Thursday, November 17, 2005

Court of Appeals: one big mistake can ineffective assistance of counsel make

People v Turner, ___ NY3d ____ [available here]

Reversals based on ineffective assistance of trial counsel are exceedingly rare, and require an extraordinary showing of incompetence on the part of trial counsel. Ordinarily, the totality of the circumstances control--if on the whole, trial counsel did not stink up the joint too bad, mistakes made along the way will be overlooked and not constitute ineffective assistance. (See People v Benevento, 91 NY2d 708, 712 [1998] [Constitution "guarantees the accused a fair trial, not necessarily a perfect one"].) So it was a bit of a surprise to read the opening paragraph of a decision handed down today by the Court of Appeals:

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction.

(Turner, ___ NY3d at ___ [emphasis added].)

What makes the Turner decision so remarkable is that this is a reversal based on ineffective assistance of counsel, once removed--the Court held "appellate counsel was ineffective for failing to argue that trial counsel was ineffective." (Id.) From the Court's decision:

A reasonable defense lawyer at the time of defendant's trial might have doubted that the statute of limitations argument was a clear winner--but no reasonable defense lawyer could have found it so weak as to be not worth raising. Yet defendant's trial counsel did not raise it. Trial counsel's error should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument.

Really, there are two important parts of the Turner decision. First, the idea that one glaring error in an otherwise competent defense can give rise to a valid ineffective assistance argument is a welcome loosening of New York's caselaw in this area. Second, the Court also holds that a single error by appellate counsel--failing to recognize and raise an ineffective assistance argument--can itself constitute ineffective assistance of appellate counsel; this is likewise breaking somewhat new ground in the ineffective assistance area. Both of these parts of Turner put some teeth back into the ineffective assistance caselaw, and could potentially give future defendants one more bite at the apple (i.e. reversal might be possible even where 1) trial counsel fails to recognize a major substantive error at trial, and 2) appellate counsel fails to recognize that trial counsel's failure gives rise to a meritorious appellate issue).

Only time will tell if Turner actually has an impact on the number of "ineffective assistance" reversals. Indeed, the decision takes great pains to point out, again and again, what a "rare" factual scenario Turner presents, and in the course of the decision points out the fairly egregrious mistakes defense counsel can make in isolation and fail to crest the high threshold for "ineffective assistance" relief:

[W]e reaffirm today, that such errors as overlooking a useful piece of evidence, or failing to take maximum advantage of a Rosario violation, do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate.

So Turner leaves the bar for ineffective claims fairly high--trial and appellate counsel still have to completely miss a "clear cut and potentially dispositive" issue. (Turner, __ NY3d at ___.) However, any decision that could potentially put some bite back into the "ineffective assistance" caselaw is a welcome and unexpected development.