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October 2, 2014

"Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel"

The title of this post is the title of this intriguing looking article authored by Sara Mayeux now available via SSRN. Here is the abstract:

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer.

In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

October 2, 2014 at 05:22 PM | Permalink


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I hadn't realized how old this appellate argument was.

Then someone, please, explain why when such a ruling is handed down, the defendant does not get to sue the defense lawyer for his pain and suffereing, the court does not file a cross claim for its expenses. Ineffective counsel is negligence per se. Or, why isn't it?

Posted by: Supremacy Claus | Oct 2, 2014 7:31:20 PM

Ineffective Assistance is grounds for disbarment. While one Habeas may not be enough, it certainly raises malpractice insurance and if there's any kind of pattern, you get disbarred.

Almost no criminal defense attorneys want to be found ineffective. Even if they feel sympathetic to the client and had ideas about what they could have done differently, they'll defend their handling of the trial. So there's no gaming of the system if that's what you're implying. Defendants rarely sue for malpractice because they don't benefit from doing so. The only remedy they want is to have an effective lawyer for a fair trial.

Posted by: Erik M | Oct 2, 2014 8:50:16 PM

Erik M. Clients rarely sue because they never win. First you must prove that you would have prevailed at the original trial. In the case of negligence per se, that has been done by the appellate judge. The inadequate lawyer will then claim a litigation privilege. Another appellate court will have to rule it not absolute.


Then in the case of a capital offense, you must prove you could have collected a settlement from the state for its false conviction and false sentencing. So one must prove the elements of torts, one must redo and win the trial within a trial, and then prove that one can collect from the tortfeasing state agencies. Say, in a fair world one has a 50% chance of wining each stage, that ends in a final chance of 12%. No lawyer malpractice lawyer will take that chance of success on contingency. In reality, the odds are closer to 10% for success at each stage, with a final chance of 1 in a 1000.

Too bad. Because if you believe, as I do, the aim of torts is to prevent interminable cycles of revenge violence with money compensation for damage, as the Sharia does, as the common law does, then these nearly impenetrable barriers justify violence against the original defense lawyer.

I had not realized how old and settled law this argument was. If I were a defense lawyer, I would tell my client, I am going to make some serious errors on purpose. These are like under the surface mines, invisible but deadly, after a judge steps on one. "Sign this secret consent to do so, and promise to not sue me. They are a hedge against a guilty verdict. None will affect the jury deliberation."

Making these mistakes has become almost a standard of due care. So one day, I have to appear in court early the AM inebriated, and I fall to the ground right in front of the jury box. Helped up by the bailiff, I use curse words with slurred speech. Another day, I snore loudly at my seat, and pre-arrange for the defendant to dramatically pour the carafe of ice water over my head and expensive suit, yelling, "Wake up you idiot." A third day, I tell the judge I have to leave because of bad diarrhea, making sure the jury hears I suffer from bouts of irritable bowel syndrome, markedly worsened by the slightest stress, such as an adverse verdict. I may poop my pants if my client is found guilty. If the judge asks if I need to be replaced, I file an ADAAA complaint against him and his supervising judges.

Posted by: Supremacy Claus | Oct 3, 2014 12:58:39 AM

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