The Difficulties Of An Appeal Based On The Ineffective Assistance Of Counsel

One common issue that's often brought up during the appeal of a criminal conviction is that of "ineffective counsel." In order to be a successful basis for appeal, however, there are some pretty stringent requirements that have to be met. If you're considering an appeal based on the ineffective assistance of your trial attorney, this is what you need to understand.

How does the law view your right to a defense?

The law guarantees you a right to counsel during your defense, but there's actually no law that guarantees your right to a perfect defense—or even a good defense. That's something that is often very hard for defendants to grasp. The court may acknowledge that your attorney made some serious mistakes without agreeing that you had legally ineffective counsel.

For example, your trial attorney may have been inexperienced or struggling with an overwhelming workload, especially if he or she was a public defender. He or she may have clearly made mistakes that an experienced attorney wouldn't have made. However, in order to win an appeal based on ineffective counsel, you have to prove that your trial attorney's errors were so serious that you were essentially deprived of a fair trial. 

What is the legal definition of ineffective counsel?

A case from 1984, known as Strickland v. Washington, set the minimum standard by which all cases of ineffective counsel are judged. There are two questions that have to be addressed when evaluating counsel's performance:

• Was the attorney's performance so deficient that you were effectively standing trial without your guaranteed right to counsel? If your trial attorney was reasonably competent and met the basic expectations of the court, your appeal won't pass this part of the test. 
• Did the attorney's error result in a prejudice that affected the final outcome of the trial? Even if your attorney's performance fell below the basic expectations, you still have to prove that it was a critical factor in the outcome of your trial.

What situations can meet the test?

It may surprise you what the courts have disregarded when determining whether or not a defense attorney's performance was deficient. For example, courts have routinely refused to allow appeals based on ineffective counsel even when the defense attorneys were alcoholic, drinking during the trial, or addicted to drugs. At least one attorney has stated that the standard for effective counsel is so basic that it's akin to simply checking to see if he or she is breathing.

However, there are things that cross the line and will result in an effective appeal:

• Your defense counsel didn't communicate plea offers to you in a timely manner, resulting in a conviction that led to an incarceration that was longer than what the plea offered.
• Your defense counsel incorrectly advised you what would happen if you accepted a plea deal (such as telling you that you couldn't be deported, even though you lack U.S. citizenship).
• Your attorney had a conflict of interest. For example, he or she was also representing another defendant in the case whose defense contradicted your version of events.
• Your attorney failed to file an appeal even though you requested it.
• Your attorney failed to file motions to suppress evidence that was seized without a proper warrant.
• Your attorney failed to interview witnesses that he or she had been told could provide evidence that supported your defense.

Appeals based on the ineffective assistance of counsel are not easy to win, especially without the help of an appellate attorney. It can be difficult for a layperson to even recognize what the courts will and will not consider legally ineffective. If you have been convicted of a crime (or have a family member who has been) and you suspect that ineffective counsel may have played a role in your conviction, talk to an appellate attorney as soon as possible about your case. Visit a site like http://www.pedersonlawrc.com for more information.