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Effectiveness Is Not Perfection or Clairvoyance

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The Constitution guarantees counsel for defendants, but what does that mean beyond appointment of a person who is a member of the bar?  Will a hopeless incompetent who does nothing for the client do?  No.  Is an absolutely perfect performance that no one can find the slightest flaw in, even in hindsight, required?  No.  Where do we draw the line between those two extremes?  It's complicated.

The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office.  As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."

No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly.  That is how it was intended, but that is not how it is applied in practice.  Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.

Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms.   "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."
Kulbicki's lawyers, in 1995, did not foresee the demise of Comparative Bullet Lead Analysis, a technique then nearly universally accepted but now discredited.  The ineffectiveness holding was based on one obscure and equivocal report that was published in 1991.  The decision is clearly wrong as a matter of Sixth Amendment jurisprudence, and the Supreme Court reversed summarily and unanimously.  "The Court of Appeals demanded something close to 'perfect advocacy'--far more than the 'reasonable competence' the right to counsel guarantees."

There should be a vehicle to reexamine cases when a later-discredited forensic technique was used.  In many, probably most, cases, other evidence conclusively proves guilt, and no change in the judgment is required.  In a few, though, there has been a miscarriage of justice which must be corrected.  Ineffective assistance claims, however, are not the vehicle.  It would be completely unrealistic to have expected defense lawyers at that time to anticipate this development.

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