Strickland Prejudice, Part 2

If you read what I wrote yesterday (The Wrong Question? The Wrong Answer? It Depends), and if you didn't, follow that link and go there now, I'll wait, then you've gotten the basic test for when trial counsel fucks up so badly that someone can get relief on appeal.

Here's a quick recap and summary in case you didn't follow the directions in the last paragraph (not a crime in violation of the Consumer Fraud and Abuse Act, since I didn't formally notify you personally that it was a requirement if you were to continue reading this, but if I had . . . ).

The Sixth Amendment guarantees not just the right to counsel but the right to the effective assistance of counsel.  That means, if you're one of those literalists who believes in the words, that a person accused of crime is entitle not just to a lawyer but to a lawyer who's effective, who does her job well.  Except, of course, that's not really what it means.  The Supreme Court laid out the basic test in 1984 in a case called Strickland v. Washington.  To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his lawyer's performance was objectively deficient (whatever that means) and (2) that it was prejudicial.

Yesterday, I was bitching about Judy Lanzinger's question to Nathan Ray and about his answer during oral argument in State v. Cepec.  She asked Ray about the second prong, the prejudice part.

What about the outcome determinative part of that test, though? Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?

Ray's answer?

Yes.

The right answer? 

The test isn't "outcome determinative," your Honor.  It's not even "more likely than not."  It's just a "reasonable probability."

That's not just me. It's what the Court said in Strickland.

They worked to get there.  They rejected "outcome determinative."  They rejected "some conceivable effect on the outcome."  They rejected Washington's suggested "impaired the presentation of the defense" and rejected "more likely than not."

They rejected the weakest of those measures because either they 

provide[d] no workable principle . . . no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

They rejected the stricter ones because they 

presuppose[] that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. . . . An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower.

Think about that.  If you start with the presumption that trials are basically fair so that the results should be honored, it follows that it should take a lot of prejudice to call for a do over. As one Ohio court explained,

There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant when applying a harmless error analysis. Relatively minor trial errors are harmless so long as there is overwhelming evidence of guilt from other sources.

But if the trial lawyer was objectively deficient, if he fucked up badly enough, then there's little reason to think the original outcome was right, so there's no reason to be deferential to it.

The analysis makes so much sense that it's hard to believe the Supremes actually came up with it. And its understandable that judges in Ohio (and much of the rest of the country, I imagine*) simply don't believe that's how it works.

So we have to educate them.  Over and over and over and over and over and . . . .

The prejudice prong of Strickland is easy to satisfy. 

Repeat as if it's a mantra.

The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy. 

Of course, there's a catch.  It's easy to satisfy the second prong of Strickland precisely because it's hard to satisfy the first.  Hell, it seems close to impossible sometimes.  As I described the test yesterday, 

If you held a mirror up to the lawyer's nose what would have happened? If it would have gotten foggy, the lawyer was good enough.

That's not how courts describe what they do. But it's too often the reality. Still, once in a while they concede the point. The fuck up was in fact beyond the pale. And no marginally sentient being could have thought it rational strategy. So we get to the second prong of the test.

Which we should almost always win.

Except, of course, that judges get the test wrong. And attorney's don't correct them.

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*Note that the judges of the Texas Court of Criminal Appeals and 5 judges of the 5th Circuit Court of Appeals didn't find that Calvin Burdine showed enough prejudice even though his lawyer, Joe Frank Canon, slept through "significant portions" of his capital trial.  (Nine judges on the 5th Circuit thought there was enough prejudice, but the sheer number who disagreed tells you how high judges tend to view that low bar.)