Defense Lawyers Fear Retreat on Ineffective Assistance Standards
Criminal defense lawyers fear the U.S. Supreme Court will use a recently granted case to further retreat from standards requiring effective assistance of counsel.
The standards set in the 1984 case Strickland v. Washington required a defendant alleging ineffective assistance to prove his lawyer’s conduct fell below “an objective standard of reasonableness” and that the poor representation prejudiced the case.
Donald Verrilli of Jenner & Block says the tide seems to be shifting against ineffective assistance claims, Legal Times reports. Verrilli argued two ineffective assistance cases before the U.S. Supreme Court, winning one and losing the more recent case.
“My own sense is that we are being sent a different signal by the court,” Verrilli said. With new justices on the court, “I see some steps backward.”
The Supreme Court accepted an appeal earlier this month in which a death-row inmate is seeking to get his conviction overturned because of bad plea bargain advice. The state of Idaho argues in the case, Arave v. Hoffman, that the inmate should be required to show gross negligence by his lawyer.
Bryan Stevenson, executive director of the Equal Justice Initiative in Alabama, told lawyers attending a recent conference on Strickland that he is concerned about a possible ruling for the government. “Part of me is very scared” about the outcome, he said.
