In the thread on Trump’s Hush Money trial the notion of requesting a mistrial due to ineffective assistance of counsel as a deliberate strategy has come up. However, generally, that notion has been rejected for a variety of reasons including that the actions of the lawyers would not really qualify.
So if got me thinking. What would count as incompetent counsel or ineffective assistance of counsel? What would be some examples?
This will vary by jurisdiction.
The basic rule from SCOTUS
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that in order for a convicted defendant to establish that he or she was deprived of the Sixth Amendment right to effective assistance of counsel at trial, the defendant would have to show: (1) deficient performance by trial counsel; and (2) prejudice. In determining whether trial counsel’s performance was constitutionally deficient, the reviewing court looks to the reasonableness of counsel’s conduct under “prevailing professional norms.” Id . at 688. It is the convicted defendant’s duty to identify the acts or omission by counsel that are alleged not to have been the result of reasonable professional judgment. The reviewing court must then judge “the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id . at 690. To establish prejudice, a convicted defendant “need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id . at 693. Rather, the defendant must establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id . at 694.
There have been many cases where shocking lawyering has been held not bad enough under this test. This includes actually sleeping during trial.
But, things like failing to try to get an illegal search suppressed, failing to explore alibi, or failing to communicate a plea offer would qualify. Not things like failing to object to a leading question.
These is an obnoxious Seatle lawyer who told a young man that he should reject a very favorable plea offer on a homicide case (kid shot a teacher who had abused him, or something like that). The lawyer practically guaranteed a not guilty verdict. He was convicted. As I recall, the appeals court said that was ineffective assistance, based on the facts.
Sleeping during the trial was not found to be ineffective assistance? That seems wrong to me.
Thanks for the reply!
Yeah, to many of us. But remember, you have to prove not just bad lawyering, but that it would have made a difference.
Here’s a case discussing the issue at length if you’re interested
Interesting read but the conclusion says he was found to be deprived effective counsel.
That seems counterintuitive. The sleeping lawyer I understand. The one that doesn’t try to get the illegal search thrown out I get. But something like this seems like it opens up the system to abuse, almost like something out of Law & Order. Go to trial on a not guilty plea, then if they convict you change your mind and say, “I didn’t really mean it, let me have another chance at a plea bargain instead (but with a different lawyer).”
Yes, but as you can see, there are cases that reach the opposite conclusion,
Yes. It’s not as easy argument to make successfully. That case had a lot of unusual facts. I’ve never heard of another one like it. (most lawyers do a good job of explaining the risks of going to trial, and the benefits of a plea deal. This lawyer made ridiculous claims about the chance for success at trial.)
So what is then difference between grounds for a mistrial vs grounds for an appeal? I’d assume the bar to head an appeal is lower than a mistrial? But to actually grant an appeal may require the same amount erroneous trial stuff as a mistrial just retrospectively? IANAL if that was not obvious: 