Validating the Right to Counsel

Table of ContentsI. Introduction 927II. The Expanding Reach of Strickland v. Washington 932III. Validating Strickland v. Washington 941A. Jury Research 941B. Postconviction Judging 944C. Two Prongs at Cross-Purposes? 948IV. Validating Gideon v. Wainwright 950V. Conclusion 958I IntroductionHow the Sixth Amendment right to counsel has grown. The Supreme Court's 1963 decision Gideon v. Wainwright,1 interpreting the Sixth Amendment right to counsel to obligate the state to provide indigent felony defendants with counsel,2 is the only criminal procedure decision the Court considers as deserving the title of a "watershed" ruling because of the degree to which it effected a "profound" and "sweeping" change.3 This Symposium celebrates it. Yet the fifty years since Gideon have been marked by rulings that have carried water for Gideon, including by extending its meaning, pushing the regulation of counsel's performance into other stages of the criminal process, redefining how postconviction litigation is structured, and affecting the interpretation of other criminal procedure rights. Conversely, while Gideon required that indigent defendants charged with a felony receive state-appointed counsel,4 the quality of indigent defense has been widely deplored, and the regulation of the effectiveness of counsel has, from its inception, been a fraught postconviction intervention into problems of legal ethics and the constitutional fairness of criminal convictions.The subsequent elaboration of the Gideon right was chiefly in the postconviction context, and that alone says much about what has happened since. It was in Strickland v. Washington,5 more than twenty years after Gideon's Trumpet sounded, that the Court cemented the principle that a defendant is entitled not just to a lawyer, but to a reasonably effective advocate.6 The Court ruled, however, that a trial verdict should not be reversed even if the defense performed so unreasonably as to be constitutionally ineffective, so long as those failures did not materially prejudice the outcome.7 The Court's ruling itself suggested that the entitlement to a reasonably effective advocate would be a thin one. The Court denied relief in the case and encouraged lower courts to conduct a harmless error-type inquiry into the effectiveness of counsel, rather than rule on the effectiveness of counsel.8 Relief under Strickland tended to be confined to outright conflicts of interest or unusually disastrous errors by counsel.9The Court may not have predicted just how pervasive Strickland v. Washington claims would become. In this Article, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas litigation, changed the structure of state postconviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, and raised quite difficult questions for postconviction courts. Over time, ineffective assistance of counsel claims provided a sort of umbrella claim to examine a wide range of trial-related questions. More recently, additional types of errors have become the subject of regulation, creating new applications for ineffective assistance of counsel claims during habeas litigation. The Court extended the right to encourage provision of state postconviction counsel.10 The right was quickly extended to apply to inadequate defense lawyering during plea bargaining,11 and more recently the Court has expanded the analysis to make clear that the Sixth Amendment now applies to all "critical stages of a criminal proceeding."12As a result, the Sixth Amendment right to counsel has been transformed from a pretrial entitlement to a central-if sporadically enforced-means for regulating the entire criminal process. Despite, or perhaps because of, its mounting centrality to the Sixth Amendment Gideon right and more generally to the entire apparatus of criminal procedure, the Strickland v. …