ch. 2 ineffective assistance of counsel; counsel for immigrants facing removal
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Constitutional Protections inCriminal Cases
Right to efective assistance ocounsel
Public deenders
Right to counsel in removal(deportation) cases
Chapter 2 Basic Elements of Law
Practice
Ineffective assistance of counsel
and the rights of immigrants
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The fair trial That in all capital or criminal prosecutions
a man hath a right to demand the cause
and nature of his accusation, to beconfronted with the accusers andwitnesses, to call for evidence in his favor,
and to a speedy trial by an impartial juryof twelve men of his vicinage, withoutwhose unanimous consent he cannot befound guilty; nor can he be compelled to
give evidence against himself; that noman be deprived of his liberty, except bythe law of the land or the judgment of his
peers.
Art. 8, Virginia onstitution ! "ill of #ights2Ch. 2 Inefective assistance andthe lawer client relationship
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Amendment VI - Constitution of the
United States of America
In all criminal prosecutions, the accusedshall enjoy the right to
a speedy and public trial, by animpartial jury
be informed of the nature and cause ofthe accusation
be confronted with the witnessesagainst him
have compulsory process for obtainingwitnesses in his favor
have the Assistance of Counselfor hisdefence.
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Amendment VI - Constitution of the
United States of America
"he )ixth Amendmentright to counsele#ists in order to protect theundamental right to a air trial
*owell v. Alabama, +8' .). - /&01+2%ohnson v. 3erbst, 14- .). -8 /&0182
5ideon v. 6ainwright, 1'+ .). 11
/&0(12
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Powell v. Alabama (!"2#
$he %&cottsboro Bo's case Rape of 2 white girls! by "
African American boys! alltravelers on a freight train
At arraignment all members ofthe bar! appointed as counsel bytrial judge
#rial began $ days after indictment Counsel appointed that morning All sentenced to death
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Powell v. Alabama (!"2#
$he %&cottsboro Bo's case A defendant, charged with a
serious crime, must not be
stripped of his right to havesu%cient time to advise with
counsel and prepare his defense.
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Powell v. Alabama (!"2#
$he %&cottsboro Bo's case #o fail to do that is not to
proceed promptly in the calm
spirit of regulated justice but togo forward with the haste of the
mob.
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)nowing and Intelligent waiver re*uired+ohnson v. ,erbst (-.&. !"#
#he accused were unable toemploy counsel for trial &forpassing ' counterfeit bills(
At arraignment, both pleadednot guilty, said that they had nolawyer
In response to the court )) statedthat they were ready for trial.
#ried, convicted and sentenced,
without assistance of counsel. Ch. 2 Inefective assistance andthe lawer client relationship
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Ineffectiveness of Counsel
iggs v. *elch (.C. Cir. 1+$%) *ven serious mista+eson the
part of an attorney are notgroundfor habeas corpusstanding alone.
Reversal is granted only- if thecircumstances surrounding thetrial shoc+ed the conscience ofthe courtand made the
proceedings a farce and a ++Ch. 2 Inefective assistance andthe lawer client relationship
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/ight to counsel at government e0pense
1ideon v. ainwright (!3"#
,ustice -lac/ Reason and reection re/uire us
to recogni0e that in our
adversary system of criminal
justice, any person haled into
court, who is too poor to hire alawyer, cannot be assured a fair
trial unless counsel is provided
for him. 1010Ch. 2 Inefective assistance andthe lawer client relationship
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Assistance of Counsel means
#he special value &to a fair trial(
of the right to the assistance of
counsel e1plains why it- has
long been recogni0ed that the
right to counsel is the right to
the e3ective assistance of
counsel. cann v. Richardson !+' 3.4. '%+ ''1
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4a0ims
#o satisfy the Constitution, counselmust function as an advocate for thedefendant, as opposed to a friend ofthe court
An indispensable element of thee3ective performance of defensecounsel4s- responsibilities is theability to act independently of the5overnment and to oppose it inadversary litigation.
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-.&. v. Cronic (-.&. !5# #he right to the e3ective
assistance of counsel is thus the
right of the accused to re/uire the
prosecution4s case to survive the
crucible of meaningful adversarial
testing. the ind o testing
envisioned b the 4i#th 5mendment.
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-.&. v. Cronic (-.&. !5 6bjective test
7ust show actual brea+down of
adversarial process!
Reference point8 $thAmendment
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-.&. v. Cronic (-.&. !5# 7actors applied by circuit court &9( #ime a3orded for investigation
and preparation &2( *1perience of counsel &:( 5ravity of the charge &'( Comple1ity of possible
defenses &;( Accessibility of witnesses to
counsel.
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Ch. 2 Inefective assistance andthe lawer client relationship
4hould proessional practice
standards provide bright linerules or courts6
$esting Effectiveness in
an Adversarial &'stem
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6. 27"8 p. 22 as 4atlac9 :s
representation %ineffective; (5) 7o8atloc9s conduct was was
reasonable because he interviewedamil members.
(-) 7o8 atloc9s conduct wasunreasonable but it was notpre:udicial.
(C);es Inefective assistance.atloc ailed to provide
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Model Rule 1.0 Terminology
&h( Reasonable or reasonablywhen used in relation to conduct
by a lawyer denotes the conduct
of a reasonably prudent and
competent lawyer.
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Model Rule 1.1 Com!etence
A lawyer shall providecompetent representation to a
client.
Competent representation
re/uires the legal +nowledge,
s+ill, thoroughness and
preparation reasonably
necessar for the 2020Ch. 2 Inefective assistance andthe lawer client relationship
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ABA Practice &tandards
Appellate Review of
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Practice guidelines are merel' that
>?b:ective reasonableness is thestandard@.
>5merican -ar 5ssociation standardsand the lie are onl guides to whatreasonableness means not itsdeAnition.@
4tricland v. *ashington (1+$)
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Ineffective assistance of counsel
Constitutional right o the accused toBthe 5ssistance o CounselB .).onst. amend. V
Bguarantees the efectiveassistance o counselB 9c9ann v.#ichardson, 10' .). '0 /&0'42
: applies to the )tates under dueprocess clause of &-thAmendmentvitts v.
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Rom!illa ". #eard (-.&. 2>>?# p. ?
Dven when a capital deendantEsamil members and the deendanthimsel have suggested that nomitigating evidence is available hislawer is bound to mae reasonableeforts to obtain and review materialthat counsel nows the prosecution
will probabl rel on as evidence oaggravation at the sentencing phaseo trial.
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Rom!illa ". #eard (-.&. 2>>?# p. ?
Fhen new counsel entered thecase to raise Rompilla4s
postconviction claims, however,
they identi>ed a number of li+ely
avenues the trial lawyers could
fruitfully have followed in
building a mitigation case.
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Rom!illa ". #eard (-.&. 2>>?# p. ? #he duty to investigate e1ists
regardless of the accused4s
admissions or statements to the
lawyer of facts constituting guilt
or the accused4s stated desire to
plead guilty.
1 5-5 4tandards or Criminal ,ustice
$8$.1 (2d ed. 1+2 4upp.)Ch. 2 Inefective assistance andthe lawer client relationship 2&
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Rom!illa ". #eard (-.&. 2>>?# p. 2> RompillaEs parents were both severe
alcoholics who dran constantl. Fis
mother dran during her pregnanc
with Rompilla and he and his
brothers eventuall developed
serious drining problems.
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Rom!illa ". #eard (-.&. 2>>?# p. 2> Fis ather who had a vicious temper
reGuentl beat RompillaEs mother
leaving her bruised and blac8eed
and bragged about his cheating on
her.
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Rom!illa ". #eard (-.&. 2>>?# p. ? Fis parents ought violentl and on
at least one occasion his mother
stabbed his ather. Fe was abused
b his ather who beat him when he
was oung with his hands Asts
leather straps belts and stics. 5ll o
the children lived in terror.
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Rom!illa ". #eard (-.&. 2>>?# p. ?
Places to search/ 4chool records
Records o RompillaEs :uvenile andadult incarcerations
Dvidence o a histor o dependenceon
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$re%udice
Stric&land ". 'ashington (U.S. 1)*+,
*rrors so seriousthat counselwas notfunctioning as thecounsel guaranteedby the $th
Amendment
*rrors deprived the defendant of
a fair trial, a trial whose resultcan be relied upon as just
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$he &tric9land test e. ust show
9( his counsel4s performance was
unreasonably de>cient because
it fell below an objective
standard of reasonableness
compared to prevailing
professional norms.
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$he &tric9land test
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$he &tric9land test 2( the de>ciency prejudiced him.
#-here is a reasonableprobability that, but forcounsel4s unprofessional errors,the result of the proceedingwould be di3erent.
A reasonable probability is aprobability su%cient to
undermine con>dence in theoutcome.
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Reasonale com!etence
Stric&land ". 'ashington (U.S. 1)*+,
=need not show errorsmore
li+ely than not altered the
outcome!
Jut =efendant must show
de>cient performance prejudiced
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Reasonale com!etence
Stric&land ". 'ashington (U.S. 1)*+,
= can show !a reasonable
probabilitythat, but for
counsel4s unprofessional errors,
the result of the proceeding
would have been di3erent.!
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$he burden of proof
BHthe result o a Hcriminalproceeding can be rendered
unreliable and hence the proceeding
itsel unair even i the errors o
counsel cannot be shown b a
preponderance o the evidence to
have determined the outcome.B
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Stric&land ". 'ashington (1)*+,
/at e"ery stage of the !roceeding
=eath case ) capital sentencing
hearing
An adversary proceeding in a
criminal trial entitles one to
reasonably e3ective
assistance! of counsel
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Asserting ineffecti"eness
Stric&land ". 'ashington (U.S. 1)*+,
city re/uired
A convicted defendant ma+ing aclaim of ine3ective assistancemust identify the acts oromissionsof counsel that are
alleged not to have been theresult of reasonable professional
judgment.
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St i &l d St $ ti f
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Stric&land Strong $resum!tion of
ffecti"eness 2 3eference to Counsel the wide range of reasonable
professional assistance! *very e3ort must be made to ) eliminate the distorting e3ects
of hindsight ) reconstruct the circumstances
of counsel4s challenged conduct ) evaluate the conduct from
counsel4s perspective at thetime.
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Crisis in immigration courts
2d Circuit / 2' months to resolve a-oard o Immigration 5ppeals appeal
,ohn . *aler Chie ,udge/ Basevere lac o resources andmanpower at the immigration :udgeand -I5 levels
BI ail to see how immigration :udges
can be e#pected to mae thoroughand competent Andings o act andconclusion o law under these
circumstances.@Ch. 2 Inefective assistance andthe lawer client relationship $1
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Is deportation punishment65ll persons sub:ect to >removal@ havethe right to due process6
4hould the have a Jideon8tpe right tocounsel6
5re aslum applicants diferent6
Children brought here b parents63ndocumented parents o children bornhere6 Raised Fere6
Immigrants rights