An Ineffective State of Justice: Barriers to Ineffective- Assistance-of-Counsel Claims in State and Federal Courts

Criminal trials are probably the most high-stakes events that occur in courtrooms across the United States.1Open footnote #11Footnote #1 content:SeeWainwright v. Sykes, 433 U.S. 72, 90 (1977) (“[T]he trial of a criminal case in state court [is] a decisive and portentous event.”).closeDespite their importance, however, errors are inevitable.2Open footnote #22Footnote #2 content:SeeNICOLE L. WATERS ET AL., BUREAU OF JUST. STAT., U.S. DOJ, NJC 248874, CRIMINAL APPEALS IN STATE COURTS 2 (2015) (explaining that state appellate courts’raison d’êtreis “to detect and correct errors in trial court decisions”).closeAlthough many errors can be corrected on appeal, one of the most difficult errors to overcome is ineffective assistance of counsel.3Open footnote #33Footnote #3 content:See id.at 6 fig. 3. This figure displays the reversal rates for the top ten issues raised on appeals in state courts. Only “[r]elevancy/prejudicial evidence” at 2.9% ranked lower than “[i]neffective assistance” at 3.6%; however, the data for relevancy should be “[i]nterpret[ed] with caution” due to the statistical outcomes.Id.Therefore, it’s possible that ineffective assistance of counsel is actually the least likely category of error to be reversed in state courts.closeThe difficulty of obtaining relief on ineffective-assistance-of-trial-counsel (IATC) claims is twofold. First, IATC claims are subject to a demanding standard of review. UnderStrickland v. Washington, proving constitutionally ineffective assistance of counsel requires showing both that counsel’s performance was deficient and that that deficient performance actually prejudiced the defendant.4Open footnote #44Footnote #4 content:466 U.S. 668, 687 (1984).closeHowever, “[j]udicial scrutiny of counsel’s performance must be highly deferential” to eliminate concerns of hindsight bias and to account for the possibility that the purportedly deficient performance was actually strategic.5Open footnote #55Footnote #5 content:Id.at 689.closeSecond, many states have procedural systems which discourage or even forbid raising these claims on appeal, requiring instead that they be brought in state postconviction proceedings.6Open footnote #66Footnote #6 content:See infranotes 58–80 and accompanying text.closeThese proceedings are inherently more difficult than appeals because there is no federal constitutional right to counsel,7Open footnote #77Footnote #7 content:Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).closemeaning that there is also no guarantee of effective assistance.8Open footnote #88Footnote #8 content:Coleman v. Thompson, 501 U.S. 722, 752 (1991).closeThus, when attorneys in these postconviction proceedings make errors themselves,9Open footnote #99Footnote #9 content:“Incompetent habeas corpus representation occurs all too frequently in death-penalty appeals—especially in Southern states, which are less than eager to spend public funds to ensure adequate representation to indigent inmates.” Andrew Hammel,Effective Performance Guarantees for Capital State Post-Conviction Counsel: Cutting the Gordian Knot, 5 J. APP. PRAC. & PROCESS 347, 348 (2003). As Hammel’s comment implies, ineffective assistance is often a product of underfunding of public defenders and related organizations.See generallyBraden Daniels,The Unconstitutionality of UnderfundedPublic Defender Systems, 3 HELMS SCH. GOV’T UNDERGRAD. L. REV. (2024).closeremedies may be limited or nonexistent.

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