Nothing is more integral to the protections guaranteed an accused by the Bill of Rights, than the Sixth Amendment’s requirement of the effective assistance of competent counsel. The Framers of the Constitution did not quite say it that way. “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Through decades of post-conviction attacks the courts have come to interpret that right to mean more than a warm body with a law degree sitting next to the accused.
That right to counsel has been interpreted to require that an accused have access to an attorney at all critical stages of the criminal proceedings. If the accused cannot afford counsel the court will appoint one. Once the right to counsel has been invoked in custody no questioning may continue without an attorney. Confessions that have been obtained in violation of this right have been uniformly excluded from trials.
In 1984, the United States Supreme Court, in Strickland v. Washington, defined the the Sixth Amendment’s right to the assistance of counsel. Criminal counsel must be competent and that attorney’s actions must be effective. Now, “effective” does not mean successful; nor, does it require the highest level of representation. Rather. effective counsel is one who provides that level of representation that meets an objective standard of reasonableness. As the Strickland court noted, “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled.”
The Supreme Court established a two part standard to determine effective assistance: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
There is a progression that is generally followed in post-conviction proceedings. First, there must be a direct appeal through the applicable appellate courts. In this State appeals are first brought to the Appellate Court, where they are decided by a panel of three judges. In cases of substantial legal issues further appeal may be made upon petition to the Supreme Court. There the entire panel of Justices review the case. Appellate review is limited to the issues raised by the trial court record. Claims of ineffective assistance are rarely apparent in the record of the lower court proceedings and thus require additional evidence outside that record. A petition for a Writ of Habeas Corpus is the vehicle by which this challenge is raised.
In the habeas proceedings expert testimony is required to establish the Strickland violation. A veteran criminal defense lawyer is engaged to review the allegations of ineffectiveness and provide an opinion to the habeas court. Habeas trials are held before a judge alone, without a jury.
In Minnesota a man was recently freed after his conviction for manslaughter was reversed in part because his lawyer presented a deficient defense. He was charged in the deaths of three people when he lost control of his Toyota Camry.
Freedom is rarely granted to habeas petitioners. Convicts with nothing but time on their hands have nothing to lose by raising the claim of ineffective counsel. Next up will be Michael Skakel, whose family has publicly threatened they will seek the filing of a habeas action claiming deficiencies in the representation Skakel was provided by embattled celebrity lawyer, Mickey Sherman. Stay tuned.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com
