Ch. 2 Ineffective Assistance of Counsel Counsel For Immigrants Facing Removal

Chapter 2 Basic Elements of Law
Practice
Ineffective assistance of counsel
and the rights of immigrants
Constitutional Protections in
Criminal Cases
Right to effective assistance of
counsel
Public defenders
Right to counsel in removal
(deportation) cases
Ch. 2 Ineffective assistance and
the lawyer client relationship
The fair trial
That in all capital or criminal prosecutions

a man hath a right to demand the cause
and nature of his accusation, to be
confronted with the accusers and
witnesses, to call for evidence in his favor,
and to a speedy trial by an impartial jury
of twelve men of his vicinage, without
whose unanimous consent he cannot be
found guilty; nor can he be compelled to
give evidence against himself; that no
man be deprived of his liberty, except by
the law of the land or the judgment of his
peers.
Art. 8, Virginia
Constitution
- Bill 2of Rights
the lawyer
client relationship
Amendment VI - Constitution of the

United States of America
In all criminal prosecutions, the accused

shall enjoy the right to
a speedy and public trial, by an
impartial jury
be informed of the nature and cause of
the accusation
be confronted with the witnesses
against him
have compulsory process for obtaining
witnesses in his favor
have the Assistance of Counsel for his
defence.
Amendment VI - Constitution of the

United States of America
The Sixth Amendment right to counsel

exists in order to protect the
fundamental right to a fair trial
Powell v. Alabama, 287 U.S. 45 (1932)
Johnson v. Zerbst, 304 U.S. 458 (1938)
Gideon v. Wainwright, 372 U.S. 335
(1963)

Powell v. Alabama (1932)

The Scottsboro Boys case
Rape of 2 white girls by 7

African American boys all
travelers on a freight train
At arraignment all members of
the bar appointed as counsel by
trial judge
Trial began 6 days after indictment
Counsel appointed that morning
All sentenced to death

A defendant, charged with a

serious crime, must not be
stripped of his right to have
sufficient time to advise with
counsel and prepare his defense.


To fail to do that is not to

proceed promptly in the calm
spirit of regulated justice but to
go forward with the haste of the
mob.

Knowing and Intelligent waiver required

Johnson v. Zerbst (U.S. 1938)
The accused were unable to

employ counsel for trial (for
passing 4 counterfeit bills)
At arraignment, both pleaded
not guilty, said that they had no
lawyer
In response to the court -- stated
that they were ready for trial.
Tried, convicted and sentenced,
without assistance of counsel.
Ineffectiveness of Counsel
Diggs v. Welch (D.C. Cir. 1945)

Even serious mistakes on the
part of an attorney are not
ground for habeas corpus
standing alone.
[Reversal is granted only] if the
circumstances surrounding the
trial shocked the conscience of
the court and made the
proceedings a farce and a
Right to counsel at government expense

Gideon v. Wainwright (1963)
Justice Black:
Reason and reflection require us

to recognize that in our
adversary system of criminal
justice, any person haled into
court, who is too poor to hire a
lawyer, cannot be assured a fair
trial unless counsel is provided
for him.
10
10
Assistance of Counsel means
The special value (to a fair trial)

of the right to the assistance of
counsel explains why "[it] has
long been recognized that the
right to counsel is the right to
the effective assistance of
counsel."
McMann v. Richardson,
397 U.S. 759, 771
11
(1970)
11
Maxims
"To satisfy the Constitution, counsel

must function as an advocate for the
defendant, as opposed to a friend of
the court"
An indispensable element of the

effective performance of [defense
counsel's] responsibilities is the
ability to act independently of the
Government and to oppose it in
adversary litigation".
12
12
U.S. v. Cronic (U.S. 1984)
The right to the effective

assistance of counsel is thus the
right of the accused to require the
prosecution's case to survive the
crucible of meaningful adversarial
testing. the kind of testing
envisioned by the Sixth Amendment.
13
13
U.S. v. Cronic (U.S. 1984
Objective test
Must show actual breakdown of

adversarial process
Reference point: 6th Amendment

14
14
U.S. v. Cronic (U.S. 1984)
Factors applied by circuit court

(1) Time afforded for investigation
and preparation
(2) Experience of counsel
(3) Gravity of the charge
(4) Complexity of possible
defenses
(5) Accessibility of witnesses to
counsel.
15
15
Testing Effectiveness in
an Adversarial System
Should professional practice
standards provide bright line
rules for courts?
16
16
Q. 2-37 p. 122 Was Matlack s

representation ineffective?
(A) No -Matlocks conduct was was

reasonable because he interviewed
family members.
(B) No - Matlocks conduct was
unreasonable but it was not
prejudicial.
(C) Yes Ineffective assistance.
Matlock failed to provide zealous
representa tion.
(D) Yes. Matlocks unreasonable
17
The Public Defenders

Dilemma
http://blackstonetoday.blogs
pot.com/2013/05/pds-may-refu
se-cases-due-to-excess.html
18
Model Rule 1.0 Terminology
(h) "Reasonable" or "reasonably"

when used in relation to conduct
by a lawyer denotes the conduct
of a reasonably prudent and
competent lawyer.

19
19
Model Rule 1.1: Competence
A lawyer shall provide

competent representation to a
client.
Competent representation
requires the legal knowledge,
skill, thoroughness and
preparation reasonably
necessary for the
20
20
ABA Practice Standards
Appellate Review of Sente

nces
Collateral Sanctions and Di
scretionary Disqualificatio
n of Convicted Persons
Criminal Appeals
Defense Function
Discovery
DNA Evidence
Electronic Surveillance of
Private Communications
Fair Trial & Free Press
Guilty Pleas
Joinder & Severance
Legal Status of Prisoners
Mental Health
Post-Conviction Remedies
Pretrial Release
Prosecution Function
NEW:
Prosecutorial Investigation
s
Providing Defense Service

s
Sentencing
Special Functions of the Tr

ial Judge
Speedy Trial
Technologically-Assisted Ph
ysical Surveillance
Trial
Ch. 2 Ineffective assistance
and by Jury
Urban Police21Function
Practice guidelines are merely that
Objective reasonableness is the

standard.
American Bar Association standards
and the like are only guides to what
reasonableness means, not its
definition.
Strickland v. Washington (1984)
22
Ineffective assistance of counsel
Constitutional right of the accused to

"the Assistance of Counsel," U.S.
Const. amend. VI
* "guarantees the effective
assistance of counsel," McMann v.
Richardson, 397 U.S. 759 (1970)
* applies to the States under due
process clause of 14th Amendment
Evitts v. Lucey, 469 U.S. 387(1985)
23
Rompilla v. Beard (U.S. 2005) p. 115
Even when a capital defendant's

family members and the defendant
himself have suggested that no
mitigating evidence is available, his
lawyer is bound to make reasonable
efforts to obtain and review material
that counsel knows the prosecution
will probably rely on as evidence of
aggravation at the sentencing phase
of trial.
24
When new counsel entered the

case to raise Rompilla's
postconviction claims, however,
they identified a number of likely
avenues the trial lawyers could
fruitfully have followed in
building a mitigation case.
25
The duty to investigate exists

regardless of the accused's
admissions or statements to the
lawyer of facts constituting guilt
or the accused's stated desire to
plead guilty."
1 ABA Standards for Criminal Justice

4-4.1 (2d ed. 1982 Supp.)
26
Rompilla's parents were both severe

alcoholics who drank constantly. His
mother drank during her pregnancy
with Rompilla, and he and his
brothers eventually developed
serious drinking problems.

27
His father, who had a vicious temper,

frequently beat Rompilla's mother,
leaving her bruised and black-eyed,
and bragged about his cheating on
her.

28
His parents fought violently, and on

at least one occasion his mother
stabbed his father. He was abused
by his father who beat him when he
was young with his hands, fists,
leather straps, belts and sticks. All of
the children lived in terror.
29
Places to search:
School records
Records of Rompilla's juvenile and

adult incarcerations
Evidence of a history of dependence

on
30
Prejudice
Strickland v. Washington (U.S. 1984)
Errors so serious that counsel

was not functioning as the
"counsel" guaranteed by the 6th
Amendment
Errors deprived the defendant of

a fair trial, a trial whose result
can be relied upon as just
31
31
The Strickland test
Def. Must show
1) his counsel's performance was

unreasonably deficient because
it fell below an "objective

standard of reasonableness"
compared to "prevailing
professional norms."
32
The Strickland test
2) the deficiency prejudiced him.

* "[T]here is a reasonable
probability that, but for
counsel's unprofessional errors,
the result of the proceeding
would be different."
"A reasonable probability is a
probability sufficient to
undermine confidence in the
outcome."
33
Reasonable competence
D need not show errors more

likely than not altered the
outcome
But Defendant must show

deficient performance prejudiced
34
34
Reasonable competence
D can show a reasonable

probability that, but for
counsel's unprofessional errors,
the result of the proceeding
would have been different.

35
35
Reasonable competence/fundamental
fairness
A reasonable probability is a
probability sufficient to
undermine confidence in the
justness of the outcome.

36
36
The burden of proof
* "[t]he result of a [criminal]

proceeding can be rendered
unreliable, and hence the proceeding
itself unfair, even if the errors of
counsel cannot be shown by a
preponderance of the evidence to
have determined the outcome."
Strickland

37
Strickland v. Washington (1984)

at every stage of the proceeding
Death case - capital sentencing

hearing
An adversary proceeding in a
criminal trial entitles one to
reasonably effective
assistance of counsel
38
Asserting ineffectiveness
Specificity required
A convicted defendant making a

claim of ineffective assistance
must identify the acts or
omissions of counsel that are
alleged not to have been the
result of reasonable professional
judgment.
39
39
Strickland: Strong Presumption of

Effectiveness Deference to Counsel
the wide range of reasonable
professional assistance
Every effort must be made to
- eliminate the distorting effects
of hindsight
- reconstruct the circumstances
of counsel's challenged conduct
- evaluate the conduct from
counsel's perspective at the
time.
40
40
Crisis in immigration courts
2d Circuit : 27 months to resolve a

Board of Immigration Appeals appeal
John M. Walker, Chief Judge: "a
severe lack of resources and
manpower at the immigration judge
and BIA levels
"I fail to see how immigration judges
can be expected to make thorough
and competent findings of fact and
conclusion of law under these
circumstances.
41
Immigrants rights
Is deportation punishment?
All persons subject to removal have
the right to due process?
Should they have a Gideon-type right to
counsel?
Are asylum applicants different?
Children brought here by parents?
Undocumented parents of children born
here? Raised Here?
42

Ch. 2 Ineffective Assistance of Counsel Counsel For Immigrants Facing Removal

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Ch. 2 Ineffective Assistance of Counsel Counsel For Immigrants Facing Removal

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Chapter 2 Basic Elements of Law

The fair trial

That in all capital or criminal prosecutions

Amendment VI - Constitution of the

In all criminal prosecutions, the accused

Amendment VI - Constitution of the

The Sixth Amendment right to counsel

Ch. 2 Ineffective assistance and

Powell v. Alabama (1932)

Rape of 2 white girls by 7

Powell v. Alabama (1932)

A defendant, charged with a

Ch. 2 Ineffective assistance and

Powell v. Alabama (1932)

To fail to do that is not to

Ch. 2 Ineffective assistance and

Knowing and Intelligent waiver required

The accused were unable to

Diggs v. Welch (D.C. Cir. 1945)

Right to counsel at government expense

Reason and reflection require us

Assistance of Counsel means

The special value (to a fair trial)

"To satisfy the Constitution, counsel

An indispensable element of the

U.S. v. Cronic (U.S. 1984)

The right to the effective

U.S. v. Cronic (U.S. 1984

Must show actual breakdown of

Reference point: 6th Amendment

Ch. 2 Ineffective assistance and

U.S. v. Cronic (U.S. 1984)

Factors applied by circuit court

Q. 2-37 p. 122 Was Matlack s

(A) No -Matlocks conduct was was

The Public Defenders

Model Rule 1.0 Terminology

(h) "Reasonable" or "reasonably"

Ch. 2 Ineffective assistance and

Model Rule 1.1: Competence

A lawyer shall provide

necessary for the

ABA Practice Standards

Appellate Review of Sente

Providing Defense Service

Special Functions of the Tr

Practice guidelines are merely that

Objective reasonableness is the

Ineffective assistance of counsel

Constitutional right of the accused to

Rompilla v. Beard (U.S. 2005) p. 115

Even when a capital defendant's

Rompilla v. Beard (U.S. 2005) p. 115

When new counsel entered the

Rompilla v. Beard (U.S. 2005) p. 115

The duty to investigate exists

1 ABA Standards for Criminal Justice

Rompilla v. Beard (U.S. 2005) p. 120

Rompilla's parents were both severe

Ch. 2 Ineffective assistance and

Rompilla v. Beard (U.S. 2005) p. 120

His father, who had a vicious temper,

Ch. 2 Ineffective assistance and