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Ineffective Assistance of Counsel

In 1984, the United States Supreme Court issued a terrible decision in “Strickland v. Washington”. It was a case in which a convicted criminal defendant challenged his conviction, alleging that his criminal defense lawyer was ineffective. The United States Supreme Court, in keeping with what most federal courts desire to do, i.e., uphold criminal convictions, held that in order for a criminal conviction to be reversed, the defendant who was convicted in the trial court – who was attacking his lawyer’s performance -must show that the outcome of the trial might well have been different had the lawyer performed to a higher standard.

As you can imagine, since such an analysis is almost totally subjective, the federal courts, and many state courts, use every possible presumption that the trial attorney was competent and minimally effective. The injustice is clear in many cases. Sometimes lawyers are simply incompetent or lazy. There are some cases where lawyers have actually fallen asleep during portions of trials, and yet the convictions are upheld. I know that is shocking to believe, but it is true.

It is common for criminal defendants who are convicted to appeal their convictions. Once their initial or direct appeal is concluded, a large percentage of convicted persons who are in custody allege that their trial lawyers were incompetent or ineffective, or grossly, willfully, wantonly negligent, and that they did not receive a fair trial. So, the courts, especially the federal courts, are used to receiving these petitions on a daily basis. Typically, a judge’s law clerk will review these petitions with a presumption that they are baseless. Every once in a while, however, a case is so egregious that the court will reverse a conviction or send a case back to the trial judge for consideration of the claim of ineffective or incompetent representation.

My advice: get the best possible criminal defense lawyer you can to represent you and be certain that he or she is listening to what you have to say so that you feel that you will have received the best possible representation.

Having practiced criminal defense law for 40 years, I can tell you that there are many decisions that a criminal defense lawyer makes based on tactical and strategic considerations that are not subject to a review by a higher court. Nevertheless, strategy and tactics are one thing. Incompetence is another. Be certain that your lawyer is competent and experienced in the type of case that you are retaining him or her for. Talk with your lawyer frequently. Express your concerns and be certain to be totally candid and thorough when explaining your case to your lawyer. It makes the difference since the odds of having a conviction reversed on appeal based on incompetence or ineffectiveness of your trial lawyer are very slim.

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