I filed an appeal brief last week assigning as the only of error ineffective assistance of counsel. There were fairly significant lapses. The defense counsel, for reasons which I found unfathomable, had brought out the fact that his client was in jail pending trial, and that his client was a drug addict and alcoholic. He failed to object to critical pieces of evidence and arguments. Most damaging, on cross-examination one of the defense witnesses, a six-year old girl, told the prosecutor that the defense attorney had told her if she said the right things, her step-father could come home. I talked to the prosecutor, the court reporter, and an attorney who'd sat in for most of the trial, and they all told me the actual trial was ten times worse than what the transcript showed.
And I still felt kind of bad about making the claim.
IAC claims are not typically successful, to understate the matter. Oh sure, there have been some, such as the My Cousin Vinnie fiasco earlier this year that I detailed here. And back in February, the 8th reversed two other cases (discussed here) on that basis. But a better indication of the success record of those claims is that in the 98 criminal decisions the 8th handed down in the past two months, 23 -- about a quarter -- raised claims of ineffective assistance. Not a single one was successful. And some of the claims, to be candid, bordered on the frivolous.
Take State v. Cannon, for example. Cannon, to hear him tell it, had hit the trifecta of incompetence, with three lawyers, all assigned, rendering ineffective assistance. His first lawyer, the appeal claimed, fell below professional standards because he refused to talk to Cannon or answer his family's phone calls. The second failed to subpoena security videotapes from the Knights Inn where Cannon had taken the victim to recover from her injuries after an accident. (His story; the victim, Cannon's ex-girlfriend, claimed that he ran over her with her car, then beat her into unconsciousness, then took her to the Knights Inn to keep her from going to the police.) The third made various transgressions at trial, such as "failing to cross-examine the head nurse, failing to subpoena Cannon's employer, and failing to give a lengthy closing argument."
The court rejected the argument, and for the most part, it's not hard to see why. Whatever the merits of the claims regarding the first attorney's failure to talk with Cannon or his family, it's impossible to see how he was prejudiced by that, given that the lawyer was replaced in August and the trial didn't take place until June of the following year. There were still photos from the surveillance tapes, and Cannon stipulated to the fact that he and the victim were there. The complaints about the third lawyer fell into the category of Monday Morning quarterbacking, especially the part about not giving a "lengthy" closing argument. I read an article the other day about one of Clarence Darrow's trials, and it mentioned that he gave a seven-hour closing argument. Try going much more than twenty minutes nowadays, and the jurors are going to be looking for a remote so they can change the channel.
Where IAC claims get a real workout is in death penalty cases, where they are almost invariably raised, either on direct appeal or in post-conviction, especially Federal habeas relief. And much more successfully: a study in 1995 found that 33% of death penalty reversals resulted from ineffective assistance. To be sure, better training and more stringent standards for capital defense counsel have reduced that substantially, but it's still fertile ground, especially with regard to mitigation evidence for the penalty phase: claims will often turn on the argument that counsel didn't talk to this family member or that high school teacher, who would've been able to give critical testimony about how the defendant's being abused as a child or bullied in school caused him to turn out the way he did. The fact that such testimony can often be counterproductive -- the jury winds up concluding that the defendant is such "damaged goods" that he isn't worth saving -- led 6th Circuit Chief Judge Boggs to speculate in a concurring opinion five years ago that the best strategy for any "sentient attorney" in a capital case was to "throw" the penalty phase:
If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the ‘troubled childhood’ variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.
The lengths to which IAC claims are pursued was the subject of another concurrence a few weeks ago, this time by a Pennsylvania State Supreme Court Justice, with regard to the Federal Public Defenders efforts in state post-conviction proceedings on death penalty case there:
The Defender devoted, at a minimum, five lawyers, an investigator, multiple mitigation specialists, and multiple experts to the project. . . Strickland claims involve not mere errors or mistakes at trial, but lapses of constitutional magnitude, a circumstance where it is as if the defendant did not have a lawyer at all. Proper examination of such claims requires deference to counsel, avoiding hindsight, recognizing the art in lawyering, and accepting that mere errors by counsel are not enough to prove prejudice. To warrant relief, a Strickland claim has to involve some kind of readily apparent, undeniable lapse by counsel of obvious and serious prejudicial effect. It is not a law school test of “spot the foregone objection.” And, it takes a team of five federal lawyers and a supporting group of untold size comprising investigators and experts to prove the Strickland violation in this case?
There's been some blowback on this. Two years ago, the Supreme Court reversed the 6th Circuit's holding that a lawyer in a capital case "must fully comply" with the ABA Guidelines on handling death penalty cases. Rejecting the view that counsel was obligated to follow in detail the prescriptions contained in the 136-page tome, which was published 18 years after the defendant's trial, the Court ruled that "while States are free toimpose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices."
So let's get back to Cannon. Was the IAC claim legit? I'd say it's borderline; it's at least arguable that the videotapes might have shown Cannon and the victim in a light more consistent with his story than hers. And, after all, the appellate lawyer's first duty is to his client, not to his fellow attorneys. (And I've found that trial attorneys realize this; it's the rare one who will pose any objection to your raising an IAC claim.) Still, it might be time to take a little harder look at these claims, rather than just tossing them in as a matter of course.