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I am watching the Kyle Rittenhouse trial, and his lawyer just seems horrible. He doesn't object to anything. For instance, he didn't object once when the police officer who downloaded the videos was testifying as to their content. How did he know anything about them? Shouldn't those questions have been directed to their creators? This officer wasn't there, he isn't a video expert, he has no more knowledge than anyone else in the courtroom. He didn't object to any of the videos having inflammatory titles or superchats even though they had nothing to do with his client.

With this in mind, how bad does your lawyer need to be for your conviction to be overturned based on not actually having counsel?

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    Note that due to rules of court, you don't just say "here's this evidence" like a video. There's a whole procedure for admitting evidence, which includes having a witness. A brief overview: benchmarkinstitute.org/t_by_t/exhibits/introducing.htm. Additionally, one can't object (or successfully object), just because someone is saying something or because it hurts your case; you have to have a reason. The officer is testifying that he saw the videos, what he saw, and how he came into possession of them. None of that is inherently objectionable.
    – sharur
    Nov 3 at 21:10
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    Note also that most lawyers aren't going to object to every potentially objectionable utterance/action. It's generally considered strategically preferable to object on the most important questions and let things go if they aren't going to materially alter the case. So even if you had a valid objection to the cop testifying as to the contents of the videos, you might let it slide so you the state doesn't have to bring in the testimony of the people who actually shot the video.
    – bdb484
    Nov 3 at 21:56
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    Contrary to what some TV shows may lead you to believe, a good lawyer doesn't necessarily shout "objection!" every 30 seconds.
    – Chris H
    Nov 4 at 8:00
  • 3
    Something I've read in crime fiction, is that "the mob" keep a struck-off lawyer in business. He's not a bad lawyer. He got himself struck off on purpose! He does his best to defend his clients. Sometimes he fails (after all, none of them are innocent). He gets paid very well. Because after a few years, it will be "discovered" that he isn't entitled to be practising law, and then every single mobster who was defended by him will have automatic rights to appeal or even summary release. Meanwhile, witnesses have become forgetful, or in some variants, can't be found at all. Funny, that.
    – nigel222
    Nov 4 at 11:28
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    @sharur "Your honor, I object!" "And why is that?" "Because it's devastating to my case!"
    – Michael W.
    Nov 5 at 17:42
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The grounds for setting aside a conviction because you have a bad lawyer is called "ineffective assistance of counsel". This can (usually) only be raised when your direct appeals have been exhausted in a collateral attack on a conviction which was historically called a habeas corpus petition, although some state systems give it a different name.

In a nutshell, the lawyer's work must be very, very bad to the point where a responsible criminal defense lawyer would feel an urge to throw up upon hearing about it.

The legal standard in making his ineffective assistance claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984): One must show that one's attorney's performance was deficient and (2) that deficient performance caused actual prejudice to the defendant’s defense. Id., 466 U.S. at 687.

To prove deficient performance under Strickland, a state prisoner must “demonstrate that counsel’s representation fell below an objective standard of reasonableness” under the then “prevailing professional norms.” Id., 466 U.S. at 688. The Supreme Court has recognized that the American Bar Association Standards for Criminal Justice is the barometer for measuring “what is reasonable.” See: Rompilla v. Beard, 545 U.S. 374, 387 (2005). While the Fifth Circuit applies a strong presumption that counsel performed adequately and insulates his informed tactical decisions from ineffectiveness attack unless they are so egregious as to render the entire trial unfair, the appeals court has recognized the distinction between strategic judgment decisions and omissions that amount to no strategic decision at all. See: Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006); Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).

Deficient performance alone is not enough to secure ineffective assistance relief. The state prisoner must establish prejudice by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to under confidence in the outcome.” Id., 466 U.S. at 694. The Fifth Circuit has interpreted this prejudice requisite to mean that there is a harmful constitutional trial error only if there is “more than a reasonable probability that it contributed to the verdict.” See: Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999).

Federal relief after it has been denies at the state level in a state collateral attack, is even more limited by Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), especially 28 U.S.C. § 2254(d) (from the same linked source):

“The AEDPA specifies that federal habeas relief ‘shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’

“The Supreme Court has held that a state court’s decision that correctly identifies the governing legal rule but unreasonably applies it to the facts of a particular prisoner’s case is sufficient for a federal habeas court to grant the writ. For a federal court to find a state court’s application of Supreme Court precedent ‘unreasonable,’ however, the state court’s decision must have been more than simply incorrect or erroneous; its application of federal law must have been ‘objectively unreasonable.’ Moreover, the state court’s findings of fact are presumed to be correct, and the federal court only reviews the facts for clear and convincing error.” Id., at 385.

For example, most of the instances described below have been held in particular cases to be insufficient to overturn a conviction in a death penalty case:

In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.

While not precisely on point, the threshold for reversing a conviction based upon ineffective assistance of counsel is generally lower than the standard to be subject to discipline or to be disbarred as an attorney:

Justice Ruth Bader Ginsburg was more direct in an Associated Press account: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-executions stay applications in which the defendant was well represented at trial.”

Before the 2001 public criticisms offered by Justices O’Connor and Ginsburg, three major newspapers had conducted investigations that offered compelling evidence about the deplorable legal representation provided in capital cases. The Chicago Tribune reported on November 15, 1999 that 12% of those condemned to death from 1976 to 1999 were represented by “an attorney who had been, or was later, disbarred or suspended—disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” The newspaper said that an additional 9.5% had “received a new trial or sentencing because their attorney’s competence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict”).

Less than a year later (September 9, 2000) the Charlotte Observer reported that at least 16 condemned inmates in North Carolina, including 3 who had been executed, were represented by attorneys who have been disbarred or disciplined for unethical or criminal conduct.

The following day the Dallas Morning News reported that it had examined 461 capital cases in Texas and found that one in four of the condemned inmates had been represented at trial or on appeal by court-appointed attorneys who had been disciplined for professional misconduct at some point in their careers. (“Quality of Justice,” 09/10/2000).

The most common issue that is successful is a complete or nearly complete failure to present meaningful mitigating evidence in the death penalty sentencing phase of a death penalty case.

What Explains These Patterns?

In Death Penalty Cases

But, this pattern of granting relief for ineffective assistance of counsel is partially a function of jurisprudence politics.

Many judges are opposed to the death penalty, but find on the record before them that it is likely to that defendant was not innocent of murder. If at least two appellate judges on a panel of three appellate judges believe this, a ruling that assistance of counsel was inadequate for this reason vacated the death penalty sentence, but not the conviction, usually leaving the defendant in prison for life without the possibility of parole.

Also, due to "death qualification of jurors" and the particularly poor public defender systems for death penalty case defendants in the states that produce the most death penalties, the risk of wrongful convictions in close cases, and of ineffective assistance of counsel, is particularly high. Most states with quality public defender systems for first degree murder defendants have either abolished the death penalty, or have very few death penalty convictions.

In Other Cases

The difficulty of an ineffective assistance of counsel defense from a "legal realist" perspective is that lots of guilty criminal defendants received ineffective assistance of counsel. If the bar is not set very high, a colorable claim of ineffective assistance of counsel can be raised in a very large share of all felony convictions, even though they are unlikely to prevail on the merits, either because the defendant's guilt was clear, or because the lawyers error was immaterial to the result (two points which overlap).

Keep in mind that there is no right to counsel on a collateral attack of a criminal conviction, that very few convicted criminals serving long terms in prison who had incompetent counsel are affluent, and that charitable free legal representation in collateral attacks on criminal convictions is mostly limited to death penalty cases and rape cases where DNA evidence is available.

More than 95% of convicted felons serving long terms have never set foot on a college campus as a student. So, in the usual collateral attack on a conviction based upon ineffective assistance of counsel, you have a high school drop out, or high school graduate who never went to college and is marginally functionally literate trying to convince a judge who graduated from law school that his lawyer who graduated from law school didn't know as much about the law and how to defend a criminal prosecution as the defendant does.

The likelihood that a defendant who received a marginal quality defense from their lawyer is guilty of a serious crime is particularly high for this subset of cases. Because it takes so long to adjudicate ineffective assistance of counsel claims (it isn't uncommon for it to take two or three years just to rule on a direct appeal from a conviction and another year or three to get a ruling on a collateral attack on a conviction that is denied before an appellate judge so it can make reported case law), almost all of the convictions appealed on this ground that produce case law precedent are very serious offenses like aggravated rape and murder. Otherwise, the issue would have become moot when the sentence of incarceration was served.

For most kinds of offenses, the vast majority of strong cases for the prosecutor result in guilty pleas before trial, producing a substantial sentence discount, so only the hard cases go to trial. But, if the death penalty is on the table (and the prosecutor won't budge, perhaps for political and publicity reasons), or an extremely long sentence for a violent felony is on the table, the sentence one can bargain for in a plea bargain, and the sentence that would be dispensed if one is found guilty at trial, are much more similar. So, the incentive for a defendant to "roll the dice" by going to trial is greater, even if the defendant is actually guilty, so a larger proportion of cases with a high probability of conviction at trial go to trial anyway.

Also, it is hard to provide "competent" acquittal creating criminal defense cases when the client is clearly guilty. Sometimes the defense was weak because the lawyer was incompetent, but sometimes the lawyer presented a dubious defense because that was the best available option under the circumstances. (This doesn't mean that there is nothing for a competent criminal defense lawyer to do; but most of the work for a competent criminal defense lawyer in these cases comes in the sentencing phase and in the plea bargaining stage.)

Judges don't want to order the release of people convicted of serious, usually violent, felonies if there is a good chance that they are guilty and a good chance that a retrial might not result in a conviction simply because the evidence has grown stale. This is particularly true in this subclass of cases (when they don't involve the death penalty which presents some unique issues related to the "death qualification" of the jurors), with a higher than average percentage of actually guilty defendants.

While judges don't want innocent people to rot in prison, due to the barrage of dubious collateral attacks on convictions filed in weak cases, without lawyers, by convicted criminals serving long sentences, judges tend to become jaded about the merit of these collateral attacks. About one in seven cases in federal district courts (the trial court level of the federal courts) is a prisoner's petition. One in five appeals in the federal appellate courts is a prisoner's petition. But only about 1% of those petitions are granted in non-death penalty cases. This is because the defendants serving very long sentences have little to lose and everything to gain by filing even a marginal collateral attack with a low chance of success.

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    "Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol." That's insane that that isn't enough for a mistrial.
    – Ryan_L
    Nov 3 at 23:45
  • 10
    @Ryan_L what’s more insane is that it isn’t a mistrial if the judge sleeps through it. The onus is on council to (politely) wake them up.
    – Dale M
    Nov 4 at 0:05
  • 2
    Because I recently learned about this in an article about defendants from the January 6th attack who chose this route, if you choose to represent yourself in court, you are apparently disqualified from claiming inadequate counsel. Nov 4 at 12:19
  • 2
    @Greendrake I am referring to the much more recent development in criminal procedure in which the common law writ of habeas corpus at the state level has been replaced by motions under state court rules or under state statutes. Habeas corpus has always been a grounds to attack a conviction for lack of jurisdiction which forms a basis for freedom from detention, but over time its scope grew broader (roughly speaking late 19th century after the federal court system was overhauled with the addition of intermediate appellate courts and direct appeals in criminal cases).
    – ohwilleke
    Nov 4 at 18:16
  • 2
    @MasonWheeler why, oh, why? Do you have a clue about the quality of lawyering going on in PD's? This must have been a simply account of "dozens [of cases]".
    – kisspuska
    Nov 6 at 5:20
8

A criminal defendant has a Sixth Amendment right to the assistance of counsel, which the courts have interpreted as requiring that counsel actually be "effective." A convicted defendant may be able to obtain a reversal if he brings a claim of ineffective assistance of counsel:

The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Strickland v. Washington, 466 U.S. 668 (1984).

Proving an ineffective-assistance claim requires the defendant to satisfy a two-pronged test:

  1. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." The courts will be highly deferential in assessing whether the attorney's work was reasonable, recognizing that what seems like an error in hindsight is often a reasonable strategic decision at the time. To your point, the courts regularly reject ineffective-assistance claims based on objections that go unmade, as an attorney may reasonably believe that certain evidence is bound to come in eventually, that an objectionable presentation is less damaging than the legally proper presentation, or that excessive objections will alienate the jury.
  2. Second, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." This is also a fairly difficult standard to meet, as it places the burden on the defendant to prove what happens in an alternate reality. If a video is the only evidence linking a defendant to a crime, failing to object to its introduction could support a reversal (assuming the objection should be sustained), but if there are multiple additional witnesses, letting the video in is unlikely to have had such a great effect that it would undermine public confidence in the conviction, which is the test the court uses on this prong.

So for the Rittenhouse case, it seems unlikely -- based on the information you've provided so far -- that an ineffective-assistance claim would be successful: (1) for various strategic reasons, it's very common for lawyers to waive potentially meritorious objections to evidence like this; and (2) the evidence is not so critical (given the evidence I'd expect to come in later) that an objection would be likely to change the trial's outcome.

Of course, all this assumes that the objections you're asking about should actually be sustained. I don't think I agree that that's the case, but I'm ignoring the evidentiary questions to address the constitutional one.

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First of all, as the comment by sharur suggests, a witness does not need to be an expert, nor the creator of a video, to testify as to what the video contains. The witness needs merely to have seen the video. Such testimony from someone is required to get the video into evidence.

Secondly, it is often good trial strategy not to object to things that are obviously provable, even if the exact question may be technically objectionable. It can suggest that the defense is trying to hide things, which is often a bad idea.

All that said, the question is:

how bad does your lawyer need to be for your conviction to be overturned?

Ineffective assistance of counsel can be grounds for overturning a criminal conviction. The constitutional right to have the assistance of counsel for a criminal defense has been held to be the right to have the assistance of effective counsel. What must be proved to show "Ineffective assistance of counsel"? At least one significant decision (action or inaction) that was well below normal professional standards, and that caused or contributed to an adverse verdict, or at least might well have caused a more favorable verdict had the decision been different.

It is a moderately high bar to scale, a somewhat below average lawyer will probably not constitute "Ineffective counsel".

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  • @Araucaria thank you. Editing error corrected. Nov 7 at 21:06
  • What about the titles on the prosecution's videos? Surely those are prejudicial to the jury? Nov 14 at 13:50
  • @Karl Knechtel My answer has to do with ineffective assistance of counsel in general, not with any particular trial. Even if titles of videos are prejudicial, it may be poor strategy to object to them, as it may give the jury the idea that the defense wants to hide the facts. Or it may not. specifics matter, and when to object is largely a judgement call, with more than just the merits of a particular objection to be considered. I haven't watched the Rittenhouse trial, and I don't know if the defense lawyers are doing a good job or not. That is not the subject of this answer. Nov 14 at 16:16

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