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The Supreme Court in 1984 established new standards for assessing whether a lawyer’s performance was so bad that his or her client’s right to a fair trial was compromised. “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,” the Court proclaimed in Strickland v. Washington. Twenty-three years later, however, many experts say that the promise of Strickland has gone unfulfilled, with underpaid and overwhelmed lawyers still allowed to give indigent defendants subpar representation. And now criminal defense lawyers fear that the Supreme Court is starting to retreat from Strickland itself. On Nov. 5, the high court agreed to consider Arave v. Hoffman, an Idaho case that will weigh the obligation of lawyers to explain to their clients the consequences of not accepting a plea agreement. “Part of me is very scared” about the outcome of the Idaho case, says Bryan Stevenson, executive director of the Equal Justice Initiative in Alabama, where he has represented capital defendants for nearly 20 years. And in spite of Strickland, Stevenson says, “There is a crisis surrounding counsel for the poor.” In Alabama, for example, Stevenson says he knows of six people on death row who have no lawyers at all, but face filing deadlines for appeals within the next three months. “The system treats you better if you are rich and guilty than if you are poor and innocent,” Stevenson said at a Nov. 7 forum on Strickland sponsored by the Constitution Project and held at the Law Library of Congress in D.C. Even the author of Strickland, now-retired Justice Sandra Day O’Connor, acknowledged at the conference that her decision left unanswered questions, though she still points to it as perhaps the case that has had the most day-to-day impact of any decision she wrote in her 25 years on the high court. The ruling produced “many years of additional litigation” and did not resolve all the issues relating to effective representation of clients, she told the conference. “We have so many questions today.” Because of a recent hip injury, O’Connor arrived at the conference in a wheelchair and used crutches to walk to the podium. The Strickland decision actually came down against the defendant, a triple murderer whose lawyer failed to put on any psychological evidence at sentencing, for fear that the state would challenge it on cross-examination. O’Connor wrote that for an ineffective-assistance-of-counsel claim to succeed, the defendant would have to prove first that the lawyer’s performance fell below “an objective standard of reasonableness,” and second that the poor performance prejudiced the case — meaning that there was a “reasonable probability” that if the lawyer had not fouled up, the outcome would have been different. Applying her own tests, O’Connor rejected the ineffective assistance claim in the Court’s ruling. The ruling also directed judges to be “highly deferential” to a lawyer’s strategic choices and to avoid the “distorting effects of hindsight.” Several speakers at last week’s forum faulted the admonition to be “highly deferential” for allowing judges ever since to let bad lawyers off the hook — especially when the judges appointed the lawyer in question to the case in the first place. “It can lead courts to defer excessively,” said Judge Vanessa Ruiz of the D.C. Court of Appeals. “A reviewing court is going to be hard-pressed” to find a lawyer’s performance deficient as a result. “The standard tolerates too much poor lawyering,” Stevenson also said. And that flaw is compounded, he said, by the fact that under the 1996 Antiterrorism and Effective Death Penalty Act, federal judges are required to defer to state judges’ determinations when the defendant makes a claim of ineffective assistance in a federal habeas appeal. But the key obstacle to raising the bar as envisioned in Strickland, most speakers agreed, is a critical lack of government funding to pay for defense lawyers, even as the rate of incarceration skyrockets. A recent American Bar Association assessment found that capital indigent defense programs are “significantly underfunded” nationwide, often providing “minimal training and experience” and “woefully inadequate” compensation. Former Milwaukee district attorney E. Michael McCann recounted the huge workloads and low pay for government-paid defense lawyers — as low as $40 an hour in a homicide case. “Do you think that will attract the competent lawyer?” he asked, adding, “When you get too many cases, you cannot meet your ethical obligations.” And now, defense lawyers fear, the new Roberts Court may slip backwards on the issue. Donald Verrilli of Jenner & Block says that in a trilogy of recent cases — Williams v. Taylor in 2000, Wiggins v. Smith in 2003, and Rompilla v. Beard in 2005 — the Court supported claims of ineffective assistance of counsel when lawyers had failed to investigate their clients’ case thoroughly enough. “The Court said, �We are going to require lawyers to get the job done,’” says Verrilli, who won the Wiggins case for the defendant. “These cases were beginning to have impact.” But in Schriro v. Landrigan in 2007, which Verrilli lost for the defendant, the tide seemed to shift against ineffective assistance claims, he says. The Court said a defendant was not automatically entitled to an evidentiary hearing on an ineffective-assistance claim in a federal habeas proceeding when it was rejected at the state level. The vote was 5-4, with new Justice Samuel Alito Jr., who replaced O’Connor, voting with the majority against the defendant. In the Idaho case the Court agreed to hear this term, the state is appealing a pro-defendant ruling by the U.S. Court of Appeals for the 9th Circuit — not usually a formula for success for the defense. “My own sense is that we are being sent a different signal by the Court,” Verrilli says. With the new composition of the Court, he says, “I see some steps backward.”
Tony Mauro can be contacted at [email protected].

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