by Dee Wampler¹

Every criminal defense lawyer knows the feeling of having a post-conviction remedy (PCR) filed in which you are accused of being incompetent, lazy, misinformed and dishonest. It is especially tough after you've worked hard to defend a client, giving it every ounce of your energy. The disappointment of losing a jury verdict is now surpassed by hearing a client (or former client) calling you names and seeking to have you declared ineffective in legal history books.

Recently, more and more courts are considering a criminal defense lawyer's trial performance as to whether it conforms to the degree of skill, care, and diligence of a reasonable, competent attorney.

To demonstrate prejudice, the defendant must show that, but for the attorney's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different.² The older standard of proof was known as the “farce and mockery” test.³

The “defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice.”⁴ The question is whether the deficiency undermined confidence in the outcome of the trial.⁵

I. Case Examples

The landmark U.S. Supreme Court decision of Strickland v. Washington requires a dual finding that the attorney (1) failed to exercise the level of skill and diligence that a reasonably competent attorney would use in a similar situation, and (2) that the defendant was prejudiced by the failure. In one formulation or another, it is known as the “'reasonably effective assistance' standard.”⁶

A defendant must “overcome the strong presumption[s]” that any challenged action “was sound trial strategy” and counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.⁷ Was there a reasonable probability sufficient to undermine confidence in the outcome?

A movant must prove his attorney (1) performed deficiently, “falling below professional standards of competence” and (2) the performance actually prejudiced the movant's defense.⁸ If defendant “fails to [convince the court of] either prong”, then the court does not need to “consider the other.”⁹

Prejudice only exists when “there is a reasonable probability . . . that, but for counsel's unprofessional errors, the result of the proceeding would have been different,”¹⁰ or “whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”¹¹

How, using the analysis in Strickland, does the court analyze the two components? Using the Strickland analysis, courts are not required to: “approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”¹²

Did the conduct of the lawyer actually prejudice the defense to the point where the outcome of the case would have been different?¹³

In one recent case,¹⁴ some human hairs were found in a murder case but there had been no testing on the hairs. Counsel did not have the hair tested or push the prosecutor to do so but made a vague argument at trial that the hair did not belong to his client. The court said this entire speculative argument could have been proven by the hiring of a criminalist. The attorney could have easily arranged for a scientific comparison, which would have cast doubt on an eyewitness to the murder who implicated his client. The eyewitness received full immunity from the prosecutor. The evidence would have indicated that the eyewitness was lying, that her involvement in the crimes was much greater than her testimony and knowledge, and would have provided valuable cross-examination material for the jury to consider. The court found trial counsel's conduct to be deficient.

In another case,¹⁵ the defense attorney failed to investigate and subpoena the chief of a burn unit in a children's hospital to testify in a second degree murder case. The court noted the witness was easy to locate, since he was the treating physician and his stamped signature was on the victim's death certificate.

Generally, the defendant always complains that he should have testified or should not have testified and that his lawyer was wrong in whatever advice was rendered. Or, the client maintains that available witnesses should have been subpoenaed but were not. Another common argument is that the attorney did not spend enough time answering telephone calls or visiting the client at the jail.

A lawyer has a duty to make a proper investigation to surface any inconsistencies in witnesses, determine potential witnesses, “pursue the substantial defense of mistaken identification[s],”¹⁶ make “a prompt investigation of the circumstances,” to explore avenues leading to facts relevant to guilt or punishment,¹⁷ and to “check out leads.”¹⁸ If a witness could be reasonably located and the defense would have “benefited” from the witness,¹⁹ then “the testimony would have provided a viable defense.”²⁰ A decision to call or not call a witness is generally considered to be trial strategy.²¹ A decision to not interview a prosecution witness is “absurd and dangerous” and an abdication of good judgment.²²

A defense lawyer “has a 'duty to make a reasonable investigation of possible mitigating evidence or to make a reasonable [professional] decision that such investigation is unnecessary.'”²³ There must be some meaningful factual indication, for instance, as to whether trial counsel intends to pursue a mental disease or defect.

Although the choice of witnesses is a matter of trial strategy,²⁴ “strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”²⁵

A lawyer may be ineffective for failing to locate and call witnesses if the lawyer knew or should have known of the existence of witnesses, the witnesses would have testified if called, witnesses could have been located through reasonable investigation, and their testimony “would have provided a viable defense.”²⁶ Perfunctory efforts — filing late discovery motions — is no excuse.²⁷

The failure to subpoena and present testimony of an alibi witness who was otherwise ready, willing and able to testify is improvident.²⁸

Possible helpful hints to better defend one's client and improve client control would include the following:

1. If a potential client has been arrested or charged, make an immediate appointment (within 24 hours). Time is of the essence.

2. Discuss fee arrangements at the earliest meeting. Give the worst case scenario and contemplate out-of-pocket expenses, i.e., depositions, experts, mileage, etc. If there are any doubts, talk it through early on. It will save potential confusion and disagreement later.

3. Find out who referred the client to you. Call or write the person to express your gratitude.

4. Set the limits on your employment so the client knows what is included.

5. If the fee is not being paid as agreed, file a Motion to Withdraw and set it for hearing. If it is evident the client is not going to keep his word regarding your fee, get out of the case early.

6. Immediately take control of the case. Obtain the confidence of your client and his family. Tape record your client and his family at the initial interview. Answer all questions and mail out copies of your interview.

7. Thoroughly ask the client all questions and get details. Find out the client's wishes and expectations.

8. Identify the names, addresses and telephone numbers of all potential trial witnesses (including good character witnesses) and start interviewing them immediately.

9. Visit the crime scene and consider photographs, aerials, diagrams, satellite photographs and/or simply taking routine measurements.

10. Perform initial limited legal research and identify at least one or more applicable cases that support your defense. Read the statute.

11. Read relevant jury instructions, study the verdict director, and carefully read the “Notes on Use.” Consider lesser included instructions. Check the definition instructions since they might affect your defense.

12. Carefully compare the criminal charge to the properly worded state statute to determine whether the prosecutor's criminal charge is fatal and/or whether you should file a Motion for Bill of Particulars.

13. Formulate pretrial motions, then dictate rough draft motions and supporting legal suggestions. Get started early.

14. Explore initial plea bargaining with the prosecutor.

15. At the commencement, make sure you return all phone calls of the client or his family. Then instruct the client to stop calling your office, especially after you've answered all questions.

16. Keep the client advised well in advance of all upcoming court dates and the purposes of the court appearances.

17. Obtain all police and investigative reports from the prosecutor and forward copies of all documents to the client.

18. Attempt to interview all the investigating law enforcement personnel.

19. Check out the criminal record of your client and important witnesses.

20. Prepare deposition notices and subpoenas.

21. Once your services are concluded, write the client summarizing your services and thanking him for employing you, regardless of the outcome.

It is a tactical judgment, for instance, not to present mitigating evidence and pursue alternative strategies. The question is whether that is reasonable. It is “measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time of that conduct.”³⁰

Whether the failure to uncover or present mitigating evidence is justified is a tactical decision and depends on whether counsel has fulfilled its “obligation to conduct a thorough investigation of defendant's background.” To mitigate that, the American Bar Association established standards referred to as “guides to determining what is reasonable.”³¹

At the initial conference,the defense lawyer should: (1) always get the full and complete story, examining every detail; (2) obtain a list from the client and the client's family of all names and addresses of witnesses, including telephone numbers; and (3) make sure there is a paper trail of investigative notes and letters advising the client about the advantages or disadvantages of testifying.

II. Appellate Counsel

The standard for ineffective assistance of appellate counsel is similar to the standard for that of trial counsel. The movant “must show that [under the Strickland standard], appellate counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense.”³² The movant “must show 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'”³³

III. Conclusion

Courts are seriously reviewing defense attorneys' investigation and trial techniques.

A lawyer “has a duty to make reasonable professional investigations or to make a reasonable decision that makes particular investigations unnecessary,”³⁴ and when there is a failure to check out leads or interview witnesses, “post-conviction relief [will be] granted” on the grounds of ineffective assistance of counsel.³⁵

To avoid having your name added to the list of “ineffective” attorneys, conduct a thorough and detailed investigation, file necessary pretrial motions, make key trial objections, and maintain honest and constant communications with your client.

Endnotes

¹ Mr. Wampler received his B.S. in 1963 and J.D. in 1965 from the University of Missouri-Columbia. He is a former Greene County prosecuting attorney and has limited his practice to the defense of felony cases in state and federal courts.

² Strickland v. Washington, 466 U.S. 668 (1984).

³ Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974).

⁴ Nix v. Whiteside, 475 U.S. 157 (1986).

⁵ Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Bagley, 473 U.S. 667 (1985).

⁶ Trapnell v. U.S., 725 F.2d 149, 151 (2d Cir. 1983); Rose v. Lundy, 455 U.S. 509 (1982).

⁷ Moore v. State, 827 S.W.2d 213 at 216 (Mo. banc 1992).

⁸ Blankenship v. United States, 159 F.3d 336 (8th Cir. 1998).

⁹ State v. Simmons, 955 S.W.2d 729 (Mo. banc 1997).

¹⁰ See Blankenship.

¹¹ Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

¹² Strickland, 466 U.S. at 607.

¹³ Berg v. Maschner, 260 F.3d 869, 872 (8th Cir. 2001) (counsel's alleged errors in failing to object to admission of defendant's third confession was not prejudicial because the jury would have still found the defendant guilty if the confession had been excluded).

¹⁴ Wolfe v. State 96 S.W.3d 90 (Mo. banc 2003).

¹⁵ Gennetten v. State, 96 S.W.3d 143 (Mo. App. W.D. 2003).

¹⁶ Eldridge v. Atkins, 665 F.2d 228 (8th Cir. 1981).

¹⁷ Id.

¹⁸ Blankenship v. State, 23 S.W.3d 848 (Mo. App. E.D. 2000).

¹⁹ State v. Davis, 814 S.W.2d 593 (Mo. banc 1991).

²⁰ Williams v. State, 8 S.W.3d 217 (Mo. App. E.D. 1999).

²¹ Bucklew v. State, 38 S.W.3d 395, 398 (Mo. banc 2001).

²² McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Thomas v. Wyrick, 535 F.2d 407 (8th Cir. 1976).

²³ Clemmons v. State, 785 S.W.2d 524 (Mo. banc 1990); Ringo v. State, 120 S.W.3d 743 (Mo. banc 2003).

²⁴ Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987).

²⁵ Strickland v. Washington, 466 U.S. at 690 (1984); Leisure v. State, 828 S.W.2d 872 (Mo. banc 1992).

²⁶ Williams v. State, 8 S.W.3d 217 (Mo. App. E.D. 1999).

²⁷ State v. Butler, 951 S.W.2d 600, 609 (Mo. banc 1997).

²⁸ Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978); Merritt v. State, 650 S.W.2d 21 (Mo. App. E.D. 1983).

³⁰ Wiggins v. Smith, 02-311 (U.S. 2003).

³¹ American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 925 (2003); 1 American Bar Association Standards for Criminal Justice, Standard 4-4.1 (2nd ed. 1986).

³² Zinzer v. State, 60 F.3d 1296 (8th Cir. 1995).

³³ Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir. 1999).

³⁴ State v. Griffin, 810 S.W.2d 956 (Mo. App. E.D. 1991) (“failure to locate, interview and call” witnesses is ineffective).

³⁵ Blankenship v. State, 23 S.W.3d 848, 852 (Mo. App. E.D. 2000).