At a November 7, 2007, conference on the right to the effective assistance of counsel and the Supreme Court’s 1984 decision in Strickland v. Washington, judges, prosecutors, defense lawyers, legal scholars, and other experts discussed the challenge of ensuring effective counsel to indigent defendants, especially in capital cases.
Among the speakers was now-retired Justice Sandra Day O’Connor, the author ofStrickland. That 1984 decision established new standards for assessing whether a lawyer’s performance was so bad that it compromised the client’s right to a fair trial. O’Connor acknowledged at the conference that Strickland did not resolve all the issues relating to effective representation of clients. “We have so many questions today,” she said. Several speakers faulted the decision’s directive to judges to be “highly deferential” to a lawyer’s strategic choices because it has lead courts to be too deferential and rarely to find a lawyer’s performance deficient.
EJI Director Bryan Stevenson spoke at the conference. He noted that, in spite of Strickland, “There is a crisis surrounding counsel for the poor.” In Alabama, for example, six people on death row have no lawyers at all, but face filing deadlines for appeals within the next three months. Now the Supreme Court may be starting to retreat even from the Strickland standard. On November 5, the court granted certiorari in Arave v. Hoffman, an Idaho case about the obligation of lawyers to explain to clients the consequences of not accepting a plea agreement. “Part of me is very scared” about the outcome of Arave, said Stevenson. “The system treats you better if you are rich and guilty than if you are poor and innocent.”