How Bad Lawyering Can Result in Wrongful Convictions

By: LawInfo

Published: 05/2009

While the U.S. Constitution guarantees a defendant the right to representation by an attorney in a criminal case, there is no guarantee that the attorney will be effective, thorough, or even competent. For the majority of defendants charged with serious crimes, coming up with the thousands of dollars necessary to hire a renowned private criminal defense attorney is simply out of reach. These defendants are left with the services of court-appointed counsel, whose abilities and caseloads vary widely. For most defendants, they receive ethical, competent, and experienced representation by an attorney accustomed to handling criminal defense cases. However, some defendants are left only with representation by an almost universally overburdened and poorly paid, often inexperienced, and sometimes barely competent court-appointed defense attorney. As a result, some defendants run the very realistic risk of being wrongfully convicted of a crime.

Ineffective Assistance of Counsel Claims on Appeal

A common ground for appealing a criminal conviction is to claim ineffective assistance of counsel, or that the defendant was not properly represented by his or her attorney. As a routine matter, these claims are not always successful; however, where serious and substantial lawyer incompetence has occurred to the point that the defendant did not receive a fair trial, appellate courts have overturned convictions on this basis. A criminal defendant who has been convicted under state law can appeal his or her conviction to the state appellate court, to a higher appellate court, such as a state supreme court, and, ultimately, to the U.S. Supreme Court. Any of these appellate review courts has the ability to review the conviction, including the performance of the defense attorney, and overturn the conviction if the defendant did not receive a fair trial for any reason, including ineffective assistance of counsel.

Unfortunately, extreme cases of bad lawyering do result in wrongful convictions. In some cases where DNA testing has later exonerated defendants of serious crimes, the defendants’ attorneys were found to have been sleeping, drunk, and/or completely overwhelmed at the time of the trials or appeals, which resulted in wrongful convictions – and years lost to wrongful incarceration - for the defendants. While most defense attorneys are ethical, hardworking attorneys who zealously strive to give defendants the best defense available, there are a few defense attorneys who have not properly represented their clients, and, therefore, some defendants who have been wrongfully convicted.

Grounds for Ineffective Assistance of Counsel

Ineffective assistance of counsel claims can stem from a variety of actions – or inaction – by defense counsel during trials or appellate proceedings. One common basis for an ineffective assistance of counsel claim is the failure of the attorney to perform routine, necessary investigative work that would benefit the defendant. For instance, a defense attorney might fail to investigate or present any evidence as to an alibi for the defendant. A defense attorney might fail to question, subpoena, or even contact a witness that might have information pointing to the defendant’s innocence. A defense attorney might fail to hire an expert witness to counter the prosecution’s expert witness. Any of these common missteps by overworked and inexperienced court appointed defense attorneys can be fatal to a defendant’s ability to prove his or her innocence.