Wiggins v. Smith: The Ineffective Assistance of Counsel Standard Applied Twenty Years After Strickland

Georgetown Journal of Legal Ethics, The, Summer 2004 by Gable, Elizabeth, Green, Tyler

I. INTRODUCTION

Challenges based on ineffective assistance of counsel are the most frequently filed claims in both federal and state post-conviction relief proceedings.1 Lawyers have a duty to provide competent representation to each client and are required to act as a competent advisor to the client.2 This duty is based on the constitutional right to counsel guaranteed by the Sixth Amendment, which the Court has determined includes the right to effective assistance of counsel.3 The Supreme Court has not laid out what specifically constitutes effective assistance of counsel, so counsel must rely on examples cited in case law and guidelines mentioned by the Court. Although this issue remains clouded today, in 2003 the Supreme Court took a step in clarifying what constitutes ineffective assistance of counsel in the case of Wigging v. Smith.4 This Note will first explore the Supreme Court's standard of effective assistance of counsel, which was established in 1984 in Strickland v. Washington.5 The Note will then discuss the 2003 case of Wiggins v. Smith, focusing on the application of Strickland to a duty to reasonably investigate mitigating evidence in a sentencing hearing. Finally, criticisms of the application of the Strickland standard will be discussed in light of the Wiggins decision.

A defendant may raise ineffective assistance of counsel claims either generally or specifically. General claims include allegations of lack of preparation, lack of requisite experience or skill for handling the case, or error.6 Specific claims include the failure to investigate an issue, failure to object to evidence, and failure to call or cross-examine witnesses.7 In Wiggins, the most recent Supreme Court case on ineffective assistance of counsel, the defendant made a specific challenge similar to the challenge made in Strickland: that counsel failed to investigate and present the mitigating circumstances of his dysfunctional background.8 The Supreme Court made clear that such an investigation is a key component of the strategic decision regarding what, if any, mitigating evidence to present during a sentencing hearing, because a thorough investigation will make the choice of what to present virtually unchallengeable.9 Despite reaffirming the general Strickland standard, the Supreme Court did not make clear when such an investigation is required under the Sixth Amendment.

II. IMPORTANCE OF EFFECTIVE ASSISTANCE OF COUNSEL

Criminal defendants are the most vulnerable of all clients, and they are often represented inadequately.10 A criminal defendant is in a situation where his life or liberty is on the line, because he is often facing a prison sentence, or in the most extreme case, execution. In no forum is the counsel's duty to represent more important than when the client's life is at stake. "A criminal defendant not only has a lot more at stake than a civil plaintiff or defendant, but is also much less likely to have chosen his own counsel."11 Statistics suggest that seventy-five percent of all criminal defendants charged with a serious crime cannot afford to retain, and therefore select, their own counsel.12 They are forced to accept court-appointed counsel, which often means a lawyer who is inadequately compensated for the case.13 Furthermore, as one expert notes, "court-appointed lawyers are often under-experienced and over-burdened."14 Because of the dire circumstances of criminal defendants and the deficiencies in the counsel available, it is very important that there is a standard to ensure that criminal defendants receive their constitutionally guaranteed right to effective assistance of counsel.

III. TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL-STRICKLAND v. WASHINGTON

The Supreme Court has created a standard to protect the Sixth Amendment right to assistance of counsel, which has been interpreted to mean the right to effective assistance of counsel.15 Counsel must be an effective advocate of the client's position and not merely someone trained as a lawyer seated at the same table.16 Counsel has a duty to provide competent representation and is required to act as a competent advisor to the client.17 However, there are no clearly established rules with respect to effective representation in a sentencing proceeding, and prior to 1984, the Supreme Court had not directly established any test for when relief should be granted as a result of ineffective assistance of counsel.18 Most jurisdictions had adopted the "reasonably effective assistance standard."19 Others used a "mockery of justice" test, where relief was granted only if counsel's defense shocked the conscience of the court.20 The Court established a two-part standard for effective assistance of counsel in Strickland v. Washington.21 In order to grant relief on a claim of ineffective assistance of counsel, two requirements must be met.22 The first requirement that must be shown by the defendant is the deficiency of counsel's performance.23 second, the defendant must show that the deficiency of counsel prejudiced his defense.24