Playing By Rules v. Ineffective Assistance of Counsel

Critics of the way the criminal courts work frequently complain that convicted criminals drag out the process with endless appeals, but a decision today from the Colorado Supreme Court aptly illustrates why the system is itself set up to generate multi-layered appeals.  In our legal system, a clear procedural mistake by the defendant’s lawyer can keep key evidence from the jury at trial, but when it does, this sets up an ineffective assistance of counsel claim in a motion for post-trial relief years later that could lead to a re-trial.The Colorado Supreme Court ruled without dissent today, in a fairly ordinary decision, in a criminal case about the procedural rules for introducing certain kinds of evidence.

Colorado law provides that if a criminal defendant is going to use expert testimony to address a mental condition, that his lawyer has to give advanced notice to the prosecution of the claim.  In this case, the defense claimed at trial that the defendant in a rape case, who has an I.Q. of 68, is prone to agreeing with whatever anyone tells him to say.  So, the defense wanted to argue with expert testimony that his confession should be doubted.  The Colorado Supreme Court held that this evidence was properly excluded because the defendant’s lawyer didn’t give the proper notice. This is bad news for the rape defendant convicted in this case in part on the basis of his confession which may have been untruthworthy given the defendant’s low I.Q..

But, the 6th Amendment of the United States Constitution, which applies to the states through the 14th Amendment to the Constitution, gives criminal defendants a constitutional right to effective assistance of counsel, as does the Colorado Constitution.  Our legal system does not hold criminal defendants fully responsible for the mistakes of their lawyers in the way that it does in civil cases.  Our system of justice says that an innocent person should not be in prison simply because their, often court appointed, lawyer made a mistake. 

It is hard to imagine a more clear case of a situation where a lawyer’s performance was deficient, as the Colorado Supreme Court just said that it was in this particular case, and where that deficiency prejudiced the defendant, by depriving him of one of his only credible defenses in the face of his own confession.  So, the case decided by the Colorado Supreme Court today (assuming that the defendant loses on issues reopened for consideration when the lower courts apply this opinion) is a classic case where the criminal defendant will be able to claim ineffective assistance of counsel and ultimately obtain a retrial.  Given the seriousness of the charge, it is also unlikely that the case will be made moot by the defendant’s release before trial.  This case is a post-conviction review motion based upon ineffective assistance of counsel waiting to happen.

But, at least in Colorado, as the Colorado Court of Appeals noted in a case last week, ordinarily, ineffective assistance of counsel claims are suppposed to be brought in post-conviction review, rather than in an appeal directly following a conviction.

In other words, if a judge gets a ruling wrong in a criminal case, the defendant may have the problem corrected relatively promptly, in a direct appeal of a conviction, which usually takes one to two years after a conviction.  But, if the defendant is harmed by his, often court appointed, lawyer’s mistake, several additional years of delay, during which the defendant is normally in prison, are typically involved.  When a defense lawyer makes a serious mistake, a post-conviction appeal is not just possible, but is the expected format in which a criminal defendant seeks review of a conviction.

This rule does have the effect of still maintaining an incentive for criminal defense lawyers to do a good job at trial for their clients.  Their clients will be hurt if they don’t, and the professional disposition of lawyers is such that they simply like winning, or at least, not hurting their clients.  But, this is cold comfort for a wrongfully convicted defendant unlucky enough to experience a bad result as a result of one government employee’s mistake (that of his defense lawyer) rather than another (the judge).

The rules weren’t set up to be inefficient in cases like this one by design.  Until the late 1960s, it was virtually impossible to argue that a conviction should be set aside for ineffective assistance of counsel, because the right of a criminal defendant to a lawyer in state court, where the vast majority of criminal cases are tried, was not well established.  The rules of criminal procedure, in contrast, have intellectual roots that are far older.  But, our highly adversarial system of criminal justice hasn’t yet fully come to terms with the idea that while it is adversarial, that if one side’s lawyer is an idiot, that the results are not binding.

None of this, of course, implies that the defendant in this case was not guilty.  Our legal system does not make mental retardation a full defense to rape charges, only an evidentiary factor to be considered by a jury when it determines guilt or innocence.  It is also one factor among many to consider at sentencing, within the fairly narrow boundaries of mandatory sentencing rules for sex offenses.  But, the defendant in this case does bear the cost of his lawyer’s procedural mistake, at the very least, with an extended prison sentence before review of the process that put him in prison is available.

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Andrew Oh-Willeke

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