CRS Annotated Constitution
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Protection of the Right to Retained Counsel.—The Sixth Amendment has also been held to protect absolutely the right of a defendant to retain counsel of his choice and to be represented in the fullest measure by the person of his choice. Thus, in Chandler v. Fretag,218 when a defendant appearing to plead guilty on a house– breaking charge was orally advised for the first time that, because of three prior convictions for felonies, he would be tried also as an habitual criminal and if convicted would be sentenced to life imprisonment, the court’s denial of his request for a continuance in order to consult an attorney was a violation of his Fourteenth Amendment due process rights. “Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. . . . A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.”219 But the right to retain counsel of choice does not bar operation of forfeiture provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,220 the Court upheld a federal statute requiring forfeiture to[p.1436]the government of property and proceeds derived from drug–related crimes constituting a “continuing criminal enterprise,”221 even though a portion of the forfeited assets had been used to retain defense counsel. While a defendant may spend his own money to employ counsel, the Court declared, “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.”222 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,223 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.224
Whenever defense counsel is representing two or more defendants and asserts in timely fashion to the trial judge that because of possible conflicts of interest between or among his clients he is unable to render effective assistance, the judge must examine the claim carefully, and unless he finds the risk too remote he must permit or appoint separate counsel.225 Subsequently, the Court elaborated upon this principle and extended it.226 First, the Sixth Amendment right to counsel applies to defendants who retain private counsel as well as to defendants served by appointed counsel. Second, judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined “special circumstances” that no conflict exists. Third, to establish a violation, a defendant must show an “actual conflict of interest which adversely affected his lawyer’s performance.” Once it is established that a conflict affected the lawyer’s action, however, prejudice need not be proved.227
“[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been[p.1437]constitutionalized in the Sixth and Fourteenth Amendments.”228 So saying, the Court invalidated a statute empowering every judge in a nonjury criminal trial to deny the parties the right to make a final summation before rendition of judgment which had been applied in the specific case to prevent defendant’s counsel from making a summation. The opportunity to participate fully and fairly in the adversary factfinding process includes counsel’s right to make a closing argument. And, in Geders v. United States,229 the Court held that a trial judge’s order preventing defendant from consulting his counsel during a 17–hour overnight recess between his direct and cross–examination, in order to prevent tailoring of testimony or “coaching,” deprived defendant of his right to assistance of counsel and was invalid.230 Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the Amendment.231 Governmental investigative agents may interfere as well with the relationship of defense and counsel.232
Effective Assistance of Counsel.—“[T]he right to counsel is the right to the effective assistance of counsel.”233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords “effective aid in the preparation and trial of the case.”234 Of course, the government must not interfere with representation, either through the manner of appointment or through the imposition of restrictions upon appointed or retained counsel that would impede his ability fairly to provide a defense,235 but the Sixth Amendment[p.1438]goes further than that. “The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.”236 That is, a criminal trial initiated and conducted by government is state action which may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the possible fact that government did nothing itself to bring about the unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a trial.237
The trial judge must not only refrain from creating a situation of ineffective assistance, but may well be obligated under certain circumstances to inquire whether defendant’s counsel, because of a possible conflict of interest or otherwise, is rendering or may render ineffective assistance.238 A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent enough to provide effective assistance. While the Court touched on the question in 1970,239 it was not until 1984, in Strickland v. Washington,240 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings.241[p.1439]
There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. Although the gauge of effective attorney performance is an objective standard of reasonableness, the Court concluded that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strategic choices made after thorough investigation of relevant law and facts are “virtually unchallengeable,” as are “reasonable” decisions making investigation unnecessary.242 In order to establish prejudice resulting from attorney error, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”243 In Strickland, neither part of the test was satisfied. The attorney’s decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant’s criminal history was deemed “the result of reasonable professional judgment,” and prejudice could not be shown because “the overwhelming aggravating factors” outweighed whatever evidence of good character could have been presented.244 In Hill v. Lockhart,245 the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.
Supplement: [P. 1439, delete last sentence at end of first full paragraph on page and add the following:]
In Lockhart v. Fretwell,9 the Court refined the Strickland test to require that not only would a different trial result be probable because of attorney performance, but that the trial result which did occur was fundamentally unfair or unreliable.10
There are times when prejudice may be presumed, i.e. there can be “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”246 These situations include actual or constructive denial of counsel, and denial of such basics as the right to effective cross–examination. However, “[a]part from circumstances of that magnitude[p.1440]. . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice].”247
Supplement: [P. 1439, add to n.244:]
In Hill v. Lockhart, 474 U.S. 52 (1985) , the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.
Supplement: [P. 1440, n.247, delete citation to Lozada v. Deeds and accompanying sentence, and substitute the following:]
Also not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or even to consult with the defendant about an appeal. Roe v. Flores–Ortega, 120 S. Ct. 1029 (2000).
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