|D. Ineffective Assistance of Counsel: The Difficulty of Correcting Mistakes|
The Supreme Court has long held that the “the right to counsel is the right to the effective assistance of counsel.” In the case of Strickland v. Washington, decided by an 8–1 majority in 1984, the Supreme Court held that, to successfully claim ineffectiveness, a defendant must establish that the facts of the case satisfy a two-pronged test. First, counsel’s performance must have been deficient, meaning that “counsel’s representation fell below an objective standard of reasonableness.” Specific guidelines to determine whether an attorney meets an objective standard of reasonableness were rejected, but instead “the proper measure remains reasonableness under prevailing professional norms.” However, in evaluating a claim of ineffectiveness, a court “must be highly deferential” to defense counsel and “indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.”
In addition, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Assuming counsel’s deficient representation, there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The reason for this second prong of the ineffectiveness standard is because “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Or, as further explained in the Strickland opinion, since the purpose of the Sixth Amendment is “to ensure a fair trial, … [t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”
Only Justice Marshall dissented in Strickland, rejecting both the “performance” and “prejudice” prongs of the Supreme Court’s majority opinion. Respecting the performance prong—the “objective standard of reasonableness”—Justice Marshall complained “that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts.”
As for the defendant’s burden to show prejudice, Justice Marshall observed that “it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and argument would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer,” noting that “evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel.” To Justice Marshall, it seemed “senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.”
Since Strickland was decided, commentators have been virtually unanimous in their criticisms of the opinion. Some have echoed views of Justice Marshall, whereas others have accused the Supreme Court of being insensitive to the very serious problem of adequate representation. Most of all, the decision has been criticized due to the exceedingly difficult burden of proof placed on defendants in challenging counsel’s representation and because it has led appellate courts to sustain convictions in truly astonishing situations. One writer has summarized a few of the cases:
[T]he test has proved impossible to meet. Courts have declined to find ineffective assistance where defense counsel slept during portions of the trial, where counsel used heroin and cocaine throughout the trial, where counsel allowed his client to wear the same sweatshirt and shoes in court that the perpetrator was alleged to have worn on the day of the crime, where counsel stated prior to trial that he was not prepared on the law or the facts of the case, and where counsel appointed in a capital case could not name a single Supreme Court decision on the death penalty.
In a companion case to Strickland, the Supreme Court rejected an exception to its Strickland standard based upon external factors related to the nature of the defense services provided. In United States v. Cronic, the defendant was convicted of a complicated mail fraud scheme following a jury trial in which he was represented by a young, court-appointed lawyer with a real estate practice who had no jury trial experience. Although the case involved thousands of pages of documents and the government had taken four and one-half years to prepare its case, the defendant’s lawyer was afforded only 25 days. The United States Court of Appeals for the Tenth Circuit reversed the defendant’s conviction, inferring that the circumstances of the defendant’s representation meant that he had been denied the effective assistance of counsel. The court’s opinion emphasized the following factors, among others: the lack of time afforded counsel for investigation and preparation; the inexperience of counsel; the seriousness of the charges; and the complexity of possible defenses. Nevertheless, the U.S. Supreme Court reversed the Tenth Circuit and reinstated the defendant’s conviction, thereby rejecting the proposition that ineffective assistance of counsel could be inferred based upon the circumstances of the defendant’s case and counsel’s situation. As in Strickland, the Court presumed that the lawyer was competent and stressed that “the burden rests on the accused to demonstrate a constitutional violation.”
As a result of Cronic, it is extremely difficult to overturn a conviction by arguing that institutional deficiencies in public defense mean that ineffective assistance of counsel was rendered. Thus, for example, gross underfunding of a public defender program leading to high public defender caseloads, with representation furnished by untrained lawyers who have only meager support services, is not apt by itself to be sufficient to establish Sixth Amendment violations. However, the Court conceded in Cronic that, if there was a complete denial of counsel or “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” In addition, the Court in Cronic recognized that there could be circumstances where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”
Like the U.S. Constitution, state constitutions typically contain provisions guaranteeing the assistance of counsel. State supreme courts, therefore, could avoid the Strickland test for ineffective assistance by invoking their own state’s constitutional provisions on counsel and devising tests for ineffectiveness less stringent than the test contained in Strickland. In fact, however, only one state actually appears to have done so. The Hawaii Supreme Court has held that “specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence” must be shown and that these reflect “a possible impairment, rather than a probable impairment, of a potentially meritorious defense.” As the court further explained, Strickland’s test “has been criticized as being unduly difficult for a defendant to meet,” and thus “under Hawaii’s Constitution defendants are afforded greater protection of their right to effective assistance of counsel.”
In recent years, a narrow majority of the Supreme Court has found ineffective assistance of counsel under the Strickland test in several capital cases. However, successful challenges under Strickland are the exception both in the Supreme Court and in lower courts. Nevertheless, perhaps Strickland’s two-prong approach to ineffective assistance of counsel could be justified if it achieved the objective that the Supreme Court announced for its decision, namely, permitting society to have confidence that the outcome of the case is a just result. As shown in the next section, however, we cannot rely on our courts always to reach the correct result, and Strickland’s test for judging effective assistance of counsel has been unsuccessful in protecting the innocent, let alone ensuring that counsel has performed competently.
 McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
 Strickland v. Washington, 466 U.S. 668 (1984).
 While the focus of this section is on the two-prong test for determining ineffective assistance of counsel, a defendant is also denied the effective assistance of counsel when the state “interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Id. at 686. See infra note 124 for cases cited by the Supreme Court.
 Strickland, 466 U.S. at 688.
 Id. The Supreme Court further elaborated on this point by stating that “prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2nd ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides.” Id.
 Id. at 689.
 Id. at 692.
 Id. at 694.
 Id. at 692.
 Id. at 686.
 Id. at 707.
 Id. at 710.
 See, e.g., Yale Kamisar et al., Modern Criminal Procedure 1130–32 (10th ed. 2002). See also infra notes 116–118 for law review articles discussing Strickland’s shortcomings and problems.
 See, e.g., Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. Crim. L. & C. 242 (1997).
 See, e.g., Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths - A Dead End?, 86 Colum. L. Rev. 9 (1986).
 See, e.g., Richard Klein, A Generation Later: The Constitutionalization of Ineffective Assistance of Counsel, 58 Md. L. Rev. 1433 (1999); Martin C. Calhoun, How to Thread the Needle: Toward a Check-List Based Standard for Evaluating Effective Assistance of Counsel Claims, 77 Geo. L. J. 413 (1988); Jeffrey L. Kirchmeier, Drinks, Drugs, Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 Neb. L. Rev. 425 (1996) (stating that one of the major problems with the Strickland decision is the “almost insurmountable hurdle” created by the two prong test); Richard L. Gabriel, The Strickland Standard for Claims of Ineffective Assistance of Counsel: Emasculating the Sixth Amendment in the Guise of Due Process, 134 U. Pa. L. Rev. 1259 (1986).
 David Cole, No Equal Justice 78–79 (1999).
 United States v. Cronic, 466 U.S. 648 (1984).
 United States v. Cronic, 675 F.2d 1126 (10 Cir. 1982), rev’d, 466 U.S. 648 (1984).
 Id. at 1128.
 Cronic, 466 U.S. at 658.
 Cronic, 466 U.S. at 659. Cases cited in Cronic as examples of situations in which it would be appropriate to presume prejudice included the following: Geders v. United States, 425 U.S. 80 (1976) (right to a fair trial deprived when attorney-client consultation is barred during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (there is not a fair trial when summation is disallowed during a bench trial); and Cuyler v. Sullivan, 446 U.S. 335 (1980) (prejudice presumed when counsel labors under an actual conflict of interest).
 Cronic, 466 U.S. at 659–60. The Cronic decision is also discussed later in this report. See infra notes 24–30 and accompanying text, Chapter 3.
 See, e.g., H.I. Const. art. I, § 14 (“The State shall provide counsel for an indigent charged with an offense punishable by imprisonment”); N.Y. Const. art. I, § 6 (“In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel….”)
 State v. Wakisaka, 78 P.3d 317, 327 (Haw. 2003).
 Id. at 327 n. 10. In interpreting their state constitutional provisions for ineffective assistance of counsel, several state supreme courts have articulated their standards in ways that differ from the Supreme Court’s Strickland test. See e.g., Ryan v. Palmateer, 108 P.3d 1127 (Ore. 2005). Also, although Massachusetts and New York courts have stated that their tests for ineffective assistance of counsel under their state constitutions differ from the Strickland two-prong approach, an analysis of cases from these states suggests that there does not appear to be any meaningful difference between Strickland and what is required under state law. See, e.g., Commonwealth v. Urena, 632 N.E.2d 1200 (Mass. 1994) (although the court acknowledges that there are apparently two different but similar tests for ineffective assistance of counsel under Massachusetts and federal law, the nature of the difference is left unresolved); People v. Sowizdral, 275 A.D.2d 473, 474, 712 N.Y.S.2d 203 (2000) (“courts of this state have not adopted the Strickland two-prong analysis for ineffective assistance of counsel”); People v. Acevedo, 2007 NY Slip Op. 6451 (2007) (analyzing facts under both federal and state tests for ineffective assistance and reaching the same result).
 See Rompilla v. Beard, 545 U.S. 374 (2005) (lawyers who failed to review a court file that would have yielded possible mitigation evidence relevant to death penalty sentencing hearing failed Strickland’s test and were ineffective); Wiggins v. Smith, 539 U.S. 510 (2003) (lawyer’s failure to look beyond pre-sentence report and department of social services records to discover mitigation evidence in a capital case that showed years of abuse, homelessness, foster care, and physical torment, failed Strickland’s test and was ineffective); Williams v. Taylor, 529 U.S. 362 (2000) ( lawyer’s failure to discover and present certain mitigation evidence in a capital case sentencing hearing failed Strickland’s test and was ineffective).
 See, e.g., Martin C. Calhoun, How to Thread the Needle: Toward a Check-List Based Standard for Evaluating Effective Assistance of Counsel Claims, 77 Geo. L. J. 413, 457 (1988) (from the time of the Strickland decision until the time of the article the Supreme Court has rejected all of the ineffectiveness claims that it squarely addressed and survey of circuit court ineffectiveness cases shows that only 30 of 702 claims, or 4.3%, were successful).