t a recent CLE on Appellate Ethics the question was raised as to whether it was a good use of appellate counsel’s time to raise claims of ineffective assistance of counsel (IAC), given the small number of reversals on that ground. I resisted the temptation to answer that, using that logic and given the small percentage of reversals on any issue, perhaps it is a waste of time for an attorney to work on all but a few criminal appeals. But I was glad for the question, because it insured that I would give adequate time to addressing why IAC is perhaps the most important issue to raise when there is a non-frivolous basis for believing trial counsel was ineffective.

First, we owe it to our clients. Courts have repeatedly recognized that the right to counsel is the perhaps the most fundamental of all of the rights of a defendant in a criminal case since it is through the right to counsel that other rights are protected. Further, courts recognize that the right to counsel means the right to effective assistance of counsel, since otherwise it is not a meaningful right at all. A defendant who received IAC, not only is deprived of the right to counsel, but of the protection of his other rights, as well. It is the essential function of appellate counsel to point out the deprivation of a client’s rights, particularly a deprivation which transforms the process into one with a veneer of protections though counsel. If you don’t care enough about your clients to point out when they received IAC in the lower court, find other work. Besides, your chance of reversal on other grounds appears to increase when a strong issue of IAC is raised even when that issue is not the basis of reversal (or even mentioned in the decision). Even an unpreserved bolstering issue raised in point 2 can be a basis for reversal when the first point is a strong IAC point (See, e.g. People v McCullough, 38 AD3d 1203 [4th Dept 2007].

Second, we owe it to our profession. If we silently tolerate lawyering that you wouldn’t wish on the guy who burglarized your house, the standards as to what is acceptable for our profession will either drop to or remain (depending on one’s perspective) at the constitutionally required minimum. We should expect more of ourselves than that very low – there might well have been some strategic basis for the action/inaction which severely damaged the client’s case – standard. One key way of pushing defense attorneys to do things as basic as renewing TOD motions (as required by the Court of Appeals since 2001, for legal sufficiency claims to be reviewable as a matter of law, yet this term like almost every term the Fourth Department has refused to review claims of legally insufficiency due to counsel's failure to renew -- see, here and here), is to keep on pointing out how inexcusable it is for attorneys to fail to know the relevant law and to display an understanding of what evidence will help or hurt their clients.

Third, we owe it ourselves. Courts have granted writs of error coram nobis based on the ineffective assistance of appellate counsel who have failed to raise the issue of IAC of trial counsel (See, e.g, People v Johnson, 43 AD3d 1453 [4th Dept 2007]. An easy way to avoid this embarrassment is to raise the issue when presented.

Fourth, we owe it to the appellate courts. If the issue of IAC is not presented with the brief marshaling the facts and arguments in support of the claim, the appellate court cannot be fairly expected to reach out and reverse on the issue. Nor can the court be expected to develop an understanding of the quality of counsel offered by a particular attorney who repeatedly engages in substandard work, unless appellate briefs point out the cases in which counsel provided lousy representation.

Finally, if we don’t raise the issue of IAC we will not experience the satisfaction that Eric, the former author of this blog must be feeling tonight, having won a reversal on IAC grounds in People v Rivera, 2007 NY Slip Op 08488 [4th Dept 11/09/07].

The basis of reversal? A prospective juror told the court that she was "embarrassed to really say it, but [she had] trouble with the intent to sell" and, for defendant's "sake, [she] probably wouldn't be able to go in with an open mind."

In response to a question by County Court whether she "would have difficulty setting aside that feeling," the prospective juror responded "Uh-huh." The court thereafter asked whether either the prosecutor or defense counsel objected to excusing the prospective juror, and defense counsel indicated that he had a problem excusing her at that point. Defense counsel then reminded the prospective juror that the court had instructed the prospective jurors that, if a vote with respect to defendant's guilt were to be taken at that time, the jury would have to find defendant not guilty because no evidence had been presented. When asked whether she would have difficulty "rendering that verdict now if asked to do so," the prospective juror responded "I don't know." Defense counsel stated that, if there was no evidence, "[y]ou can't find him guilty of anything. Is that okay?" The prospective juror then responded "Um-hum."The prosecutor challenged the prospective juror for cause, despite his belief that she would be "beneficial" to his case. Defense counsel stated that there "might be a question" with respect to the prospective juror but he believed that, when questioning her, "she indicated pretty clearly that she would decide the case on the evidence." The court stated to defense counsel, "She seemed to indicate that she has a problem with the intent to sell drugs." The court then asked defense counsel, "[it] doesn't bother you?" and defense counsel responded in the negative.

The Court concluded that

Although defense counsel's decision not to consent to the removal of the prospective juror from the panel for cause may have been one of strategy ... we conclude that any such strategy "fell short of an objective standard of reasonableness" (People v Turner, 5 NY3d 476,485 [2005]), and we thus conclude that defendant was denied a fair trial.