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In 1984, the U.S. Supreme Court 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. Strickland v. Washington, 466 U.S. 668. 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. Now criminal defense lawyers fear that the Supreme Court is starting to retreat from Strickland itself. On Nov. 5, the justices agreed to consider Arave v. Hoffman, No. 07-110, an Idaho case that will weigh lawyers’ obligation to explain to their clients the consequences of not accepting a plea agreement. At a Nov. 7 forum on Strickland, sponsored by the Constitution Project and held at the Law Library of Congress in Washington, even Strickland‘s author, now-retired Justice Sandra Day O’Connor, acknowledged that her ruling produced “many years of additional litigation.” 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. 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 the 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 lawyers in the first place. 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. According to the American Bar Association, capital indigent defense programs provide “minimal training and experience” and “woefully inadequate” compensation. Defense lawyers fear the new Roberts court may slip backward on the issue. Donald Verrilli of Chicago’s Jenner & Block said that in three recent cases � Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla v. Beard, 545 U.S. 374 (2005) � the court supported claims of ineffective assistance of counsel when lawyers had failed to investigate their clients’ cases thoroughly enough. “The court said, ‘We are going to require lawyers to get the job done,’ ” said Verrilli, who won the Wiggins case for the defendant. But in 2007′s Schriro v. Landrigan, 127 S. Ct. 1933, which Verrilli lost for the defendant, the tide seemed to shift against ineffective assistance claims, he said. 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 A. Alito Jr., who replaced O’Connor, voting with the majority against the defendant. In the Idaho case, the state is appealing a ruling against it by the 9th U.S. Circuit Court of Appeals � not usually a formula for success for the defense.

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