Ineffective Assistance of Counsel

  • October 6, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.  

    Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.

    Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.

  • September 3, 2010
    Evidence abounds that the indigent defense system is in crisis. Yet we lack data on "even the most basic questions" related to indigent defense, such as "how many defendants are represented by the indigent defense systems in this country, how many misdemeanor defendants have a right to counsel, or what percentage of defendants who are entitled to court-appointed representation go unrepresented." writes Erica J. Hashimoto in an ACS Issue Brief released this week.

    According to a small-sample survey conducted by the Bureau of Justice Statistics (BJS), 30 percent of defendants charged with misdemeanors are denied their right to counsel. But these results omit many defendants with suspended terms of incarceration who may have also had a right to counsel. And anecdotal evidence in some states, such as North Dakota, shows that systems fail to appoint counsel at arraignment routinely in misdemeanor cases, "despite the fact that most defendants pled guilty at the hearing and many were sentenced to jail time." All of this suggests that a significant percentage of misdemeanor defendants are deprived their right to counsel, and that more data is necessary to determine the extent of the problem and craft solutions, explains Hashimoto, associate professor of law at the University of Georgia School of Law.

    In her Issue Brief, "Assessing the Indigent Defense System," Hashimoto urges the Bureau of Justice Statistics to collect a range of data on misdemeanor defendants, as they do on felony defendants in the 75 largest counties. Beyond that, BJS needs to collect data on representation rates in smaller counties and jurisdictions, where "there may not be an experienced indigent defense bar, and other bar members may not view it as their obligation to ensure that all felony defendants are represented."

    On the issue of effective assistance of counsel, there is some more data available. Surveys of public defenders show those in the 100 largest counties are assigned between 50 and 80 percent more cases than permitted by maximum caseload standards, and "there appears to be no dispute that lawyers with those types of caseloads cannot provide effective assistance." Thus, Hashimoto says, we must gather information about where public defender caseloads are highest, how we can most effectively control caseloads, and at what point in the process defendants are assigned public defenders.

    "None of these steps will fix the indigent defense system overnight," Hashimoto concludes. "But until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."

    Hashimoto's Issue Brief is the third in an ACS series on strengthened roles the federal government can play in addressing the persistent crisis in indigent defense.

    The first two Issue Briefs are "A Legislative Approach to Indigent Defense Reform" by Cara H. Drinan and "From Error Toward Quality: A Federal Role in Support of Criminal Process," by James M. Doyle.

    Hashimoto's ACS Issue Brief is available here.

  • March 31, 2010

    A fragmented Supreme Court issued its opinion in the case of non-citizen Jose Padilla, who followed his attorney's advice to plead guilty for marijuana possession and was subsequently deported. Padilla, born in Honduras, has lived in the United States legally for over 40 years and served as a member of the U.S. Armed Forces during the Vietnam War.

    In Padilla v. Kentucky, the Court determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. The Court, however, did not throw out the petitioner's conviction based on ineffective assistance of counsel, setting aside the issue of whether Padilla was prejudiced by his counsel's shortcomings. Rather, the case was remanded to the Kentucky Supreme Court to resolve that question.

    "It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens wrote for the five-justice majority.

    ''To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,'' Stevens wrote. ''Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

  • January 20, 2010

    In what may be her first noteworthy opinion for the Supreme Court, Justice Sonia Sotomayor -- a former prosecutor -- assessed whether a defendant's counsel was unconstitutionally ineffective. In Wood v. Allen, a defense attorney failed to further investigate or introduce evidence of the defendant's IQ being significantly below average. Writing for a 7-2 majority, Justice Sotomayor determined, "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not to inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information." Accordingly, the Court upheld the U.S. Court of Appeals for the Eleventh Circuit, which had reinstated Mr. Holly Wood's death sentence.

    As detailed in this preview of the case, Wood shot and killed his girlfriend while she slept. During his trial in an Alabama state court, Wood was represented by three lawyers. Of those three attorneys, one had just graduated from law school and was freshly sworn into the bar. It was this lawyer who, assigned to defend Wood during the sentencing phase of the trial, failed to investigate or introduce evidence of Wood's limited mental capacity.

    Preliminary testing indicated that Wood's IQ was below 70, which is suggestive of a developmental disability. Without introduction of that mitigating evidence, the jury voted 10-2 to sentence Wood to death by electrocution -- Alabama's statutorily minimum vote for capital punishment.

  • November 3, 2009
    Guest Post

    By Emily Garcia Uhrig, Associate Professor of Law, University of the Pacific McGeorge School of Law

    The Supreme Court will hear argument tomorrow in Wood v. Allen, an Alabama state capital case in which the petitioner, Holly Wood, challenges his death sentence for fatally shooting his ex-girlfriend out of jealousy while she was sleeping in her home.

    Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

    Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.