Ineffective Assistance Of Counsel Claims Research Articles

Commonalities in false guilty plea cases

ABSTRACT False guilty pleas, when innocent people are wrongfully convicted by pleading guilty, have beset criminal legal systems since the time guilty pleas came into existence. Today, of the nearly 3,300 exoneration cases catalogued by the National Registry of Exonerations (NRE), about 25% are wrongful convictions via guilty plea, with the remaining 75% by trial. In the present study, we code the known population of wrongful plea convictions, comparing them to the known population of wrongful trial convictions on numerous factors (e.g. dispositional and situational risk factors) to identify defining characteristics of false guilty plea cases. Overall, we found many notable differences. False guilty plea cases are four times more likely to involve a false confession and be the ‘no-crime’ type of wrongful conviction than trial cases. In contrast, trial cases were significantly more likely to involve eyewitness misidentification, forensic science errors, perjury or false accusations, and documented ineffective assistance of counsel claims than false guilty plea cases. Results shed much-needed light on the factors that associate with false guilty pleas.

Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims

The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government are positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record — ideally at a deposition, but alternatively through affidavits.

Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims

The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.

A Judge's Duty to Do Justice: Assuring the Accused's Right to the Effective Assistance of Counsel

Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice. I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level. In this article, I begin by analyzing resistance to recognizing ineffective assistance of counsel at the trial level and in post-conviction proceedings. Next, I examine the crises in public defense and how case overloads and funding practices for public defense create disincentives to effective assistance of counsel. I then analyze how the rights of the accused differ when the accused has a publicly provided lawyer compared to privately retained counsel. In the next part of the article, I describe the situations that trigger a trial judge’s duty to conduct an effective assistance of counsel hearing, and I proceed to recommend both the type of hearing and the standard the judge should apply in evaluating counsel’s effectiveness. I conclude by arguing that to do justice a trial judge must ensure the accused’s right to the effective assistance of counsel.

The Bright Linees Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel

In this Article, Prof. Mulroy discusses an unsettled issue which arises with some frequency in the federal courts: whether the Sixth Amendment right to counsel can ever apply prior to the filing of a formal charge by a prosecutor. There are a number of situations - most notably, pre-indictment plea negotiations involving the prosecutor - where a defendant most decidedly needs the assistance of counsel, even before formal charges are filed. Language in Supreme Court cases has suggested that the right does not attach until a prosecutor files a charge in court, or the defendant appears before a magistrate. Some lower courts have relied on this language to fashion a “bright-line rule” preventing Sixth Amendment protection prior to formal charges being filed. But these Supreme Court cases were decided prior to recent rulings by the Court that a Sixth Amendment ineffective assistance of counsel claim could cover plea negotiations. The circuit courts are split on this issue, with some accepting and some rejecting the notion of a bright-line rule. This Article argues that a careful examination of the relevant Supreme Court opinions, the text of the Sixth Amendment, and the underlying purpose of the Amendment’s right to counsel all argue for a more flexible approach. It also analogizes from case law interpreting Model Rule 4.2 of the Rules of Professional Conduct, the so-called “no contact” rule. It proposes a new rule: in addition to being triggered by a formal charge or appearance before a judge, the Sixth Amendment right to counsel also applies where a prosecutor has had contact with a defendant about the substance of the case (other than as a witness), either directly or through counsel. Among other instances, this rule would apply to pre-charge negotiations about a plea deal or grant of immunity; to communications concerning the defendant’s grand jury testimony; and to custodial interrogation where the prosecutor was personally involved.

'But I Still Havennt Found What IIm Looking For': The Supreme Courtts Struggle to Understand Factual Investigations in Federal Habeas Corpus

The Supreme Court’s decision in McQuiggin v. Perkins found that a defendant’s actual innocence of his conviction may trump the 28 USC § 2244(d)(1)(D) one year statute of limitations for filing a habeas corpus petition. However, a federal court must take into account the delay in bringing the case when considering whether a miscarriage of justice occurred. In other words, the longer the delay after the one year trigger to bring the evidence to federal court, the less likely an inmate will be able to prove his innocence. The problem with application of a sliding scale is the Court’s failure to appreciate the difficulties in gathering the hard evidence necessary to establish actual innocence. For a pro se inmate, this task is near insurmountable because of the investigation needed to locate witnesses, find records, and obtain expert analysis of physical evidence required to substantiate an innocence claim. Even those agencies tasked with proving innocence take years to gather evidence that establishes innocence regardless of whether the case involves DNA testing.What makes the Court’s reasoning on innocence issues more troubling is the leniency that is extended to a much broader range of constitutional violations. Inmates who argue a Sixth Amendment ineffective assistance of counsel claim may have an easier time obtaining relief than an innocent inmate, even though both face the same obstacles concerning factual evidence to support their arguments. The Court’s recent decisions for Martinez v. Ryan and Trevino v. Thaler, which permits raising improperly pled ineffective assistance of counsel claims either on direct appeal or state post-conviction, to satisfy the cause and prejudice standard for not bringing a viable claim of failure to investigate within the proper procedural mechanism. The Court’s disconnect in recognizing that the same difficulties exist between the innocent and the wider pool of inmates challenging convictions must be remedied to permit those wrongfully convicted an easier path to freedom.

Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved. Waivers of ineffective assistance of counsel claims pose both legal and ethical issues. Legally, the waivers serve to undermine a defendant’s due process rights — recognized by the Court in Gideon v. Wainwright — by requiring the defendant not only to waive what is unknown to them at the time of waiver, but to do so even when based upon bad advice of ineffective counsel. Ethically, a defense lawyer counseling a defendant to waive ineffective assistance of counsel claims has a personal conflict of interest with the client, because the lawyer has reputational and other interests in not having the lawyer’s representation of the client determined to be ineffective.Whether the Supreme Court would approve a waiver of an ineffective assistance claim that would negate the due process right to effective assistance of counsel is not yet resolved. Such a decision, however, would immunize much incompetent lawyering from any judicial scrutiny altogether.This article begins by examining the systemic barriers defense counsel face to provide meaningful advice to criminal defendants contemplating a guilty plea These barriers include the underfunding of defense services in many jurisdictions and the coerciveness of the plea bargaining process. Next, the article analyzes the law and ethics of waivers of ineffective assistance of counsel claims and whether such waivers should be permissible. We contend that such waivers should not be enforceable for both legal and ethical reasons. Permitting waivers of ineffective assistance of counsel claims not only constitutes judicial acceptance of a prosecutorial veto of the Court’s recent decisions regarding plea bargaining, but also ensures that more defendants never receive the effective assistance of counsel during plea bargaining.

A Game-Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims

The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so-called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Courts are split on whether to interpret this holding as effecting a change to the collateral consequences rule, and more specifically, the definition of direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla.

Unintended Consequences: The Impact of the Court’s Recent Cases on Structural Ineffective Assistance of Counsel Claims

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will help those seeking indigent defense reform to establish the likelihood of future injury, a necessary element of successful structural challenges.

One Strike and You're Out: Padilla Advisement About Public Housing Eligibility

Post Padilla an attorney has an affirmative duty under the Sixth Amendment to advise a client about the loss of public housing eligibility as a consequence of a criminal conviction or plea. This collateral consequence is even more severe than civil commitments, loss of pension, sex offender registry and parole eligibility in that it not only punishes the offender but the offender’s entire family. No other collateral consequence directly affects innocent bystanders in such a direct and punitive way. Attorneys must begin to recognize that there already exist an ethical and moral duty to advise clients of the collateral consequence of the loss of public housing eligibility and that this duty to advise meets the Sixth Amendment requirement for effective assistance to counsel. Moving forward attorneys must become aware and be more vigilant about collateral consequence advice if they want to successfully avoid Sixth Amendment ineffective assistance of counsel claims especially when it comes to a well-established federal law such as the One Strike Policy.

The Death Knell for Constitutional Ineffective Assistance of Counsel Claims in Immigration Proceedings

The article addresses the Attorney General's recent decision in Matter of Compean, Bangaly & J-E-C-, in which he determined that aliens may not assert a constitutional claim of ineffective assistance of counsel in immigration proceedings. Along with this constitutional holding, the Attorney General also found that the Board could grant relief in the exercise of its discretion, and established a comprehensive substantive and procedural framework for resolving such claims. This issue is perhaps the most contentious current issue in immigration law. Three federal courts of appeals have ruled consistent with the Attorney General's decision, yet the eight other federal courts of appeals with jurisdiction under section 242 of the Immigration and Nationality Act have concluded that aliens do have a due process right to the effective assistance of counsel. Moreover, the decision overrules two previous decisions of the Board of Immigration Appeals assuming that the Fifth Amendment did guarantee such a right. Accordingly, the reorientation of the legal debate represented by the Attorney General's definitive decision is difficult to understate.

Pay Now, Execute Later: Why Counties Should Be Required to Post a Bond to Seek the Death Penalty

When death sentences are reversed - and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons - local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.

Parity of Resources for Defense Counsel and the Reach of Public Choice Theory

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. The article asks whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources. For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this must come from the legislature, so the article reviews the prospects for resource parity in the state legislatures. The odds that legislators will vote for such a law are surprisingly good, given the willingness of Tennessee and other jurisdictions to experiment with the idea. The approach in this article is multi-disciplinary, using history, traditional case analysis, journalistic case studies, and a close review of public choice theory. The article explores more generally the applicability of a public choice theory to crime legislation, and classifies criminal justice laws based on their different implications for this theory. Public choice theory has led to overbroad claims that criminals always lose in the legislative process; there are predictable settings where criminal defendants can benefit incidentally from laws favored by well-organized and influential interests such as the organized bar and judges.

The Constitutional Failure of the "Strickland" Standard in Capital Cases under the Eighth Amendment

AMY R. MURPHY [*] I INTRODUCTION Not until the twentieth century did the United States Supreme Court rule that all criminal defendants, whether in state or federal court, had a right to be represented by counsel under the Sixth Amendment. [1] Until nearly the end of that century, however, the Court went no further than stating that defendants had a right to counsel, without specifying whether that meant competent counsel. In 1984, there were two landmark cases in Sixth Amendment jurisprudence. The first is the source of the requirement that counsel provide effective assistance, although the Court did not clarify what such assistance would entail. [2] Out of this requirement have arisen countless appeals based on ineffective assistance of counsel (IAC). Until the Court heard the second landmark case, Strickland v. Washington, [3] that same year, courts ruled on these claims without any guidance. The Court defined effective assistance of counsel according to what it was not: a deficient performance that so prejudiced the defense as to depri ve the defendant of a fair trial. [4] The Court gave little guidance about what constitutes a constitutionally deficient performance, and even less to how prejudicial the effect of the deficient performance has to be in order to be found unconstitutional. As a result, the Court did little more than to sanction the broad discretion already employed by courts in considering IAC claims. This discretion leads to arbitrary determinations in capital cases, which, although they may satisfy the low bar set for Sixth Amendment analysis, violate the Eighth Amendment. In the 1995 Law and Contemporary Problems symposium entitled Toward a More Effective Right to Assistance of Counsel, Professor Uelmen gave a guided tour of the Sixth Amendment from which he gleaned several lessons. [5] First, criminal defense will never have a high funding priority in this nation. [6] Second, the difference between no counsel and incompetent counsel is a judicial fiction that enables courts to make distinctions under the Sixth Amendment that do not exist in reality. [7] Finally, Professor Uelmen noted the shortcomings in the current standards for legal counsel: [I]f courts regarded the competence of defense counsel as just as essential to the achievement of justice as the competence of the judge, we would certainly see a different standard of competence applied. [8] It is these lessons, combined with the utter lack of any meaningful guidance from the Supreme Court as to what constitutes a prejudicial effect, that makes the Strickland standard a violation of the Eighth Amendment. Just a s legislation that gave juries complete and unguided discretion over the sentencing of capital defendants was deemed unconstitutional because it resulted in arbitrary punishment, [9] so the Strickland standard is unconstitutional because it recreates those same problems at the appellate level. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in Strickland has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. As a result, there is little consistency within judicial districts or across districts. [10] Legal assistance that might be constitutionally deficient and prejudicial before one judge may not even be considered unreasonable before another. Although most courts and legal scholars have examined the constitutionality of the assistance of counsel on an individual basis under Sixth Amendment jurisprudence, the appellate review of TAC claims in capital cases itself violates the Eighth Amendment prohibition of cruel and unusual punishment, especially as it is analyzed in Furman v. Georgia, because it results in impermissible arbitrariness in the sentencing of capital defendants. Part II of this note begins with a review of the right to couns el, which leads to a discussion of the importance of this right in capital cases. …

A Coherent Approach to Ineffective Assistance of Counsel Claims

A Coherent Approach to Ineffective Assistance of Counsel Claims