Under the Sixth and Fourteenth Amendments, criminal defense attorneys must possess an exceptional understanding of legal ethics, a mastery of evidence, courtroom procedure, the criminal and appellate rules, all the pertinent criminal statutes, courtroom etiquette, jury instructions, sentencing and mitigation issues, proper error preservation, proper investigation methods and tactics, motion practice, and a superior working understanding of the current criminal case law including, but not limited to: the cases interpreting the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
No other type of law practice comes close to what is required and expected of the criminal defense attorney. It is no wonder very few attorneys actually practice this type of law. It is even less surprising that only a select few from that small number actual know what they are doing and provide truly exceptional representation.
Over the past 40 years, the responsibilities and obligations of the defense attorney have grown. Many attorneys struggle to keep up with the changing requirements and fail their clients. In the end, the defendant cannot outrun bad lawyering, and that sucks. Contrary to popular belief, an accused is not entitled to competent counsel but to an attorney who does not make mistakes that affect the outcome of the case. That is the Supreme Court’s take. See Jennings v. Stephens, 13-7211 oral argument, 15 October 2014 official transcript. [i]
In this sense, “ineffective assistance” claims are not like medical, other legal, or professional malpractice claims based upon simple negligence. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ordinarily, if you breach a duty of care to someone you owe a duty of care to, and it injures or damages someone, then you could be liable under a negligence theory. This is not like that. As you will see, the two (2) step analysis sounds like malpractice via a negligence standard, but competence is irrelevant to the analysis. The Sixth and Fourteenth Amendments place an enormous burden on criminal defense attorneys to provide “effective assistance of counsel” without telling the attorneys what is required to discharge the constitutional duties.
According to the case law, here are some examples of what has been determined to be “ineffective assistance of counsel.”
- That your defense attorney had an apparent conflict of interests with another defendant or witness in the case.
- It was a failure to advise a defendant of the consequences of the plea.
- Failure to convey a plea offer.
- Failure to file proper pretrial motions.
- Failure to investigate the facts of the case.
- Failure to interview witnesses known to the defendant and told to the attorney.
- Failure to investigate exculpatory witnesses or evidence and the defense attorney knew about the evidence.
- Failure to object to evidence or suppress evidence.
- Failure to object to the prosecutor’s argument or statements at trial, especially during closing arguments.
- Failure to present defense witnesses (if there are any).
- Failure to file a notice of appeal.
- Failure to seek DNA or serology testing… and so on, as the United States Supreme Court has and continues to define what constitutes “ineffective assistance of counsel.”
Attorneys make mistakes all the time. In many instances, the new attorney has to work extra hard to try to rectify the mistake. Unfortunately, sometimes, as the saying goes, “you can’t make the sick chicken better.”
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
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No. 24-05 Failure to do your job.
[i] 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)
