAGO 118 (2010).

2. See id. at 245–46; Marianne Constable, Chicago Husband-Killing and the “N ew Unwritten

Law,” 124 TRIQUARTERLY 85, 88 (2006). Nitti’s birth name was Isabella and her nickname

Sabella, while the Chicago press called her Sabelle. See PERRY, supra note 1, at 116. For

consistency with legal records, I use Isabella.

3. See infra Part II.A.

4. People v. Nitti, 143 N.E. 448, 452 (Ill. 1924).

5. Id. at 453.

6. Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C. L. REV. 1069, 1074 &

n.17 (2009); Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the

Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625, 632 (1986)

(explaining that in a study of IAC claims from 1970 to 1983, only 3.9% were successful).

Conversely, many meritorious IAC claims are never pursued. See Eve Brensike Primus, Structural

Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELL L. REV.

679, 683 (2007).

7. NANCY J. KING ET AL., NAT’L CTR. FOR STATE COURTS, FINAL TECHNICAL REPORT: HABEAS

LITIGATION IN U.S. DISTRICT COURTS 5, 10 (2007), available at http://cdm16501.contentdm.

oclc.org/cdm/ref/collection/criminal/id/102 (reporting that 81% of capital cases and 50.4% of

non-capital cases raised an IAC claim in the early 2000s); JOHN SCALIA, BUREAU OF JUSTICE

STATISTICS, U.S. DEP’T OF JUSTICE, PRISONER PETITIONS IN THE FEDERAL COURTS, 1980–96, at 14

(1997), available at http://www.bjs.gov/content/ pub/pdf/ppfc96.pdf (reporting that 25% of

habeas petitions were based on IAC claims in the early 1990s). See Tom Zimpleman, The Ineffective

Assistance of Counsel Era, 63 S.C. L. REV. 425, 427 (2011) (most federal habeas petitions include an

IAC claim). IAC challenges “are the most frequently file d claims in both federal and state post-

conviction relief proceedings.” Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural

Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 COLUM. L. REV. 1103, 1118

(1999).