Ineffective Assistance of Counsel Before "Powell v. Alabama": Lessons from History for the Future of the Right to Counsel

INTRODUCTIONIsabella Nitti-the first woman sentenced to death in Illinois-was national news in her time.1 Today she is remembered (if at all) as one of the notorious "husband killers" who inspired the Broadway play Chicago.2 Less well remembered is that Nitti was also one of the first Americans to have her conviction reversed, and her death sentence vacated, on the basis that her lawyer was grossly incompetent.3 Reviewing Nitti's trial on appeal, the Illinois Supreme Court described her attorney as "ignoran[t]," "stupid[]," and "unfamiliar with the simplest rules of evidence."4 To uphold Nitti's conviction under these circumstances, the court reasoned, would reduce the federal and state constitutional guarantees of the right to counsel to "mere empty formalities."5What may surprise lawyers and legal scholars about People v. Nitti is not its Broadway-ready facts, but its date: 1924. Today, we would classify Nitti as a case about "ineffective assistance of counsel" ("IAC"). Although rarely successful,6 IAC claims now comprise the majority of challenges to criminal convictions in the United States.7 Yet legal scholars typically frame IAC doctrine as a more recent invention. Some date its origins as recently as 1984, when the Supreme Court announced its modern restatement of the doctrine in Strickland v. Washington.8 Others point to Gideon v. Wainwright, which incorporated the Sixth Amendment right to counsel against the states.9 At the earliest, most legal scholars point to the 1932 case of Powell v. Alabama as the seminal case establishing a right to effective assistance.10What these standard chronologies share is that they benchmark the right to effective counsel to Supreme Court cases interpreting the federal Constitution.11 What they thereby miss is the fact that these Supreme Court cases did not emerge out of nowhere. To the contrary, Powell was itself the culmination of-and expressly drew upon-fifty years of doctrinal development in the state courts. Isabella Nitti's case, along with other state cases from the 1880s through the 1920s, shows that there is a longer history of IAC doctrine than many jurists have recognized.12 To be sure, in these early state cases, courts referenced not just the Federal Constitution but also state constitutional and statutory provisions, the common law of new trials, and equitable principles. But these differences in how judges framed their IAC rulings before Powell and how they have framed them since are more rhetorical than substantive.13 By charting these early state cases in the same doctrinal lineage as modern IAC jurisprudence, we can more fully understand the history of the American right to counsel.Despite IAC doctrine's core significance to American criminal procedure, its history has received relatively little scholarly attention.14 To be sure, law reviews offer a steady flood of commentary on the present contours of the IAC doctrine.15 Yet this vast literature is almost entirely doctrinal and policy-oriented, both in methodology and source base. Since Strickland, and even before, jurists have churned out strident critiques of the prevailing IAC doctrine,16 drawing upon Supreme Court and federal case law, policy reports, legal scholarship, and personal experience. In such commentary, the pre-Powell cases are mentioned in passing (if at all), and without sustained analysis of how the doctrine changed over time within those cases.17This doctrinal literature has served to maintain awareness of the permanent crisis in indigent defense, and it may have had some influence on courts.18 But although we have thousands of pages identifying problems with IAC doctrine, this literature offers little understanding of where the doctrine came from. Focusing on Strickland, or even the 1960s and 1970s federal cases that immediately preceded Strickland, does not go back far enough and thereby risks misidentifying the causes of-and overestimating the prospects for solving-the doctrine's flaws. …