My Reputation or Your Freedom: What Should Be Considered for Ineffective Assistance of Counsel Claims

• Publication year: 2021
• Author: By Jennifer Roges

MY REPUTATION OR YOUR FREEDOM: WHAT SHOULD BE CONSIDERED FOR INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

By Jennifer Roges^*

I. INTRODUCTION

Defense lawyers are charged with serving the "undivided interests" of his or her client, and not the personal interests of the attorney.¹ However, the interests of the client and those of the lawyer somewhat diverge when a client brings a claim for ineffective assistance of counsel ("IAC").² An IAC claim is "a claim that the previous lawyer has not been effective as required by the Sixth Amendment to the United States Constitution."³ IAC claims can pit the interests of the client against the interests of former counsel⁴ as the client wants to overturn his or her conviction to avoid depravation of life or liberty, while the defense lawyer wants to avoid being labelled as "ineffective."⁵ As such, these opposing interests create the following problem: should the previous lawyer continue to serve the interests of the client or serve the interests of the lawyer, namely the lawyer's reputation? Recently, a California trial court rejected a defendant's IAC claim, in part, by considering the negative professional effects that a finding of ineffective assistance would have on the defendant's counsel.⁶ Accordingly, this paper examines whether harm to a defense lawyer's reputation should be a separate factor in ruling on IAC claims.

A criminal defendant is constitutionally entitled to representation by counsel through the Sixth Amendment that provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have assistance of counsel for his defense."⁷ Although the Supreme Court interpreted this to mean the right to effective assistance of counsel,⁸ the Supreme Court did not provide guidance as to what constituted "effective assistance of counsel" until its decision in Strickland v. Washington.⁹ In Strickland, the court established a two-pronged test for determining an IAC claim.¹⁰ A defendant must show (1) that the previous counsel's performance was deficient ("serious error" requirement) and (2) that the deficient performance prejudiced the defense ("prejudice" requirement).¹¹ To successfully plead an IAC claim, the defendant must prove both prongs.¹² If a criminal defendant can make both showings, then the defendant's conviction will be vacated for not receiving effective counsel as guaranteed by the Sixth Amendment.¹³

In Strickland, the Court did not consider the potential reputational harm to defense counsel from a successful IAC finding in its "performance inquiry."¹⁴ Instead, the Court focused on whether "counsel's assistance was reasonable considering all [of] the circumstances"¹⁵ and declined to provide an exhaustive list of defense counsel's obligations or a "checklist for judicial evaluation of attorney performance."¹⁶ Accordingly, by including reputational harm to defense counsel as a separate factor, it could provide courts with a clearer standard for evaluating the performance of defense attorneys. In addition, it could help prevent defendants from raising frivolous ineffectiveness claims and, thus, help to "ensure that ineffectiveness claims [do] not become so burdensome to defense counsel that the entire criminal justice system suffers as a result."¹⁷

However, including reputational harm to defense counsel as a separate factor in IAC claims will make an already demanding test even harder to satisfy.¹⁸ As Justice Marshall remarked in his dissenting opinion in Strickland, the Strickland standard "impos[es] upon defendants an unusually weighty burden of persuasion" and the Court's presumption that defense counsel's "behavior will fall within the zone of reasonableness" legitimizes convictions and sentences "obtained on the basis of incompetent conduct by defense counsel."¹⁹

By considering reputational harm to defense counsel in IAC claims, it will make it harder for defendants to raise IAC claims and could prevent the reversal of convictions based on inadequate and incompetent representation from counsel. Further, considering the harm an ineffectiveness claim has on defense counsel's reputation creates an impermissible conflict of interest between the lawyer's self-interest and the lawyer's duty to the client. Instead of advocating for a new trial on behalf of his client, the lawyer has an incentive to argue against an IAC claim to protect his own reputation. Although the Court stated that the "purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation,"²⁰ we should not let harm to defense counsel's reputation overshadow the need to ensure that convictions and death sentences are not based on deficient representation.

II. HISTORY AND DEVELOPMENT OF IAC CLAIMS

Today, the Sixth Amendment is understood to guarantee the rights of criminal defendants, including the right to counsel.²¹ The right to counsel is "a criminal defendant's constitutional right, guaranteed by the Sixth Amendment, to representation by a court-appointed lawyer if the defendant cannot afford to hire one."²² However, the Supreme Court's interpretation of the Sixth Amendment's right to counsel evolved over time into what it is today: that all criminal defendants in all criminal cases are entitled to effective assistance of counsel.²³

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Although the Sixth Amendment now guarantees criminal defendants the right to assistance of counsel, this fundamental right was not recognized until 1938 in Johnson v. Zerbst.²⁴ The Court held that the "Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel" and that "compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty."²⁵ Twenty-five years later, the Supreme Court extended this "fundamental human right" to state criminal defendants in Gideon v. Wainwright.²⁶ In a unanimous decision, the Supreme Court held that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."²⁷

Although the text of the Sixth Amendment guarantees that the accused "shall enjoy the right . . . to have the assistance of counsel for his defense,"²⁸ the Supreme Court has construed this clause to mean the guarantee of effective assistance of counsel.²⁹ Courts initially struggled to develop a standard for evaluating the effectiveness of counsel.³⁰ This struggle led the courts to formulate and experiment with various tests for evaluating IAC claims, including the "sham, mockery, and farce" test and the "reasonable competence" or "customary skill" standard.

However, in 1984, the Supreme Court finally articulated its standard for evaluating the effectiveness of counsel in the seminal case, Strickland v. Washington.³¹ In Strickland, the Court set forth the constitutional standard for establishing an IAC claim. To reverse a conviction or death sentence based on ineffectiveness of counsel, the defendant must satisfy a two-pronged test.³² "First, the defendant must show that counsel's performance was deficient."³³ Under this prong, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."³⁴ "Second, the defendant must show that the deficient performance prejudiced the defense."³⁵ This requires the defendant to show that "counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable."³⁶ To successfully plead an IAC claim, the defendant must make both showings.³⁷ "Thus, a defendant has a heavy burden to prove that counsel's errors were so egregious that he was not functioning as 'counsel' within the meaning of the Sixth Amendment, and that the acts or omissions were not the result of a valid strategy."³⁸

III. CONSIDERING HARM TO A DEFENSE LAWYER'S REPUTATION IN IAC CLAIMS

After considering the Strickland framework, the issue is whether harm to a defense lawyer's reputation should be included as a separate factor in deciding IAC claims. As it is, the Strickland standard "creates an almost impossible hurdle for defendants to overcome"³⁹ and "fails to assure even a minimal level of competence or effectiveness."⁴⁰ In fact, critics have described Strickland as a "nearly impossible-to-meet two-prong test for ineffective assistance of counsel"⁴¹ and because Strickland "sets a high bar for defendants . . . defendants frequently fail to make the necessary but for showing of prejudice."⁴² Due to Strickland's "forgiving standard for reviewing counsel's performance," very few cases are reversed on ineffectiveness grounds.⁴³

In an examination of more than 2,500 California state and federal appellate cases raising an IAC claim, it revealed that only 104 cases resulted in reversal of the defendant's conviction based on counsel's deficient performance.⁴⁴ This means that IAC cases, in California, have a roughly four percent chance of success.⁴⁵ Additionally, in a survey of 3,605 federal habeas petitions from 2005 to 2010 in Michigan, only one hundred were granted relief.⁴⁶ However, "only [forty-five] of those grants were for an [IAC] claim, at least [seventeen] of which were reversed by the federal courts of appeals."⁴⁷ In other words, there was only a 1.3 percent success rate for IAC claims.⁴⁸ Thus, the unfortunate truth is that "Strickland challenges [are] exceedingly difficult to win."⁴⁹

I n addition to the critique that Strickland is a demanding test, the standard has been criticized for its "lack of stringent guidelines" and its "overly vague nature."⁵⁰ Based on the many criticisms of Strickland, one might argue that factoring in reputational harm to defense counsel in IAC claims could provide clearer guidance to courts, and lawyers, as to what constitutes ineffectiveness. The strongest reasons for including reputational harm to a defense lawyer as a...