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Q&A: Ineffective Assistance of Counsel: Which Errors Are Worth Pursuing?

by Brandon Sample, Esq., and Dale Chappell

Question: I think my lawyer represented me poorly. How do I know if I have a claim of ineffective assistance of counsel?

Perhaps the most common question after a person’s conviction and sentence sinks in is whether their lawyer did all he could do for them. Did counsel negotiate the best deal? Should he have put in more effort and fought the charges? Was there something crucial that counsel overlooked or ignored?

Criminal proceedings are full of errors. Prosecutors err, judges err, and of course, defense lawyers err. But which errors matter? The hardest part in deciding to file a postconviction challenge to your conviction or sentence is trying to figure out which error(s) by your lawyer are worth pursuing. The U.S. Supreme Court has recognized that “attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.” True, but that doesn’t help you identify which ineffective assistance of counsel (“IAC”) claims you should raise. 

When is Counsel “Ineffective?”

Reviewing the Supreme Court’s standards on when a lawyer’s errors rise to the level of being harmful gives you some guidance as to what claims you should focus on. Most errors by your lawyer will fall under what the Supreme Court calls the “outcome-determinative standard.” In Strickland v. Washington, 466 U.S. 668 (1984), the Court created a two-pronged assessment of IAC claims, but the general rule is that if you can show that counsel’s error(s) affected the outcome of the proceeding, you have established “prejudice” and that your lawyer was constitutionally ineffective.

The Court defined “prejudice” as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Note that this “reasonable probability” standard does not mean “more likely than not,” but only that there is a chance the error undermined confidence in the outcome of the proceeding. And “proceeding” does not mean the outcome of your entire case, but just that a particular proceeding was affected by counsel’s error, such as your guilty plea proceeding or sentencing proceeding.

In short, if you can show your lawyer’s error(s) affected the outcome of a proceeding in your case, you have shown “prejudice” from the error(s) requiring postconviction relief.

Exceptions to the Prejudice Rule

There are some attorney errors that don’t even require a showing of prejudice; instead, prejudice is “presumed” because the error is so serious the outcome is automatically suspect. If your lawyer committed one of these errors, you don’t need to show there would have been a difference in the outcome.

For instance, if your lawyer operated under an actual conflict of interest that affected his performance (and not the outcome of the proceeding), then prejudice is presumed. A good example of this type of error would be when a lawyer represents two codefendants, and one of the codefendants testifies against the other or agrees to turn over incriminating evidence on the other in exchange for a better deal. The conflict here would be that the lawyer was put in a position requiring him to neglect his duty to be an advocate for both of his clients, by having to advise one client to harm another client. Note, however, that most conflicts of interest with counsel may be waived, and a lawyer representing two codefendants by itself is not automatically a conflict of interest.

Another error where prejudice is presumed is when a defendant is denied the assistance of counsel. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the U.S. Constitution requires the assistance of counsel in all criminal prosecutions. Thus, the Court then held in U.S. v. Cronic, 466 U.S. 648 (1984), that the “most obvious” IAC claim would be the complete denial of counsel. And this does not mean for the entire case. The denial of counsel for even a single proceeding can be a prejudicial error, if it was a “critical stage” of the case. Examples of this would be the denial of counsel at arraignment or at sentencing.

Denial of counsel could also occur if your lawyer “entirely fails to subject the prosecutor’s case to meaningful adversarial testing.” An example of this would be if your lawyer failed to effectively cross-examine a government witness, or if a host of counsel’s errors amounted to providing no adversarial testing of the prosecutor’s case.

Counsel could also be denied where the prosecutor or the court prevented your lawyer from consulting with you before a critical stage of your case, such as before your trial or plea hearing. Cronic, which was decided the same day as Strickland, said that denial of counsel is a “narrow exception” to the prejudice requirement under Strickland for IAC claims.

Prejudice is also presumed if your lawyer failed to file an appeal after you asked him to. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that if counsel’s error rendered a proceeding “entirely nonexistent,” then Strickland’s prejudice requirement doesn’t apply. However, the Court did distinguish that counsel’s mere failure to “consult” with you about an appeal would require a showing of prejudice. But the Court was clear that you don’t have to prove you would have won on appeal or that you had good issues for an appeal. The forfeiture of the proceeding itself is all you need to show. Similarly, if counsel waived your right to a jury trial without your consent, prejudice is also presumed, because counsel’s error caused you to forfeit your constitutional right to a trial, and you don’t have to show you would have won at trial, either. Additionally, prejudice is presumed when counsel concedes a defendant’s guilt, over the defendant’s objection, during trial.

As you can see, IAC claims can be quite diverse. But the “winners” are those where you can show that your lawyer’s errors affected the outcome — that the outcome would have been different absent the errors — or that the error was grave enough to be presumed prejudicial off the bat. 


Brandon Sample is an attorney and criminal justice activist who provides federal habeas representation across the United States. Learn more about Brandon at Dale Chappell is a staff writer for Criminal Legal News and Prison Legal News.   

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