As an accompaniment to the surge of litigation, we have also witnessed an increase in the claims of ineffective representation by counsel. As more and more litigants are called upon to respond to such claims, the appellate courts have been forced to delineate a basic threshold of competence. Not only is the standard by which counsel is deemed effective or ineffective constantly changing, but also decisions of the higher courts have been devoid of a guideline through which future problems may be anticipated. The review of case law below traces the evolution of both state and federal decisions during approximately the past fifteen years in an attempt to demonstrate the manner in which such claims are resolved.
I. Historical Backdrop
In two cases decided in the mid-eighties, the Supreme Court of the United States elaborated on the appropriate standards for judging claims of ineffective assistance of counsel.1 United States v. Cronic involved a conviction for mail fraud which was reversed by the Tenth Circuit on the grounds that a young attorney who was inexperienced in criminal law was given only twenty-five days to prepare a complex matter for trial. While ineffectiveness was found by the Tenth Circuit on the basis of these factors alone, the Supreme Court reversed this judgment and required a finding of actual prejudice to the defendant.
In Strickland v. Washington, where it was held that the defendant was not denied effective assistance of counsel because he failed to affirmatively prove prejudice, the Supreme Court went on to define this prejudice as a "reasonable probability sufficient to undermine confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been different."2 The Strickland Court noted that future courts need not ascertain whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of these alleged deficiencies.3
Three years later in Pennsylvania v. Pierce,4 the Supreme Court of Pennsylvania unequivocally
established that the defendant must show prejudice in order to emerge successfully from an
ineffectiveness claim. Confronted with what had been argued as uncertainty on this subject in its earlier
decision of Pennsylvania ex rel. Washington v. Marony,5 the Pennsylvania Supreme Court went on
to note that the protection granted under Article 1, §9 of the Pennsylvania Constitution was neither
greater nor lesser than the federal standard announced in Strickland. At least regarding future
consideration, a complaining defendant was not only required to show ineffectiveness on the part of
counsel but also carried the additional burden of depicting resulting prejudice.
With the end of the eighties came a further subdivision of the two-prong test of Strickland and Pierce by the Supreme Court of Pennsylvania in Pennsylvania v. Durst. The Durst Court required a petitioner to establish the following: (1) that the issue, argument, or tactic which had been foregone by counsel had arguable merit; (2) that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interest; and (3) that counsel's commission or omission prejudiced the defendant.6
Before proceeding to examine categories detailing specific instances of ineffectiveness, it is important to realize that the constitutional guarantee of effective assistance of counsel not only applies to juvenile proceedings7, but has also received favorable greeting in summary offenses where the effective conviction was not de minimus.8 Plea proceedings, including investigation and negotiation9 are not immune from the right to conflict-free representation: indeed, the proceeding upon which the Strickland Court opined was not a trial but rather a sentencing proceeding following a guilty plea to first degree murder.
If, however, the defendant is represented on appeal by the same attorney who represented him at trial, raising an ineffective assistance claim is not practical and thus not waived by the defendant.10 Further, where the claim of ineffectiveness is based on a collateral attack, the post-conviction relief act renders the prejudice requirement more stringent than those claims which are raised on direct appeal.11
II. Basic Qualifications Of Counsel
Exceptions do exist, of course, to the requirement that a defendant claiming ineffective assistance of counsel must show prejudice. At the start of the nineties, the Second Circuit Court of Appeals held that a defendant represented by a New York attorney, who was specially admitted to try the case in Vermont and who had obtained bar admission in New York by fraudulent means, was entitled to relief without having to prove prejudice.12 One year later, this same circuit held that representation in a criminal matter by an attorney with an admitted physical incapacity entitled the defendant to a new trial without having to demonstrate prejudice.13
In the early nineties, however, the Tenth Circuit held that legal assistance provided by an attorney who, unbeknownst to anyone, had been disbarred seven days before trial was not per se ineffective.14 Three years later, the Third Circuit held that an attorney, whose license was revoked for unrelated professional conduct after a defendant's trial, did not provide ineffective counsel.15 Following a similar philosophy, the Fifth Circuit, in 1998, failed to find ineffectiveness in the fact that an attorney had been barred from practicing law at the time that he represented the defendant.16
Also on the federal level, in the mid-nineties, prejudice was presumed where the defendant was verbally assaulted by defense counsel17, and falling asleep for extended periods of time was held to constitute ineffective assistance.18
III. Conflict Of Interest
The possibility that a defendant received ineffective assistance due to counsel's divided interests has served as the subject matter of numerous cases. Thematic to these cases is either the personal activities of the attorney, the attorney's prior representation of individuals connected with the case, or the attorney's joint representation of several defendants in the same action.
a. Divided Loyalties
In the mid-eighties, the Third Circuit held that the Sixth Amendment guarantee of effective assistance of counsel comprises two co-relative rights: the right to counsel of reasonable competence and the right to counsel's undivided loyalty.19 The Zepp Court found ineffectiveness in the fact that defense counsel faced potential criminal liability on the same charges for which the defendant was being tried.20 The Ninth Circuit has held counsel was likewise ineffective when a prosecution witness accused him of purchasing some of the stolen goods in question.21 In addition, the Sixth Circuit found defense counsel's subsequent indictment failed to establish per se conflict of interest.22
Where defense counsel did not inform the defendant that he was under investigation by the same prosecutor and further failed to institute plea bargaining, counsel was ruled ineffective.23 In a situation where an attorney was required to present a defense that inculpated a former client, the petitioner was at least entitled to a hearing on whether or not an impermissible conflict existed.24 While these cases required a showing that the conflict actively affected counsel's performance, they did not necessitate that the defendant show prejudice.
b. Dual Representation
Situations involving conflict claims due to the fact that an attorney represented someone connected with the litigation on a prior occasion, as well as those involving the joint representation of defendants are often decided in advance of the actual representation. Where a conflict scenario becomes apparent, there exists a duty to bring the issue to the Court's attention and move for the disqualification of offending counsel if necessary.25 If a defendant can show that his attorney actively represented conflicting interests and that this actual conflict adversely affected the lawyer's performance, no further showing of prejudice is required.26 At a pretrial hearing before the trial judge, the defendant is asked to waive his right to claim ineffective assistance of counsel at some future date in order to allow counsel's continued representation. In some instances, the Court is asked to determine whether counsel's prior representation of a witness might result in restricting the attorney's cross-examination of that witness due to confidential facts disclosed in the past. In the event that the trial court disqualifies defense counsel, that order is not immediately appealable in the federal system27, while it is so appealable in Pennsylvania.28
The Pennsylvania Superior Court has recognized a presumption in favor of a defendant's counsel of choice and requires that presumption to be overcome by a demonstration of either actual conflict or a showing of serious potential for conflict.29 The fact that an attorney representing witnesses before an investigating grand jury, was formerly associated with an attorney representing the target of the grand jury investigation is not sufficient grounds upon which to disqualify the attorney representing witnesses.30 It is the same court, however, which found that an attorney's representation of a subsequent client whose interests were materially adverse to a former client in a case substantially related to matters in which he represented the former client was an impermissible conflict of interest which required removal.31
The principles involved in deciding conflict of interest cases which deal with the multiple representation of defendants further transcend to matters involving the defendant's prior representation of a witness.32 The Third Circuit not only disqualified an attorney who had previously represented the employees of the defendant, who would be testifying for the government and against the defendant at trial, but also took the opportunity to suppress statements of the employees given to counsel on the basis of the attorney-client privilege.33 Indeed, the earlier representation of a wife barred an attorney from representing her husband in an action dissolving a marriage.34 Further, an actual conflict was presented by the fact that defense counsel represented both the defendant and a Commonwealth witness.35 Even the overwhelming weight of evidence could not justify the denial of relief upon a finding of actual conflict of interest by counsel's simultaneous but undisclosed representation of a DEA agent who testified against the defendant at trial.36 Exemplifying the logic behind the rule was Pennsylvania v. Westbrook, a case where the Defender Association represented both the defendant and the defendant's brother: the defendant attempted to show that the robbery was actually committed by his brother but was unable to do so because the Defender would not permit his brother to make a statement. The Westbrook Court found the existence of an actual conflict of interest.37
The joint representation of co-defendants is not, per se, violative of the constitutional guarantee of effective assistance of counsel.38 However, requiring one attorney to represent two defendants with conflicting interests is certainly a violation.39
The Eleventh Circuit found that an actual conflict of interest adversely affected the performance of an attorney who simultaneously represented both the defendant, who claimed self-defense, and the victim's life insurance policy beneficiary, who could have lost benefits if the victim was found to be the aggressor.40 In a case where neither co-defendant relied upon a defense which was antagonistic to the other, joint representation did not give rise to a conflict of interest.41
c. Waiver Of Conflict Of Interest
The United States Supreme Court has held that the trial court must be allowed substantial latitude in granting or refusing waivers of conflict of interest.42 This waiver of the right to conflict-free counsel in dual representation cases can be valid even if the court does not conduct an on-the-record inquiry as long as the waiver is found to be knowing, voluntary, and intelligent.43 The appellate courts at both the federal and the state levels have upheld the validity of a defendant's waiver of his right to claim ineffective assistance of counsel.44 The Seventh Circuit, however, has held that a defendant who consents to joint representation must show actual, rather than potential, conflict of interest to later have his conviction set aside.45
Requiring a defendant to waive his right to a future claim alleging that his attorney did not properly represent his interests is highly speculative. The ability to specifically outline the risk that the defendant is agreeing to take is very often beyond the informed imaginings of either the prosecutor or the Court. Further, our legal system makes up for shortcomings in the intellectual ability of certain defendants to comprehend the proceedings against them by requiring that they be represented by individuals trained and experienced in the law. Yet it is a possible lack of loyalty that a defendant on his own is asked to evaluate.
In addition to those cases dealing with the basic qualifications of counsel and the complex problems
presented by conflict of interest claims, there have been thousands of allegations made regarding
specific action or inaction on the part of individual attorneys. Since the claims concern highly specific
instances, they do not easily support a guide for future conduct. While these cases were decided under
the standard of review established by the Supreme Court of the United States in Strickland v.
Washington46 and the Supreme Court of Pennsylvania in Commonwealth v. Pierce47, they spoke
more to the specific type of conduct on the part of counsel than to the prejudice of the defendant.
While the defendant is required to show that he was prejudiced by his attorney's error, that
determination encompasses an overall view of the strength of the prosecution's case as well as judicial
speculation as to the level of strength absent counsel's error. The following cases concern themselves
not with this decision but merely with the type of conduct that has been held, in specific instances, to be
error on the part of counsel.
IV. Advice Of Counsel
When the advice of counsel is challenged, as it often is in the area of guilty pleas, the relevant test is whether that advice was within the range of competence demanded of attorneys in criminal cases. In order to establish ineffectiveness regarding counsel's advice to reject a plea bargain, the defendant carries "the burden of proving that counsel had no reasonable basis for his advice."48 Additionally, a claim of ineffective counsel cannot be based upon advice from outside counsel whom the defendant chose to consult.49 Even if counsel's advice is deemed deficient, the defendant must nevertheless still demonstrate that, "but for counsel's errors, he would not have pled guilty and would have insisted on going to trial."50
Various circuits in the federal system have uniformly held ineffectiveness to exist in counsel's failure to file an appeal after a client's request to do so.51 Moreover, the Pennsylvania Superior Court held that, unless expressly waived, counsel's failure to properly effectuate an appellant's right to appeal is per se ineffective.52
Not only has the Third Circuit held that counsel's misrepresentation regarding the likely success of appeal was ineffective53, but the Eighth Circuit has also held that a defendant was denied effective assistance of counsel when his attorney incorrectly informed him that he would have to serve only one-sixth of his plea bargain sentence.54 The Second Circuit, in 1998, similarly characterized counsel's gross underestimation of the sentence facing the client.55 Further, counsel was held to be ineffective not only for failing to move to withdraw a plea of nolo contendere where the defendant had not been advised that he would be exposed to consecutive sentences56, but also for failing to move to withdraw a guilty plea after the defendant's motion to suppress had been granted.57 Counsel's failure to advise the defendant of the pros and cons of an appeal as well as the time limit, coupled with his failure to determine whether the defendant wanted to embark upon such a course, was deemed ineffective.58 A petitioner was entitled to a hearing upon whether or not his plea was coerced as a result of the fact that his attorney threatened to withdraw if the plea were not entered.59
Failure to inform the defendant of a plea offer was ineffective60, as was the advice to plead guilty rather than stand trial.61 Confusion on the part of trial counsel regarding the law made him ineffective in failing to advise the defendant that if he successfully withdrew his plea of guilt to second degree murder, he would be subject to a first degree murder conviction.62 A similar fate of ineffectiveness was met by counsel whose failure to advise a client about the withdrawal of a guilty plea to third degree murder resulted in the imposition of the death penalty.63
In Underwood v. Clark64, however, the Seventh Circuit noted not only that an attorney was not
ineffective in advising his client not to testify despite his constitutional right not to take the stand, but also
that counsel is not required to consult with his client on all tactical moves. More recently, the
Pennsylvania Superior Court voiced that in order to sustain a claim that counsel was ineffective for
failing to call the defendant to testify, he must demonstrate that "counsel interfered with his right to
testify. . ." or else gave advice "so unreasonable as to vitiate a knowing and intelligent decision. . . ."65
V. Trial Tactics
In reviewing those cases in which a claim of ineffective assistance of counsel is advanced regarding an attorney's action or inaction during the litigation process itself, the First Circuit has noted that "the Constitution does not guarantee a defendant a letter perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances."66 The Natanel Court specifically held that counsel's waiver of a closing argument did not constitute ineffective assistance. However, a contrary result was reached by the Superior Court of Pennsylvania in Pennsylvania v. Sparks.67 Calling a witness to the stand merely on a hunch was deemed ineffective when the witness identified the defendant as a robber.68 Advising a defendant not to testify that she had ingested methamphetamine under a mistaken belief that it was illegal to ingest this substance dictated a similar result.69
a. Investigation
i. Witnesses
Counsel's failure to properly prepare for trial has served as the subject of appellate inquiry. A constant theme regarding effective representation concerns witnesses. Counsel's failure to interview or call eyewitnesses was deemed ineffective70, as was the failure to attempt to find and interview potential alibi witnesses71 and the failure to use reasonable efforts to procure three alibi witnesses.72
On the other hand, the claim of ineffective assistance of counsel was rejected by the Tenth Circuit when the defendant failed to supply counsel with names and addresses of prospective witnesses.73 A decision not to interview prosecution witnesses did not result in ineffective assistance of counsel where counsel was aware of the substance of the witnesses' testimony in advance.74 In the mid-nineties, however, the Pennsylvania Supreme Court held that the failure to interview witnesses in a death penalty prosecution was ineffective, arguably per se.75 More recently, this same court delineated the standard for the successful launching of an ineffectiveness claim to include the following: (a) the existence and availability of the witness; (b) counsel's awareness of or duty to know about the witness; (c) the willingness as well as the ability of the witness to appear on the defendant's behalf; and (d) the necessity of the proposed testimony for an avoidance of prejudice.76
In United States v. Gray77, the Third Circuit was faced with a claim of ineffectiveness based upon counsel's failure to conduct a pretrial investigation. The defendant had supplied the names of potential witnesses but expressed his reluctance to subpoena these witnesses and compel their attendance at trial. Counsel went no further. The Gray Court found ineffectiveness in light of its belief that counsel could have well established a credible defense had he interviewed and subpoenaed these witnesses. The Court further noted that the effect of counsel's inadequate performance must be evaluated in light of the totality of evidence at trial and opined that an outcome which was only weakly supported by the record is more likely to have been affected by errors than one for which the record harbors overwhelming support.78
One year later, a different panel of the Third Circuit reached the exact opposite result in Lewis v. Mazurkiewicz.79 In finding that the defendant failed to show any prejudice as a result of counsel's failure to interview and present potential defense witnesses in reference to his claim of self-defense, the Court stated that they believed such a decision was within the exercise of counsel's reasonable professional judgment.80
Not only was a defendant denied effective assistance of counsel due to an attorney's failure to interview witnesses81, but ineffectiveness was also found in counsel's failure to ascertain that a witness was in jail rather than at home speaking to the defendant, per his testimony.82 Counsel was held ineffective in the federal system for failing to interview witnesses and the co-defendant before trial83, as well as for failing to, not only confer with the defendant for two months, but also to seek discovery, investigate the crime, and interview witnesses.84 Failure to investigate and present evidence that a shooting was accidental and at close range85, as well as failure to contact and subpoena alibi witnesses and notify the prosecution of their existence86 both met a similar fate of ineffectiveness.
ii. Mental Health
At the start of the nineties, various circuits held that defense counsel's almost complete lack of investigation and resulting ignorance regarding the defendant's mental and family history as well as the failure to argue mitigating factors to the jury during the death penalty phase of a homicide trial constituted ineffective assistance.87 In an interesting sidelight, the Brewer Court refused to hold that the presentation of perjured testimony at the defendant's request was adequate to constitute ineffectiveness.88
Failure to investigate the defendant's psychiatric background and competency has been greeted with a similar reception in the federal system.89 For failing to investigate mental illness90, and for abandoning all consideration of an extreme emotional disturbance defense at an early stage for no apparent reason, ineffectiveness has also been found.91 Following a similar philosophy, counsel's performance in obtaining and presenting a psychiatric witness has been held to be deficient92, while the failure to pursue an independent psychological analysis of the defendant in a death case has been deemed not to be professionally reasonable.93 Further, the Third Circuit has found ineffective assistance in the failure to investigate an insanity defense despite the presence of a letter from a psychiatrist94, while the Fifth Circuit has viewed the failure to investigate the defendant's competency to stand trial or the viability of an insanity defense with a similar eye.95 Lastly, the Pennsylvania Supreme Court in 1998 found ineffectiveness in the failure to investigate and present a defense of diminished capacity.96
iii. Miscellaneous
Both in 1998 as well as in the previous year, the Ninth Circuit has consistently held that the failure to investigate the defendant's denial of presence at the scene and, if appropriate, to present an alibi defense was ineffective.97 Counsel's decision not to investigate the lack of medical evidence of abuse met a similar fate98, as did the failure to follow up on an exculpatory report regarding semen.99
iv. Mitigation
In two consecutive years, the Seventh Circuit has held that not only was counsel in a capital case ineffective in preparation and presentation100, but also ineffectiveness emerged as the outcome from the failure to investigate mitigating circumstances.101 Finally, a similar result emerged from the Ninth Circuit due to counsel's failure to prepare and present a case for mitigation at sentencing.102 After evaluating counsel's failure to override the defendant's decision not to present mitigating evidence during the penalty phase, however, the Pennsylvania Supreme Court in 1998 declined to breathe life into the defendant's ineffectiveness claim.103
b. Courtroom Performance
Counsel's courtroom performance has always been the subject of much judicial hindsight. Reporting ready for trial when essential defense witnesses were unavailable was deemed ineffective104, as was the failure to request a continuance in order to produce necessary defense witnesses.105 A haven for ineffective assistance has also been found nestled not only in counsel's failure to voir dire the jury after a juror brought a newspaper story into the jury room106, but also in the absence of a request for a mistrial following the prosecution's mention of post-arrest silence.107
i. Argument
The failure to present adequate argument during a court proceeding has been viewed with disfavor.108 Moreover, where trial counsel told the jury during the opening statement that he would call an expert witness and then failed to do so, his assistance was deemed ineffective.109 Defense counsel's concession during closing that no reasonable doubt existed regarding the only factual issues in dispute was per se prejudicial.110
ii. Miscellaneous
Both attitude as well as conduct displayed during a trial made an attorney ineffective111, as did becoming angry at the judge and failing to present a defense.112 Counsel was further ineffective in failing to have a theory, cross-examine witnesses, voice objections to evidence, and present witnesses to show mitigating circumstances.113 In a rape case, failure to develop a defense of impotency was categorized as ineffective.114 In one situation, counsel's failure to call the defendant to the stand embodied ineffective assistance115, whereas, in another case, a similar result ensued from counsel's strategy in calling the defendant to the stand and proceeding to characterize him as both a thief and a liar.116 Ineffectiveness was absent, however, not only where the defendant was provided with the opportunity to testify as opposed to being asked specific questions in a situation where counsel suspected the defendant of lying117, but also where counsel failed to require that the government prove the methamphetamine to be of a particular type.118
iii. Pretrial Motions
Regarding pretrial motions, assistance provided by attorneys has been categorized as ineffective for their failure to file a proper suppression motion119, or failure to file one at all.120 The failure to challenge a lineup met the same fate121. In another case, remand for a hearing was required due to counsel's failure to raise a suppression issue as to evidence elicited from a wired informant entering a house.122
iv. Witnesses
"The failure to call a potential witness is not per se ineffectiveness absent positive demonstration that the testimony would have been helpful to the defense."123 Similarly, the viability of an ineffectiveness claim was not established for the failure to call character witnesses without evidence that any specific witness would have presented character evidence at the trial.124 Both the Pennsylvania Supreme Court as well as the Superior Court, however, deemed the failure to call character witnesses as ineffective.125 Another case held that counsel's failure to call character witnesses in a first degree murder trial resulted in the kind of prejudice which required a new trial.126 In reference to a claim of ineffective assistance in connection with counsel's failure to call two named alibi witnesses, the Pennsylvania Supreme Court found that the trial court should have granted a hearing.127 On the federal level, ineffectiveness was found nestled in counsel's failure to contact two witnesses who could vouch for the defendant's whereabouts at the time of the incident.128
v. Cross-Examination
On both the state and federal level, even the highly individualized practice of conducting cross-examination has been held ineffective where counsel has failed to take advantage of universally acknowledged tools of impeachment.129 Ineffectiveness has found haven in counsel's failure to both impeach an informant130, and failure to object to a letter written by the victim which had found its way into counsel's possession.131 In the Third Circuit, ineffective assistance took the form of failing to use a witness' inconsistent testimony, opening the door, and failing to call defense witnesses.132 In the state system, the Pennsylvania Superior Court held that the failure to impeach the victim's credibility with evidence of charges pending against her at time of trial was ineffective assistance of counsel.133
vi. Objections
Not objecting to the admission of a co-defendant's confession and hearsay as well as failing to request a missing witness instruction were deemed ineffective.134 Further, allowing the victim's wife to testify without objection to hearsay statements, which provided principal evidence of premeditation, constituted ineffective assistance.135 Failing to lodge objections to questions regarding an untrue statement given to police by the defendant gave rise to a successful claim of ineffectiveness.136 Counsel's failure to object to inadmissible evidence or arguments has provided a haven for ineffective assistance137, as have the lack of objections to an erroneous verdict sheet138 and to the introduction of the defendant's criminal history.139
For failing to lodge an objection to testimony from a detective regarding the hearsay statement of a non-testifying co-defendant140, as well as for failing to object to a trooper's testimony which commented on a defendant's silence after he was advised of his rights, ineffectiveness prevailed.141 Ineffective assistance has also been found in counsel's failure to object to a prosecutor's cross-examination during which the defendant was forced to admit that he made no assertion of self-defense prior to trial142, as well as in counsel's failure to object when the prosecutor attempted to impeach the credibility of a defense witness with untried criminal charges.143
vii. Mental Health
Failure to pursue an insanity defense after the defendant had been ruled incompetent was held to be ineffective by the First Circuit.144 Other circuits have deemed counsel ineffective as a result of failing to introduce psychiatric evidence during the penalty phase145, as well as for failing to introduce evidence of the defendant's long history of mental illness at a similar proceeding.146
viii. Jury Instructions
Counsel's failure to request or object to jury instructions has also not escaped scrutiny.147 Ineffectiveness has surfaced as a result of failing to request proper jury instructions148, specifically in reference to instructions on, "preponderance of the evidence,"149 self-defense150, recklessness151, and receiving identification evidence with caution.152 Attorneys have also been held ineffective not only for failing to voice objections to charges on mitigating circumstances153, but also for not lodging objections to both an alibi charge,154 as well as to the omission of such a charge.155
ix. Post-trial Matters
In reference to post-trial matters, failure to request a downward adjustment for minimal or minor participation was found to be ineffective156, as was the failure to argue that the government breached a plea agreement by not moving for a downward departure.157 Also held ineffective was counsel's failure to educate the jury about aggravating and mitigating factors158, as well as the failure to pursue a defendant's mental state during the penalty phase.159 Ineffective assistance also found refuge in counsel's failure to move for the reconsideration of a sentence to which the deadly weapon enhancement was applied to automobiles160, as well as in the absence of raising a Rosario claim on appeal.161 Finally, the failure of counsel to raise error of the trial court in post-verdict motions has been greeted with a similar reception162, as has counsel's neglect to request plain error appellate review for an erroneous first degree murder instruction.163
x. Time Frame To Claim Ineffectiveness
A remaining dilemma centers around the appropriate time frame during which an ineffectiveness claim should be brought to the Court's attention. Pennsylvania requires that this be done at the "earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant."164 Federal courts, however, are a little less certain and, despite similar language, the Seventh Circuit has held that a defendant who wishes to support his claim with facts outside the record would be well advised to wait until the post-conviction stage before raising a claim of ineffective counsel.165 Although it felt that such claims should initially be brought to the trial court, the Second Circuit nevertheless noted that claims of ineffective assistance of counsel may be decided when raised for the first time on appeal when either "the resolution is beyond any doubt or when to do so would be in the interest of justice."166 The First Circuit, on the other hand, has ruled that the defendant's failure to alert the trial court to his claim of ineffective assistance precluded appellate review.167 A similar view was adopted by the Third Circuit in requiring that a claim of ineffective assistance of counsel should have properly been raised in a post-conviction proceeding.168
VI. Conclusion
What emerges quite clearly from this review of case law as it has developed through the years is that there is great difficulty attached in trying to predict exactly what type of conduct may be deemed ineffective in the future. Indeed, a refuge for ineffectiveness was not to be found in an attorney's failure to anticipate a new Supreme Court rule regarding the element of willfulness in money laundering.169 Moreover, even an obvious deviation from reasonable trial strategy can fail to effect relief because the requisite prejudice is not shown.170
The only way to avoid ineffectiveness in the future is to become familiar with the areas where the court has found counsel to have been ineffective in the past. One can neither anticipate nor cite to any trend in the law that specifically points out future ineffectiveness. At this point in time, expert witnesses cannot be called regarding a determination of ineffective assistance because such determination is made not by a jury but rather by an experienced trial judge.
Regrettably, the only guidance that courts are providing are the cases in which they find either the
presence or absence of ineffectiveness. Only a continuing review of appellate court decisions can serve
as a manual for effective legal representation.
© copyright 1999, F. Emmett Fitzpatrick, P.C.
1. United States v. Cronic, 466 U.S. 648, 666-67 (1984); Strickland v. Washington, 466 U.S. 668 (1984).
2. Strickland, 466 U.S. at 694.
3. Id. at 697.
4. 527 A.2d 973, 976 (Pa. 1987).
5. 235 A.2d 349 (Pa. 1967).
6. 559 A.2d 504, 505 (Pa. 1989).
7. See Matter Of Smith, 573 A.2d 1077 (Pa.Super. 1990).
8. Compare Pennsylvania v. Jenkins, 523 A.2d 813 (Pa.Super. 1987), and Borough of Kennett Square v. Lal, 643 A.2d 1172, 1174 (Pa.Commw. 1994).
9. See Moore v. United States, 950 F.2d 656, 657 (10th Cir. 1991).
10. See Guinan v. United States, 6 F.3d 468, 471 (7th Cir. 1993).
11. See Pennsylvania v. Buehl, 658 A.2d 771, 776-77 (Pa. 1995).
12. See United States v. Novak, 903 F.2d 883, 887 (2nd Cir. 1990).
13. See Bellamy v. Cogdell, 952 F.2d 626, 631 (2nd Cir. 1991).
14. See United States v. Stevens, 978 F.2d 565, 567 (10th Cir. 1992).
15. See Vance v. Lehman, 64 F.3d 119, 125 (3rd Cir. 1995).
16. See United States v. Maria-Martinez, 143 F.3d 914, 919 (5th Cir. 1998).
17. See Frazer v. United States, 18 F.3d 778, 783 (9th Cir. 1994).
18. See Tippins v. Walker, 77 F.3d 682, 687 (2nd Cir. 1996).
19. See Virgin Islands v. Zepp, 748 F.2d 125, 131 (3rd Cir. 1984).
20. Id at 136.
21. See Mannhalt v. Reed, 847 F.2d 576, 581 (9th Cir. 1988).
22. See Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993).
23. See United States v. McLain, 823 F.2d 1457, 1463 (11th Cir. 1987).
24. See Church v. Sullivan, 942 F.2d 1501, 1508-09(10th Cir. 1991).
25. See United States v. Greig, 967 F.2d 1018, 1024 (5th Cir. 1992); United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991).
26. See Buenoano v. Singletary, 963 F.2d 1433, 1438-39 (11th Cir. 1992); Mathis v. Hood, 937 F.2d 790, 795 (2nd Cir. 1991); Pennsylvania v. Eskridge, 604 A.2d 700, 702 (Pa. 1992).
27. See Flanagan v. United States, 465 U.S. 259, 269 (1984).
28. See Pennsylvania v. Cassidy, 568 A.2d 693, 694 (Pa.Super. 1989).
29. Id. at 698.
30. See Philadelphia Grand Jury v. Vladimer, 605 A.2d 318, 321 (Pa. 1992).
31. See Maritrans GP Inc. v. Pepper, Hamilton and Scheetz, 602 A.2d 1277, 1287 (Pa. 1992).
32. See United States v. Winkle, 722 F.2d 605, 609 (10th Cir. 1983).
33. See United States v. Moscony, 927 F.2d 742, 753 (3rd Cir. 1991).
34. See Thomas v. Municipal Court, 878 F.2d 285, 290 (9th Cir. 1989).
35. See In re Saladin, 518 A.2d 1258, 1261 (Pa.Super. 1986).
36. See Brown v. United States, 665 F.2d 271, 272 (9th Cir. 1982).
37. 400 A.2d. 160, 162 (Pa. 1979).
38. See Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir. 1985).
39. See Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990)(citing Glasser v. United States, 315 U.S. 60,70 (1942)).
40. See McConico v. Alabama, 919 F.2d 1543, 1548 (11th Cir. 1990).
41. See Pennsylvania v. Rodriguez, 549 A.2d 578, 582 (Pa.. Super. 1988) (citing Pennsylvania v. Joyner, 414 A.2d 1003, 1005 (Pa. Super. 1980)).
42. Wheat v. United States, 486 U.S. 153, 163 (1988).
43. See William v. Meachum, 948 F.2d 863, 866 (2nd Cir. 1991); see also Henderson v. Smith, 903 F.2d 534, 537 (8th Cir. 1990).
44. See United States v. Roth, 860 F.2d 1382, 1389 (7th Cir. 1988); see also Pennsylvania v. Szekeresh, 515 A.2d 605, 609 (Pa. Super. 1986).
45. See Bush v. United States, 765 F.2d 683, 685 (7th Cir. 1985)(citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).
46. See supra note 1.
47. See supra note 2.
48. Pennsylvania v. Boyd, 688 A.2d 1172, 1175 (Pa. 1997).
49. See United States v. Martini, 31 F.3d 781, 782-83 (9th Cir. 1994).
50. Jackson v. United States, 976 F.2d 679, 681 (11th Cir. 1992)(citing United States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986)).
51. See Martin v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996); see also United States v. Nagib, 56 F.3d 798, 801 (7th Cir. 1995) and United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
52. See In the Interest of A.P., 617 A.2d 764 (Pa.Super. 1992)(citing Pennsylvania v. Wilkerson, 416 A.2d 477, 479 (1980)).
53. See Dickerson v. Vaughn, 90 F.3d 87, 92 (3rd Cir. 1996).
54. See Garmon v. Lockhart, 938 F.2d 120, 122 (8th Cir. 1991); see also Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990).
55. See United States v. Gordon, 156 F.3d 376, 380 (2nd Cir. 1998).
56. See Pennsylvania v. Jones, 640 A.2d 1330, 1335 (Pa.Super. 1994).
57. See United States v. Alverez-Tautimez, 160 F.3d 573, 576 (9th Cir. 1998).
58. See United States v. Gipson, 985 F.2d 212, 216 (5th Cir. 1993); see also Baker v. Kaiser, 929 F.2d 1495, 1499-1500 (10th Cir. 1991) and Pennsylvania v. Quier, 531 A.2d 8, 11 (Pa.Super. 1987).
59. See Heiser v. Ryan, 951 F.2d 559, 562 (3rd Cir. 1991).
60. See Boria v. Keane, 99 F.3d 492, 498 (2nd Cir. 1996); United States v. Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991); see also Pennsylvania v. Korb, 617 A.2d 715, 717 (Pa. Super. 1992).
61. See Woodward v. Collins, 898 F.2d 1027, 1028 (5th Cir. 1990); Pennsylvania v. Nelson, 574 A.2d 1107, 1114 (Pa. Super. 1990).
62. See Lewandowski v. Makel, 949 F.2d 884, 888 (6th Cir. 1991).
63. See Pennsylvania v. Bradley, 715 A.2d 1121, 1124 (Pa. 1998).
64. See 939 F.2d 473, 474 (7th Cir. 1991).
65. Pennsylvania v. Breisch, 719 A.2d 352, 355 (Pa.Super. 1998).
66. United States v. Natanel, 938 F.2d 302, 309-310 (1st Cir. 1991).
67. 539 A.2d 887 (Pa.Super. 1988) (holding trial counsel's failure to make closing argument in robbery and rape prosecution was unreasonable and rendered his assistance constitutionally ineffective).
68. See Pennsylvania v. Tippens, 598 A.2d 553, 556 (Pa.Super. 1991).
69. See Morris v. California, 945 F.2d 1456, 1461 (9th Cir. 1991).
70. See Chambers v. Armontrout, 907 F.2d 825, 829-832 (8th Cir. 1990) (where no witness called to support self-defense claim). But cf., Nealy v. Cabana, 764 F.2d 1173, 1177-78 (5th Cir.1985); Gray v. Lucas, 677 F.2d 1086, 1093 n. 5 (5th Cir.1982) (stating, [although] "a lawyer's failure to investigate a witness who has been identified as crucial may indicate an inadequate investigation, the failure to investigate everyone whose name happens to be mentioned by the defendant does not suggest ineffective assistance.").
71. See Lawrence v. Armontrout, 900 F.2d 127, 129-130 (8th Cir. 1990).
72. See Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989).
73. See United States v. King, 936 F.2d 477, 480 (10th Cir. 1991).
74. See Wing v. Sargent, 940 F.2d 1189, 1192 (8th Cir. 1991).
75. See Pennsylvania v. Perry, 644 A.2d 705, 709 (Pa. 1994).
76. See Pennsylvania v. Priovolos, 715 A.2d 420, 422 (Pa. 1998).
77. 878 F.2d 702 (3rd Cir. 1989).
78. Id. at 711-713.
79. 915 F.2d 106 (3rd Cir. 1990).
80. Id. at 114-115.
81. See Pennsylvania v. Woodward, 614 A.2d 239, 244-245 (Pa.Super. 1992).
82. See Pennsylvania v. Baxter, 640 A.2d 1271, 1274-1275 (Pa. 1994).
83. See Bryant v. Scott, 28 F.3d 1411, 1418-1419 (5th Cir. 1996).
84. See Crandell v. Bunnell, 144 F.3d 1213, 1216-1218 (9th Cir. 1998).
85. See Sims v. Livesay, 970 F.2d 1575, 1580-1581 (6th Cir. 1992).
86. See Griffin v. Warden, 970 F.2d 1355, 1358-1359 (4th Cir. 1992).
87. See Horton v. Zant, 941 F.2d 1449, 1461-1463 (11th Cir. 1991); Kenley v. Armontrout, 937 F.2d 1298, 1303-1305 (8th Cir. 1991); Brewer v. Aiken, 935 F.2d 850, 855-858 (7th Cir. 1991).
88. See 935 F.2d at 859-860.
89. See Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994).
90. See Williamson v. Ward, 110 F.3d 1508, 1517 (10th Cir. 1997).
91. See DeLuca v. Lord, 77 F.3d 578, 585 (2nd Cir. 1996).
92. See Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997).
93. See United States v. Whitley, 977 F.2d 149, 156-157 (5th Cir. 1992).
94. See United States v. Kauffman, 109 F.3d 186, 190 (3rd Cir. 1997).
95. See Boucchillon v. Collins, 907 F.2d 589, 595-596(5th Cir. 1990).
96. See Pennsylvania v. Legg, 711 A.2d 430, 433 (Pa. 1998).
97. See Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998); Johnson v. Baldwin, 114 F.3d 835, 838-839 (9th Cir. 1997).
98. See Holsomback v. White, 133 F.3d 1382, 1385-1386 (11th Cir. 1998).
99. See Baylor v. Estelle, 94 F.3d 1321, 1324 (9th Cir. 1996).
100. See Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
101. See Emerson v. Gramley, 91 F.3d 898, 906-907 (7th Cir. 1996).
102. See Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995); see also Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995) (failure to investigate mental defense was not ineffective assistance as to guilt phase, but counsel's failure to investigate and present mitigating circumstances was ineffective as to sentencing phase).
103. See Pennsylvania v. Taylor, 718 A.2d 743, 745 (Pa. 1998).
104. See Pennsylvania v. Morocco, 544 A.2d 965, 972 (Pa.Super. 1988).
105. See Walker v. Lockhart, 807 F.2d 136, 139 (8th Cir. 1986).
106. See Virgin Islands v. Weatherwax, 20 F.3d 572, 579-60 (3rd Cir. 1994).
107. See Pennsylvania v. Drass, 718 A.2d 816, 821 (Pa.Super. 1998).
108. See United States v. Headley, 923 F.2d 1079, 1084-85 (3rd Cir. 1991); Pennsylvania v. McMullen, 530 A.2d 450, 453 (Pa.Super. 1987).
109. See Anderson v. Butler, 858 F.2d 16, 18-19 (1st Cir. 1988).
110. See United States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991).
111. See Ward v. United States, 995 F.2d 1317, 1322 (6th Cir. 1993).
112. See Tejeda v. DuBois, 142 F.3d 18, 21 (1st Cir. 1998).
113. See Groseclose v. Bell, 130 F.3d 1161, 1170-71 (6th Cir. 1997).
114. See Foster v. Lockhart, 9 F.3d 722,727-28 (8th Cir. 1993).
115. See Pennsylvania v. Neal, 618 A.2d 438, 441 (Pa.Super. 1992).
116. See Harris v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995).
117. See Pennsylvania v. Jermyn, 620 A.2d 1128 (Pa. 1993).
118. See United States v. Warren, 149 F.3d 825, 828 (8th Cir. 1998).
119. See Smith v. Dugger, 911 F.2d 494, 498 (11th Cir. 1990); Pennsylvania v. Lester, 572 A.2d 694, 700 (Pa.Super. 1990); Pennsylvania v. Melson, 556 A.2d 836, 804-41 (Pa.Super. 1989).
120. See Pennsylvania v. Kilgore, 719 A.2d 754, 757 (Pa.Super. 1998); Pennsylvania v. Arch, 654 A.2d 1141, 1145 (Pa.Super. 1995).
121. See Tomlin v. Myers, 30 F.3d 1235, 1243 (9th Cir. 1994).
122. See Pennsylvania v. Bannister, 656 A.2d 129, 133 (Pa.Super. 1995).
123. Pennsylvania v. Carbone, 707 A.2d 1145, 1153 (Pa.Super. 1998) (citing Pennsylvania v. Bulard, 451 A.2d 760, 764 (Pa.Super. 1982)).
124. See Pennsylvania v. Jones, 652 A.2d 386, 390 (Pa.Super. 1995).
125. See Pennsylvania v. Weiss, 606 A.2d 439, 443 (Pa. 1992); Pennsylvania v. Gillespie, 620 A.2d 1143, 1146 (Pa.Super. 1993).
126. See Pennsylvania v. Glover, 619 A.2d 1357, 1362-63 (Pa.Super. 1993).
127. See Pennsylvania v. Stanley, 632 A.2d 871, 872 (Pa. 1993).
128. See Workman v. Tate, 957 F.2d 1339, 1345-46 (6th Cir. 1992).
129. See Nixon v. Newsome, 888 F.2d 112, 115 (11th Cir. 1989); Pennsylvania v. Murphy, 591 A.2d 278, 281-82 (Pa. 1991); Pennsylvania v. Bolden, 534 A.2d 456, 459 (Pa. 1987); Pennsylvania v Strutt, 624 A.2d 162, 166 (Pa.Super. 1993).
130. See Thompson v. Calderon, 120 F.3d 1045, 1054 (9th Cir. 1997).
131. See Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995).
132. See Berryman v. Morton, 100 F.3d 1089, 1105 (3rd Cir. 1996).
133. See Pennsylvania v. Davis, 652 A.2d 885, 890 (Pa.Super. 1995).
134. See Henry v. Scully, 78 F.3d 51, 52-3 (2nd Cir. 1996); see also Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996).
135. See Bolander v. Iowa, 978 F.2d 1079, 1083-84 (8th Cir. 1992).
136. See Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996).
137. See Atkins v. Attorney General of Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); Pennsylvania v. Barnes, 593 A.2d 868, 871 (Pa.Super. 1991); Pennsylvania v. Dickerson, 590 A.2d 766, 773-74 (Pa.Super. 1991); Pennsylvania v. Thomas, 578 A.2d 422, 428-29 (Pa.Super. 1990); Pennsylvania v. Smith, 567 A.2d 1080 (Pa.Super. 1989).
138. See Pennsylvania v. DeHart, 650 A.2d 38, 49 (Pa. 1994).
139. See Pennsylvania v. Moore, 715 A.2d 448, 452-53 (Pa.Super. 1998).
140. See Mason v. Scully, 16 F.3d 38, 45 (2nd Cir. 1994).
141. See Pennsylvania v. Hyneman, 622 A.2d 988, 992 (Pa.Super. 1993).
142. See Pennsylvania v. Clark, 626 A.2d 154 (Pa. 1993).
143. See Pennsylvania v. Doswell, 621 A.2d 104 (Pa. 1993).
144. See Genius v. Pepe, 50 F.3d 60, 61 (1st Cir. 1995).
145. See Hill v. Lockhart, 28 F.3d 832, 847 (8th Cir. 1994).
146. See Baxter v. Thomas, 45 F.3d 1501, 1515 (11th Cir. 1995).
147. See Capps v. Sullivan, 921 F.2d 260, 262 (10th Cir. 1990); Pennsylvania v. Stonehouse, 555 A.2d 772, 782 (Pa. 1989); Pennsylvania v. Gass, 523 A.2d 741, 743 (Pa. 1987); Pennsylvania v. Horwat, 515 A.2d 514, 516 (Pa. 1986); Pensylvania v. Boyd, 514 A.2d 623, 625-26 (Pa.Super. 1986).
148. See Pennsylvania v. Hutchinson, 621 A.2d 681, 685 (Pa.Super. 1993).
149. See Pennsylvania v. Clark, 683 A.2d 901, 908 (Pa.Super. 1996).
150. See United States v. Span, 75 F.3d 1383, 1390-91 (9th Cir. 1996); Pennsylvania v. Buska, 655 A.2d 576, 586 (Pa.Super. 1995).
151. See Pennsylvania v. Horton, 644 A.2d 181, 187-88 (Pa.Super. 1994).
152. See Pennsylvania v. Simmons, 647 A.2d 568, 570 (Pa.Super. 1994).
153. See Pennsylvania v. Blount, 647 A.2d 199, 209-10 (Pa. 1994).
154. See Pennsylvania v. Allison, 622 A.2d 950, 953 (Pa.Super. 1993).
155. See Pennsylvania v. Roxberry, 602 A.2d 826, 828-29 (Pa. 1992).
156. See United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997).
157. See United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).
158. See Austin v. Bell, 126 F.3d 843, 848-49 (6th Cir. 1997); Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir. 1995)
159. See Pennsylvania v. Smith, 675 A.2d 1221, 1234 (Pa. 1996).
160. See Pennsylvania v. Batterson, 601 A.2d 335, 338 (Pa.Super. 1992).
161. See Mayo v. Henderson, 13 F.3d 528, 538-39 (2nd Cir. 1994) (Under the Rosario rule the prosecutor is required to make available to the defendant prior to trial "any written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness' testimony." N.Y. Crim. Proc. §240.45 (1)(a)).
162. See Pennsylvania v. Erie, 521 A.2d 464, 469 (Pa.Super. 1987).
163. See Roe v. Delo, 160 F.3d 416, 420 (8th Cir. 1998).
164. Pennsylvania v. Pizzo, 602 A.2d 823, 824 (Pa. 1992) (citing Pennsylvania v. Hubbard, 372 A.2d 687, 695 n.6 (1977)). See Pennsylvania v. House, 537 A.2d 361 (Pa.Super. 1988).
165. See United States v. Taglia, 922 F.2d 413, 418-19 (7th Cir. 1991).
166. United States v. Matos, 905 F.2d 30, 32 (2nd Cir. 1990).
167. See United States v. Hoyos-Medina, 878 F.2d 21, 22-23 (1st Cir. 1989).
168. See United States v. Rieger, 942 F.2d 230, 235 (3rd Cir. 1991).
169. See United States v. McNamara, 74 F.3d 514, 517 (4th Cir. 1996).
170. See Toro v. Fairman, 940 F.2d 1065, 1068-69 (7th Cir. 1991).