Gideon Alert: Innocence Project reports 81% of innocent exonerees' IAC claims wrongly denied

BY David Carroll on Saturday, September 11, 2010 at 7:07 AM

A new report by The Innocence Project documents how difficult it is for defendants to win their claims that their trial attorneys provided ineffective assistance of counsel (IAC). Of the first 255 people exonerated through DNA evidence, approximately 1 out of every five had raised claims in their appeals that their trial attorney was ineffective.  Appeals courts rejected those claims in the majority of cases (81%).

Released in early September 2010, Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First 255 DNA Exoneration Cases reports that half of the appeals raised multiple ineffectiveness claims, including “defense lawyers who: failed to present defense witnesses (often to establish/confirm an alibi); failed to seek DNA testing or have serology testing done to try to exclude the client; failed to object to prosecutor arguments or to evidence introduced by the state; and failed to interview witnesses in preparation for trial or to cross examine state witnesses.”  If defendants are unable to win ineffectiveness claims when they are factually innocent in the most high profile cases where resources are more readily focused, what does that say about the chances of indigent defendants in lesser felony or misdemeanor cases?  In many of the most deficient public defense systems in our country, the attorney representing a client at the trial-level - who may have an unmanageable workload or is financially indebted to the judge for his next appointment or contract - is the same person appointed to handle the direct appeal.  If “ineffectiveness” is not raised on direct appeal, the issue is lost until post-conviction where it is too often the case that a defendant does not have a right to counsel.

The Innocence Project’s report highlights a false presumption in the United States Supreme Court ineffectiveness threshold set out in Strickland v. Washington.  As the report correctly details, “The Supreme Court set a two‐prong test to determine ineffectiveness ‐ the counsel's representation must fall below an objective standard of reasonableness, and there must be reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  However, Strickland also requires that courts “must be highly deferential …. A court must indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.”  In short, the Strickland presumption of “reasonable” assistance of counsel is rooted in the mistaken belief that states have developed right to counsel systems that meet the expectations demanded by Gideon v. Wainwright and its progeny.  The majority of states have not done so.

Michigan is one of the most systemically deficient right to counsel systems in our country.  Read the story of the ineffective assistance of counsel provided to Eddie Joe Lloyd and how The Innocence Project was able to win his exoneration that opens David Carroll’s testimony before the United States House Judiciary Committee, Sub-Committee on Crime, Terrorism and Homeland Security on March 26, 2009.