Merriam-Webster dictionary defines a “mistake” as “to be wrong” or “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.”[i] If your attorney makes a mistake that affects your case’s outcome, you may have a claim for “ineffective assistance of counsel.” Attorneys are human; they make mistakes.
Like the other parts of the Bill of Rights, the Sixth Amendment guarantees certain fundamental rights. It guarantees most of the basic constitutional criminal rights to Americans, including the right to a speedy and public trial, the right to be indicted where the offense occurred, the right to an impartial jury, the right to be informed of the nature of the offense, the right to confront and cross-examine the witnesses against him, and the right to have the assistance of counsel. Sixth Amendment (1791).
Before 1984, the various states and federal circuit courts struggled to resolve “ineffective assistance of counsel” cases because there wasn’t a unified standard to analyze that type of case. In 1984, the United States Supreme Court adopted the Strickland standard to evaluate Sixth Amendment “ineffective assistance of counsel” claims. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard only applies to “ineffective assistance” of counsel claims only.[ii] Essentially, the Strickland standard is a modified negligence standard where the attorney owes a duty to provide “effective assistance of counsel.” If counsel makes a mistake that affects the outcome of the case, then that’s “ineffective assistance of counsel.”
Strickland established a two-part test for analyzing an “ineffective assistance of counsel” claim: a criminal defendant must show two things:
(1) counsel’s performance fell below an objective standard of reasonableness (in that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”); and
(2) counsel’s performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different (the deficient performance must be so serious as to deprive the defendant of a fair trial).
Id. By design, the Strickland standard is considered a high bar to overcome. Padilla v. Kentucky, 559 U.S. 356, 357,130 S. Ct. 1473, 176 L.Ed.2d 284 (2010). The standard can be understood this way: (a) did trial counsel make a mistake before or at trial, and (b) did that mistake contribute to the conviction such that if that mistake had not occurred, there is a reasonable possibility that the defendant would not have been convicted?
Essentially, this is a negligence standard at its core.[iii] When an attorney represents you, the attorney is responsible for providing “effective assistance.” While the courts have not fully flushed out what that means exactly, it generally means that your attorney must properly represent you throughout the case. This does not mean the attorney should “get you off” or get the case dismissed because no attorney can guarantee that specific outcome. Nevertheless, the attorney should adequately advise you, investigate the facts of the case, understand the statutes and case law involved, and provide you with the proper information to make an “informed decision” about whether to accept a plea bargain or commence a jury trial. The attorney should also execute these responsibilities to the best of his abilities without making any mistakes.
An “effective” defense attorney will discuss these decisions with the defendant and provide the best information possible based on what is known at the time of the decision. An “effective” defense attorney will investigate your case enough to assist you in making an informed decision. The more skilled and experienced attorney does his best to break these legal concepts down into snackable bites so that the defendant can thoroughly understand the benefits and risks of any decision. Usually, defendants make more informed decisions with better, more experienced, and skilled attorneys. This is why the choice of defense attorney matters in every case, trial, appeal, or post-conviction. The criminal defense attorney should get paid for their skill, ability, knowledge, and passion. Like everyone else, the criminal defense attorney does not work for free and should command a fee commensurate with their worth. Make no mistake, a good criminal defense attorney is worth their weight in gold and may make the difference in the ultimate outcome of your case.
Anthony Candela is the Trial Dog and a four-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and exclusively handles criminal trials and appeals in Florida and federal court. He has been representing people charged with crimes for the past 25 years. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. He has been handling criminal matters since 1999. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. He is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal in the federal system. #callcandela #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter or a criminal appeal (either state or federal), we believe we can help you. Please contact http://www.candelalawfirm.com or http://www.callcandela.com or call Anthony Candela at (813) 417-3645 to discuss your case. Please do not wait. The longer you wait, the worse it could get without proper representation.
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No. 24-04 My defense attorney made a mistake. Now what?
[i] https://www.merriam-webster.com/dictionary/mistake
[ii] The Strickland standard applies to trials and plea bargains, but different cases are involved in analyzing the attorney’s advice in a plea bargain.
[iii] See Jennings v. Stephens, 13-7211 oral argument, 15 October 2014 official transcript
Justice Scalia: Well, now wait a minute. I – – you know, I have – – we- -we don’t evaluate whether you had a good counsel or bad counsel. You may have Clarence Darrow and still be denied effective assistance of counsel if Clarence Darrow makes one mistake. I mean, when – – when we find that there has been ineffective assistance of counsel, I thank that means counsel failed to do one thing that he should have done. But there’s – – there’s no such general finding that counsel was – – was, in gross, ineffective. You’re describing it as though – – as though that’s what the finding is. That – – that’s not what we hold when we find ineffective assistance of counsel. We find that this particular counsel made this mistake. That’s it.
(pp. 4-5) (Emphasis added)
Justice Scalia: No, no, no, no. The – – the right to a trial that did not have this – – this failure of counsel, this particular failure. You’re not entitled to – – to competent counsel. You’re – – you’re entitled to counsel who doesn’t make a mistake. He could be the dumbest counsel around so long as he doesn’t make a mistake. And he could be the smartest around, and if he does make a mistake, that’s ineffective assistance of counsel.
(pp. 11-12)