State v. Grier and the Erroneous Adoption of the "punishment-based" Standard of Review for Ineffective Assistance of Counsel Claims Based on All-or-nothing Strategies

Publication year2021


Jacque St. Romain

Abstract: In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier's second-degree murder conviction in State v. Grier.(fn1) The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-or-nothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts' approaches to questions of ineffective assistance of counsel involving all-or-nothing strategies and argues that, when the Washington State Supreme Court resolves State v. Grier, it should review attorneys' strategic decisions under a highly deferential standard. This standard would align with state precedent and federal practice and would preserve trial attorneys' discretion, provide defendants with a true adversarial process, and repair the split State v. Grier created.


The lesser-included-offense doctrine has existed since the 1600s, when common law authorized juries to convict a defendant charged with murder of the "lesser offense" of manslaughter if the evidence supported the lesser charge.(fn2) The lesser-included-offense doctrine "provides that a criminal defendant may be convicted at trial of any crime supported by the evidence which is less than, but included within, the offense charged by the prosecution."(fn3) The doctrine, originally created to aid the prosecution where it could not prove all elements of the crime charged, is now recognized as being potentially beneficial to both parties.(fn4)

A defendant has the right to request that the jury receive lesser-included-offense instructions where evidence suggests the defendant might have committed a less serious offense than the crime charged.(fn5) For example, a defendant charged with second-degree murder has the right to request a jury instruction for any lesser-included offenses of which the evidence suggests the defendant may instead be guilty, such as first- and second-degree manslaughter.(fn6) Providing lesser-included-offense instructions provides the jury with more options because "[w]hen a charged offense involves one or more lesser included offenses . . . a jury not only has the options of acquittal or conviction of the charged offense, but also the options of acquittal or conviction of each lesser included offense."(fn7) This approach can benefit the defendant who would face a lower penalty if found guilty of a lesser offense.(fn8)

However, while defendants have the right to such instructions, some-for instance, those charged with commission of a noncapital crime(fn9)-might not want them. In a noncapital murder trial, for example, "[o]ne legitimate trial strategy for the defendant . . . is an 'all-or-nothing' one in which the defendant seeks acquittal while realizing that the jury might instead convict of murder."(fn10) Under this strategy, the defendant chooses to limit the jury's options and thereby risk the greater conviction in the hope that the jury will acquit. Defendants who take this gamble usually do so because they fear that, if presented with intermediate options, the jury will reach a compromise verdict, finding the defendant guilty of the lesser offense.(fn11)

If the gamble fails, a defendant may challenge an attorney's use of an all-or-nothing strategy through a claim of ineffective assistance of counsel.(fn12) Defendants often raise this issue on appeal, hoping the courts will overturn their convictions and allow them new trials. Courts examining such claims look to the particular facts of each case to determine the tactical decision's reasonability.(fn13) Like any trial strategy, the all-or-nothing approach "has both potential risks and potential rewards," and parties deciding on tactics "must weigh these risks and rewards."(fn14)

In response to the risky nature of the all-or-nothing strategy, courts employ different tests when analyzing use of the doctrine in capital and noncapital cases. While the United States Supreme Court has never addressed the issue directly, in one case the Court struck down a state law that forbade the inclusion of jury instructions presenting lesser-included offenses in a death-penalty case.(fn15) Federal courts have subsequently interpreted that case as requiring lesser-included-offense jury instructions in all capital cases, thus effectively banning all-or-nothing strategies in those trials.(fn16) In noncapital cases, however, most federal courts continue to recognize all-or-nothing strategies as legitimate trial tactics that deserve high deference upon review.(fn17)

States have taken different approaches to the all-or-nothing strategy. Presumably fearing the tactic might increase the chance of an erroneous conviction, state legislators in California and Tennessee have, in the past, gone so far as to mandate the inclusion of lesser-included-offense instructions for noncapital cases, effectively banning the use of all-or-nothing strategies altogether.(fn18) In seven states where legislatures have not statutorily banned all-or-nothing strategies, courts "have promulgated common-law rules to accomplish the same end."(fn19) The remaining states have continued to allow the all-or-nothing strategy in noncapital cases, leaving the decision of whether to pursue such a strategy up to the parties.(fn20)

For more than 100 years, Washington State courts have given great deference to defense counsel in questions of effective assistance of counsel,(fn21) and, in line with that deferential standard, neither the courts nor the legislature have banned the use of all-or-nothing strategies in noncapital trials. However, in three decisions over the last five years, Washington courts have strayed from that approach.(fn22) Most recently, in State v. Grier, Division II of the Court of Appeals overturned a noncapital murder conviction because an attorney unsuccessfully utilized an all-or-nothing strategy.(fn23) In reversing the conviction, Division II relied on a "punishment-based" standard(fn24) that Division I had applied in two prior cases.(fn25)

Part I of this Comment discusses the federal courts' highly deferential standard for ineffective assistance of counsel claims based on all-or-nothing strategies in noncapital cases. Part II details the similarly deferential approach Washington courts have traditionally used when analyzing such claims. Part III examines the fractured approach of Division I of the Court of Appeals, culminating in its rejection of its own "punishment-based" standard in State v. Hassan(fn26) Part IV examines Division Il's subsequent adoption of the "punishment-based" standard in State v. Grier and the split that it created. Finally, Part V argues that the Washington State Supreme Court should apply a highly deferential standard when it resolves State v. Grier and thus uphold the right of attorneys and clients to employ all-or-nothing tactics in noncapital trials. Applying a highly deferential standard aligns with United States and Washington State Supreme Court precedent, preserves trial attorneys' discretion, provides defendants with a true adversarial process, and repairs the split State v. Grier created, once again providing clear guidance to lower courts.


The United States Constitution guarantees criminal defendants the right to have assistance from an attorney.(fn27) The United States Supreme Court has interpreted this guarantee as requiring not only assistance of counsel, but effective assistance of counsel.(fn28) To that end, the Court created a highly deferential test for determining when an attorney has been ineffective. In Beck v. Alabama,(fn29) the Court specifically addressed all-or-nothing strategies only in the capital context, where it prohibited a state from precluding lesser-included-offense instructions.(fn30) Most federal courts have chosen not to extend that limitation to noncapital cases. Instead, they utilize a highly deferential standard when reviewing ineffective assistance of counsel claims regarding all-or-nothing trial strategies.

A. The United States Supreme Court Mandates a Highly Deferential Standard of Review for Claims of Ineffective Assistance of Counsel

The right to an attorney is the most basic and pervasive right that the Sixth Amendment provides.(fn31) The United States Supreme Court has interpreted "effective assistance" as the right to have a true adversarial process(fn32) and has held that when such an adversarial proceeding occurs, the right guaranteed by the Sixth Amendment is satisfied, even when defense counsel makes demonstrable errors in judgment and tactics.(fn33)

In Strickland v. Washington,(fn34) the United States Supreme Court laid out a two-prong test for determining when a court must deem defense counsel ineffective.(fn35) Under this test, a defendant must first show that the defense...

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