Monday, May 23, 2016
Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant establishes a claim of ineffective assistance of counsel by proving (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice,i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." I've gotten a lot of questions about whether there are types of attorney conduct that per se constitute unreasonable performance under Strickland's first prong. The answer is a definite "yes."Here are a few examples:
-"Counsel is per se ineffective if he fails to file a notice of appeal when instructed to do so." United States v. Lloyd, 633 Fed.Appx. 120 (4th Cir. 2016);
-"A per se violation requiring automatic reversal occurs...when trial counsel is either not authorized to practice law, or is implicated in the crime for which the petitioner stood trial." Wright v. United States, 2015 WL 7756109 (E.D.N.Y. 2015);
-"The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." United States v. Cronic, 466 U.S. 648 (1984);
-"The Supreme Court has identified three circumstances under which a petitioner might prove a per se violation of the right to effective assistance of counsel: (1) complete denial of counsel at a critical stage of the case; (2) where 'counsel entirely fails to subject the prosecution's case to meaningful adversarial testing'; and (3) where circumstances are such that competent counsel 'very likely could not' render assistance." Duncan v. Carpenter, 2015 WL 1003611 (M.D.Tenn. 2015);
-"Padilla established the rule that failure to advise a defendant of deportation consequences of a guilty plea is per se ineffective assistance." Gonzalez v. United States, 2011 WL 1811655 (M.D.Fla. 2011);
-"It has been held that the Sixth Amendment right to counsel is not satisfied where the defendant was represented by a person who was never licensed to practice law, and in these circumstances, the defendant's deprivation of a licensed attorney is considered per se reversible error." Benford v. State, 54 S.W.3d 728 (Mo.App. 2001);
-"[W]e hold that Flores received ineffective assistance of counsel per se when his attorney failed to inform the State of Flores' acceptance of the plea offer prior to the expiration of such offer." Flores v. State, 784 S.W.2d 579 (Tx.App. 1990); and
-"A showing that a defendant was allowed to plead guilty upon the condition that another defendant represented by the same attorney also plead guilty is a per se showing of ineffective assistance of counsel which rises to the level of an unconstitutional deprivation of the right to counsel." Tarwater v. State, 383 S.E.2d 883 (Ga. 1989).
In addition to these per se examples, there are also cases where the Supreme Court has identified behavior that is generally unreasonable under Strickland's first prong, subject to certain possible exceptions. Probably the best example is the failure to communicate to a client a plea offer from the prosecution:
-"This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date." Missouri v. Frye, 132 S.Ct. 1399 (2012).
I would put failure to investigate/contact an alibi witness into this same category. As I've noted before, courts across the country (including the Court of of Appeals of Maryland and the Fourth Circuit) have approvingly cited to Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991), in which the Eighth Circuit held that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense."
Then, as I noted a week ago, the Superior Court of Pennsylvania held in Commonwealth v. Stewart that "[i]t can be unreasonable per se to conduct no investigation into known witnesses." In other words, failure to investigate/contact an alibi witness can be per se unreasonable, subject to certain possible exceptions.
So, what are some of those exceptions? I noted a major one in a prior post: It might be reasonable not to investigate/contact a cumulative alibi witness, especially if the attorney has limited resources. In other words, if the defendant's alibi is that he was at a Super Bowl party at the time of a murder, the failure to investigate/contact a 10th person at that party might be reasonable if the defense has already investigated/contacted 9 other people at that party and decided to call several of them as witnesses. By way of contrast, the failure to investigate/contact the one person who was allegedly watching the Super Bowl with the defendant would seem to be per se unreasonable.