The Sixth Amendment guarantees not just the right to counsel, but also the right to the effective assistance of counsel. That should mean something like actual quality representation. It doesn't. The Supreme Court set out the test of effectiveness in Strickland v. Washington. It started from a premise close to integrity.
An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.And then it eviscerated it.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).That's all a fancy way of saying that pretty much anything that can be imagined to be strategy or tactics, however ill-conceived (a nice way of saying "stupid") or inadequately accomplished (a polite way of saying "performed incompetently"), will suffice. The basic test: If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.
But even if not, the lawyer wasn't ineffective unless there's a reasonable probability that the outcome would have been different. Got that? The Court offered several formulations of that rule, but here's the starkest.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.And you know, it has to be that way. Because if we actually demanded that counsel do their job properly, then the criminally accused would have a hard time finding lawyers. And they might not trust the incompetent ones.
Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.(You really can't make this stuff up unless you sit on the Supreme Court.)
As in Russell, we decline to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice. Our holding, that the repeated unconsciousness of Burdine's counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine's capital murder trial warrants a presumption of prejudice, is limited to the egregious facts found by the state habeas court in this case.Of course, Calvin Burdine isn't the only guy who's had a lawyer sleep through his case.