Counsel: Right to Counsel

While "[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel" (McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)), it was not until the mid-1980s that the Supreme Court began to articulate a test for deciding when a defendant has been denied the right to effective assistance. The seminal cases were Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S. 648 Ct. 2039 (1984).

Strickland identified a performance-and-prejudice test. Under the performance prong, a defendant must show that his lawyer "made errors so serious [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" (Strickland, 466 U.S. at 687). The Court announced "a strong presumption" (Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)), that counsel's performance falls within the "wide range of [acceptable] professional assistance" (Strickland, 466 U.S. at 689). Moreover, the reasonableness of a lawyer's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Courts often find that a defense lawyer's decision to forego a particular line of inquiry or action was strategic or tactical; even if the decision was ultimately unsuccessful, that failure does not establish inadequate performance. The performance prong of the Strickland inquiry is descriptive. It measures defense counsel's behavior with reference to the professional norm. As the Court insisted in Strickland, "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation," but rather to ask whether the defendant received the level of performance generally observed.

With respect to the prejudice prong, a defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." That is, a defendant must show that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The Court elaborated that a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Thus, the prejudice prong is ex post: it looks at the outcome of the defendant's trial and asks whether the result might have been different in the absence of counsel's deficient performance. Moreover, while the prejudice prong is generally treated as a descriptive matter—in Kimmelman v. Morrison, for example, the Court found prejudice from counsel's failure to make a timely suppression motion when, had the evidence been suppressed, there was a reasonable probability the defendant would not have been convicted—the Court has on occasion taken a more normative view. In Nix v. Whiteside, 475 U.S. 157 (1986), the Court refused to find that a defendant had been prejudiced by his lawyer's threats to reveal his client's perjury because a defendant has no entitlement to "the luck of a lawless decisionmaker," and thus the defendant had not suffered cognizable prejudice. And in Lockhart v. Fretwell, 506 U.S. 364 (1992), the Court extended this rationale to hold that a defendant suffered no cognizable prejudice when the lawyer failed to make an objection that, at the time of the defendant's sentencing, would have resulted in his death sentence being overturned because a subsequent appellate decision overruled the case from which the defendant would have benefited. Thus, even though Fretwell as a descriptive matter was prejudiced by his attorney's failure to make the objection, this failure did not render the sentence less "reliable" in a more normative sense.

Two other facets of the prejudice prong deserve mention. The first is how prejudice is defined in the vast majority of cases in which defendants plead guilty, rather than going to trial. In Hill v. Lockhart, 474 U.S. 52 (1986), the Court held that in order to satisfy the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. This articulation of the prejudice prong makes it extremely difficult for defendants to prove ineffectiveness in the plea bargaining process. In reality, the likely effect of most defense attorney shortcomings is not that a defendant pleads guilty instead of going to trial, but that he gets a less advantageous plea bargain than would otherwise be the case. But showing simply that, but for defense counsel's unprofessional errors, one would have pleaded to a less serious offense or received a lighter sentence does not establish prejudice. The upshot of Hill is that it is exceptionally difficult for a defendant to prevail in attacking a conviction pursuant to a plea on grounds that counsel was ineffective.

Second, in Strickland and Cronic, the Court identified three categories of cases in which prejudice is presumed because an adverse effect on the defendant "is so likely that case-by-case inquiry into prejudice is not worth the cost." First, courts will presume prejudice in a case of denial of counsel altogether. Second, "various kinds of state interference with counsel's assistance" can warrant a presumption of prejudice (Cronic, 466 U.S. at 659, and n. 25). Third, "prejudice is presumed when counsel is burdened by an actual conflict of interest" (Strickland, 466 U.S. at 692) and the defendant can show that the conflict actually affected counsel's performance. Gideon v. Wainwright would be an example of the first category: faced with an outright denial of counsel, a reviewing court will not ask whether counsel might have changed the outcome of a defendant's trial. Rather, it will simply reverse the conviction and order retrial with counsel. Geders v. United States, 425 U.S. 80 (1976), is an example of the second category: there, a judge unconstitutionally barred defense counsel from consulting with his client during an overnight recess; again, the reviewing court did not ask whether there was a reasonable likelihood that the prohibited consultation would have changed the outcome. An example of the third category is United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995). There, the court of appeals reversed a defendant's conviction because his lawyer had represented a key government witness in her first appearance before the grand jury and therefore curtailed his cross-examination of her at trial.

But the Court has made clear that cases of presumed prejudice are relatively rare. Thus, for example, in Burger v. Kemp, 483 U.S. 776 (1987), the Court declined to find an actual conflict of interest even though the defendant was represented by the law partner of the attorney who represented his co-indictee in a capital murder case and, at each defendant's trial, the defense strategy was to emphasize the co-indictee's culpability in order to avoid the death penalty. And in several "sleeping lawyer" cases, lower courts have refused to hold that a defense lawyer who has fallen asleep gives rise to a presumption of prejudice without regard to what was occurring when the lawyer nodded off.

Strickland also clearly held that defendants challenging their convictions must establish both inadequate performance and prejudice, and that courts faced with ineffectiveness claims can address the two prongs of the test in either order. Thus, a reviewing court need not determine whether a lawyer's actions fell outside the bounds of reasonable attorney behavior if it concludes that there is no reasonable probability that the outcome would have been different had the lawyer acted differently.