Thursday, September 12, 2013

Effective Assistance? Fuck You.

Allow me to vent.

50 years ago, in Gideon v. Wainwright, the Supremes said that the 6th Amendment guarantees that a person charged with a crime is guaranteed the services of an attorney for his defense.  29 years ago, in Strickland v. Washington, the Supremes had a good laugh over what they'd done.

What Strickland says is that the 6th Amendment doesn't just entitle people charged with crimes to the assistance of counsel.  It entitles them to the effective assistance of counsel.  Which sounds pretty good.
Hey! I'm not just entitled to a lawyer.  I'm entitled to an effective lawyer.  You know, one who's gonna defend me, do it right.  That's cool, man.
And it is, indeed, the law.  That's what you're entitled to if you're charged with a crime.  You have a right to that.  From that right, it follows that if you don't have that sort of lawyer, you must have a remedy.  Back in 1803, the great Chief Justice John Marshall explained in Marbury v. Madison.
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
So, of course, if you're lawyer proves to be an incompetent bozo, you get a new trial. I mean, that's the whole idea.  

Because, you see, ours may have been
emphatically termed a government of laws, and not of men
but them's just words.  And that measure?  So 1800s.  Simply, we do not, in Marshall's own formulation,
deserve this high appellation.
You have to go back to Strickland where the Court actually explained about that effective assistance of counsel thing.  It works this way.  A person who's been convicted of a crime can complain on appeal that she was denied the effective assistance of counsel, that she didn't get what she's entitled to.  The court will (in theory at least) examine the claim.  

The problem is what happens.

The lawyer doesn't have to have been good, doesn't even have to have been average.  Less than average, way less than average, is "effective."  The test is whether the lawyer's actions or inaction fall below an "objective standard of reasonableness."  And that's determined by whether there's some rational reason, some barely rational reason for what the lawyer did.

Actually, that's not even right.  The test isn't whether the lawyer had an at least barely rational reason.  It's whether the court, with an assist from the prosecutor, can think of one the lawyer might have had.  But let's say it can't.  Then the poor shlub with the actually brain dead lawyer gets a new trial.  Right?

Well, maybe if the lawyer was technically brain dead.  A true flat line on the EEG.  After all, a majority of the judges on the 5th Circuit Court of Appeals held in Burdine v. Johnson (reversing a decision made by a three-judge panel of that court) that when a lawyer sleeps (that's literally, with snoring) through major portions of his client's death penalty trial, the client did not have effective assistance of counsel and is entitled to a new trial.  (Of course, some of the judges disagreed, which really tells you all you need to know.)

But the basic rule is that you're only entitled to that even barely functioning lawyer (judges in Burdine observed that courts haven't given new trials as a matter of course to lawyers who were drug addicts at the time of their clients trials, or who were drunk, or who were suffering psychotic breakdowns or from Alzheimers) in theory.  Because if you ended up getting less than that, well, gee, too bad.  Unless you can show that if the lawyer was sentient you'd have done better.

You know, based on the old adage that if there's some reason to think you might be guilty, nothing else matters.  I mean, what's the bitchin' about?  So you had a lawyer who wasn't quite brain dead and who really did nothing for you?  You might be guilty and we can't just give new trials to everyone whose lawyer makes the chair I'm sitting on look like a genius. 

'Cause we said so.

Gideon be damned.

Law of Rule.

I'm done venting.  Thanks.


  1. Thank heavens you are finally using this blog as a place to vent. I've grown tired of you always appearing so hesitant to share your feelings and opinions.

  2. I'll second that. Though I wouldn't like to see them as more than occasional steam-letting.

    I'm working on a book about the two death penalties and have found your blog and its objective information very helpful. Much thanks.

    1. Really, it's all venting.

      Which "two death penalties"?