How does this apply to US law. The leading case AFAICT is Strickland v Washington and the bar here for ineffective assistance seems quite low, that the Counsel performance was sub par in the circumstances and that effected the trial outcome. In the Commonwealth (not sure about Canada) to succeed in this claim, you need to show actual negligence by the Counsel, rather than second guessing decisions.
I understand that its die to a constitutional mandate, but it seems hard that you are judged on a subjective standard and can fall afoul of it for conduct which is not professionally negligent.
It doesn’t have a practical impact on the actual counsel. It just gets the defendant a new trial. Nobody goes up for a disciplinary hearing or anything. The standard is pretty high, really:
What’s the definition of ineffective in this context? If we use the meaning of “not producing the desired effect” than you could argue that any defense counsel, no matter how competent, that doesn’t result in an acquittal is ineffective (as is any prosecution which doesn’t result in a conviction).
Because the US Constitution requires a higher standard of care than the licensing boards (state bar associations), or tort law. It’s not malpractice per se to handle a case imperfectly. As you noted your OP, an attorney’s judgment call which turns out to be erroneous may give rise to an ineffective assistance appeal.
I’m not sure I agree that a non-negligent error in judgment can give rise to an ineffective assistance claim, in part because the showing of prejudice is almost impossible to make unless the error is really quite severe (like overlooking an affirmative defense).
I sort of took that as read based on the fact that very few meritorious ineffective assistance claims result in sanctions or civil suits. However, after looking into it a bit further it appears most jurisdictions require the claimant-defendant to prove his innocence to recover on such suits. So maybe it’s a hole in the law after all.
For example, failing to inform a non-citizen criminal defendant that a plea bargain may have immigration consequences has been found to be ineffective assistance of counsel. Prior to that ruling, it was not generally thought that a criminal defense attorney needed to be competent to advise on immigration matters if s/he did not hold themselves out as an immigration attorney.
The Supreme Court says that informing clients of potential immigration consequences was indeed the widespread view of what was required of criminal attorneys by their professional bars and associations. That was part of the basis for the decision.
Strickland has two prongs to show: first, that the attorney’s performance fell below the objective standard required for professional representation, and secondly that this resulted in definite prejudice to the client.
In other words, it’s not enough to show that your lawyer fell asleep at trial: you also have to point to some action that he failed to take while asleep and how that failure hurt your case.
Richard Parker is right: lots of less serious errors at trial can be characterized as “strategic choices.” I didn’t object to the blatant hearsay because I didn’t want the jury to believe we were trying to hide something.
But this discussion gives me a chance to do a shout-out to an Illinois case, People v. Lefler, 689 NE 2d 1209 (Ill. App. Ct 5th, 1998), which features some of my all-time favorite appellate language. Lefler involved a burglary suspect who was apprehended in part because of a police dog named Cain tracking his scent from the scene of the crime. Illinois, however, as a matter of law did not permit “bloodhound” evidence to be used at trial. On appeal, Lefler raised two issues: ineffective assistance of counsel for not objecting to the bloodhound evidence, and plain error for the use of the bloodhound evidence.
The opinion’s opening sentence:
And some other choice quotes:
And a great illustration of the difficult uphill climb a Strickland claim faces:
Let that sink in a moment: The opinion provides a devastating indictment of sub-par attorney performance . . . and yet denies the appeal.
It seems the courts want to look into a crystal ball and determine the outcome of a trial under other circumstances. If we could do that we would not need a trial in the first place.
There is this I found in referenced in the Strickland decision though:
You have to understand Texas politics. Every state-wide public office is held by a Republican, and the job (as most of them see it) of appeals court judges is to uphold convictions. The sleeping lawyer is one example, but there are many others.
Charlie Baird, btw, was the last Democrat on the Court of Criminal Appeals. He was finally unseated (I think) in 2000.
Sorry I just realized I didn’t answer your question, as far as the trial judge is concerned. Houston executes more people each year than most countries. They’re quite proud of that fact. Also, they don’t like defense attorneys who raise a lot of objections, or files a lot of motions or shit like that. They like short trials that end with the death penalty. That’s why the sleeping lawyer got so many appointments in the first place.
You’re talking about suing a criminal defense attorney for damages. In a civil court. That’s different from ineffective assistance of counsel and disbarment. It is the reason why most defense attorneys don’t bother to carry liability insurance, however.
How is ineffective assistance *not * professional negligence then?