When to Bring an Ineffective Assistance of Counsel Claim

Can an ineffective assistance of counsel claim be brought on direct appeal?

Last week, the First Circuit Court of Appeals overturned a conviction on "direct appeal", because the defendant's criminal defense attorney provided "ineffective" representation.

Ineffective Assistance of Counsel Claims

An ineffective assistance of counsel claim is brought after a criminal defendant has been found guilty of a crime. Most of the time, these claims are brought after the defendant has been sentenced. The claim is that the criminal defense attorney's representation fell so far short of prevailing standards, as to be ineffective, meaning not just a poor job, but that there is a reasonable probability that, but for counsel's substandard representation, the outcome of the case would have been different. In other words, no conviction - the defendant would have been acquitted or the case would have been dismissed.

Direct Appeal versus Collateral Attack

A "direct appeal" is an appeal directly from the jury verdict of guilty and resulting sentence, to an appellate court. For example, in a New Hampshire state court, there is only one avenue of direct appeal, from the trial court to the New Hampshire Supreme Court. In NH's federal court, a direct appeal would go to the First Circuit Court of Appeals in Boston.

A "collateral attack" is a civil suit filed in the trial court. Most of the time, ineffective assistance of counsel claims have to be brought in a collateral attack proceeding such as a petition for writ of habeas corpus, or a motion for new trial. That is because the trial court needs to hear evidence - in particular, needs to hear the defense attorney explain why she made the decisions she did in order to determine whether there were strategic reasons for the defense strategies employed, or alternatively, whether the lawyer simply messed up and did a poor job.

When can an Ineffective Assistance of Counsel Claim be Brought on Direct Appeal?

As you might guess, the answer is we can bring such a claim on direct appeal if the lawyering is obviously substandard and the resulting "prejudice" - the effect on the outcome of the proceeding - is equally obvious, such that there is no need to present additional evidence to the trial court. On May 26, 2015, the First Circuit determined that a lawyer's failure to file a motion to suppress, which would have suppressed the defendant's confession, met these standards. Read USA v. Mercedes de la Cruz, No. 14-1186 (1st Cir. May 26, 2015). As another example, in State v.Thompson, 161 N.H. 507 (2011), the New Hampshire Supreme Court addressed an appeal where the defense attorney failed to object to rank hearsay testimony throughout a sexual assault trial. Based on the hearsay, the jury convicted Mr. Thompson of felonious sexual assault. The Court held that the hearsay never should have been admitted, that no strategic consideration could possibly justify not objecting to the hearsay, and that the attorney's ineffective assistance of counsel merited reversal of the convictions on direct appeal. The Court used unusually harsh language: "We hold, based upon the indisputable and egregious errors of trial counsel, which are apparent from the trial record, that the defendant was provided ineffective assistance of counsel."

These cases remind us that lawyering involves careful consideration of tactics and strategy - we must consider not just what claim to bring, but when to bring it, and where to bring it - in what Court, does this claim belong? For ineffective assistance of counsel claims, the answer in most cases remains a collateral attack in the trial court, but sometimes, in clear cut, egregious cases, we should take a "shortcut" and litigate the ineffective assistance of counsel claim on direct appeal. In fact, the lawyers at Lothstein Guerriero, PLLC are presently litigating a claim of ineffective assistance of counsel on direct appeal to the First Circuit, so stay tuned!