Ineffective assistance

Last week I posted about the right of criminal defendants to be represented by counsel. Today I’m discussing a related matter—what if the defense lawyer sucks?

On the one hand, the case law is clear: defendants have the right to effective assistance. While this doesn’t mean the lawyer has to be a Clarence Darrow, it does mean she has to do her job competently. If she doesn’t, a conviction may be overturned.

Ah, but there’s a major caveat here. In order to make a claim of ineffective assistance of counsel, the defendant has to prove more than the lawyer’s incompetence. He also has to prove that, if it weren’t for her bad job, the outcome of the trial would have been different. This is called the Strickland test, named after the case in which the Supreme Court articulated it. In many cases, the test essentially means the defendant has to prove he’s innocent, which can be difficult even with a good lawyer.

Courts have upheld convictions in which the defense attorney was drunk at trial, was mentally ill and delusional, fell asleep during the trial, asked the defendant’s family for money to do DNA testing but kept the money and didn’t do the test.

I think ineffective assistance of counsel is an excellent and underused plot device. Imagine that your hero is innocent but gets a cruddy lawyer. Maybe that lawyer is even paid off by somebody to do a bad job? And now your hero has to prove he didn’t do it. Lovely!

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