Ineffective Assistance of Counsel

You had a trial, you were found guilty, and your defense lawyer didn’t meet your expectations. She may have slept through trial, been drunk, or failed to present any evidence at all. What remedy does a defendant have for such a situation? An appeal or Writ claiming Ineffective Assistance of Counsel.

Ineffective Assistance of Counsel
If you want to argue IAOC on appeal your lawyer’s performance must have violated constitution standards. For this the Texas courts apply a test from the Strickland vs. Washington case.

From a recent Dallas Court of Appeals Case

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Appellant has the burden to show by a preponderance of the evidence (1) trial counsel’s performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel’s representation to determine whether appellant received effective assistance but do not judge counsel’s strategic decisions in hindsight; rather, we strongly presume counsel’s competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

It’s not enough that you lost the case. Not every guilty verdict, or losing legal argument, means that your attorney was ineffective.

It’s also not enough that you disagree with your attorney’s choices at trial. Attorneys get wide discretion to make strategic decisions at trial. Which witnesses to call, what questions to ask, what arguments to make- will rarely be questioned by appellate judges.

It’s also not enough that your attorney made a mistake. Your attorney must make a mistake that is well below the standard for defense attorneys, and that mistake must prejudice your rights. Many mistakes are deemed “harmless” error.

It’s not an easy standard to make, and most ineffective claims are denied.