The Ineffective Assistance of Counsel Claim: Exploiting Trial Counsel’s Lousy Work

The Sixth Amendment to the United States Constitution guarantees the accused the right to effective assistance of counsel. In practice, however, a defendant who wishes to prove that he had incompetent or ineffective counsel at trial does not have an easy road to hoe in convincing the trial judge – or appellate court – to vacate a conviction.  As any of the top New York criminal appeals lawyers know, courts do not routinely grant motions for a new trial due to ineffective assistance of counsel as the result puts the defendant back to where he was prior to trial – without a conviction and out of jail.  That being said, if your lawyer works hard enough, a conviction after trial can be opened up due to counsel’s poor lawyering, no matter how bad the case is, no matter how long the sentence is – I know because we’ve done it. 

The Legal Requirements to Prove an Ineffective Assistance Claim: Strickland v. Washington

Last week, I discussed exploiting a lawyer’s unethical and otherwise lousy representation of a defendant; in this entry, the stakes are higher: vacating a conviction and sentence after a jury renders a verdict.  Under the Supreme Court’s decision in Strickland v. Washington, an ineffective assistance claim requires the reviewing court to determine whether “counsel’s representation fell below an objective standard of reasonableness,” and, if so, whether there “is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.”  466 U.S. 668, 688, 694 (1984).  A “reasonable probability” is one “sufficient to undermine confidence in the outcome” of the trial.  Id.  So not only must a convicted defendant show that his lawyer’s handling of his case was deficient, but he needs to prove that but for his errors, there is a very good chance that the trial would have resulted in an acquittal instead.  Bottom line, not an easy task to achieve even if the lawyer made a plethora of errors at trial — if the remaining evidence against the defendant was overwhelming.

A Properly Prepared Ineffective Assistance Claim Can Lead To a Big Payoff 

A lawyer who cross-examines poorly will not provide a basis for a successful ineffective assistance motion except under the most extraordinary circumstances.  A defense lawyer who fails to interview witnesses who could counter the prosecution’s evidence could provide such a basis, however.  And that is exactly what occurred in the case of New Jersey v. Iadipaoli, a case in which my client was convicted after a one day trial for sexually assaulting four young brothers.  I came into the case shortly after the defendant was remanded upon conviction, represented by a public defender at trial.  Within minutes of hearing my client’s story I was convinced he would be freed someday due to his lawyer’s incompetence: multiple eye witnesses who could counter the boys’ testimony were ignored by trial counsel without even being investigated.  With the prosecutors calling for a 140 year sentence, I felt fortunate at sentencing to keep it down to “just” 27 years.

After a motion for a new trial was denied and appealed, the New Jersey appeals court granted a hearing on the issue of ineffective assistance of counsel.  What did not help was trial counsel doing all that he could to stymie our attempts to free his former client.  Refusing to return our phone calls, revealing during the hearing that he hadn’t turned over his entire file (for a one day trial) all resulted in massive delays – while the client rotted in prison.  Finally, I had my chance to cross examine him and what was revealed, incredibly, was that two of the four victims had claimed during interviews with law enforcement that the defendant raped another child, his goddaughter.  Yet not only did that child deny that the defendant ever touched her but a forensic examination at a hospital revealed no such rape occurred.  Incredibly, trial counsel had no good reason as to why these facts – the forensic evidence of the lack of the assault to refute the false rape claims of two of the four purported victims – were not brought before the jury as they would clearly would have devastated the credibility of those two victim-witnesses.  After also mistakenly claiming that fact witnesses were character witnesses as his explanation as to why he did not call them at trial, trial counsel finally admitted during his examination that it was his practice to discuss trial strategy, including decisions about calling witnesses, with his client for the first time during jury selection.  At that point the judge halted the examination and granted our motion to vacate the conviction, noting that it can never be deemed trial strategy to fail to pursue an investigation.  The client was released from prison and never returned.

Not Every Defendant Has the Benefit of a Lawyer Who Will Fight For Him

Sadly, what occurred to this defendant at the hands of a public defender is commonplace in America: there really are two sets of justice, one for the poor and one for the wealthy who can afford retained counsel.  Had we not spent years digging up witnesses who could have testified on behalf of Mr. Iadipaoli, had we not spent the time interviewing his former lawyer’s private investigator, had we not doggedly stayed on top of his trial counsel and pushed for every last piece of paper in his files, our client would still be serving his decades-long sentence and probably would have died in prison.  As I said to reporters after our client was freed, “This is the sort of case that makes people sick.  The judge hates you, prosecutor hates you, the public hates you and other defense lawyers hate you.  Defense lawyers would rather represent a white-collar fraudster who stole $100 million.  But today this shows that no matter how deep a hole you are in … if you work, you can persevere.”

Upon being convicted after trial, defendants are often feeling hopeless; the truth is there are many mechanisms to overturn a conviction and making an ineffective assistance of counsel claim is one of them.  Call the ineffective assistance of counsel attorneys at the Law Offices of Jeffrey Lichtman at (212) 581-1001 to discuss your case today.