The truth about the bare minimum representation and when good enough isn’t good enough
When the US Supreme Court decided in Gideon v. Wainwright, that every person accused of a crime has a right to be represented by a lawyer, it set the stage for what that representation must consist of. Lawyers have broad discretion in applying their strategy in their defense of clients. This doesn’t mean, however, they can do the bare minimum. Lawyers swear an oath to zealously represent their clients regardless of their ability to pay. Public Defenders are held to the same standard as a lawyer who is being paid independently. Every person accused of a crime is entitled to effective counsel. The question then becomes what does effective counsel mean under the law?
The Court in Strickland v. Washington, defined what effectiveness means – not very much when analyzing whether a defendant received that constitutional guarantee. Courts are deferential to the job done by an attorney and rarely disturb convictions on that basis. In order for a convicted person to succeed with an ineffective assistance of counsel claim, a defendant must prove (1) that her counsel’s performance fell below an objective standard of reasonableness; and (2) the substandard representation so prejudiced her that there is a reasonable probability that the outcome would have been different. (3) A defendant does not have to show that the outcome more likely than not would have been different, but rather that counsel’s errors undermine confidence in the outcome.
This means that most claims of ineffective assistance of counsel fail. Courts give great discretion to a lawyer’s ability to choose his or her strategy. Usually, the only claims that have a chance of being successful are claims alleging failure to investigate, and those claims require someone to discover that there has been a failure to investigate in state or federal postconviction proceedings. This investigative resource is often out of reach for justice impacted individuals because it is expensive to carry out exhaustive investigations.
Ineffective lawyering increases the causes of wrongful convictions. This happens because investigation, thorough motions practice, and zealous advocacy are the greatest checks on our system. If the defense attorney is pushing hard for Brady material, insisting on litigating the admissibility of evidence or the right to present a defense, and asking the tough questions both in and out of court, there is a smaller chance that the other causes of wrongful conviction will prevail. Defense lawyers are not able to engage in this kind of advocacy most of the time because their caseloads are very high, they are stretched very thin with resources and there is limited availability of investigators and experts. Beyond this glaringly prominent problem, there is also the pervasive thought process that even if the accused didn’t commit the crime they are currently charged with, they probably did something wrong worthy of punishment. Effective assistance of counsel benefits everyone, not just the accused. When the community at large can’t trust the process of justice, it fails.
Having a lawyer who merely shows up in court to say something – be it stupid, unsupported factually, or misguided legally – is not the quality of defense anyone would want. A lawyer who does the bare minimum, is not providing effective representation. Minimal due process is not good enough. It is time for major reform to the approach of fair and zealous representation.
