History’s Lesson for the Right to Counsel

This article will identify the types of lawyer errors that demonstrate a fundamental failure to provide the expert assistance that lawyers have provided for 900 years. In that subcategory of cases, the Supreme Court’s Sixth Amendment doctrine promising effective assistance of counsel does not deliver on its promise. Some defendants go to prison, or to their death, because the defense lawyer did not present the client’s strongest case at trial. When a defense is not raised at trial, procedural rules almost always deem it defaulted and thus lost forever.The question at the heart of this article is whether the Sixth Amendment right to counsel should require postconviction review of fundamental failures of lawyers at the trial stage. To date, the Supreme Court’s doc-trine has effectively placed almost all lawyer errors at trial off limits when convictions are reviewed, in part because of the Court’s concerns with finality and comity. The presentation of new claims after conviction acts to undermine finality and to create inefficiencies. To permit state defendants to raise those claims in federal court for the first time also un-dermines respect for state courts. This article argues that these legiti-mate concerns should not, however, lead to a parsimonious reading of the Sixth Amendment right to the assistance of counsel. Fundamental errors, such as the lack of loyalty to the client or the failure to raise claims likely to produce an acquittal, should not be ignored because of procedural rules. Outside that subcategory of fundamental failures, lawyer error should be essentially ignored. Defendants have a right to an adequate level of expert assistance, but not to a perfect lawyer.

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