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

The other type of defendant who is able to employ, and prevail under, the Strickland standard is a criminal defendant who protests his counsel's performance during the sentencing phase of trial, as demonstrated in Wiggins.112 His burden of proof is not to prove his innocence, but to demonstrate that one juror might have "struck a different balance" when contemplating his punishment, and not sentenced him with the same punishment.113 Defendants contesting counsel's representation during the sentencing phase do not have to grapple with re-trying the entire case to demonstrate that a different outcome would have occurred. Rather, they only have to show that if the defense counsel performed differently, there is a reasonable probability that at least one juror would have reached a different sentencing decision.114

The Strickland test is functional in terms of the results of an individual criminal case. The second prong of the test evaluates whether the defendant suffered prejudice as a result of his attorney's conduct, and allows him a second chance if the representation was ineffective. If the client was unsuccessful in proving prejudice, the Strickland standard often prevents civil recourse for the defendant if he is wronged by his counsel through collateral estoppel. Many states collaterally estop a defendant from raising ethics violations or bringing a civil suit against their negligent attorney if the outcome of that particular case would not have been different.115 This is most likely because the Supreme Court stated in Strickland that the purpose of the effective assistance guarantee is not to improve the quality of legal representation, but to ensure the client was not detrimentally affected in that particular case.116 While that may be true, if the prejudicial prong is reviewed first without regard to attorney conduct, Strickland actually deters the improvement of the legal system in states where a defendant is prevented from bringing a malpractice suit by collateral estoppel. Most courts have determined that if "a criminal malpractice plaintiff has sought constitutional relief for the ineffective assistance of counsel, failure to succeed in that claim precludes him from relitigating the issue of whether his counsel performed negligently."117 This means that no matter how egregious the counsel's representation was, if the ineffective assistance of counsel claim was dismissed due to the prejudicial factor, the attorney's conduct will never be recognized or reprimanded by the courts. Not only does this detrimentally affect the recourse for the individual defendant, but it also affects the general public by allowing unacceptable representation to continue, unbeknownst to future clients. While Wiggins did help future defendants by affirming that attorneys must make reasonable investigations into mitigating evidence prior to making a strategic choice, it did nothing to address the effectiveness of counsel in every case, whether the defendant was prejudiced or not.