§ 14.01 Pretrial Proceedings

 

Under the Sixth Amendment, a defendant's right to counsel attaches upon the commencement of an adversarial criminal proceeding and may be invoked at any “critical stage.”  Thus, prior to trial, a defendant is entitled to the assistance of counsel at:

            (1) post-indictment line-ups [See Chapter 12, Eyewitness Identification.]

(2) post-indictment interrogation [See Chapter 11, Sixth Amendment Right to Counsel: Interrogation.]

(3) psychiatric examinations of the defendant to determine competency [See Chapter 18, Pretrial and Trial Issues.]

(4) arraignments [See Chapter 15, Charging the Defendant.]

(5) preliminary hearings [See Chapter 15, Charging the Defendant.]

(6) bail and detention hearings [See Chapter 16, Pretrial Release or Detention.]

(7) plea hearings [See Chapter 17, Plea Bargaining and Guilty Pleas.]

 

If a defendant is denied his right to counsel at a pretrial proceeding, any trial conviction is not necessarily subject to reversal if the prosecution demonstrates beyond a reasonable doubt that the Sixth Amendment violation constitutes harmless error, i.e., if the same verdict would have been rendered regardless of such constitutional violation. Chapman v. California, 386 U.S 18 (1967). 

   

§ 14.02 Trial Proceedings

 

            [A] Appointment of Counsel to Indigents

 

The state must appoint counsel to an indigent who is charged with a felony. Gideon v. Wainwright, 372 U.S. 335 (1963). While this requirement does not extend to misdemeanor cases under the Sixth Amendment, “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” absent a knowing and intelligent waiver of the right to counsel.  Argersinger v. Hamlin, 407 U.S. 25 (1972).  Thus, a defendant charged with a misdemeanor which carries an optional jail sentence is not guaranteed assistance of counsel at state expense; however, if counsel is not provided, the judge is precluded from sentencing any term of imprisonment upon a finding of guilt.  Nor may the court impose a suspended prison sentence under such circumstances. Alabama v. Shelton, 535 U.S. 654 (2002). 

 

Denial of the Sixth Amendment right to counsel at trial results in automatic reversal of any conviction. Gideon v. Wainwright [372 U.S. 335].

 

[B] Right of Self-Representation

 

                        [1] Waiver of Counsel

 

Implicit in the Sixth Amendment is the right of a defendant to voluntarily and knowingly waive his right to the assistance of counsel and to represent himself at trial, provided the court deems him mentally competent to do so. Faretta v. California, 422 U.S. 806 (1975).  The court must inform the defendant seeking to waive counsel “of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.' ”

 

[2] Standby Counsel

 

The right to self-representation is not violated by the appointment of standby counsel, even if the defendant objects.  The role of standby counsel is to assist the defendant if and when he seeks help and to assume control of the defense if the defendant can no longer represent himself.

 

Mere occasional unsolicited assistance by the standby counsel does not violate the Sixth Amendment as long as the defendant retains control over his defense.  The right of self-representation is not violated unless standby counsel:

• substantially interferes with the defendant's significant tactical decisions.
• assumes control of the examination of witnesses.
• speaks for the defendant on material issues against his wishes.
• otherwise destroys the jury's perception that the defendant is representing himself.

McKaskle v. Wiggins, 465 U.S. 168 (1984) (upholding a conviction in which standby counsel provided unsolicited, and at times even unwanted, assistance).

 

[3] Inadequate Self-Representation

 

A defendant who chooses self-representation cannot thereafter assert a claim of ineffective assistance of counsel.

 

[4] Wrongful Denial of the Right of Self-Representation

 

If a court wrongfully denies a defendant the right to represent himself at trial, or if the right is violated by standby counsel, any subsequent conviction must be reversed.

 

[C] Ineffective Assistance of Counsel

 

                        [1] Requirement for Effective Representation

 

Implicit in the right to counsel is that such counsel, whether retained or court-appointed, must render effective representation.  According to standards issued by the American Bar Association, “effective representation” requires defense counsel to:

(1) exercise professional judgment, within the bounds of the law, solely for the benefit of the defendant and free of any conflicts of interest.

(2) interview the defendant early in their relationship.

(3) keep the defendant informed of important developments in the case.

(4) consult with the defendant on important decisions.

(5) promptly and comprehensively investigate the circumstances of the case.

(6) apply legal skill and knowledge to render the trial a reliable adversarial process.

 

[2] Strickland Test for Ineffective Representation

 

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test for determining when legal representation in a criminal trial is ineffective.  The test requires a showing that:

(1)    the representation was deficient; and

(2)    such deficiency prejudiced the defendant. 

 

[a] Deficiency of Representation

 

While Strickland did not establish explicit guidelines for effective representation, the Court stated that representation is deficient when the “errors [were] so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.”

 

Cases alleging ineffective representation generally fall into one of three categories:

(1) failure to perform ordinary tasks;

(2) falling asleep in court; or

(3) ignorance of the relevant law.

 

[i] Failure to Perform Ordinary Tasks

 

Examples of omissions that, under given circumstances, may qualify as deficient representation, include:

• failure to develop a meaningful defense strategy.
• failure to interview witnesses.
• failure to request discovery.
• failure to visit the crime scene.
• absence from the courtroom during critical portions of the trial.
• failure to make appropriate evidentiary objections.
• failure to timely file a notice of appeal.

 

However, less-than-optimal performance does not necessarily render representation inadequate, as long as the nature and conduct of the representation is based on reasonable professional judgment.  See, e.g., Burger v. Kemp, 483 U.S. 776 (1987) (finding that defense counsel's decision to not fully investigate the defendant's background and not offer mitigating evidence at two capital sentencing hearings was supported by reasonable professional judgment, in that his interviews and studies of reports indicated that an explanation of the defendant's background would not have minimized the risk of the death penalty).

 

[ii] Sleeping in Court

 

It is widely accepted that proof that defense counsel frequently slept during trial or significant pretrial hearings constitutes deficient representation.

 

[iii] Ignorance of Relevant Law

 

Deficiency may be proved where defense counsel's ignorance or misunderstanding of relevant law affects trial strategy to the detriment of the defendant.  E.g., Kimmmelman v. Morrison, 477 U.S. 365 (1986) (defense counsel's failure to request discovery and consequently move to suppress evidence obtained in violation of the Fourth Amendment, based on his erroneous belief that the prosecution was required on his own initiative to turn over all incriminating evidence in its possession, was held to constitute deficient representation); Lockhart v. Fretwell, 506 U.S. 364 (1993) (defense counsel failed to object to the introduction of certain evidence at the sentencing phase of the trial when it had already been introduced during the guilt phase of the trial, apparently because he was unaware of the relevant law which would have precluded such duplicate evidence).

 

[b] Prejudice

 

Once a defendant demonstrates that representation was deficient, the second prong of the Strickland test requires proof that such deficiency was prejudicial to the defendant's case.  To prove prejudice, the defendant must show that there is a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different, e.g., that the defendant would not have been convicted or would have received a lesser sentence. “Reasonable probability” suggests more than that the error had “some effect” on the outcome, but not that it is “more likely than not” that counsel's deficient representation affected the outcome.

 

Prejudice is presumed in cases involving:

(1) actual or constructive denial of the assistance of counsel such as when the lawyer repeatedly fell asleep during trial;

(2) certain forms of state interference with counsel's assistance; and

(3) attorney conflict of interest.

 

[3] Conflicts of Interest

 

[a] Pretrial Avoidance of Conflicts

 

If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either grant the motion or at least conduct a hearing on the matter to ascertain whether appointment of separate counsel is warranted.  Failure of the judge to do so requires automatic reversal of any conviction.  Holloway v. Arkansas, 435 U.S. 475 (1978).

 

[b] Disqualification of Counsel

 

A trial court has the authority to disqualify defense counsel, even over a defendant's objection, if it concludes that there is significant potential of a conflict of interest. Wheat v. United States, 486 U.S. 153 (1988).

 

[c] Appeal Based on Conflict of Interest

 

In order to overturn a conviction on the basis of a conflict of interest, the defendant must demonstrate that:

(1) an actual conflict of interest existed; and

(2) the conflict adversely affected the lawyer's performance.  The defendant need not show actual prejudice – i.e., that the outcome of the trial would have been different – only that the conflict “adversely affected” the lawyer's performance.

 

§ 14.03 Post-Conviction Proceedings

 

The Sixth Amendment right to counsel applies to sentencing hearings. Mempa v. Rhay, 389 U.S. 128 (1967).

 

The Sixth Amendment does not itself extend to criminal appeals.  (In fact, the federal Constitution does not even provide a right to appeal convictions, although every state provides at least one appeal of right in criminal cases, and grants courts discretion regarding subsequent appeals.)

 

However, as appellate procedures are subject to the standards of the Fourteenth Amendment equal protection and due process clauses, an indigent defendant seeking to appeal his conviction must be provided counsel for the first statutory appeal of right.  Douglas v. California, 372 U.S. 353 (1963).

 

The Fourteenth Amendment has been held to not require the appointment of counsel to assist indigent appellants for:

·        discretionary state appeals.

·        applications for review in the United States Supreme Court.

·        state habeas corpus proceedings.

·        post-sentencing probation hearings.

·        post-sentencing parole revocation hearings.

Ross v. Moffitt, 417 U.S. 600 (1974); Pennsylvania v. Finley, 481 U.S. 551 (1987); Gagnon v. Scarpelli, 411 U.S. 778 (1973).