It Adds Up: Ineffective Assistance of Counsel and the Cumulative Deficiency Doctrine

• Publication year: 2014

It Adds Up: Ineffective Assistance of Counsel and the Cumulative Deficiency Doctrine

Michael McLaughlin

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IT ADDS UP: INEFFECTIVE ASSISTANCE OF COUNSEL AND THE CUMULATIVE DEFICIENCY DOCTRINE

Michael C. McLaughlin^*

Table of Contents

Introduction.........................................................................859

I. The Right to Effective Assistance of Counsel...........864

A. The Right to Assistance of Counsel in Criminal Cases..........................................................................864
B. The Right to Effective Assistance of Counsel in Criminal Cases..........................................................................866

II. The Circuit Split.............................................................871

A. Circuits Rejecting the Cumulative Error Doctrine.... 871
B. Circuits Adopting the Cumulative Error Doctrine.... 874
C. The Eleventh Circuit: Calling Attention to the Lack of Supreme Court Guidance...........................................876

III. Resolving the Split and Ensuring Uniformity.........879

Conclusion............................................................................883

Introduction

Benjamin Harris watched as his appointed defense counsel, Murray Anderson, delivered a closing argument in his murder trial.¹ Anderson began to verbally attack his own client, telling members of the jury Harris was a liar and a thief; Anderson continued that Harris had "in's [sic] and out's [sic] with several young women," that "he drank intoxicating liquor a great deal[,]" and he is "a man who doesn't have

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the same moral code as we expect" because he belongs to "a class of men who don't work and carry guns, regularly."² Likely most damning to his client's murder charge, Anderson argued to the jury that Harris and his cohorts "kill people."³ It is possible that defense counsel—realizing that the jurors felt no sympathy for Mr. Harris—made a strategic decision to dehumanize his client. However, this theory appears less probable considering Anderson had three months to prepare for Harris's trial, and Anderson only met with Harris for a total of 1 hour and 48 minutes during these months.⁴ Anderson had a list of thirty-two persons with knowledge of the murder, but interviewed only three witnesses.⁵ Further, Anderson failed to request an investigator to help interview witnesses.⁶ Not surprisingly, following his first-degree murder conviction, Harris petitioned for habeas corpus relief based on ineffective assistance of counsel.⁷

In order to succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel's representation fell below an "objective standard of reasonableness."⁸ Harris argued the cumulative

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impact of Anderson's unreasonable "deficiencies prejudiced his defense" and right to a fair trial.⁹ The Ninth Circuit affirmed Harris's habeas relief by adding defense counsel's errors together; in fact, the court specifically noted, "[w]e do not need to decide whether these deficiencies alone meet the prejudice standard."¹⁰ Although this seems logical, especially in the context of this case, Harris, here, received different Sixth Amendment protections than other defendants around the country.¹¹

The Sixth Amendment to the United States Constitution protects an individual's fundamental right to a fair trial.¹² The United States Supreme Court has repeatedly emphasized that entitlement to counsel plays a critical role in protecting this fundamental right.¹³ In Strickland

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v. Washington, the Court announced a two-prong test to evaluate whether a convicted defendant was deprived of his Sixth Amendment right to effective assistance of counsel.¹⁴ In order to succeed on a claim of ineffective assistance of counsel, the defendant must show (1) the "counsel's performance was deficient" and (2) that the deficient performance prejudiced the defendant as to deprive him of a fair trial.¹⁵ In evaluating counsel's alleged deficiency, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances.¹⁶ In evaluating the prejudice prong, courts require that "but-for" counsel's deficiency, the result of the trial likely would have been different.¹⁷ Unless a defendant affirmatively shows both deficient performance and a resulting prejudice, it cannot be said the defendant's conviction occurred "from a breakdown in the adversary process that renders the result unreliable."¹⁸

Since the Court formed the foundation of ineffective assistance of counsel claims in 1984, a circuit split has emerged on the issue of whether the first prong of the test requires appellate courts to review each of counsel's errors individually or allows courts to consider counsel's multiple errors as one whole claim.¹⁹ By permitting courts

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to consider multiple errors as one claim, a defendant may argue counsel committed multiple errors (although each one alone was not egregious enough to warrant a finding of deficient performance) that amounted to a cumulative deficiency below the Sixth Amendment standard.²⁰ The Fourth, Eighth, and Tenth Circuits have taken a hostile stance toward cumulative deficiency claims, holding that ineffective assistance of counsel claims must be viewed individually rather than collectively.²¹ The Second, Seventh, and Ninth Circuits hold the opposite and allow a defendant—like Harris—to prove he suffered ineffective assistance of counsel based on the cumulative effect of errors. These circuit courts ask whether the "multiple deficiencies have the cumulative effect of denying a fair trial to the [habeas corpus] petitioner . . . ."²²

This Note argues that courts need to allow defendants to prove they suffered ineffective assistance of counsel based on the cumulative effect of counsel's alleged errors. If the court finds a multitude of errors played a role in denying the defendant his Sixth Amendment right to effective counsel, the court should be able to consider them

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together rather than the stricter standard of requiring each one alone to prejudice the defendant. By addressing this circuit discrepancy, the Supreme Court will ensure citizens have the same Sixth Amendment rights throughout the country. Part I provides background information of the development and history of ineffective assistance of counsel claims in our nation.²³ Part II analyzes the circuit split regarding the cumulative error doctrine by highlighting some concrete examples of the conflicting approaches.²⁴ Part III urges the Supreme Court to take up the issue and proposes that the cumulative error doctrine should be available to defendants in the context of ineffective assistance of counsel claims.²⁵

I. The Right to Effective Assistance of Counsel

A. The Right to Assistance of Counsel in Criminal Cases

The Sixth Amendment guarantees to every defendant in a criminal trial the assistance of counsel.²⁶ However, this current protection evolved in Sixth Amendment jurisprudence, as it originally only applied in federal courts. In 1942, the Supreme Court held that the Sixth Amendment only mandated the right to counsel in state courts when the circumstances indicated that a deprivation would "constitute a denial of fundamental fairness, shocking to the universal sense of justice."²⁷ Even though the Supreme Court noted that the right to the aid of counsel was of a fundamental character encompassed by the Fourteenth Amendment's Due Process Clause, it declined to extend the Sixth Amendment to the states in every criminal case.²⁸ During this time period, "[c]ourts typically weighed the competing interests of the defendant and the State to decide whether to provide counsel."²⁹ Thus,

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a defendant facing robbery charges who could not afford counsel likely would not have one appointed, but a defendant facing more serious charges, like murder or rape, would.³⁰

In 1963, the Supreme Court overruled its previous precedent not requiring assistance of counsel in all cases and explicitly decided that "the right to assistance of counsel in criminal cases was obligatory on the states through the [Fourteenth] Amendment . . . ."³¹ The Supreme Court announced this rule in Gideon v. Wainwright, reasoning that the right to counsel was essential to the right to a fair trial.³² The Court rejected lower courts' approach of examining on a case-by-case basis whether fairness dictated the need for counsel appointment and, instead, incorporated a defendant's Sixth Amendment right to counsel onto the states in all criminal cases.³³ Quoting Justice Sutherland, the Supreme Court explained a defendant's need for appointed counsel:

The right to be heard would be, in many cases, of little avail if it

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did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.³⁴

As this Sixth Amendment right to assistance grew, so did the right to quality assistance.³⁵

B. The Right to Effective Assistance of Counsel in Criminal Cases

Since the Sixth Amendment right to counsel effectuates the due process right to a fair trial, it is not enough to just have counsel formally appointed or nearby during the trial.³⁶ As the accused's right to counsel in every criminal trial developed in this country, so did...