0:00:00.0 Speaker 1: Thank you gentlemen the case is submitted, we'll hear arguments next in Strickland against Washington.

[music]

0:00:09.5 Speaker 2: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Strickland v. Washington, at the center of the case, is a man named David Washington, who pled guilty to murder. But during the sentencing phase of his trial, his lawyer failed to advocate against the death penalty.

0:00:34.3 Speaker 1: He could not point and did not point when his client's life was at stake to a single shred of independent evidence that would have advised the judge of a fuller understanding of who David Washington is, who is this individual who has a spark of decency within him?

0:00:37.2 Speaker 2: Washington filed a petition arguing that this lawyer had been ineffective counsel. The case made its way to the Supreme Court, where in an eight to one decision, the justices denied his claim. Two months later, Washington was executed by the State of Florida. This is 5-4, a Podcast about how much the Supreme Court sucks.

0:01:12.7 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have sunk the ship of Liberty, like that fire sunk the ship full of Audis in the Atlantic Ocean. [laughter]

0:01:25.0 Michael: That's right.

0:01:26.6 Peter: I'm Peter, I'm here with Michael.

0:01:27.9 Michael: Hey, everybody.

0:01:28.7 Peter: And Rhiannon.

0:01:28.8 Rhiannon: Hey, did you all hear that the law of the ocean is that that ship was just finders keepers. Like you could just go get the Audis. [laughter] the Audis are yours now.

0:01:39.9 Michael: Yeah. [laughter]

0:01:40.0 Peter: Yeah.

0:01:40.1 Michael: Yeah.

0:01:43.7 Rhiannon: That's so stupid. [laughter]

0:01:46.0 Michael: Isn't that the conceit of the Titanic movie, right? They were like, "We could just go get this fucking huge diamonds and be loaded." Right?

0:01:53.3 Rhiannon: Okay. Yeah, I never picked up on that, but alright.

0:01:55.9 Michael: Yeah.

0:01:56.0 Peter: No, it's the same thing in New Jersey. If you lose something in New Jersey, it's a free for all. [laughter]

0:02:00.6 Michael: There was a period, a short period of my life where I briefly talked with a friend, we should move to the Bahamas, [chuckle] and start like a salvage operation and just go around doing this, we'll just live in the fucking sun and it'll be killer.

0:02:12.6 Rhiannon: Yeah.

0:02:14.2 Peter: Did I ever tell you guys that I did a maritime law case? [chuckle] It was one of the first cases I got when I went to a new law firm. They put it on my desk and they were like, youre gonna have to learn some maritime law for this. And I was like, "What the fuck you talking about? It is not like a real... [laughter] It's not like a real field of law that anyone actually learns," and they were like, "Good luck, buddy." By the end of it, like no joke, I was like the maritime law expert at the law firm, and so once a year, something would pop up, I'd get an email that was like, "Peter is our resident maritime law expert." [laughter]

0:02:44.0 Michael: Yeah, that's what happens. Once you do something that they just keep coming back to the well.

0:02:47.3 Peter: Right, I should have built out that niche for myself, but I was too short-sighted. Alright, today's case is Strickland v. Washington, this is a case from 1984 about ineffective assistance of counsel. In other words, how bad can your lawyer be before it's unconstitutional. In this case, the court in an eight to one decision, written by Sandra Day O'Connor created a test to figure out whether a criminal defendant's lawyer is adequate, the problem is that the test they created ended up being so pliable that in practice it failed to guarantee criminal defendant's competent representation at all. As a result, we have a system where the standard of representation guaranteed to poor people, especially is in legal terms: "Dog shit." [chuckle]

0:03:38.5 Rhiannon: That's right.

0:03:40.3 Peter: So Rhi, you wanna give us a little bit of context for this one?

0:03:42.4 Rhiannon: Yeah, absolutely. So jumping right in, this Supreme Court case, Strickland v. Washington starts as a capital murder case out of Florida. Now, I have to say, I just have to be upfront because it is my home state, that a lot of Supreme Court jurisprudence on the death penalty comes out of Texas, but a lot also comes out of Florida, so just more evidence about the kind of state that Florida is. Take that for what you will.

0:04:06.7 Michael: Hey, hey. [laughter] What the hell? [chuckle] a Texan casting aspersions. [laughter]

0:04:13.5 Rhiannon: That's right. Our panhandle is better.

0:04:15.9 Michael: That I agree with, our Panhandle is fucking hell on earth [laughter]

0:04:20.9 Peter: Look at you bums, scraping a the bottom of America's barrel trying to defend your garbage states.

0:04:28.0 Rhiannon: Texas forever.

0:04:29.0 Peter: I'm live from Rikers Island, New York City. [laughter] Capital of American justice.

0:04:35.0 Rhiannon: That's right. So even though this Supreme Court case isn't specifically about the constitutionality of the death penalty, I do wanna just point out up top that it is part of a long line of cases related to the death penalty that I think exemplifies a kind of inherent tension between, on the one hand, the institution of capital punishment, and on the other hand, a Constitution that guarantees Due Process, Equal Justice, protection from cruel and unusual punishment, the right to an attorney, etcetera. These are fundamentally opposed concepts and going through cases, not just about the death penalty, specifically, but about the representation you're supposed to receive in these extremely serious cases, really bears that out. I think.

0:05:20.7 Michael: Yeah.

0:05:20.8 Rhiannon: Okay, so Florida, turning to Florida. In 1976, David Washington was accused of killing three people during a robbery spree over a 10-day period. Now, by the time of the trial, Mr. Washington had confessed to all three murders and he decided to plead guilty, he wasn't gonna go through with a the trial. Now, trial proceedings are usually bifurcated, they're split into two, meaning there's this first part where someone is determined guilty or not guilty, and then there's a second separate proceeding if someone is found guilty to determine what their punishment is going to be, there's a sentencing proceeding.

0:06:00.0 Rhiannon: So Mr. Washington pled guilty to three first degree murders, and so all that was left to do was the sentencing hearing, where the judge would determine his punishment, so he could have been sentenced to a prison term or he could be sentenced to death in Florida.

0:06:15.8 Rhiannon: Now, a person's right to counsel, their right to an attorney extends through that sentencing proceeding, and even though a trial looks different from a sentencing hearing and the lawyer's duties are a little bit different depending on which part of the proceedings you're in. A sentencing hearing is still like a little mini-trial in terms of the procedure. As a defense attorney in a sentencing hearing, your duties are different because instead of fighting to show that your client is not guilty, guilt has already been determined, so you're having just the mini trial to fight for the least punishment, the least harsh punishment for your client, so when capital punishment is on the table, that means that you're fighting to save your client's life, likely by arguing that your client should serve a term of years in prison rather than be executed. But it is much like a trial, this sentencing part of a trial, it is like the guilt, innocence portion of a trial in that, you can call witnesses may be character witnesses who can talk about your client's upbringing or other circumstances that may mitigate a harsh punishment result, you can call experts who have done medical or psychological evaluations on your client that show relevant mitigating factors, the world is really your oyster in that proceeding, the lawyer's job is to put on evidence, really any evidence that would call for mercy in your client's case and argue for mercy...

0:07:35.5 Rhiannon: To the judge or jury.

0:07:37.2 Michael: Right.

0:07:38.6 Rhiannon: So turning to Mr. Washington's lawyer. Mr. Washington's lawyer in Mr. Washington sentencing hearing did none of that. Even though the lawyer did prepare for a trial, Mr. Washington, as I've said, decided to plead guilty, so the only thing left to do was the sentencing hearing, now the lawyer failed to ask the judge for time to prepare for sentencing, he just went ahead with the process even though he had prepared nothing. The lawyer failed to investigate or call any witnesses, he didn't talk to any of Mr. Washington's loved ones or people who knew him as a child, didn't present any character evidence, the lawyer failed to request a psychiatric report, he failed to investigate the medical examiners reports which could have mitigating information about how a victim died.

0:08:23.2 Rhiannon: He even failed to cross-examine the medical experts called by the state during the sentencing proceeding, and finally he failed to make any meaningful argument about sentencing to the judge. He did literally nothing. So as a result, the judge sentenced Mr. Washington to death, in handing down that sentence, the judge found that there were many aggravating factors that led him to this result, that led him to the sentence of death, many aggravating factors about the murders that warranted the death penalty, so for example, that these had been violent stabbings that they were committed in the course of a robbery, that they were done for pecuniary gain, but on the other hand, the judge found no mitigating factors that would tend to draw out mercy.

0:09:06.5 Rhiannon: So after the trial, Mr. Washington sued saying like, "Hey, my lawyer just sat there while the state argued for me to get the death penalty, my lawyer did nothing during my sentencing proceeding," and the Supreme Court took up the case to consider what standards there may be for judging an attorneys ineffective or deficient representation.

0:09:27.5 Peter: Right? So let's talk about the law a little bit, the law here starts with the Sixth Amendment, which among other things, says that "If you are charged with a crime, you are entitled to the assistance of counsel for your defense." In 1963, a case called Gideon v. Wainwright, the Supreme Court held that that meant you have a right to an attorney in all criminal trials, that means poor people must be appointed an attorney if they cannot afford one.

0:09:55.6 Rhiannon: That's right.

0:09:56.0 Peter: It's established that you have a right to an attorney if you're charged with a crime that includes in state court, but the next question is just what exactly that means, namely, if you're appointed an attorney but the attorney is completely incompetent, then in practice, you weren't really afforded your right to an attorney at all. And that's what Washington is claiming here, he's saying, "I have a right to an attorney, and it stands to reason that if my attorney is incompetent or ineffective then my right to an attorney was functionally violated. My attorney sucked. My right was violated."

0:10:29.9 Rhiannon: Right.

0:10:31.1 Peter: So the court is addressing this dilemma, how do you handle situations where someone has an attorney but the attorney is so ineffective that he's just functionally not there, and they create a two-part test to see if someone's Sixth Amendment rights were violated in these situations. First, was the council deficient? Now, deficient is a vague term, so they try to clarify by defining it as making errors, "So serious that Council was not functioning as the council guaranteed the defendant by the Sixth Amendment," which if you notice is not actually clarifying at all, but simply restating the basic question, right?

0:11:12.9 Rhiannon: Exactly.

0:11:13.0 Peter: How bad does a lawyer's representation have to be before it violates the Sixth Amendment? Well, it has to be deficient, and what does deficient mean? Well, it means it's so bad that it violated the Sixth Amendment.

0:11:23.9 Rhiannon: Thank you so much, Sandra Day O'Connor. [chuckle]

0:11:26.1 Peter: Yeah, right. It's really good.

0:11:27.5 Rhiannon: Yeah.

0:11:27.6 Peter: Second, the second part of the test, the deficient performance by the attorney has to be so deficient that the defendant is deprived of their right to a fair trial, which once again is circular. Right. What violates the Constitution? Deficient Council. How deficient does it have to be so deficient that it violates the Constitution. [chuckle] Both Parts of the test are were just completely circular logic so far, now in the court's defense, it elaborates a little bit here, they say, "Generally, this means that your lawyer was so bad that it impacted the outcome of your trial, meaning had you received better representation, there was a reasonable probability that you would have been found not guilty." They also make a note to say that courts must give attorneys "Wide latitude and not scrutinize the lawyer's strategic decisions too closely."

0:12:20.6 Peter: So that is the test. You may notice just how much vagueness is involved here, your lawyer must be deficient and that's not clearly defined, and then you're not allowed to second guess the lawyer too much, and even then, it only matters if you can show that the outcome of your trial probably would have been different, which it's worth pointing out is another way of saying that if the court thinks you're guilty, it doesn't matter whether your counsel was ineffective or not. Right?

0:12:47.6 Michael: Right.

0:12:47.7 Rhiannon: Right.

0:12:49.6 Peter: All of this creates a situation where it's simply near impossible to prove that you received ineffective assistance of counsel, the standards are just impossibly vague and all of the inferences cut against the defendant.

0:13:02.3 Rhiannon: Yeah, that's right, and there's a pretty incredible dissent by Justice Thurgood Marshall, the descent is really extremely thorough and thoughtful, I think, and it's a dissent that points out basically every problem with the standard for ineffective assistance of council. So one point that the court does elaborate on, but again, vaguely, is the deficient performance prong of the test, when the majority opinion is expanding on what deficient performance mean, they say that it's a reasonableness standard, that the performance of the attorney has to be reasonable.

0:13:38.6 Rhiannon: So Thurgood Marshall points out immediately, like first of all, that's extremely problematic that the court is adopting a reasonableness standard, he says, "My objection to the performance standard adopted by the court is that it is so malleable that in practice it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. The Court in its majority opinion, has not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs." So he further questions like, "What does reasonableness even mean, what is reasonable performance at trial for a lawyer? What does that look like? Are we judging an attorney's performance by how a reasonable paid attorney represents a client or a reasonable appointed attorney?"

0:14:26.6 Rhiannon: He calls the reasonableness standard like debilitatingly ambiguous, and he points out the obvious discrepancies in the quality of representation you get if you're wealthy versus if you're poor. Another thing I really like about the Marshal dissent is that he points out how this standard basically creates a sort of race to the bottom in standardizing what is terrible representation as reasonable because the court isn't going to say that the system under which people are being represented in serious felony cases with huge stakes is manifestly unfair. Right, Marshall goes on and he points out a problem with the second prong of the test too, that's the prong where the court says the defendant has to show that the outcome of the trial would be different if they had had better representation. And Marshall says "You can't measure that only by the supposed fairness of the outcome of the trial," like what the majority is saying, Marshall points out is basically that if a defendant is clearly guilty, then different representation wouldn't change the outcome.

0:15:31.6 Rhiannon: But what's important, Marshall points out, is the fairness of the procedure, also the fairness of the trial that happened, the system is only reliable and fair when the whole process of a trial was reliable and fair, and that includes effective assistance of counsel all the way through. He says, "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney I cannot agree." He goes on to talk about reliability in death penalty cases, and how it's especially important, we have to know for sure that someone is guilty, right. And that the sentencer has been informed of all relevant information about this individual defendant before determining that defendant's fate, we're talking literally life or death stakes here. Right?

0:16:19.0 Peter: Right.

0:16:24.0 Rhiannon: So if Counsel didn't investigate, if Counsel didn't call witnesses, if they didn't make an argument for their client, the burden shouldn't be on the defendant to show that the outcome would have been different, it should be fully obvious full stop. They didn't get a fair trial. And that should be enough.

0:16:42.6 Peter: Yeah, and before we go on, I should mention, we're talking about the test and how fucking bad the test is, but of course the court applied this test to Washington's case and said, "No, no, he's good."

0:16:51.1 Rhiannon: Right. Yeah.

0:16:53.4 Peter: And basically just made excuses for the lawyer at every turn. [chuckle.

0:16:53.6 Rhiannon: Yeah.

0:16:54.6 Peter: It's a sort of bizarre opinion to read because it's pretty obvious if you read the briefing that this lawyer sucked. And you can say maybe he didn't suck so badly that it was illegal, which is the question, but when you read the majority opinion, they don't really get into it at all.

0:17:08.4 Rhiannon: That's right.

0:17:14.8 Peter: They make it seem like this guy was perfectly competent.

0:17:18.6 Rhiannon: Right.

0:17:19.3 Michael: Yeah. So I wanna talk about a companion case to this, issued the same day on this same legal issue called United States v. Cronic, and Cronic is about structural issues to a trial, and the idea being that sometimes there's a problem with the trial so bad that you don't need to show that the outcome would have been different, that is just presumptively deficient, and there is a level of ineffective assistance of counsel that meets this according to the court, and that is when the lawyer failed to subject the prosecution to any adversarial process at all, right?

0:17:58.9 Rhiannon: Right. Yeah.

0:18:00.3 Michael: And so it says like, Look, if the lawyer just literally is there, not doing anything, you aren't actually represented. And you don't have to show that the outcome would have been different. So I think the first... [chuckle] The first thing I to think about is to Marshall's point in the dissent about the malleability of all these standards is, doesn't that describe exactly what happened in Strickland?

0:18:21.7 Rhiannon: Exactly.

0:18:22.1 Michael: The lawyer did nothing. He didn't put the prosecution's case to any adversarial challenge at all. He didn't challenge their witnesses, he didn't put up counter-witnesses, anything, under any fair reading of the facts that would fall under the Cronic rule where he wouldn't have to show that the outcome was different, but the court the same day, the very same day that these cases... These cases were issued, said that "Actually, no, that's this other case." And I think that's how it's kind of played out is that Strickland is like the case, like you learn it in law school, I learned about this stuff when I was interning for a judge and my Crim Pro professor didn't even know Cronic existed... [laughter] When we talked about Strickland, like it was... It's...

0:19:08.0 Michael: The way these cases one has been sort of relegated to second tier status, it does get cited, but it's not nearly, like Strickland is the standard, Strickland is the case, everyone knows, and it's got a much harsher test that you have to satisfy, because you have to show that your trial would have come out differently, and that's a very difficult lift, and I don't know that it's a fair one to ask of someone who, in some cases, everyone agrees didn't get good representation. Didn't get constitutionally. Sufficient representation, right?

0:19:40.9 Rhiannon: That's right, and to your point, Michael, what flows from Strickland is exactly what Marshall predicted in his dissent would happen. It did happen, right? So lower courts had no idea how to uniformly apply the Strickland standard, and all sorts of bad lawyering in some jurisdictions was being rubber-stamped as fine under Strickland, while in other jurisdictions, the same bad lawyering behaviors were being called ineffective assistance of counsel and defendants were getting a new trial. So this brings up, I think, the fundamentally unfair nature of the Strickland standard because of the arbitrariness that it creates inside the system, and so what happens after Strickland is literal decades of ticky-tack jurisprudence from the Supreme Court about which specific behaviors are in fact ineffective assistance of counsel in which behaviors of lawyers get deference from appellate review. So for example, in Williams v. Taylor in the year 2000, the Supreme Court said that the defendant Mr. Williams who had been sentenced to death again, had gotten ineffective assistance of counsel because his attorney didn't investigate his childhood and didn't present evidence to the jury that Mr. Williams had severe cognitive limitations, and also he didn't call any witnesses who could have testified that Mr...

0:21:00.1 Rhiannon: Williams was a non-violent guy in prison, so know similarity in the deficient performance here and in Strickland on the facts of what the lawyers did and did not do... That's extremely similar to Strickland, but in the Williams v. Taylor case, the Supreme Court comes out differently. Then there's also two other cases, Wiggins and Rompilla, where the Supreme Court did the same thing, saying counsel had been ineffective for largely the same deficiencies, so this litigation has been reduced to one at a time, ticky-tack. You have to take it case by case, instead of creating a meaningful standard that broadly applies to the whole system, and a meaningful standard that lawyers and judges can learn from and apply in an equal.

0:21:47.5 Peter: We always talk about rights without remedies, and the idea that in order for a right to be real, there needs to be a meaningful remedy if it's violated, this is sort of related to that, the quality of the representation you get, it's not a remedy, per se, but it's the vessel for which your rights are flowing. You have this right to counsel, the Constitution guarantees you an attorney, so when you are appointed one, that is the state fulfilling its constitutional obligation to you, the way the majority opinion operates here places an enormous burden on the defendant to show that his attorney was ineffective, so even putting aside the fact that these standards are incredibly vague, the court expressly says that the appointed attorneys need to be given the benefit of the doubt and shouldn't have their decisions second guessed too aggressively. But why not. It's the state's obligation to guarantee your rights, so why are we deferring to the State? It makes sense that they should be scrutinized fairly closely to ensure that they are meeting their constitutional obligations, and I think what's really going on here is the prioritization of judicial efficiency. In other words, the court is saying that the judicial system is just not able to analyze all of these claims...

0:23:05.5 Rhiannon: Exactly, yeah.

0:23:06.6 Peter: This is something you can frequently see in the background of a lot of civil rights cases where they're talking about procedures for vindicating constitutional rights, where the court is either explicitly or implicitly saying, "Look, we just don't have the resources to adequately protect everyone's rights. We can't have a whole court case every time someone doesn't like their attorney... Sorry."

0:23:27.1 Michael: Right.

0:23:28.3 Rhiannon: Yeah.

0:23:29.6 Peter: And of course, the more proactive forward-thinking "Remedy" would be a much more robust public defense system rather than one that throws an inadequate number of overburdened and underpaid attorneys at the problem and calls it a day. And Rhia, I wanted to ask you about it because from a public defender's perspective, there's sort of a tension here where I'm sure you've had clients say, that they disagree with your strategy here and there or whatever, they want you to do X and Y and not A and B.

0:24:01.5 Rhiannon: Sure.

0:24:05.8 Peter: So to some degree, you have to have some sympathy for an attorney who's getting called out by their client, who's probably not a lawyer, probably doesn't really have their arms around the strategy, so what's the lens through which you look at things like this?

0:24:17.6 Rhiannon: Yeah, I think about this a little bit differently. So my role on a case is that I work for a client, and I also keep in mind that clients are the experts on their lives and often know more about their own situation and what they want to do than I do... And it's not my job to do what I think is best for a client, it's my job to explain things to counsel a client on what the options are on, what the path ahead of them for their case looks like, and then to execute what their stated interests are, that's what the ethical duties of defense attorney are in terms of zealous advocacy. Zealous advocacy is in service of the stated interests of your client, not what you think is best and not the strategy that you come up with without any counsel with your client.

0:25:08.3 Peter: I think that's a sharp way to put it, and I imagine that a lot of these attorneys who are getting hit with ineffective assistance claims, although I'm sure many of them are competent, but I'm sure that a lot of them are churning through clients and just sort of doing the same couple of things for each of them, and then when someone says, "Hey, you should call this witness or you should look into this," they're gonna be like, "Oh no, no, no, man, that's a... That's not my game."

0:25:31.7 Rhiannon: Right, and it's easy to say that like, "Oh, this case is a sure loser, maybe there's a confession already, we're gonna lose already. And so I'm just not even gonna try." It's extremely common in the kind of toxic culture of plea mills, of the assembly line of criminal justice, the way it is today.

0:25:50.7 Michael: Yeah, you sort of reminded me of a point I wanted to make earlier about Strickland itself and sort of the weakness of the rationale, like plea bargaining is part of... Lawyering.

0:26:02.5 Rhiannon: Absolutely. Yeah.

0:26:04.7 Michael: And it's pretty incredible that they were geared up for trial. And instead of a trial, got a guilty plea and the lawyer wasn't even able to extract... Take the death penalty off the table in exchange for... Save you the trouble of the trial.

0:26:19.1 Rhiannon: Exactly.

0:26:19.6 Michael: It wasn't just the sentencing phase itself that's deficient in the plea bargaining stage as well... That's awful...

0:26:27.0 Rhiannon: Absolutely.

0:26:28.6 Michael: Awful lawyering.

0:26:28.7 Peter: Yeah, I pleaded guilty and they're like, "Alright, we'll do it in exchange for the death penalty," and you're like, "Okay." [laughter]

0:26:33.2 Rhiannon: Right.

0:26:35.3 Peter: Yeah.

0:26:36.1 Rhiannon: Right, exactly. This is a bad deal.

0:26:37.4 Peter: What did you get out of that plead, dude?

0:26:39.5 Rhiannon: Exactly.

0:26:39.6 Michael: Yeah.

0:26:39.6 Rhiannon: Should be something for something.

0:26:40.5 Peter: That could be rejected under principles of contract law, you need to get something in exchange for the...

0:26:46.9 Rhiannon: Where is the quid pro quo? Exactly, yeah, I do also wanna make a quick point that I just thought about in terms of ineffective assistance of counsel and how public defenders and zealous advocates warriors for their clients, think about ineffective assistance. For attorneys who care about their clients and care about the outcomes of their client's cases, a lot of times, there might not be resistance to accepting or even admitting that you gave ineffective assistance at trial, if it means that your client has a color-able claim at success on appeal, then there's not that much of resistance to being called ineffective, because again, that could be in service of your client's claims and expand their chances at winning.

0:27:27.6 Michael: If you're a good lawyer who cares about their clients.

0:27:31.3 Rhiannon: That's right.

0:27:32.7 Peter: Yeah. One last thing before we move on, because I think you can sort of see the gap just in how, Rhia, you're talking about this between a good public offender and a bad one, and I counseled on a lawsuit that was against a State that had a particularly bad public defense system, and we basically said, "You need to be funding your public defense better," and there's a bunch of data being provided about how shitty it was and how bad their outcomes were, and the local public defense organizations stepped in to defend themselves, even though functionally, we were arguing for increases in their funding, [chuckle] like higher salaries, etcetera, but they basically said, "No, we're actually doing a great job, and how dare you say that we're not." And literally in a lawsuit siding with the State that does the prosecuting, and I think that goes to show not just how bad some individual public defenders can be, but how completely toxic and captured certain public defense organizations are at like the local and county level.

0:28:37.3 Rhiannon: Yeah, yeah. It's a culture issue.

0:28:39.4 Peter: Right. They are literally sort of living in a symbiotic relationship with the prosecution. I wanna mention that ineffective assistance cases are generally viewed through the lens of the Fifth and Sixth amendment, Fifth Amendment Due Process, Sixth Amendment Guarantee to Counsel. But I think it's important to remember that there are valid concerns about equal protection here too.

0:28:58.0 Rhiannon: Yes.

0:29:00.4 Peter: Like if wealthier people have grossly disproportionate access to effective counsel and therefore their constitutional rights, that seems like a fairly cut and dry violation of the 14th Amendment's guarantee of equal protection under the law. So in my view, there are two constitutional questions when you're trying to evaluate whether someone received ineffective assistance of counsel, one, did they receive the baseline of process due to them under the Fifth and Sixth Amendments, and two, did they receive equal protection of their constitutional right to due process relative to other citizens? And of course, the equal protection clause as it is currently interpreted, is just like a hollowed out shell of what it could and should be, but just another reminder of what it could mean in a world where it was given real force.

0:29:43.7 Michael: So we should talk a little bit about the practical fallout of this, we've talked about the dangers of how this could be malleable, but we should get into how it has in practice been pretty awful. And so I wanna talk about a little corner of the law, a little area of jurisprudence [0:30:00.6] ____ called the sleeping lawyer cases. There are multiple circuit cases about it, Law Review wrote articles about it, when lawyers fall asleep during a criminal trial or what does that mean, how does that work? And there is a circuit agreement on this actually, although there are some general principles, like if your lawyer sleeps through pretty much the entire trial, then it's like that United States, fifth Cronic Case I mentioned, where you don't have to show the outcome would have been different.

0:30:30.8 Rhiannon: Right. My lawyer was fucking asleep, I basically didn't have a lawyer.

0:30:34.5 Michael: Right, but if your lawyer just takes maybe two or three naps... [laughter]

0:30:39.9 Peter: Everyone deserves a little bit of a nap.

0:30:46.6 Michael: The rules aren't quite the same, but the general consensus is basically like two or three naps that is deficient performance, but it's covered by this case, Strickland v. Washington, and you have to show the outcome would be different, which is a tough lift. Especially, 'cause these are all cases where somebody's already been found guilty.

0:31:05.9 Rhiannon: Exactly.

0:31:06.5 Michael: So you know there was at least a decent case against them, which if you think about it the other way, if you sort of reverse the thought process, what that's saying is, your duties as a lawyer, if the prosecution has a decent case, don't even extend to staying awake throughout the trial. Like you can nap a couple of times, that's okay, because it's a shit case anyway, and so we don't expect you to be sharp, it's not constitutionally required for you to really be present, and that's pretty fucked up, and that is black letter law in several circuits right now.

0:31:45.8 Rhiannon: Absolutely. Yeah.

0:31:45.9 Michael: The Supreme Court as recently as 2018, in the Fourth Circuit and to Peter's point in that case, this lawyer was sort of... They had a juror, he testified that he was asleep every single day in an 18-day trial, counsel for co-defendants saying they saw him asleep and the government called him up at the stand and he's like, "I don't remember sleeping."

0:32:05.7 Peter: Same bro. [laughter] I wanna add something real quick. Obviously, most of these problems are structural and not... Or at least at their core, are structural and not about a couple of shitty attorneys here and there, but if you are a young law student wondering about what field you're gonna go into, and you're the type who thinks you're probably gonna sleep a lot during work, you don't have to do criminal defense.

0:32:31.5 Rhiannon: You really don't. You really don't. [chuckle]

0:32:33.3 Peter: There's a reason I don't do it, you know, I know that I've never had a job where my heart was like 110%. And you need that much to be a criminal defense attorney, you can go on other direction, you don't need to sleep through the most important moment of your client's life, there are other options, you can review contracts. It's fine.

0:32:55.4 Rhiannon: Absolutely. Yes. [chuckle] Yeah, and that's exactly on this, on the point, Michael, about how this is black letter law in multiple jurisdictions, that's exactly the point that Marshall was making about this race to the bottom, right?

0:33:09.7 Michael: Right.

0:33:10.3 Rhiannon: Turning from cases where your lawyer is sleeping to cases where your lawyer is drunk, there's actually a death penalty case in Alabama in the early 90s, in which a woman who had been abused along with her children by her spouse, she arranged to have him killed and as a result, she was sentenced to death. One of her lawyers was so drunk at the trial that the trial had to be delayed for a day and the lawyer was put in jail for contempt, so the next day, the lawyer was brought to court from the jail and the trial kept on going, [laughter] the lawyer failed to find hospital records showing that the woman and her daughter had been abused by the husband, and then he didn't even bring the expert on domestic abuse that they hired, he didn't even bring that expert to talk to the woman, to talk to his client until 8:00 PM on the night before the expert was set to testify.

0:34:03.5 Peter: Well, how was he supposed to research the expert when he was in jail? [laughter]

0:34:12.2 Rhiannon: This case happened after Strickland and the Alabama Supreme Court upheld his death sentence that was imposed. It was only after, on a last final appeal that was handled by Stephen Bright, a famous death penalty attorney in the South, that she was re-sentenced to life without parole, but multiple times that death sentence was upheld even after Strickland.

0:34:34.4 Michael: You know that Fourth Circuit case was talking about the lawyer who slept every day through 18 days, that was at the Circuit Court of Appeals, because the trial court was like, I don't know, [chuckle] I don't know, that seems like a Strickland issue. And his co-defendants were guilty, so it doesn't seem like he was prejudiced, they were all guilty and the Fourth Circuit had to reverse that and be like, this is too deficient. Sorry.

0:34:58.7 Peter: So Rhia, you stole my thunder, 'cause I had found a case from California where the lawyer was arrested for drunk driving on the way to jury selection.

0:35:10.4 Rhiannon: Oh my God. [laughter]

0:35:13.1 Peter: And the court was like that's fine, by the way it blew up 0.27. [chuckle] My boy's leaning. [laughter]

0:35:22.1 Rhiannon: That's on the higher end of what I've seen, having done a lot of DWIs.

0:35:26.1 Peter: I believe that's on the higher end of what's survival... [laughter] And there's a type of ineffective assistance claim where lawyers are failing to relay plea terms to their client, where the prosecutors make a plea offer and the lawyers just don't fucking tell the...

0:35:42.7 Rhiannon: Their client.

0:35:44.2 Peter: That was the common state of affairs up until 10 years ago, when the Supreme Court said it wasn't, okay, and you need to communicate plea offers. Anthony Kennedy joined the libs, but it was 54. So Roberts Scalia, Thomas and Alito all said that, "Yeah, it's fine not to communicate a plea offer."

0:36:02.2 Rhiannon: It's wild.

0:36:03.5 Peter: You might notice that if you ran those numbers today, things might not work out, so...

0:36:10.1 Rhiannon: Great. Look, you know what this has me thinking about is the appointment and hopeful future confirmation of Ketanji Brown Jackson to the Supreme Court, having a public defender background, it's not gonna fix everything, but just having this perspective on the court, those people, the justices that you just said, the conservative justices who dissented in that opinion, they've never had any real world experience counseling a client in this way, they don't know the importance of telling your client about the freaking plea offer that's on the table. [chuckle] And so it's just another good thing about a former public defender being on the court.

0:36:52.6 Michael: Yeah, and so while we're talking about the current court, we should mention the most recent ineffective assistance of counsel happenings at the Supreme Court, so there's a case in... They have to concede it, it's out of Florida, [chuckle] where an attorney was representing four co-defendants in a criminal trial, and as the trial approached, two of the defendants decided to basically plead guilty and testify against the co-defendants like term state's witness or whatever. And the prosecution was like, "Well, this is an obvious conflict of interest for the defense attorney, a non-waveable conflict of interest, the defense attorney agreed. And offered to withdraw. And the judge said, "No." The judge said, no, you can't withdraw.

0:37:46.3 Rhiannon: Wild.

0:37:47.3 Michael: We're going forward with the trial, he had to cross-examine his own clients on the stand as they testified against his other clients.

0:37:58.7 Rhiannon: Everything in my body is screaming right now...

0:38:00.8 Michael: For the Court of Appeals, obviously, the two clients who were challenging this were convicted, the Florida Court of Appeals said this wasn't ineffective assistance of counsel. And the Supreme Court denied cert. And the only descent from the denial was Sotomayor, writing for herself.

0:38:19.7 Rhiannon: Oh my God.

0:38:20.0 Michael: Just absolute dog shit. Yeah, absolute dog shit. [chuckle]

0:38:26.2 Rhiannon: Yeah, just letting that go.

0:38:27.5 Peter: Unreal.

0:38:27.8 Michael: If this was a hypo unlike lawyer ethics exam or a criminal procedure exam...

0:38:37.4 Rhiannon: Yeah.

0:38:39.2 Michael: You would never ever have it come out this way, it just goes against like...

0:38:43.9 Rhiannon: No, there's 17,000 red flags here.

0:38:48.1 Michael: Yeah.

0:38:49.0 Peter: And before we wrap, I wanna add in one more thing, a lot of defendants who bring ineffective assistance claims may well be guilty, of course, because what they're doing is bringing a claim about the process... Not necessarily the outcome. And so I think a lot of conservatives justify this shit by saying, "Oh, they're just trying to latch on to technicalities," right?

0:39:11.8 Rhiannon: Yeah. Yeah.

0:39:13.5 Peter: Now, of course, DNA evidence is not that old, a few decades old. In 2010, the Innocence Project did a study of the first 255 exonerations based on DNA evidence, cases where DNA evidence was found, tested and the person who was originally convicted was exonerated. 81% of those cases had ineffective assistance claims denied by the courts. 81%. So this isn't some sort of academic matter. There are people who would not be in prison because they are innocent, who are in prison right now because of the court's standard in Strickland, that is an undeniable fact, and that's why this case fucking blows...

0:40:02.8 Rhiannon: Yep.

0:40:03.2 Michael: Yep.

[music]

0:40:09.7 Peter: Next week, Lorillard Tobacco Company v. Riley case about free speech for tobacco companies. [chuckle]

0:40:17.2 Rhiannon: Yaay!

0:40:21.0 Peter: Land of the free, baby, land of the free. Follow us on Twitter at 5-4 Pod, thanks for subscribing. We'll see you next week. Bye.

0:40:30.5 Michael: Bye.

0:40:31.2 Rhiannon: Bye.

0:40:31.5 Peter: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Overland. Our artwork is by Teddy Blanks at ships NY, and our theme song is by Spatial Relations.

0:40:55.1 Rhiannon: The lawyer who blew a 0.27. [laughter]

0:41:00.0 Peter: Oh. [laughter]

0:41:00.9 Michael: Lawyers drink.

0:41:01.1 Peter: I double checked that too, 'cause I was like... As I was saying it, I was like, "Did I remember that right?" [laughter] I popped over to the case, that is in the Reporter, the California Reporter, a point they blew, 0.27.

0:41:11.3 Michael: Jesus.

0:41:12.7 Rhiannon: That's crazy.