The most often asked question after an individual has been convicted of a crime by far is, “What can I do if my lawyer didn’t do a good job?” This is, especially so, when that person has been wrongfully incarcerated, (i.e., they’re actually innocent, were excessively charges, excessively sentenced, or were legally not guilty), due, at least in part, to their attorney’s performance or lack thereof. Point blank, had the attorney done a better job in his or her representation, whether he or she did everything possible, negotiated the best deal, put forth more effort against the charges, or whether he or she may have ignored, disregarded, and/or overlooked something of extreme importance, the outcome of the proceeding(s) might have been different. In legal terms, this is called “Ineffective Assistance of Counsel”, and, because you are constitutionally guaranteed the right to the effective assistance of an attorney, it can be challenged after conviction in what most States call a post-conviction petition. The standard – the rules – for making that determination is the same, no matter what State you were convicted in.
Most people don’t overstand – whether they’re the accused or just some random member of society – that, in the prosecution’s overzealousness to obtain a conviction, most criminal proceedings are chocked full of errors. Prosecutors make mistakes, judges make mistakes and defense attorneys make mistakes. In crafting a petition seeking to obtain post-conviction “relief”, the hardest part, after recognizing the mistake or error, is trying to figure-out if it is worth pursuing, as, ultimately, whether you are entitled to any relief, will be entirely dependent upon whether or not the error actually “prejudiced” or potentially hurt your case.
Understanding whether or not you may be entitled to relief because of the ineffective assistance of counsel, can be done by reviewing the U.S. Supreme Court case Strickland v. Washington, 466 U.S. 668 (1984). Strickland established a two-prong test known as the “cause and prejudice” test. Generally, by this standard, you are required to show that your attorney’s action(s), or inaction(s), were unprofessional, and/or unreasonable, and if not for such, you would have likely had a more favorable outcome. For example, your attorney failed to object when the prosecution put a witness on the stand who testified not to what he actually saw, but that he, instead, had had a conversation with someone else who had told him that it was you who committed the crime. This is called “hearsay” and is inadmissible in any trial court in the United States, and qualifies as “cause” under the Strickland test. Prejudice is established, specifically if he was the prosecution’s only material (actual) witness, because had your attorney kindly reminded the court that the law does not allow an individual to testify to what someone else allegedly saw, or said, there would have been no other identification at trial of you as the person whom allegedly committed the crime; and, therefore, there is a reasonable probability that the proceeding would have resulted in a different outcome (a not guilty verdict)! A “reasonable probability” is a probability sufficient to undermine the confidence in the outcome, and the standard is not very strict – it only requires that there was a chance that, absent attorney error, the outcome would have been different, and “proceeding” doesn’t mean the outcome of your entire case. The claim of ineffective assistance of counsel can be applied to your guilty plea and/or sentencing process.
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