Thinking About Ineffective Assistance of Counsel

Michael D. Cicchini has posted Constraining Strickland (7 Texas A&M L. Rev. __ (forthcoming, 2020)) on SSRN. Here is the abstract:

When a convicted defendant pursues an ineffective assistance of counsel (IAC) claim on appeal — for example, by alleging that the defense lawyer failed to call an important witness at trial — the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.

The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.

Strangely, however, courts have dramatically expanded their use of Strickland’s two-part test beyond its original purpose. In addition to using it to analyze defense counsel’s performance, courts also use it to blame defense counsel for prosecutorial and judicial misconduct. When a prosecutor cheats or a judge is incompetent, courts turn Strickland’s two-part test on the defense lawyer to answer for the failure to object to the prosecutor’s misconduct or to educate the judge on the spot, in the middle of trial. Strickland, in effect, now requires the defense lawyer to do three jobs in one: his or her own, the prosecutor’s, and the judge’s.

This bizarre expansion of Strickland is not supported by law or logic, and it creates serious problems for defense lawyers. Further, by viewing acts of prosecutorial and judicial misconduct through Strickland’s lens — a framework that was never intended to protect prosecutors and judges from their own misdeeds — courts are also harming defendants’ chances on appeal and damaging the integrity of the criminal justice system.

This Article demonstrates how courts have improperly expanded Strickland, explains the resulting harms, and advocates for clear, simple, and theoretically-sound legal reform. That is, courts must hold prosecutors and judges accountable for their own misconduct, rather than diverting blame to the defense lawyer through Strickland’s ill-suited IAC framework.

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