CHAPTER 10 : When Is Counsel Effective?

When Is Counsel Effective? The Supreme Court first tried to answer this question in the 1970 case of McMann v. Richardson.21 There, it held that counsel is effective when the legal advice is "within the range of competence demanded of attorneys in criminal cases."22 This standard was somewhat vague, so the Court offered clarification in Strickland v. Washington.23

In that case, the Court created a two-pronged test for determining effective assistance of counsel: 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.

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 unreliable.24 These two prongs have come to be known as the "performance prong" and the "prejudice prong."

Concerning performance, "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."25 What are these "norms"? We discuss them further in the "Effective Assistance of Counsel" section that appears in this chapter, but some of the key elements of effective performance include:

¦ Avoiding conflicts of interest

¦ Advocating for the defendant

Bringing to bear "such skill and knowledge as will render the trial a reliable adversarial testing process"26

¦ "[Making] reasonable investigations or ... [making] a reasonable decision that makes particular investigations unnecessary"27 As for the prejudice prong of Strickland, the defendant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

28 In other words, it is not enough for counsel to be ineffective; if the defendant is to succeed in an argument that his or her Sixth Amendment right to counsel was violated, the defendant must prove that the attorney's ineffectiveness prejudiced the case. This means that little mistakes probably won't matter, but gross incompetence probably does. Library Extra 10-3 Defendants in Cases Concluded in U.S. District Court Library Extra 10-4 Felony Defendants in Large Urban Counties, 1992: National Pretrial

When Is Counsel Ineffective? The Strickland performance and prejudice prongs explain somewhat abstractly what could lead counsel to be ineffective. A look at some specific situations will make them clearer.

In Bell v. Cone,29 the Supreme Court held that a defense attorney's failure to present any mitigating evidence (factors that may be considered as being extenuating or reducing the defendant's moral culpability) or to make a closing statement at the defendant's capital sentencing hearing did not amount to ineffective assistance.

Among the reasons for the Court's decision was that the mitigating evidence that was not presented during the sentencing hearing was presented at trial, so the jury did have at least one occasion to review it. In Rompilla v. Beard,30 the Court declared that defense counsel is required to make reasonable efforts to obtain and review material that it knows the prosecution will probably rely on as part of its case, something the defense attorney did not do.

Contrast Beard with the Court's decision in Florida v. Nixon.31 There, the defense attorney acknowledged-in open court-his client's guilt and instead focused his defense on reasons why the defendant's life should be spared; however, the evidence was so clearly indicative of the defendant's guilt that the Supreme Court did not feel the defense attorney's strategy was ineffective.

There are countless other means by which counsel can be considered ineffective; attorney errors can come in several varieties. Generally, though, the defendant must point to a specific error or set of errors, not the overall performance of his or her counsel. If defense counsel makes a specific error and can offer no explanation for the error, then the defendant will have a good chance in succeeding with a claim of ineffective assistance of counsel, a chance that hinges on the second prong announced in Strickland.

Pro Se Defense Though the Sixth Amendment provides for the right to counsel, accused individuals sometimes prefer to represent themselves. Indeed, according to the Supreme Court, criminal defendants have a constitutional right to represent themselves at trial32; this is known as a pro se defense. pro se defense The act of representing one's self at trial. Not every defendant who wishes to proceed without counsel is allowed to do so, however. In Johnson v. Zerbst,33 the Supreme Court stated that a defendant may only waive counsel if the waiver is "competent and intelligent."

The Court went on to say that "the record must show, or there must be an allegation and evidence must show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver."34 What constitutes "intelligently and understandingly" waiving the right to counsel is not always clear.

In Massey v. Moore,35 the Court offered clarification by stating, "One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel."36 But in Godinez v. Moran,37 a case decided some years later, the Court held that a person who is competent to stand trial is also competent to waive counsel both at trial and for pleading purposes.38