Medwed on Ineffective Assistance and Habeas Doctrine

Daniel S. Medwed (Northeastern University - School of Law) has posted Ineffective Assistance of Case Law: The Supreme Court's Deficient Habeas Jurisprudence (Harvard Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:

 

The poor safety record of trials, appeals, state postconviction procedures, and executive clemency in protecting innocent criminal defendants—coupled with barriers to raising innocence claims through federal habeas corpus—often prompt advocates to devise indirect litigation strategies to overturn wrongful convictions. One such strategy involves raising a constitutional claim of “ineffective assistance of counsel (IAC)” in a federal habeas corpus action. The heart of an IAC claim in this forum is frequently that the trial lawyer’s failure to investigate, mount an alibi defense, and/or challenge an assortment of prosecutorial and judicial missteps contributed to unwarranted incarceration. What lies beneath the surface is an intimation that an innocent person is trapped behind bars; IAC is the label affixed to a claim that seeks to rectify an injustice. Relying on IAC as a proxy for an actual innocence claim is not ideal.

Some trials yield wrongful convictions despite the valiant efforts of effective defense counsel, which makes IAC an ill-fitting suit to cover those cases. And even those injustices generated in part through poor lawyering deserve to be called out for what they truly are—the conviction of an innocent person—rather than shrouded in the garb of a constitutional violation. Even so, those of us who are part of the “Innocence Movement” often raise IAC as a surrogate for actual innocence in the federal habeas arena, more by necessity than by choice. Yet the recent Supreme Court opinion in Shinn v. Ramirez has strewn major obstacles along that path. Going forward, Ramirez could make the road to freedom nearly impassable for prisoners who want to rely on IAC claims as a proxy for establishing innocence in a federal habeas corpus action. Part I of this Essay provides an overview of federal habeas corpus jurisprudence in the context of actual innocence and IAC claims. Next, Part II contains a case study that illustrates how the innocent have used IAC doctrine in the past to steer through the potholes of federal habeas. Finally, Part III discusses some of the hazards on the route to litigating IAC claims, how Ramirez has altered this federal habeas landscape for the worse, and what this means for innocent prisoners in the days ahead.