Mimesis Law
14 November 2019

Ineffective Assistance of Counsel: An Out for the System

Feb. 5, 2016 (Mimesis Law) — In theory, we all have a bunch of rights when we’re tried for a crime. The government can’t use coerced confessions, or illegally obtained evidence. It can’t comment on our failure to talk to police, or tell the jury that they should presume that we’re guilty.

Except…not really. Each of these rights can be waived by your lawyer if he fails to say something. This means that almost every right is funneled through the right to counsel.

Take for instance, a 2010 Georgia case. A prosecutor sought to convict two parents for the death of their child. She had a reasonably strong case. But she wanted to be sure.

So, at the end of her closing argument, she snapped her fingers. Courtroom personnel flicked off the lights. And in the darkened courtroom, an assistant prosecutor produced a birthday cake with eight candles flickering on top. They began to sing Happy Birthday to the jury.

There was no evidence in the case about a birthday. The child hadn’t died on his birthday. But it was an effective way to tell the jury to convict, not because the evidence was strong, but simply because jurors should convict whenever a child is harmed.

It may have also had something to do with the case being broadcasted on Court TV.

So the defendants were convicted. Not on everything. Just, in fact, on the cruelty to children charges. And the Supreme Court of Georgia looks at the prosecutor’s conduct and says, “tough noogies.” You object or you lose.

That left only one avenue, ineffective assistance of counsel. But trial counsel wasn’t about to fall on her sword. She said, simply, that she thought the prosecutor’s singing was so offensive that the jury would be bothered by it.

Maybe the lawyer thought that his own closing argument would make up for the prejudicial effect. Except… he chose not to give one, instead letting the other defendant’s lawyer rebut the State’s case alone.

One of the Justices was a little dubious in her dissent:

A reasonable attorney does not stand by silently and allow the prosecutor to figuratively toss the victim into the jury box, with the resulting prejudice to counsel’s clients, out of concern that an objection essential to protecting the impartiality of the jury might “give the impression” that he was “disruptive.” No reasonable attorney would sacrifice a client’s fundamental right to a fair trial for such a ridiculous reason. Nor was counsel’s concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that “you should not be prejudice[d] in any way against a lawyer who makes objections for the party he or she represents.

Confronted with truly egregious misconduct by a prosecutor, the defendant’s only recourse lay in blaming his lawyer. And that, fundamentally, is the problem with funneling every trial right through the right to counsel.

And that counsel might very well be incentivized to exaggerate the quality of his performance. While, occasionally, courts might disbelieve the lawyer who says he did great work, for the most part, lawyers who say they were trying their best get believed.

Despite what some prosecutors claim, there is no epidemic of defense lawyers claiming to be ineffective at trials. Instead what we have is a system where most criminal defendants have appointed counsel.

Some appointed counsel are great, going above and beyond, and providing excellent representation.

Some are far below average, trying their best to persuade their clients to plea, going to trial reluctantly, and presenting no evidence, witnesses, or argument worth hearing.

And whatever choice the government makes in appointing the defendant that counsel, he’s stuck with it. Even if the reason that the government had to pick the defendant’s lawyer in the first place was that all the defendant’s assets were frozen.

There’s a reasonable counterargument here. The reason that we force lawyers to either speak up or waive most rights is that we don’t want canny defense attorneys sitting gleefully on their butts watching the judge make a mistake, then capitalizing on the problem on appeal. Such a system would provide little finality for clients.

And there’s always the “safety valve” of plain error, which lets appellate courts ignore the failure to object when they are truly offended by the conduct below. But this requires you to show that not only was the court below obviously wrong, and that it hurt you, but that it’d be fairer for the court to give you a second shot than to let the error go. Good luck getting that result, convicted child molesters.

But ultimately, our justice system has a problem with incentives. A prosecutor facing incompetent counsel might have an incentive to push the envelope, knowing that a failure to object will probably protect the verdict on appeal.

A judge who wishes to favor one side or another might feel confident cowing defense counsel, knowing that a failure to object will, once again, protect the verdict.

And truly incompetent counsel, wanting to keep doing the same sort of work that he’s been doing all along, might very well say those magic words. “I had a strategy.” There are unlikely to be any bad consequences for making that choice.

When the Supreme Court of the United States ruled that defendants were entitled to counsel in Gideon, it was part of a wave of rulings expanding the rights of the accused at trial. It was part of an attempt to make the system fairer and more accurate.

But what was once meant to be an essential right has become, in a sense, the only right. The right to a jury, consisting of twelve persons to decide who has a better lawyer.

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