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Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose

Michigan Law Review

Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of …

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein

Michigan Law Review

A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …

Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore

Michigan Law Review

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson

Michigan Law Review

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …

The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran

Articles

The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Michigan Journal of Race and Law

Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the …

Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak

Michigan Law Review

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

University of Michigan Journal of Law Reform

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

Articles

Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review

Michigan Law Review

The questions of the extent of an attorney's right to claim the privilege against self-incrimination during bar disciplinary proceedings and of the consequences of the exercise of the privilege has created a sharp division of opinion. The privilege against self-incrimination necessarily involves a conflict between the public's interest in disclosure and the individual's interest in privacy and nondisclosure. However, the conflict is exacerbated when the individual claiming the privilege is entrusted with important public responsibilities.

Constitutional Law--The Right To A Jury Trial In Disbarment Proceedings, Michigan Law Review

Michigan Law Review

Lawyers in the United States have long been considered officers of the court, subject to examination for good moral character and adequate education in law before admission to the bar. They have also been subject to summary proceedings for disbarment whenever they have deviated from accepted standards of conduct embodied in various codes of professional ethics. Although the specific grounds for disbarment vary from state to state and between federal and state courts, one thing is clear: in the absence of a specific statutory provision there traditionally has been no right to a jury trial in disbarment proceedings. Since the …

Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel

Articles

During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …