Saturday, July 12, 2008

What To Do When Your Lawyer Fails The Low Standard Of Competence

Ineffective Assistance Of Counsel Delineated


The Cool Justice Report
July 12, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

The Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to the effective assistance of counsel at all critical stages of the prosecution.

Upon arrest, a defendant is not only advised of this right when receiving the so-called Miranda warnings, but is also appointed counsel if that defendant cannot afford an attorney. This constitutionally mandated right to the assistance of an attorney, by necessity, requires more than just someone with a law license sitting idly by at counsel table.

The challenge to the effectiveness of legal representation arises in one of two contexts: a post conviction collateral attack through a petition for a Writ of Habeas Corpus; or a suit against the attorney for legal malpractice.

The most common vehicle is the habeas action. Legal malpractice claims brought by convicted criminal defendants have little jury appeal. Underlying the lawsuit is the criminal case itself. A defendant who has been convicted because of mistakes by his lawyer has a double burden in such a malpractice case. Not only must he prove the deficiency of the attorney, but must also overcome the stigma of the evidence of guilt that exists regardless of his criminal defense lawyer’s mistakes.

Like medical malpractice claims, legal malpractice lawsuits require proof that the attorney failed to provide that level of legal representation that reasonably competent lawyers would provide under similar circumstances. Unlike medical malpractice cases, a legal malpractice claim also requires proof that but for the deviations from accepted standards by counsel the result would probably have been different.

By contrast, a post conviction habeas corpus petition requires proof of two factors: 1. that counsel’s performance was deficient; and, 2. that this deficiency prejudiced the defendant.

An example would be in the context of failing to file a Motion to Suppress or Exclude illegally seized evidence. Competent defense counsel must investigate and analyze whether evidence seized by the police has been done in conformity with the requirements of the Fourth Amendment to the Constitution. If there has been such a
constitutional violation then counsel is required to seek the exclusion of this evidence. In such a situation the defendant may be factually guilty but the legal loophole of suppression of illegally seized evidence, if the motion is granted by the court, may lead to the dismissal of the charges.

In the context of a habeas action a judge, and not a jury, is examining the issue. In a legal malpractice action a jury would be faced with deciding whether a factually guilty defendant should be awarded damages because his lawyer did not get him off on a technicality.

Even with today’s jaded view of our civil tort system one would be challenged to believe that 6 reasonable jurors could ever agree to award that individual money damages.

The habeas action is a post-conviction remedy guaranteed, as well, by the Constitution. It is the last resort for the convicted defendant.

Following a jury verdict a defendant will usually file an appeal through the appellate court system. That appeal is limited to a review of issues that are apparent on the record of the pre-trial and trial proceedings. An appellate court cannot go beyond the trial court record to decide an issue. In the case of a claim of ineffective assistance of counsel there is usually insufficient information found in the trial record to support the claim. In most instances, then a direct appeal is not the vehicle to raise this.

Following the loss on appeal a criminal defendant who wishes to claim ineffective assistance must bring a petition for a Writ of Habeas Corpus. A judge decides this claim after a hearing and not a jury. The issue is a mixed question of fact and law. The defendant must present evidence of ineffectiveness as well as expert testimony from a seasoned criminal lawyer to support the claim.

If the writ is denied after a hearing there is a very limited right of appeal. Unfortunately, inmates bring many frivolous habeas claims with access to the prison law library and obviously a great deal of time on their hands.

The standard for weighing a claim of ineffective assistance is a stringent one.

In 1984 the United States Supreme Court initially, loosely defined that standard, setting forth the two-pronged test mentioned above. Although no specific direction was given to define exactly what constitutes deficient performance, subsequent cases have made clear that the bar is set very low. Generally, what will satisfy efficiency of counsel is what is minimally acceptable to the practice of criminal defense.

Habeas petitioners are not entitled to the best of all legal defenses in their original trials.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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