Wednesday, November 15, 2006
Criminal defense representation faces two problems that may share one structural solution. First, there is no effective remedy for defendants whose trial attorneys are incompetent. Defendants typically must complete their appeals before being permitted to challenge their trial attorneys' performance on collateral review. With appeals often taking four or more years, most defendants have served their sentences and have little incentive to pursue collateral challenges.
There is no realistic opportunity of success, because defendants have no right to counsel on collateral review, and the delay makes it difficult to gather evidence of ineffectiveness. Thus, forcing defendants to wait until collateral review to challenge trial attorney performance creates a right to effective trial counsel that has no corresponding remedy.
A second structural problem arises at the appellate level. Appellate attorneys file briefs asking to withdraw from representation in over thirty percent of cases in some jurisdictions, because they cannot find issues worth raising.
Most jurisdictions confine appellate review to matters that appear on the face of the trial record. As a result, when trial attorneys fail to preserve issues, appellate attorneys do not have grounds for appeal. Because all defendants are constitutionally entitled to appellate counsel, defenders are often forced to file frivolous briefs or seek withdrawal. The result is an enormous waste of the funds that states invest in appellate representation.
In this Article, I analyze both problems and propose a structural solution – namely, a mechanism through which appellate attorneys may open the trial record in limited circumstances to raise ineffective assistance of trial counsel claims. In addition to ameliorating the trial problem by giving defendants a realistic opportunity to challenge trial attorney performance, such a restructuring would reduce the waste of public resources by assigning a more constructive role to appellate defenders now consigned to raising meritless issues. [Mark Godsey]