Toward a Right to Litigate IneffectiveAssistance of Counsel

Table of ContentsI. Introduction 839II. The Elusive Right to Postconviction Counsel 852III. Martinez and Maples 859IV. Toward a Right to Litigate Ineffectiveness 868A. Evolution from Rehnquist to Kennedy 868B. What the Evolution Portends 873V. Conclusion 881I IntroductionThe Supreme Court did not acknowledge the impending fiftieth anniversary of Gideon v. Wainwright1 when it cited the case last Term in Martinez v. Ryan.2 But the Court did speak glowingly of the right enshrined by the landmark case. The right to the effective assistance of counsel at trial "is a bedrock principle in our justice system," the Court explained;3 indeed, the Court continued, "the right to counsel is the foundation for our adversary system."4What to do, then, when a defendant is afforded an attorney at trial but the attorney is not effective?5 Specifically, what is the appropriate mechanism for vindicating the right to effective counsel, especially for the vast majority of criminal defendants convicted of noncapital crimes, whose ability to secure postconviction counsel is effectively nil? In other words, how does a criminal defendant remedy the deprivation of a right that he cannot raise procedurally until he is no longer constitutionally entitled to an attorney? The Court did not use Martinez as a vehicle to resolve this critical issue, but its surprising ruling in the case, coupled with its ruling during the same Term in Maples v. Thomas,e provides some indication of where this complicated area of law may be headed.Martinez was a sleeper case that did not register so much as a blip in the popular press at the time it was decided.7 Even in the legal media and academic circles, the decision did not initially stand out.8 Justice Kennedy, who wrote the opinion for the Court, could hardly have presented the issue in the case more dispassionately: "[WJhether a federal habeas court may excuse a procedural default of an ineffective assistance [of counsel] claim when the claim was not properly presented in state court due to an attorney's error in an initial-review collateral proceeding."9 The matter-of-fact recitation of the procedural complexities, however, undersold what is perhaps one of the most enduringly challenging aspects of applying Gideon: how to actualize Gideon's guarantee when most criminal defendants are stymied in their efforts to claim that their trial lawyers were ineffective.Despite the initially muted reaction to the Martinez decision, there are at least two indications of its importance. First, the opinion has now spawned voluminous commentary10 and extensive litigation.11 Indeed, the Supreme Court will soon decide its first post-Martinez case.12 Second, the sarcasm and bitterness that pervades Justice Scalia's dissent appears to reflect the significance that at least he attached to the lasting effect, or potential for future expansion, of the majority opinion. Here, the dissent's opening words are the giveaway: "Let me get this straight."13To back up and provide some context, Gideon held that the Sixth Amendment requires states to provide counsel to indigent criminal defendants at trial.14 The complete failure to provide counsel is an issue that can be raised on direct appeal in an individual case (as Clarence Earl Gideon did), or perhaps through a federal civil rights lawsuit.15 With respect to classes of defendants to whom the courts have not yet applied Gideon, legislative and other policy advocacy can be fruitful.16 When trial counsel has been appointed, however, it is only through a posttrial claim of ineffective assistance of counsel that an individual defendant can seek a new trial based on the failure of the state to provide constitutionally adequate counsel.17Most ineffectiveness claims depend on discovery and investigation of facts that are outside of the trial record. …