The Right To Effective Assistance of Counsel

• Jurisdiction: Maryland

II. The right to effective assistance of counsel

Most typically, the theory of a collateral attack is ineffective assistance of counsel. The right to effective assistance of counsel was first recognized as a constitutional right in Powell v. Alabama, 287 U.S. 45, 72-73 (1932). Because Powell, which arose out of an Alabama state court conviction, was decided 31 years before the Sixth Amendment right to counsel was incorporated against the states, the right to effective assistance of counsel was held to be a due process right. Id. But see Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) ("Our decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment.").

The right to effective assistance of counsel is based on the theory that the defendant's right to counsel includes, of necessity, a right to effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970). If counsel is ineffective, it is as if the defendant has no counsel at all. If the defendant has no counsel, when the defendant did not make a knowing and intelligent waiver of the right to counsel, the result of the proceeding is void and must be vacated.

A. The right to effective assistance of counsel applies equally whether counsel is retained or appointed

In Cuyler v. Sullivan, the Supreme Court held that the standard for effective assistance of counsel is the same whether counsel is retained or appointed. 446 U.S. at 344. Accord Anderson v. State, 3 Md. App. 362, 368 (1968) (holding that, whether counsel is privately retained or court-appointed is irrelevant to the issue of his or her competency).

B. The right to effective assistance of counsel applies equally whether the right to counsel is based on the Sixth Amendment or based on a statute that provides for counsel even when not constitutionally required

In State v. Flansburg, 345 Md. 694 (1997), the Court of Appeals held that counsel must be effective, regardless of whether the source of counsel is the Constitution or a state statute: "Regardless of the source, the right to counsel means the right to the effective assistance of counsel." Id. at 703 (citing Kimmelman v. Morrison, 477 U.S. 365, 377 (1986); McMann, 397 U.S. at 771 n.14; Grandison v. State, 341 Md. 175, 264 (1995); Brosan v. Cochran, 307 Md. 662, 673 (1986)).

C. The two-pronged conjunctive Strickland v. Washington test for ineffective assistance of counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test for ineffective assistance of counsel. Id. at 687.

1. The performance prong

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id.

To satisfy the performance prong of Strickland, the defendant must demonstrate that the acts or omissions of counsel constituted serious attorney error which fell outside the range of reasonable professional assistance considering prevailing professional norms. Nix v. Whiteside, 475 U.S. 157, 165-67 (1986); Oken v. State, 343 Md. 256, 283 (1996); Williams v. State, 326 Md. 367, 373-75 (1992); Harris v. State, 303 Md. 685, 695-97 (1985); Cirincione v. State, 119 Md. App. 471, 484-85 (1998).

Serious attorney error does not include errors that are part of legitimate trial strategy

There is a presumption that defense counsel's performance was reasonable and that counsel's decisions were part of a sound trial strategy. Strickland, 466 U.S. at 689. Tactical decisions made by trial counsel must be judged as of the time the decision was made and not with the benefit of hindsight. Id.

Most choices "affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance" depend upon "tactical considerations" of defense counsel. Gonzalez v. United States, 553 U.S. 242, 249 (2008). See also Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). The Supreme Court explained in Strickland:

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. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, 466 U.S. at 689 (internal citations omitted). See also State v. Thomas, 325 Md. 160, 171-72 (1992).

In Gilliam v. State, 331 Md. 651 (1993), the Court of Appeals stated: "The Sixth Amendment does not require the best possible defense or that every attorney render a perfect defense." Id. at 665. In State v. Matthews, 58 Md. App. 243 (1984), the Court of Special Appeals stated: "An attorney is not required to raise all possible defenses, but is permitted to make tactical decisions as to which defenses to pursue and which to abandon." Id. at 245.

Counsel's failure to permit the defendant to make certain decisions that can be made only by the defendant is serious attorney error

Certain decisions can only be made by the defendant and cannot be made by defense counsel. These include (a) whether to accept a guilty plea; (b) whether to be tried in a court trial or to exercise the right to trial by jury; (c) whether to exercise the Fifth Amendment right to testify or not to testify; and (d) whether to file a plea of "not criminally responsible by reason of insanity" (NCR), assuming that the defendant is competent to stand trial.

Lack of experience insufficient to demonstrate serious attorney error

Lack of experience, without more, cannot establish serious attorney error. In Green v. State, 579 P.2d 14 (Alaska 1978), the Supreme Court of Alaska stated:

[E]very lawyer who handles criminal matters has once handled his first criminal matter. Not every lawyer would be guilty of rendering ineffective assistance the first few times he appeared in court. The test is whether his performance was below what would be expected of a lawyer with experience, not whether he in fact had that experience.

Id. at 16. See also State v. Glover, 355 S.E.2d 631, 638 (W. Va. 1987); State v. Tchida, 347 N.W.2d 338, 339 (S.D. 1984).

Physical or mental impairment of counsel

Physical or mental impairment of counsel may materially impair the attorney's ability to represent the defendant and may be the basis for serious attorney error. MRPC 1.16(a)(2) (an attorney shall not represent a client if "the attorney's physical or mental condition materially impairs the attorney's ability to represent the client").

For example, specific instances of an attorney's deficient performance due to the attorney's alcohol use during trial may be used to establish that counsel was ineffective, but an attorneys' alcohol use alone does not constitute ineffectiveness per se. Frye v. State, 235 F.3d 897, 907 (4th Cir. 2000) ("[I]n order for an attorney's alcohol addiction to make his assistance constitutionally ineffective, there must be specific instances of deficient performance attributable to alcohol."). See also Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993); Fowler v. Parratt, 682 F.2d 746, 750 (8th Cir. 1982).

2. The prejudice prong

"Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.

In Strickland, the Supreme Court identified two contexts in which prejudice is presumed. Id. at 692. First, "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Id. Second, "prejudice is presumed when counsel is burdened by an actual conflict of interest." Id. See also Ramirez v. State, 464 Md. 532, 562-63 (2019).

Showing prejudice in a case that went to trial

Where a trial results in a guilty verdict, the defendant must demonstrate that there is either a reasonable probability, or a substantial or significant possibility, that, but for the serious attorney error, the result would have been different, i.e., not guilty on one or more counts. Strickland, 466 U.S. at 687.

In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court clarified the Strickland "prejudice prong." In a capital case, the defendant was convicted of felony murder and sentenced to death. Id. at 366. The verdict of guilty of felony murder and the sentence of death were both based on the aggravating factor that the murder was committed for pecuniary gain. Id. A 1985 case (later overruled) held that it was unconstitutional for the defendant to be sentenced based on an aggravating factor that was also an element of the offense. Id. at 367. The defendant's counsel failed to preserve this issue for appeal. Id.

The Court held that counsel's failure to object, although probably error, was not prejudicial for purposes of Sixth Amendment effective assistance of counsel, stating that the defendant failed to show that the attorney error was so serious (a) that it deprived the defendant of a fair and reliable trial; and (b) that the outcome of the trial might have been different. Id. at 372 ("unreliability or unfairness does not...