Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Transcript: Reasonably Suspicious Podcast, November 2017, featuring Just Liberty policy director Scott Henson and Mandy Marzullo, executive director of the Texas Defender Service.

Ineffective Assistance of Counsel: Front and Back-End Solutions

Scott Henson: Up next the House Criminal Jurisprudence Committee has an interim charge to examine instances of prosecutorial misconduct and ineffective assistance of defense counsel.

When this came out, the media focused mostly on the notion of the legislature confronting prosecutorial misconduct. But for defendants, the ineffective assistance piece is just as important. There are some structural barriers for defendants to receive relief in those cases. Mandy, why won't you deal out a few tarot cards for us and see if you can predict what structural problems the committee might confront when it comes to ineffective assistance.

Mandy Marzullo: Oh, God. I think on the front end, the committee unfortunately is going to have to confront just the underfunding of indigent defense in Texas. By and large, attorneys that represent indigent defendants in Texas are handling extraordinary caseloads; like several times the number of cases that they should be taking according to caseload studies that have been performed for decades, at this point. That does have real repercussions. If you aren't able to properly investigate your case, your client is more likely to plead to an offense when there isn't factual predicate for it, and you're less likely to present a case that adequately represents your client if and when you do go to trial. This deficit in spending is extraordinary. It's upwards of $240 million a year.

There's that piece, for which I think will be difficult for the committee to come up with a solution that's cost neutral that would be able to be remedied in a year where I think everyone is anticipating that funds are going to be tight.

Scott Henson: There is no cost neutral solution to this. That's not what's going on. Whatever you do on ineffective assistance, because we have underfunded indigent defense for so long, it's simply going to cost money. That's one of the reasons I was interested in them having put that in with prosecutorial misconduct. Are you really willing to address that? Because we know what will be involved to really address it. It's mostly more general revenue money.

There's also a situation where, once ineffective assistance of counsel has occurred in your case, it's very difficult for defendants to actually ever get any relief on that. That's in part because almost impossible to bring this up on direct appeal. Typically, the lawyer doing your direct appeal is the same lawyer who did your trial. If there's ineffective assistance there, they're very unlikely to bring up their own shortcomings.

Similarly in direct appeal, they really can't get into extraneous factors outside the record; and so they're sort of hamstrung. Yet, direct appeal is the only time when you have an attorney. Just like Mr. Ayestas in the capital case that we're going to talk about here coming up, his trial attorneys were ineffective and didn't investigate, at the sentencing phase, the mitigating evidence in this capital case that might have kept him off death row. There was no lawyer available to investigate that until the habeas corpus post-conviction aspect of his case, and even then he was struggling to get his investigation paid for. Talk to me a little about the structural situation where you don't get an attorney during the period when you might be able to challenge ineffective assistance.

Mandy Marzullo: It's not just ineffective assistance, I want to say that by and large prosecutorial misconduct is not an issue that you're going to be able to raise on direct appeal either. Defendants in Texas and throughout the country, by and large, only have access to counsel on what they called the direct proceedings. That's trial and then a first appeal that is limited to review of the trial record. It's just creating errors of law that you can look at or identify from looking at the pleadings in the case, and then the transcripts of the pre-trial hearings and the trial itself. That is the scope of the inquiry. It's very limited.

When it comes to prosecutorial misconduct and ineffective assistance of counsel, in both cases that really requires examination of facts outside the record. In order to figure out what an attorney should have put on, you're going to have to consider the scope of the investigation, the greater investigation. In determining whether a prosecutor should have disclosed certain evidence, that's going to require an examination of what that evidence was in the context of all of the information that was disclosed in the case. In both cases, you're going to need a habeas lawyer because that habeas is the review where you got to have external fact-finding. As you pointed out, you don't have a right to counsel in habeas cases unless you're on death row. That excludes most inmates in Texas.

Scott Henson: It's worth here giving a shout-out to Judge Elsa Alcala on the Texas Court of Criminal Appeals who raised all these issues in a dissent last year. And actually, her suggestions since the legislature is going to be looking for suggestions, she thought that the legislature should extend the right to counsel to habeas only to take care of this ineffective assistance category of cases because, frankly, this is such a broad category that it's really the area where they most frequently give habeas relief is ineffective assistance.

Mandy Marzullo: Yes.

Scott Henson: In the area where you're most likely to receive relief, you're the least likely to have a lawyer and be able to pursue relief. She suggested that the legislature actually pay for lawyers just like you do on direct appeal for that; and that seems like a pretty reasonable suggestion given that structural barrier.

Ayestas v. Davis

Last month, the US Supreme Court heard oral arguments in a Texas case called Ayestas v. Davis related to whether or not the defendant was entitled to funding to investigate an ineffective assistance claim as part of a habeas corpus writ in a death penalty case. Mandy, tell us what are the implications of this case?

Mandy Marzullo: This case is fundamentally about whether we're serious in guaranteeing access to justice for everyone regardless of their income level. The implications here have to do with access to funding within the Fifth Circuit so that death row inmates in Texas, Louisiana, and Mississippi. With Mr. Ayestas' case, there is a federal statute entitles indigent persons facing the death penalty to investigative expert or other services that are reasonably necessary to the representation.

However, the Fifth Circuit sort of deviates from the statutory task in determining whether to allocate resources; and it requires a demonstration of substantial need. That's really where his case went awry because you have to ... As Lee Kovarsky said in his oral argument, this test essentially requires that you establish at the front end that the outcome of the case would have been different if you had these resources.

Scott Henson: In order to get the resources.

Mandy Marzullo: In order to get the resources. It's a circular test if you really think about it.

Scott Henson: This goes back to what we're talking about earlier on this ineffective assistance claims, where these aren't really something you can raise on direct appeal for all intents and purposes. The first time you really have access to relief in these cases will be on habeas. Yet, you don't necessarily in non-capital cases even have an attorney on habeas, in this case you do. The habeas lawyers were unable to get resources to investigate the claims. It goes back to the same situation where what do you do when you aren't even able to get to that issue until habeas, and then you're not allowed to get to it then.

Mandy Marzullo: Here, we're talking about ineffectiveness layered on top of ineffectiveness. In Mr. Ayestas' trial, he was sentenced to death after a penalty phase that lasted less than half a day. His defense attorney has put on no witnesses, and essentially made no case for mercy. However, there's evidence that one, Mr. Ayestas suffered from a severe mental illness, that he had multiple head injuries, and also suffered from substance abuse. These are all things that probably mitigate his culpability but have not been investigated by his trial attorney and then it wasn't investigated by his state habeas lawyers either. Really, the first opportunity to have this looked at was on federal post-conviction, and the courts have denied him access to an investigator to talk to witnesses, but also an expert to evaluate his mental health.

Scott Henson: When will Supreme Court rule on this?

Mandy Marzullo: I don't know. Probably sometime in the spring.