Systemic right to counsel failures cannot be resolved in case-by-case reviews

April 30, 2017


David Carroll and Phyllis Mann


Pleading The Sixth


Pleading the Sixth: In America, the indigent accused has a constitutional right to be represented by an effective lawyer at all critical stages of a case where loss of liberty is a potential penalty. But what if that lawyer is incapable of, or structurally prevented from, advocating for a defendant’s stated interests? Can the appellate courts rectify the harm? The 6AC argues that, to the detriment of the poor people, the appellate system is not set up to address the depth and breadth of America’s right to counsel deficiencies.

Without the aid of an effective lawyer, almost anyone stands the risk of going to jail when charged with a crime. The majority of us would not know, for example, what is and is not admissible in a court of law, let alone how to procedurally convince twelve jurors that the government has not proven the charges beyond a reasonable doubt. If this is true of even the most affluent and educated among us, is it then fair to let someone who has fallen on hard times or whom has been let down by our country’s educational system or who is not yet an adult face a loss of liberty at the hands of government simply because they lack the guiding hand of counsel to navigate the complexities of our legal system? Of course not!

In Gideon v. Wainwright, the U.S. Supreme Court said the right to a lawyer is “an obvious truth,” in establishing that the Sixth and Fourteenth Amendments to the U.S. Constitution obligate states to provide effective representation to the indigent accused in cases that carry loss of liberty as a potential punishment. Yet in courts across America, people of limited means are frequently: (1) adjudicated guilty and incarcerated without ever speaking to an attorney; or (2) appointed an attorney who is unqualified, unsupervised, and/or financially conflicted, and who often carries an excessive number of cases such that the defendant receives little to no representation at all. These systemic deficiencies impair the accused’s ability to receive other legal rights including due process and a fair trial, frequently subjecting taxpayers to unnecessary expense caused by over-incarceration, wrongful conviction, and systemic litigation, and jeopardizing courts’ abilities to dispense justice effectively and efficiently.

Understanding how and why our state and local criminal courts fail to uphold our highest constitutional ideals necessitates a stage-by-stage explanation of how a criminal case proceeds from trial through each stage of review and the extent of the Sixth Amendment right to an effective lawyer in each of those stages.

Right to effective counsel at trial

Under Gideon and its progeny, every defendant facing a loss of liberty if convicted of a crime or delinquency charge is entitled to an attorney to represent them at the trial level. Whether that attorney is retained or appointed, the Court subsequently held in Strickland v. Washington that the attorney must provide effective representation.

For nearly all defendants, their case is entirely concluded at the trial court level and, if convicted, they will serve out whatever sentence is imposed. This is because a defendant can only appeal from a conviction or sentence that he challenged. If the defendant entered into a plea agreement and knowingly and voluntarily admitted that he committed the crime for which he has been convicted, he cannot appeal from that conviction. Plea agreements sometimes include a stipulation by the defendant, prosecution, and judge as to the sentence he will receive. If the defendant agreed in advance to the sentence that is actually imposed on him, he cannot appeal from either the conviction or the sentence.

For a defendant whose charges are dismissed or who is found not guilty at trial, there is no need to appeal. For a defendant who pleads guilty with an agreed sentence, there is no right to appeal.

A defendant who pleads guilty but does so without an agreement about what his sentence will be can still file a direct appeal challenging the sentence that was imposed on him (but not the conviction of guilt) if there is a basis to argue that the sentence is illegal in some way. A defendant who is convicted at trial may file a direct appeal challenging all aspects of his conviction and sentence if there is a basis to argue that his conviction or sentence are illegal in some way.

But even among defendants who retain the right to file a direct appeal, only a percentage of them do so. It may be that the sentence imposed is shorter than the amount of time it will take to have a direct appeal considered and decided. It may be that they simply want to move on with their life by complying with the terms of the imposed sentence.

All of this means that only a small number of defendants who are convicted in a state court ever file a direct appeal to a higher court.

Right to effective counsel on direct appeal

States are not required under the U.S. Constitution to provide any way for a defendant to appeal from a criminal conviction. However, “forty-seven states provide – as a matter of state law – either a constitutional or statutory requirement for appeals as of right in . . . criminal cases.” (Cassandra Burke Robertson, The Right to Appeal, 91 N.C. L. Rev. 1219, 1222 n.8 (2013).) Of the remaining three, New Hampshire and West Virginia both have court rules providing for direct review, while Virginia offers only discretionary review of non-capital criminal cases but provides a direct appeal as of right in cases where a defendant is sentenced to death.

On the same day as the Gideon decision, the U.S. Supreme Court held in Douglas v. California that, where a state has provided a right to direct appeal, it must provide a right to counsel for an indigent defendant in that direct appeal. Subsequently, the Court held in Evitts v. Lucey that the attorney, whether retained or appointed, who represents a defendant on direct appeal must provide effective representation.

Direct appeals are usually limited to the facts and issues that are apparent from the trial record. That trial record allows the reviewing court to see what did happen and to rule on whether the things that occurred during the trial level prosecution complied with the federal and state constitutions and with the state’s laws and procedures. But a defendant cannot ask a court on direct appeal to consider just anything and everything about his case. While a defendant has a right to decide whether to appeal, he does not get to decide which issues to raise on that appeal and which ones to abandon.

First, the appellate attorney is never required to raise frivolous issues on appeal. The appellate attorney must make a diligent, conscientious investigation of the possible grounds of appeal. “Of course, if counsel finds [the defendant’s] case to be wholly frivolous after a conscientious examination of it, he should so advise the court and request permission to withdraw,” the Supreme Court said in Anders v. California. “If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed, and leave to appeal may be denied.”

Second, and more importantly, in Jones v. Barnes, the U.S. Supreme Court held that the attorney who represents the defendant in his direct appeal is responsible for deciding which of the potentially meritorious issues should be raised and argued on appeal. “Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.” In short, even if a defendant’s case has nonfrivolous issues that might merit reversal on appeal, he cannot force his attorney to brief and argue them on direct appeal.

Because every defendant, rich or poor, has the right to the effective assistance of counsel at the trial level in a criminal or delinquency proceeding, the defendant may want a higher court to consider a claim on direct appeal that his trial lawyer performed so poorly that it negatively and unfairly affected the outcome of the case – that is, that the lawyer provided ineffective assistance of counsel (IAC). If these IAC claims are found meritorious, the case will be sent back to the trial court to be re-tried or re-sentenced. If all the facts necessary for the court to consider an IAC claim are contained in the trial record, then an IAC at trial claim can be decided on direct appeal. It is generally recognized that, for this to happen effectively, an attorney other than the trial attorney needs to represent the defendant on the direct appeal, in part because it is unlikely that an attorney will identify and raise on appeal his own ineffectiveness at trial.

Once a direct appeal is complete, most criminal cases end. There are several reasons for this. Many defendants will have completed serving their sentence by the time their direct appeal is final, and so have no desire to continue litigation. If a defendant does want to continue challenging his state court conviction, the next step is to ask for discretionary review in a higher state court (but not all states provide this as an option) or in the United States Supreme Court. And, as explained below, a defendant does not have a federal constitutional right to counsel at any stage of a case after direct appeal. Therefore, in order to continue seeking review of his case after the direct appeal, a defendant must either be wealthy enough to hire his own attorney or must represent himself, unless his state chooses to provide counsel for him.

No federal constitutional right to counsel on discretionary review

Discretionary review literally means that a court has complete discretion in deciding whether to consider a case. The court does not have to allow any case, even one that has obvious merit or in which it believes the appeal was wrongly decided. Instead, the court chooses which cases it will consider, usually guided by state statutes or court rules or policies.

Just as states are not constitutionally required to provide any mechanism at all for a defendant to appeal his conviction, states do not have to provide any additional level of review after a direct appeal is final. States are free, though, to provide as many levels of review of a conviction as they wish, and every state has adopted some sort of discretionary proceeding in at least some types of cases and circumstances, though not necessarily for all cases.

In Ross v. Moffitt, the U.S. Supreme Court held that, where states provide a discretionary review process, an indigent defendant does not have a constitutional right to counsel in those proceedings, nor in seeking discretionary review from the U.S. Supreme Court itself. The Court reasoned that, “prior to his seeking discretionary review . . . , [a defendant’s] claims had ‘once been presented by a lawyer and passed upon by an appellate court.’” As a result, in the discretionary review proceeding the defendant “will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf . . . setting forth his claims of error, and in many cases an opinion by the [appellate court] disposing of his case,” all of which along with any pro se filing by the defendant “would appear to provide the [reviewing court] with an adequate basis for its decision to grant or deny review.”

To be sure, a wealthy defendant can hire an attorney to represent him in available discretionary review proceedings, but a defendant who is too poor to hire his own attorney will have to represent himself on discretionary review unless the state chooses to provide counsel.

No federal constitutional right to counsel in state collateral proceedings

Many of the things that constitute IAC by trial counsel involve things that did not happen during the trial level prosecution – motions and objections the defense attorney should have made but did not, investigation the attorney should have conducted but did not, witnesses and evidence the attorney should have introduced at trial but did not. These things will not be apparent to the reviewing court (whether on appeal or on discretionary review) from the face of the trial record, because they are things that did not occur. This has led many states to decide that IAC claims are better considered in a separate proceeding, where evidence can be introduced about these omissions, why they happened, and whether they caused prejudice in the defendant’s trial that warrants granting a new trial. States call these proceedings by various names, but generally they can be referred to as state collateral proceedings.

Again, it is entirely up to the individual state as to whether to provide these collateral proceedings at all, because they are discretionary. And because it is up to each state to choose whether to offer state collateral proceedings, the U.S. Supreme Court held in Coleman v. Thompson that a defendant does not have a federal constitutional right to an attorney to represent them in state collateral proceedings. So even if a state chooses to give a defendant an attorney, the Court said the federal constitution does not require that attorney to provide effective representation; “[c]onsequently, a [defendant] cannot claim constitutionally ineffective assistance of counsel in such proceedings.” If the state collateral proceeding lawyer makes a mistake, even a mistake that causes an innocent defendant to stand wrongly convicted, the defendant bears the brunt of it. As the Coleman Court put it, the defendant “must ‘bear the risk of attorney error.’”

When state collateral proceedings are filed, they typically begin back in the same trial court where the defendant’s original trial was held. To avoid confusion between the trial level proceedings during the actual trial and the trial level proceedings on collateral review, the courts refer to this stage of a state collateral proceeding as an “initial-review collateral proceeding.” Once the initial-review collateral proceeding is decided, the defendant can appeal from that collateral decision, typically to the same appellate court where the defendant’s original direct appeal was heard. From there, the defendant can seek discretionary review in the state’s high court (if the state provides such a proceeding) or in the U.S. Supreme Court. This entire process can take at least as long as the original trial and appeal.

Federal habeas corpus

Beyond state collateral proceedings, defendants have but one more opportunity to contest possible ineffective assistance of counsel – in a habeas corpus petition in federal court. This stage of a criminal proceeding involves the most complicated of all criminal procedural law, and for that reason very few of even the most experienced criminal lawyers handle these types of cases. Federal courts do not automatically review state criminal cases, and a byzantine complex of statutes and case law governs when and how they may do so. While the following far over-simplifies the rules, it provides a basic explanation about when a federal court can review a state court conviction.

  1. First, federal courts can only consider claims that a defendant’s state court conviction and/or sentence somehow violated the United States Constitution or federal statutes.
  2. Second, states must have the opportunity first to correct their own mistakes. This is referred to as honoring principles of “comity” and “federalism.” This means that a defendant had to present any issue to the state courts and allow them to rule on it – called “exhaustion of state remedies” – before the defendant can go to federal court to seek relief on that issue.
  3. Third, the defendant has to follow all the state and federal procedural rules along the way before he can seek habeas corpus in a federal court. If he failed to follow the rules (by for example not including a particular issue in his state direct appeal, or failing to seek discretionary review from the state’s highest court, or missing a state deadline for seeking review), then his habeas corpus petition in federal court will usually be denied. This is called “procedural default.” Occasionally there are things that can provide an “excuse” for the procedural default and allow the federal court to consider the defendant’s habeas corpus petition challenging his state court conviction.

What this means to the indigent accused in today’s America

Much of the appellate process presumes that all Sixth Amendment case law has been properly implemented in the states. However, right to counsel services in America exist on a broad continuum where substandard practice is prevalent. Public defense systems that meet national standards for the defense function (or have evolved beyond them to develop innovative best-practices focusing on such things as a client’s broader life issues and/or civil legal needs) make up only a very small portion of the spectrum. Instead, the most prevalent manner for delivering indigent defense services in the United States is for a private attorney to handle an unlimited number of cases for a single flat fee under contract to a county administrator or the judge presiding over the lawyer’s cases. These systems lack accountability and proper supervision. The quality of representation provided differs significantly from one courtroom to the next. They are not truly “systems” – without any clear structure, they are better described as “non-systems.”

The scope of the problem is massive. There are 3,033 organized county or county-equivalent governments in the United States. Yet, the Department of Justice’s Bureau of Justice Statistics reports that there are only 957 public defender offices in the country. Even accounting for the few private counsel systems that do meet national standards, it is simply a fact that fully 64% of counties (over 1,900 counties) operate “non-systems” when it comes to the constitutional right to counsel.

The nation’s indigent defense crisis extends far beyond the prevalence of “non-systems.” Even those jurisdictions with full-time staffed public defender offices generally assign so many clients at the same time that the lawyers have, on average, only a few hours to open a case, meet with the client, investigate the charges, search for witnesses, negotiate with prosecutors, and if necessary conduct a trial or otherwise dispose of the case. These time constraints often result in fundamental legal tasks being short-changed, for example, attorneys do not file motions or do legal research and they fail to come to an understanding of a defendant’s mental health or life experiences that could mitigate or explain some of his actions to a jury. Simply put, no attorney can be effective when assigned a new felony case every day – weekends and holidays included. Yet, a caseload of 350 felony cases per attorney per year or more is the norm in too many jurisdictions in this country.

Because of this reality, it is generally recognized that an attorney other than the trial attorney needs to represent the defendant on the direct appeal, in part because it is unlikely that an attorney will identify and raise on appeal his own ineffectiveness at trial. It is more likely than not, though, in most parts of the country that the indigent accused will be represented on the direct appeal by the same financially-conflicted, overwhelmed, and under-resourced attorney who provided ineffective assistance at trial. At that point, the claims of ineffectiveness are lost until state collateral proceedings where the poor person does not have a right to a lawyer and the court does not have to hear the case.

Because of this, the overall health of an indigent defense system can never be judged by the number of successful ineffective assistance of counsel claims. With the cards stacked so heavily against poor defendants, it is amazing that there are any successful ineffective assistance of counsel claims.