From the February 2009 Idaho Observer:


Ineffective assistance of counsel

Unfortunately, most of us are unable to choose our "car" for the road through criminal court matters; we end up with whatever jalopy is on the lot at the timeóit could be a Corvette or a Porsche. But, hey, look at that olí beat up Ford...sheís got a 454 under the hoodóa Sleeper, no one will see her coming! Regardless of the "model" no single attorney is an all-knowing mass of legal knowledge. No one is. Because the laws and their interpretations change each day and there are numerous political influences on the courts, combined the imperfectness of human knowledge and the known frailties of human nature, we must always carefully scrutinize conduct of counselors for the defense.

If you find that defense counselís performance is ineffective for various reasons, to prove your claims requires breaking the courtís presumption that defense counselís assistance was professional, competent and performed in good faith. It must be shown that "counselís representation fell below an objective standard of reasonableness" (Wickline v Mitchell, 319 F3d 813, 819 [6th Cir 2003]). The list of actionable mistakes that could prove ineffective assistance of counsel is comprehensive, but if it can be successfully argued that mistakes made were part of a (failed) trial strategy, the ineffective assistance of counsel claim can be thrown out.

If you feel "there is a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different, the first thing to do is make a list. Some things on your list might refer to basic duties of defense counsel. The Court in Strickland v Washington, infra, listed some basic defense counsel duties: Defense counsel must 1. Practice loyalty and avoid conflicts on interest; 2. Advocate the defendantís cause; 3. Consult the defendant on important developments during the course of the trial and; 4. Bring to bear such skill and knowledge as will render the trial as a reliable adversarial testing procedure.

Now, write a short story for each item on the list. This short story, or small "book" of short stories, is the base of the argument in support of your constitutional claim of ineffective assistance of counsel.

The claim might be: "Assistance of appointed trial counsel was ineffective."

One standard of review, referred to as the "Strickland Standard," consists of two parts: The first part may be, "In determining a claim of ineffective assistance of counsel, an appellant must show that counselís performance was deficient and that deficiencies in performance prejudiced his defense (Strickland v Washington, 104 S.Ct. 2052 [1984]; Wodford v Viscioti, 123 S.Ct. 357 [2002]). In essence, you need to show the attorney made mistakes (deficiencies) and then must show how said mistakes harmed you by having an adverse effect on caseís outcome (prejudice).

Depending on what "mistake(s)" counsel made, prejudice may be presumed if defense counsel was absent, suspended during a period of "discovery," drunk, didnít ask questions or object, was asleep, or other acts rendering counsel "absent" (Strickland, supra, at 692; United states v Cronic, 466 US 648 [1984]). If no single deficient performance claim amounts to prejudice, the reviewing court must assess the cumulative impact of all deficient performance claims (Williams v Taylor, 529 US 362 [2000]; Wiggins v Smith, 123 S.Ct. 2527 [2003]): Washington v Smith, 219 F3d 620, 634-35[7th Cir 2000]).

The reviewing court has to look at each claimed mistake individually to see if the individual mistake harmed you. If the court doesnít rule that any one mistake, by itself, harmed you, then it must, under this standard, take all the claimed mistakes together and determine if together they were prejudicial. The logic is that one snowflake falling onto a roof may be harmless, but three feet of snow can cause it to collapse.

To successfully argue ineffectiveness of counsel claims is difficult because courts have many ways to justify counselís actions so claims fall short of proving deficiencies and prejudice under standards of review. But, it can be done if one adequately studies the cases mentioned above and constructs his arguments accordingly.

Sempre avanti, D.M. Salerno, Toledo, Ohio