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Understanding Ineffective Assistance of Counsel
For a detailed explination of direct appeal, Oklahoma post conviction relief and federal habeas read Understanding Oklahoma's Criminal Appeal Process- An Overview of the Criminal Appeals Process from Direct Appeal through Federal Habeas.
Claims of ineffective assistance of counsel are most frequently considered for the first time on appeal and have generally not been ruled upon by the trial court, so defendants do not have to overcome presumptions concerning the trial court's factual rulings. The reason this is true is because it is typically raised against the trial attorney by the appellate attorney and not by the trial attorney against themselves. If the issue was raised at the trial level, for some reason, I would expect the trial court's factual findings to be judged by the clearly erroneous standard and the legal conclusions based upon those findings to be judged by the de novo review standard.
However, ineffective assistance of counsel claims have their own test that has presumptions that weigh against a defendant already built into the standard. With the most common type of ineffective assistance of counsel claims, also referred to as #actual ineffectiveness#, with this test the courts do not defer the findings of a lower court, but to the decisions of the attorney. (Courts #indulge a strong presumption that counsel's conduct# was constitutionally adequate and that "judicial scrutiny of counsel's performance must be highly deferential.#) The most often quoted case on ineffective assistance (actual ineffectiveness) of counsel is the United States Supreme Court case of Strickland v. Washington.
In Jones v. State, 2009 OK CR 1, 201 P.3d 869 (Okla.Crim. 2009) the Oklahoma Court of Criminal Appeals has a good discussion of ineffective assistance of counsel claims, the Jones case is quoted below.
As for counsel's conduct, we review claims of ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Warner v. State, 2006 OK CR 40, ¶¶ 198-199, 144 P.3d 838, 891-892. Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. Id. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Id. Unless the defendant makes both showings, #it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.# Id. quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700.
There are also two other types of ineffective assistance of counsel claims that are much less frequent, but you should be aware of them. These types of ineffective assistance of counsel claims are 1. Constructive Ineffectiveness and 2. Conflict of Interest.
1. Constructive Ineffectiveness: “The Cronic Standard” (United States v. Cronic, 466 U.S. 648 (1984)).
With “Constructive Ineffectiveness” you do not have to prove there was actual prejudice, the reason you do not have to prove actual prejudice with the constructive ineffectiveness claims is because they represent scenarios where there is a complete breakdown in the adversarial process. Constructive Ineffectiveness can be found in three situations.
First, when a defendant was completely completely denied counsel during a “critical stage” of their trial. (See, Wright v. Van Patten, 128 S. Ct. 743, 746, 169 L. Ed. 2d 583, 588 (2008) (holding counsel’s participation in plea hearing by speakerphone should not be treated as complete denial of counsel); Rickman v. Bell, 131 F.3d 1150, 1156–60 (6th Cir. 1997) (affirming judgment of ineffective assistance where counsel had abandoned defendant’s interests by repeatedly expressing contempt for client at trial and portraying client as crazy and dangerous, effectively acting as a second prosecutor); Javor v. United States, 724 F.2d 831, 833–34 (9th Cir. 1984) (finding prejudice inherent when counsel slept through much of the trial). But see also Tippins v. Walker, 77 F.3d 682, 683–85 (2d Cir. 1996) (holding ineffective assistance claim should be judged under Strickland when counsel slept through the trial).
Second, a defendant can claim ineffective assistance under Cronic if their lawyer “entirely fails to subject the prosecution’s case to meaningful adversarial testing.” The lawyer’s failure to test the state’s case must have been “complete,” meaning they put up no opposition whatsoever. (See Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914, 928 (2002) (holding counsel’s failure to produce mitigating evidence and waiver of closing argument did not constitute a complete failure to test the prosecutor’s case and that Strickland applied rather than Cronic). The Cronic standard is a difficult standard to meet, and a defendant that believes that he or she may have a claim under Cronic may do well to argue the issue in the alternative (I would make it a separate claim with a separate issue number) that the same behavior was a violation of the Strickland standard. For example, counsel’s decision to concede guilt in a capital trial and focus instead on the sentencing phase, even though his client entered a “not guilty” plea, is not automatically a complete failure to subject the prosecution’s case to adversarial testing, because that could be a strategic decision based upon the evidence. Compare Florida v. Nixon, 543 U.S. 175, 189, 125 S. Ct. 551, 561, 160 L. Ed. 2d 565, 579–80 (2004) (“The Florida Supreme Court’s erroneous equation of [counsel’s] concession strategy to a guilty plea led it to [wrongly apply the Cronic standard] in determining whether counsel’s performance ranked as ineffective assistance.”), with State v. Carter, 270 Kan. 426, 440–41, 14 P.3d 1138, 1148 (2000) (finding a breakdown in the adversarial system of justice when counsel premised defense on defendant’s guilt against his client’s wishes).
Third, you can also make a Cronic claim if the circumstances of your trial made it highly unlikely that any lawyer could have provided effective assistance to you. (Compare Powell v. Alabama, 287 U.S. 45, 56–58, 53 S. Ct. 55, 59–60, 77 L. Ed. 158, 164–65 (1932) (finding a denial of effective counsel when defendants, who were “young, ignorant, illiterate, [and] surrounded by hostile sentiment,” were tried for a capital offense, and when defense counsel was designated only minutes before their trials began and thus had no opportunity to investigate the facts or to prepare), with United States v. Cronic, 466 U.S. 648, 658–67, 104 S. Ct. 2039, 2046–51, 80 L. Ed. 2d. 657, 667–73 (1984) (rejecting defendant’s constructive ineffective assistance argument based on counsel’s lack of experience in criminal law or jury trials, and 25-day preparation time).
2. Conflict of Interest as a Basis of Ineffective Assistance of Counsel:
In addition to actual and constructive ineffectiveness claims, a defendant can also argue that their lawyer provided ineffective assistance due to a conflict of interest. To establish that a lawyer had a conflict of interest, a defendant must show that the lawyer had an actual conflict of interest that “adversely affected” the lawyer’s performance. (Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 348 (1980); see also United States v. Iorizzo, 786 F.2d 52, 57–58 (2d Cir. 1986) (applying Cuyler and finding that defendant’s trial counsel had a conflict of interest because he had previously represented the state’s key witness on a related matter and failed to effectively cross examine this witness after the trial judge had told counsel that he might encounter ethical problems if he pursued certain lines of questioning).
A conflict of interest can also happen when one lawyer represents more than one co-defendant for the same crime. (A conflict of interest may also arise in other situations, including: if a lawyer represented a government or defense witness in a related trial, if the victim was a client of the defendants lawyer, or if defendant’s lawyer collaborated or had a connection with the prosecution. See, e.g., Perillo v. Johnson, 205 F.3d 775, 808 (5th Cir. 2000) (finding actual conflict existed when counsel represented a co-defendant cooperating with the state as witness against the accused); United States v. O’Leary, 806 F.2d 1307, 1315 (7th Cir. 1986) (holding actual conflict existed when counsel was prosecutor’s campaign manager for State’s Attorney election, and counsel colluded with prosecutor and a police officer to get defendant to retain him because it would be good for the campaign). The conflict must be actual, not just potential. This means that a defendant’s lawyer must have taken some action, or refrained from acting in some way, which harmed the defendant and benefited the other person. (See, e.g., Burger v. Kemp, 483 U.S. 776, 783–85, 107 S. Ct. 3114, 3120–21, 97 L. Ed. 2d 638, 650–51 (1987) (holding that petitioner failed to show actual conflict when his lawyer’s partner was appointed to represent co-defendant, because “defendants may actually benefit from the joint efforts of two partners who supplement one another in their preparation”); Edens v. Hannigan, 87 F.3d 1109, 1116 (10th Cir. 1996) (holding actual conflict of interest existed when counsel made no effort to present a defense for client because it would have harmed co-defendant); Burden v. Zant, 24 F.3d 1298, 1305–07 (11th Cir. 1994) (finding ineffective assistance where counsel, representing two co-defendants, made an agreement with the prosecutor that one co-defendant would testify against the other in exchange for not prosecuting that co-defendant); Dawan v. Lockhart, 31 F.3d 718, 721–22 (8th Cir. 1994) (finding ineffective counsel where a public defender also represented co-defendant who had pleaded guilty and made statements tying the client to the crime)
A defendant does not have to show prejudice if their lawyer had an actual conflict of interest that adversely affected the defendant; instead, prejudice is presumed. Conflicts of interest should never happen, unfortunately they do. It can be a good issue if a defendant has the right facts in their case.
Cases, Briefs and Opinions concerning Ineffective Assistance of Counsel
Ineffective assistance of counsel arguemnets are very difficult to win on appeal. Appellate courts are very reluctant to reverse conviction based upon Ineffective Assistance of Counsel. Below are a couple of cases that were appealed to the Oklahoma Court of Criminal Appeals. With each case I have provided links for the docket sheet, Appellee's Brief (if filed) , opinion in the case (if filed) and any other pleadings I thought may be helpful.
Joseph Johnson vs. State
This was a Tulsa County murder case where the defendant was represented by Brian Boeheim and was convicted and given a Life Without the Possibility of Parole Sentence. The Appellant counsel argued that Boeheim was ineffective for a number of various reasons and the briefs provide a good survey of the law on ineffective assistance of counsel. The IAC claims have not been ruled upon by the Oklahoma Court of Criminal Appeals.
Claim of Ineffective Assistance of Counsel in Joseph Johnson vs. State
In the Appellant's Brief it was alleged that Boeheim provided ineffective assistance of counsel for the following reasons:
1. Failure to Properly Utilize Avaiable Evidence During Trial to Cross-Examine Witnesses on Critical Issues.
2. Failure to Marshall the Evidence in Closing Arguments
3. Failure to Request Jury Instructions on First Degree Manslaughter Under Inperfect Self-Defense Theory
4. Failure to Object to Prosecutorial Misconduct
Briefs in Joseph Johnson vs. State
Application for Evidentiary Hearing on Ineffective Assistance of Counsel
Other Issues Covered in this Case
In addition to ineffective assistance of counsel the Joseph Johnson case includes the following issues:
1. Failure of the Court to Instruct on lesser Included Offense 2. Prosecutorial Misconduct
Researching a Trial Lawyer you are considering hiring
If you are considering hiring a trial lawyer, I recomend that you search the court records for OSCN to see the cases that were appealed that the lawyer you are considering hiring tried. This is simple to do and only takes some time, all you do is search the lawyers name under the "Appellate Courts" and their trials that have been appealed will appear with a case number that begins with "F". This search will also show cases that they were the appeal lawyer on so you will need to download the Appellant's Brief and/or the opinion to see whether they were the trial lawyer or the appeal lawyer. For the last few years the briefs and even unpublished opinions are online and you can download them to see if appellate lawyers have consistently argued that they were ineffective. You have to expect an appellate lawyer to argue ineffective assistance of counsel for even the best lawyers from time to time. But, if appellate lawyers consistently argue the lawyer you are planning on hiring was ineffective, you may want to reconsider.