Ineffective Trial Counsel

Part IV of a Four Part Series: Parts I, II, and III were published in the Idaho Observer on 06/08, 11/08, and 12/08 respectively.

Unfortunately, most of us are unable to choose our vehicle for the road through criminal court matters. We end up with whatever is on the lot at the time - could be a Chevette, could be a Porsche. Heeey! Look at that beat up Ford... It’s got a 460 under the hood - a sleeper, no one’ll see it coming! Regardless of the “model,” no single Attorney is an all-knowing mass of legal knowledge. No one is. Because the law changes each day. With numerous influences, and the imperfection of human knowledge, we must always carefully scrutinize conduct of the Defense Counselor.
Though Defense Counsel’s performance is presumed to be reasonable professional assistance, and it must be shown that “counsel’s representation fell below an objective standard of reasonableness.” Wickline v. Mitchell. 319 F3d 813, 819 (6th Cir. 2003), Possible mistakes are too numerous to list here. Anything said to be trial strategy cannot be listed as counselor mistake.
If you feel “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” Strickland, infra (below), 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, infra, listed some basic defense counsel duties: Defense counsel must 1) practice loyalty and avoid conflicts of interest; 2) advocate the defendant’s 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 is the base of the argument in support of your Constitutional Claim.
The claim might be: Assistance of Appointed Trial Counsel was Ineffective.
One Standard of Review consists of two parts: the FIRST part may be: “In determining a claim of ineffective assistance of counsel an appellant must show that counsel’s performance was deficient and that deficiencies in performance prejudiced his defense,” Strickland v. Washington 104 S.Ct. 2052 (1984); Woodford v Visciotti 123 S.Ct. 357 (2002). This shows what is called the Strickland standard. You need to show the Attorney made mistakes (the deficiencies), and then must show the mistakes harmed you - that errors of counsel actually had an adverse effect on the case (the prejudice). Depending on what mistake counsel made, prejudice may be presumed if Defense Counsel was absent, suspended during a period of “discovery,” drunk, didn’t ask questions or object, was asleep, or other act rendering counsel “absent.” Strickland, supra, at 692: Also United States v Cronic 466 US 648 (1984).
Now we look to the SECOND part of the Standard of Review, which might read:
“...(2002); 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): also e.g., Wiqqins v Smith, 123 S.Ct. 2527 (2003), Washington v Smith 219 P3d 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 doesn’t rule that any one mistake, by itself, harmed you, then it must, under this standard, take ALL the claimed mistakes together, then see if together they were prejudicial. If one snowflake falls on a roof, nothing happens. It’s ONE snowflake. But, if three feet of snow is on the roof it may collapse under the weight.
The Claim of Ineffectiveness of Counsel is sticky as a reviewing court has a lot of room to fit counsel’s actions into - kind of like throwing a baseball into a pool. With good argument and research their baseball won’t come close to making a splash.         
Stay tuned for “Fruit of the Poisonous Tree.”

Sempre avanti –
 D.M. Sa1 Sa1erno