Steve Kaplan is of counsel to the Minneapolis law firm Fredrikson & Byron, P.A. and a member of the Innocence Project of Minnesota board of directors. The following is the first in a series of articles addressing factors that contribute to the wrongful conviction of actually innocent people.
The Sixth and Fourteenth Amendments to the U.S. Constitution afford an accused the right to the “effective” assistance of counsel. Decades ago, the Supreme Court defined “effective” assistance as the right to a defense lawyer who was “zealous” and “active.”
The ABA Criminal Justice Standards for the Defense Function also broadly defines the right as based on the lawyer’s duty to “serve as the accused’s counselor and advocate with courage, devotion, and to the utmost of his or her learning and ability and according to law.”
What exactly, however, does that mean the defense lawyer must do when a client is accused of a serious crime that may result in decades or life in prison or, indeed, lethal injection in the death house?
Beginning with its 1984 landmark decision in Strickland v. Washington and in several cases that have followed it to the present time, the U.S. Supreme Court has imposed strict standards of diligence on defense counsel in death penalty and other serious criminal prosecutions. The degree of investigative diligence that the courts impose on defense counsel, however, necessarily varies with the seriousness of the offense and the types of evidence that are available to counsel. A garden-variety burglary case will likely involve less investigation than will, say, a first-degree murder prosecution.
The Supreme Court has imposed this duty to investigate because the accused’s right to effective counsel is foundational to the preservation and exercise of every other right that the Constitution affords the accused.
It will not matter that the accused has the right to cross-examine the prosecution’s witnesses if defense counsel has failed to investigate thoroughly the relevant or potentially relevant facts before deciding how best to attack the credibility of those witnesses and the weight that should be assigned to their testimony.
Similarly, it will be of little consequence that the prosecution has the burden of proof at trial if defense counsel has failed to (1) investigate all of the relevant facts; (2) consult with potentially helpful expert witnesses; (3) consider each theory that may contradict the prosecution’s arguments; and/or (4) locate available witnesses who can rebut the prosecution’s case.
It is in this context that courts reviewing whether defense counsel was “ineffective” are directed to assess whether counsel was deficient in failing to investigate facts, theories, and strategies that a skilled lawyer would investigate and, when possible, present to the court or jury.
This duty to investigate is both dynamic and continuing throughout the case because it takes account of the information that defense counsel obtain from their own investigations, as well as the that which is contained in police and prosecution files provided to counsel during pre-trial discovery.
What counsel must do, in short, is investigate and challenge the prosecution’s case before trial, before deciding how best to attack the case at trial. Only in that manner can a defense lawyer make informed judgments regarding the most effective defense theories to present.
If a court reviewing the conviction concludes that defense counsel failed to investigate essential facts and consider relevant theories before trial and therefore failed to present the most effective defense available at trial, it may conclude that counsel was “deficient.”
The court may also find that defense counsel who later represented the client on direct appeal from the conviction or in a post-conviction proceeding was similarly deficient in connection with their work.
A finding that the accused received deficient assistance does not, however, necessitate a new trial. Rather, the question then becomes whether counsel’s deficient performance “prejudiced” the client.
“Prejudice” will be found only if the reviewing court is convinced that there is a “reasonable probability” that the jury would not have convicted the accused (or, in a capital murder case, would not have sentenced the accused to death) if defense counsel had not been deficient. This inquiry, in turn, requires the courts to determine whether, in light of the totality of the previously offered evidence and arguments and the newly-presented evidence and arguments, the jury may reasonably have decided not to convict the accused (or sentence the accused to death in a capital case).
If, as is often the case, the individual has been convicted of a serious offense and such conviction has been affirmed on appeal and also, perhaps, in a prior post-conviction proceeding, any attempt to overturn the conviction on ineffective-assistance-of-counsel grounds face will face strong resistance not only from prosecutors, but also, quite likely, the courts.
To preserve the conviction, the prosecution will seek to justify, minimize, or excuse any alleged deficiency on the part of former defense counsel to do what the defendant now contends should have been done.
Similarly, the reviewing courts—now looking at the case several years after the trial—will hesitate to reverse the conviction. They may, therefore, be inclined to characterize the work of former defense counsel, including any alleged deficiencies, as “reasonable” or “strategic” and term the attack on counsel’s performance as “second-guessing” made in “hindsight.”
Even if the courts conclude that former defense counsel was deficient in failing to investigate and present certain evidence or theories, they may nonetheless characterize such as “immaterial” or “irrelevant” to the outcome.
For these reasons and in the view of many, the accused’s right to the effective assistance of counsel is frequently sacrificed for the sake of preserving a conviction that merits reversal.
Stephen F. Smith, “Taking Strickland Claims Seriously,” 93 Marq. L. Rev. 515 (2009-2010).