Supreme Court Review: Ineffective Assistance of Counsel

There are two ineffective assistance decisions worth discussing. I won’t say a lot about either one, though, because it’s not clear how much to read into them. For one thing, as is often the case with the Court’s ineffective assistance decisions, they turn on a lot of case-specific factual analysis, and we don’t get much by way of broad, clear statements of law. For another, both are decided in the habeas context, where there is a lot of deference required for the underlying state-court judgments. In these cases, we are often left uncertain whether and to what extent the decisions have any significance outside of habeas.

The first of the cases is Cullen v. Pinholster, 131 S. Ct. 1388 (2011). This was a capital case. The Ninth Circuit awarded habeas relief because defense counsel did little investigation to develop mitigation evidence for the sentencing hearing. This has been a recurring subject of concern in the Supreme Court’s ineffective assistance cases.  


In fact, this was precisely the defendant’s claim in the seminal ineffective assistance case, Strickland v. Washington. The Court denied relief in Strickland, but then in a couple of more recent cases (Wiggins v. Smith and Rompilla v. Beard) seemed to adopt a higher standard for investigation and awarded relief. Cullen now seems to back away from the more recent cases and restore the more permissive standard of Strickland. The Court in Cullen thus overturned the Ninth Circuit decision, affirmed the state courts’ ruling that defense counsel made reasonable strategic decisions, and denied relief.

A couple of aspects of the majority opinion bear note. First, the majority laid heavy emphasis on the language in Strickland that makes the ineffective assistance analysis very case-specific. Here is a taste of what the Court said:

Beyond the general requirement of reasonableness, “specific guide­ lines are not appropriate.” Id., at 688. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions . . . .” Id., at 688–689. Strickland itself rejected the notion that the same investigation will be required in every case. Id., at 691. It is “[r]are” that constitutionally competent representation will require “any one technique or approach.” Richter, 562 U. S., at ___ (slip op., at 17). (23-24)

The Court thereby undercut the emergence of some uniform standards for investigation from Wiggins and Rompilla. It’s interesting, and a little unfortunate I think, that while the Court emphasizes the value of clear guidance for police so much in the Fourth Amendment context, there has been such steadfast and now renewed resistance to providing clear guidance for defense counsel in the Sixth Amendment context.

Second, the majority faulted the dissenters (slip op. at 24) for failing to produce any evidence that Pinholster’s legal representation was “inconsistent with the standards of professonal competence that prevailed in Los Angeles in 1984,” when Pinholster was convicted. The majority noted that analogous evidence was used by the defendant in Wiggins. The suggestion here is that, far from using national standards for good defense representation as the benchmark, what counts as effective assistance is intensely tied to a particular place and time, and woe be to the defendant who neglects to present evidence of the relevant local practice standards. Of course, this may work to the advantage of defendants who are able to show high standards in the place where they were convicted . . . .

The second notable ineffective assistance case from last term was Premo v. Moore, 131 S. Ct. 733 (2011). Once again, this was a Supreme Court reversal of a Ninth Circuit habeas grant.

Moore’s lawyer advised him to accept a plea deal in light of multiple confessions he had given to a killing. Moore took the deal, but later argued that his lawyer should have moved to suppress one of the confessions before advising Moore to plead guilty. In light of the availability of the other confessions, however, the Supreme Court held that Moore satisfied neither the prejudice nor the performance prongs of Strickland.

Premo seems much more straightforward to me than Cullen—an easy application of the Strickland standard. Indeed, the Court was unanimous as to the result.

The Court could have reversed the Ninth Circuit’s decions without saying anything of a more general character about effective assistance in the plea-bargaining context. However, the Court went on to hold forth at length about the importance of preventing defendants from using Strickland to undo plea deals. Here is some of the language:

These considerations make strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions far removed from immediate judicial supervision. . . .

Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect. . . . The prospect that a plea deal will afterwards be unraveled when a court second-guesses counsel’s decisions while failing to accord the latitude Strickland mandates or disrgarding the structure dictated by AEDPA could lead prosecutors to forgo plea bargains that would benefit defendants, a result favorable to no one.

I think it unfortunate for the Court to suggest, as it seems to be doing, that Strickland should be applied in an even stingier fashion in the plea-bargaining setting, and neither of the reasons offered by the Court strike me as especially persuasive.

First, there is the argument that judges will be even more prone to overly aggressive second-guessing in plea cases than in trial cases, apparently because plea-bargaining is so “nuanced,” because it is “farther removed” from judicial supervision, because the defense lawyer may have had special knowledge about the prosecutor or judge, and because the record is so much thinner than in a trial. I have a hard time seeing how these considerations make the second-guessing any systematically less reliable in plea cases. Sure, there are a lot of intangibles that will not appear in the record, but are they really any more important than all of the intangibles at trial — the demeanor of witnesses, the body language of jurors, the mood of the judge and prosecutor, and so forth? Regardless of the mode of conviction, a post-conviction court will never be able to grasp everything that happened pre-conviction, and I see no reason to assume that the barriers to truth-finding are fundamentally greater in plea cases than trial cases. Moreover, in either sort of case, evidentiary hearings are available post-conviction to help courts to fill in the gaps; a thin record at the time of conviction does not necessarily mean that a post-conviction court must make a decision based on pure speculation.

As a second reason that “strict adherence to the Strickland standard” is “all the more essential” in plea cases, the Court suggested that otherwise prosecutors would “forgo plea bargains that would benefit defendants, a result favorable to no one.” There are several problems with this line of reasoning. First, it proves too much — there is no limiting principle. If it helps defendants to tighten the screws a little on ineffective assistance claims, it would help them even more to eliminate Strickland entirely in the plea context. Indeed, if we were to accept the premise that constitutional law should never be interpreted so as to make plea-bargaining less attractive to prosecutors, then there are a whole lot of other rights that would have to be eliminated, too.

Second, most plea bargaining is a quick and dirty affair, with the prospect of post-conviction relief based on ineffective assistance a distant and highly speculative possibility. I have a hard time believing that ratcheting the Strickland standard in plea cases up or down a little will have any substantial impact on what prosecutors are willing to offer in the normal run of cases.

Third, even if prosecutors became less generous with plea offers, that is assuredly not “a result favorable to no one.” It would be harmful to some defendants, but others who would have pled will go to trial and win. Moreover, prosecutors have limited time and resources. Going to trial more frequently is not cost-free for them — something has to give. If prosecutors are less generous in some cases, they will have to be more generous in others . . . or simply decline prosecution — again, a highly favorable result to the beneficiaries.