Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. Last year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective assistance of trial counsel claims in federal court. Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective assistance of trial counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective assistance of trial counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective assistance of trial counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures

Culture as a Structural Problem in Indigent Defense

In Part I, I will describe the ways in which today\u27s right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. Finally, in Part III, I will explore how a focus on improving the culture of indigent defense delivery systems through structural change can and should infuse current reform proposals and inform change going forward

Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions

Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system

A Structural Vision of Habeas Corpus

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the rights and welfare of individuals. 19 Conversely, the right to vote belongs to individuals, but one of its most important functions is to prevent the systemic distortion of political power. The law assigns the individual voter a right partly to vindicate his individual interests, but the assertion of that right is also meant to prevent the more general abuses that might follow if whole groups of voters were excluded from the political process.20 This Article proposes that federal habeas could be profitably reimagined along parallel lines, with the rights of individual petitioners functioning as levers for prompting systemic criminal justice reforms. In so doing, the Article departs from a long tradition of understanding habeas review as a straightforward matter of individual rights, the aim of which is to remedy legal violations that occur in particular petitioners\u27 cases. This individualist orientation dominates existing theories of habeas corpus, uniting those who would reform habeas by making it more broadly available with those who have proposed narrowing or streamlining reforms. In the former camp, scholars such as Larry Yackle21 and Gary Peller 22 have advocated eliminating many procedural barriers to federal habeas review.23 In the latter camp, Henry Friendly, 24 John Jeffries, and William Stuntz25 have recommended restricting habeas petitions that do not allege factual innocence; scholars building on Paul Bator\u27s process theory26 have focused on whether individuals had a fair opportunity to raise their claims in state court;27 and still others have argued that federal habeas should be a forum for some constitutional criminal procedure claims (such as claims of judge or jury bias) but not for others (such as the unreasonableness of a police search).28 On all sides, the literature is large. But from each perspective, these scholars share the assumption that the point of federal review of state convictions should be to correct errors in individual cases. They only differ as to which errors they think are worth correcting-process errors, guilt-innocence errors, or errors affecting certain favored federal rights

Incorporating Social Science into Criminal Defense Practice

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth versus getting suspects to say whatever the interrogator wants to hear? Courts have also shown more willingness in recent years to incorporate social science data into their decisionmaking on criminal justice issues. Perhaps the most prominent example is in juvenile adjudications. Studies on juvenile brain development were an integral part of the Supreme Court\u27s decision in Miller v. Alabama\u27 banning automatic life without parole for juveniles as cruel and unusual under the Eighth Amendment. Lower courts have also relied on social science data to inform the role that a suspect\u27s race should play in Fourth Amendment inquiries. For example, in Commonwealth v. Warren, the Massachusetts high court relied on data about racial profiling in Boston to discount the relevance of a suspect\u27s flight in the Fourth Amendment analysis of whether there was sufficient reasonable suspicion to stop. More recently, the Ninth Circuit Court of Appeals agreed that social science data about racial profiling in Seattle should similarly inform the inferences to be drawn from an individual who decides to step away, run, or flee from police without a clear reason to do otherwise . And many lower courts have considered social science research when making decisions about whether to admit forensic science, eyewitness identifications, and confessions. These are just a few of the many possible ways that defense attorneys can leverage social science to help their clients. So how does a defense attorney find and harness this data to help clients? And what are the evidentiary and legal tools that defense lawyers can use to incorporate social science into their practice? There are a number of ways to learn about relevant social science research. The National Academy of Sciences, Rand Corporation, Sentencing Project, and Pew Research Center have websites where they collect and publish reports relevant to criminal law and criminal justice. And many legal scholars are now writing law review articles, blogging, or posting social science research on social media. Just as defense attorneys search for precedent when thinking about how to craft their legal arguments, so too should they search for helpful social science

Disentangling Administrative Searches

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court\u27s conflation of two distinct types of searches within one doctrinal exception-namely dragnet searches of every person, place, or thing in a given area or involved in a particular activity and special subpopulation searches of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches

Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere. The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed

Litigation Strategies for Dealing with the Indigent Defense Crisis

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent defense crisis is a problem that our criminal justice system can no longer afford to ignore

The Illusory Right to Counsel

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the right to a jury trial and had a bench trial in front of a judge who, in the past, had been disciplined twice for discriminating against people of the defendant\u27s race. She is convicted and sentenced to life without the possibility of parole. She appeals and gets new counsel, but her appellate attorney fails to raise the most meritorious legal claim-namely, that her trial attorneys were ineffective for failing to investigate her case. She loses on appeal. She finds a post-conviction attorney who raises the incompetence of her trial attorneys in a post-conviction motion filed in the state courts, but the state courts say that she should have raised that issue on appeal and it is now waived. Her post-conviction attorney then files a federal habeas corpus petition alleging that she received constitutionally ineffective trial counsel. The federal district judge-a Reagan appointee-has a hearing and finds that she had woefully ineffective assistance of trial counsel and grants her petition, noting her probable innocence, only to have the United States Court of Appeals reverse and reinstate her conviction. Even though she had terrible trial counsel, she cannot get habeas relief, because she failed to raise that claim at the appropriate time-namely, on appeal. If her appellate attorney was constitutionally ineffective, it might excuse her failure to raise the trial attorney ineffectiveness claim properly, but her state postconviction attorney failed to raise a claim about the incompetence of her appellate counsel so that claim is now also waived. Absent clemency, she must spend the rest of her life in prison even though everyone acknowledges that she had a sham of a trial. This is a real story and not just a law school hypothetical,\u27 and it is representative of what happens in a shocking number of criminal cases across the country. The United States Supreme Court has described the right to effective counsel as \u27necessary to insure [the] fundamental human rights of life and liberty[.] \u27 2 In practice, however, the right to counsel in our criminal justice system is, in many respects, illusory. Not everyone is entitled to the assistance of trial counsel and even those who are often have trial attorneys who are unable or unwilling to provide effective representation. And the picture only gets worse at the appellate and postconviction review stages as litigants run into increasingly complex procedural barriers that prevent them from having their ineffectiveness claims heard. No symposium designed to address crises in the legal profession would be complete without a discussion of our systematic failure to provide competent legal representation to criminal defendants. In these remarks, I will analyze each stage of the criminal process from the trial to direct appeal, through the state post-conviction process, and into federal habeas corpus proceedings and explain how, at each stage, criminal defendants routinely face the threat of incarceration (or continued incarceration) without the aid of competent counsel. In addition to failing to provide effective representation, I will demonstrate how the criminal justice system essentially prevents defendants from ever being able to challenge their counsels\u27 ineffective performance, thus rendering the right to effective counsel a right without a remedy. Finally, I will offer some possible suggestions for ways to reform the criminal justice system so as to restore meaning to the fundamental right to counsel