This post is written in a time of turmoil and uprising. In this year alone, 661 people have been shot and killed by the police. Even though George Floyd gained the most media exposure, it is important to note that several innocent individuals were shot subsequent to Mr. Floyd’s murder, including a man who was shot in the back several times in front of his children.
Police brutality is not the only form of corruption that plagues the United States.
Prosecutors often withhold and fabricate evidence while prosecuting cases. Nowhere is this more evident than in the state of Texas. Texas leads the nation in wrongful convictions. It has sent more innocent people to prison than any other state in the nation. As of 2020, Texas has sent 388 innocent people to prison since 1989, with 92 of those people being victims of prosecutorial misconduct.
How does this happen? One of the biggest contributors to unchecked state power is ineffective defense lawyers. When defense lawyers do not do their jobs, a variety of horrible outcomes arise: false evidence gets presented, junk science is used to convict, and innocent people get sent to prison. This extends over to the police, as they continue to plant evidence, lie under oath, and kill innocent people, simply because no one will stand up to them.
So, what is ineffective assistance?
Its bad lawyering. Its hiring a defense lawyer to advocate for you, but instead the lawyer neglects your case and resets it for years. It’s getting a defense lawyer appointed to your case, who in turn conducts no independent investigation of the facts. It’s a defense lawyer who is more vested in your punishment than your protection. “Bad lawyering” takes on many different faces and forms.
From a legal standpoint, why are people interested in bad lawyering- or ineffective assistance? If you have been convicted of a crime, or put on community supervision, the sentence is valid only if the defendant received effective representation. It’s one of several constitutional protections that every defendant is entitled.
If the defendant did not receive effective representation, then he can overturn the judgment, simply because your counsel was a bad lawyer. He does not need to prove innocence nor establish that he would have been acquitted. Instead, he must show that his lawyer did not know what he or she was doing and that this bad lawyering materially affected the case.
Technically speaking, “bad lawyering” means that a defense lawyer did not live up to “prevailing professional norms.” This means that during representation, the lawyer did not file pretrial motions, make an argument, investigate, etc. Sometimes a lawyer is allowed to step out of these norms, such as forgoing an objection during trial. However, if this happens, it must be based on “sound trial strategy.” There is no definition of what this means- the lawyer’s decision and its reasonableness is assessed in connection with the totality of representation.
So, let’s assume that you actually have a lawyer who failed to do his job — or engaged in “deficient performance.” What happens? If you make an argument that you previous counsel engaged in deficient performance, then the court will ask you “what is the prejudice?” You must show that the deficient performance undermined the confidence of the outcome. This means that there must be some “reasonable probability” that the outcome would have been different but for the lawyer’s mistake.
This above described bar is incredibly low to meet. Take, for example, the Burdine case. In this case, counsel fell asleep during trial. When the court was asked to review the case for ineffective assistance, the court asked, “did the attorney fall asleep during important parts of the trials?” The court subsequently affirmed the conviction and found no problem with the sleeping attorney.
Cases being reversed for ineffective assistance are incredibly rare. If you search the term “ineffective assistance of counsel” in Westlaw for Texas cases, the search results max out at 10,000 results just at the state level, with the Houston area providing the lion share of results. A very slim margin these cases have ever been granted.
So, in sum, ineffective assistance is bad lawyering.
Not just bad lawyering, but unprofessional conduct that has some material bearing on the outcome of the case. Even if the lawyer makes a mistake, his error will not be considered ineffective if it is based in “sound trial strategy.” There is no definition of what this means, and the misconduct is analyzed in connection with the entirety of the lawyer’s representation for reasonableness.
This legal framework gives defense lawyers a very low bar to meet. This has invited a whole host of embarrassingly bad lawyers into the criminal defense industry. Cheap lawyers who take $500 for a murder. Volume lawyers who take on felony cases in mass, both in the private and appointed sector. Greedy lawyers who spend most of their working hours collecting fees and blowing the money on marketing and useless overhead. All three of these categories of defense lawyers do not care about their clients. All of their conduct is low quality and disreputable, but yet somehow effective under the constitution.
This industry is filled with bad lawyers.
Those bad lawyers get away with major errors and mistakes every day, simply because they can. Bad defense lawyers ruin the lives of their clients. However, the most damning impact ineffective lawyers has on society is their unprofessional conduct enables those in power to abuse their positions. Ineffective defense lawyers are the reason George Floyd is dead today.
If you are reading this because you or a loved one was victimized by a bad lawyer, you may be asking “what legal recourse do I have against my previous counsel?” You can prosecute your previous counsel for ineffective assistance of counsel with a legal pleading called an “Application for Writ of Habeas Corpus” under Chapter 11 of the Texas Code of Criminal procedure. The most frequently filed form of these writs are the 11.07s, which attack final convictions, but there are other writs that can be filed.