Ineffective Assistance of Counsel

Ineffective counsel claims are probably the least fun part of the job at the state level in Georgia. Unlike the Federal system, where an evidentiary hearing on an IAC claim is often left for habeas proceedings, Georgia IAC must be raised at the first available opportunity, or it is deemed to be waived. This system has its benefits, but it also creates pressure on the appellate attorney to raise ineffective assistance of counsel, regardless of the issue’s viability. Having done many IAC interviews over the years, I have some basic things that I have learned to do in my approach.

  • Recognize that this interview is part of the job. Awkwardness can feel like an inevitable part of this process. But it does not have to be horrible. There are some things that I always acknowledge up front. What I am doing here is part of the process. And the lawyer you are about to interview had a difficult job to do. Criminal defense can feel like a thankless task. And if the trial attorney is a public defender or was appointed to the case, it probably feels even more thankless. I always like to start the interview by expressing gratitude to the trial lawyer for doing this job and for all that he did to try to protect the client’s right to a fair and meaningful trial. No trials are perfect. And just as the lawyer did his job to protect the client, you are there to do the same.
  • Listen. Lawyers are great at making arguments and asking questions. We sometimes are not the best listeners. Just as you have worked hard to prepare for the interview, you should work hard to listen to what the lawyer tells you in the interview. And it can be good to demonstrate how well you are listening. If the lawyer gives you a lengthy answer, stop at points along the way to say, “okay, let me see if I understand what you are saying.” Then give the fairest possible short summary of what the lawyer just said that you can possible do.
  • You Are Not There to Argue. Part of listening is to encourage the lawyer to talk to you. So, if you think that the lawyer is mistaken about his understanding of the law or memory of the facts, you should not argue. The law is what it is, and the facts are what they are. And you will have the opportunity to argue all of this to the Court at some point in the future. If the lawyer is mistaken about what happened or doesn’t remember, it can be okay to show him the transcript. But do so with an aim of being helpful, not to argue.
  • If You’ve Been in the Lawyer’s Shoes, Don’t Forget That Experience. There is nothing fun about this part of the appellate process. It’s not fun to be interviewed toward IAC, and it’s not fun to do the interview. It is important to think about what it’s like to be answering the questions and not to get caught up on what it is like to be asking them .
  • Take a Witness With You. It is a maximum in the law that no interview with a witness should be without a witness to the interview. You don’t want to be the sole impeaching witness if the lawyer later changes an answer
  • Elicit the Lawyer’s Persective on the Other Issues. Reading the trial transcript is a poor substitute for living through the trial. The lawyer lived through it. Don’t lose the opportunity to ask the lawyer for her perspective on the trial. What did she think was unfair about the trial? What does she think the appellate issues are? Another good question is, “Mr. Lawyer, if you were in my shoes doing this appeal, what would you do?” Often this question is met with a blank stare. But occasionally you will hear something that you hadn’t thought of before that point
  • Be Grateful for the Interview. No matter how you think it went, be sure that think the lawyer for his time. The lawyer did not have to sit for an interview. So, make sure that you thank the lawyer for letting you interview him. And, again, think the lawyer for being a criminal defense lawyer. It may be that you are the only person in the case who has ever told him thank you.

When the interview is over, I get my notes together and process them as soon as possible. I also try to follow back up with additional questions as soon as possible after the interview. There is no way to make this process fun. But I find that the steps I have outlined above make it a bit more palatable.

While working on a brief, we discovered a Georgia Supreme Court case that I was sorry to have missed when it came out (hat tip to Margaret Flynt). A paradigm shifted in 2010, and I completely missed it. From an optimistic viewpoint, this case shows that almost nothing adds up to ineffective assistance of counsel. To be less than optimistic, this case marked the end of the concept of ineffective assistance of counsel jurisprudence in Georgia.

Let me tell you the story. In the case, two parents were tried for murdering their 8-year-old child. The facts were fairly bad, with a history of child abuse. But the prosecutor’s trial tactics were also fairly horrible. During her closing, she clicked her fingers, which signaled a deputy to dim the lights. An associate prosecutor produced a birthday cake with the victim’s name written on it. The cake had eight candles on it, which were then lit. And the prosecutors sang happy birthday to the victim during the closing (if you were paying attention to the opinion, you’d note that the victim was already eight years old. To blame the defendants for the fact that there would never be an 8th birthday party requires that we scold them for not perfecting time travel.).

Defense counsel never objected or moved for a mistrial. And appellate counsel raised the failure to object as ineffective assistance of counsel. On the stand, trial counsel defended the decision not to object as “sound trial strategy.” Trial counsel gave the standard defense that he “didn’t want to call attention to” the spectacle by objecting. This display, and attempts to call attention to it make me think of Frank Drebin from the movie, Naked Gun. How could you possible call more attention to what is already a P.T. Barnumesque event?

The case reads like self-parody. Have you ever thought that you were reading The Onion only to realize that you were reading an actual news story? The Smith case reads like a satirical version of an IAC narrative written by a person trying to make a point about the state of ineffective assistance of counsel jurisprudence.

I am trying to imagine the backstory. I think, for instance, about the meeting where this idea orgininated. Prosecutors, the true believers anyway, say that they are in it for justice for the victims and not merely to win. So, I wonder if the actual intent of the cake and stuff was to honor the victim’s memory and things just got out of hand. That such a display would trivialize the victim or come off as a little offensive might have been overlooked.

I would also be willing to bet that the bailiffs and courtroom staff ate the cake during a break in the proceedings.

As I imagine the backstory, I think about all of the times that the brakes could have been applied. Like maybe when the prosecutor was at the Kroger bakery. As the details were being ironed out with the baker, you would almost expect an epiphany along the lines of, “did I get all this education and study for the bar so that I could be here doing what I’m doing right now?” But alas, no.

Or maybe a great opportunity was when the prosecutor told the deputy, “Hey, man. Listen. During my closing argument, I’m going to snap my fingers. When I do that, I need you dim the lights for me.”

I’m trying to imagine a defense attorney attempting a similar conversation with a Georgia courtroom deputy. It would never happen. It’s scary to imagine starting that conversation. The defense attorney would be summoned into chambers and yelled at. At the very least the deputy would get offended and say something like “I don’t work for you.”

But while we are on the subject of double standards, I want us to think about this case alongside an earlier IAC case, Nejad v. State. In that case, trial counsel testified that he was ineffective when he ordered his client not to testify at trial.

In a concurring opinion, a Georgia COA judge chided trial counsel, questioned his honesty, and noted that there should be some sanction for lawyers who testify that they made a mistake at trial:

I concur fully in the majority opinion, but write separately to point out an area of increasing concern in claims of ineffective assistance of counsel. Trial counsel’s testimony in this case demonstrates a worrisome trend with serious implications for the bar and the administration of justice. …

Typically, trial counsel in such situations testify primarily to the factual details of their conduct and decisions, and admit errors only with reluctance and with due regard for their professionalism and pride in their work. The developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel.

By contrast, the majority in Smith spends about a paragraph dispatching the IAC claim. The dissent, even in taking defense counsel, the trial court, and the DA to task, never questions the honesty of the “trial strategy” claim or suggests that there should be consequences to such testimony.

Defense attorneys who testify “with pride in their work” at motions for new trial get the same hedge of protection as cops who testify at suppression hearings. The defense attorney who defends his conduct at an appellate or post-conviction hearing enjoys the same treatment as the police officer who explains how he smelled two ounces of raw marijuana that was wrapped in layers of packing, within a closed trunk. Such evidentiary moments assume a willing suspension of disbelief, reminiscent of Samuel Coleridge. Trial courts hear and accept such fictions on a regular basis, and those findings are accorded an extremely deferential standard of review on appeal. The defense attorney is celebrated as an officer of the court until he says that he made a mistake.

Strickland reached the end of its road. Today, we take an opportunity to mourn its passing. I’m headed to the Wal-Mart bakery right now to buy a cake for the birthday that it will never celebrate again.

Today, the Supreme Court released two opinions that define standards for defense lawyers during criminal plea bargains.

First, in Lafler v. Cooper, No. 10-209, 566 U.S. ___ (2012), recall that Cooper was charged with assault with intent to murder and possession of a firearm. Cooper rejected a plea bargain after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted after a trial and received a harsher sentence than the original plea bargain.

In a five to four decision, the Court vacated the lower court’s decision and held: “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”

Justice Kennedy, relying on Missouri v. Frye, an opinion also released today, explained that:

“the right to adequate assistance of counsel cannot be defined or enforced without taking into account of the central role plea bargaining plays in securing convictions and determining sentences.”

Justice Kennedy was supported by Justices Ginsburg, Breyer, Sotomayor and Kagan.

Next, in Missouri v. Frye, No. 10-444, Frye was not informed of favorable plea offers before he pled guilty to driving with a revoked license. He was later sentenced to three years in prison—a sentence much harsher than the plea offers.

In another split decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and applies to “all ‘critical’ stages of the criminal proceedings.”

This holding concerned Justice Scalia, who was joined in his dissent by Chief Justice Roberts and Justice Alito: “While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland requires) is not. The Court’s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process.”

In addition to written opposition to the Court’s holding, Justice Scalia reportedly gave an oral dissent, referring to the majority decision as “absurd” and “unheard-of.”

In short, both decisions clearly recognize a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage, even though there is no constitutional right to a plea bargain.

I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Relay.JPGAnother lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?

She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.

The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.

So, my advice to the lawyer who called me was to do one of three things:


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