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
Jurisdiction | United States,Federal |
Citation | Vol. 85 No. 3 |
Publication year | 2021 |
INTRODUCTION
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
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
I. FEDERAL JURISPRUDENCE SUGGESTS INEFFECTIVENESS CLAIMS FOR ALL-OR-NOTHING TACTICS IN NONCAPITAL CASES SHOULD RECEIVE DEFERENCE
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
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
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