The problem of incompetent counsel for criminal defendants has been addressed numerous times by the United States Supreme Court. In Strickland v. Washington, the Court established the standard for reviewing claims of ineffective assistance of counsel raised on appeal after a conviction has been obtained. With the exception of claims of ineffectiveness based on a conflict of interest, the jurisprudence on ineffective assistance of counsel does not address the trial court’s responsibility for preventing violations of defendants’ Sixth Amendment rights. Ineffective counsel is seen as an issue for appellate courts to address years after a trial. Mr. Fisher’s case illustrates that trial courts face the problem of ineffective assistance of counsel. Furthermore, trials like Mr. Fisher’s, in which visibly poor representation by defense counsel is not addressed by the judge, are harmful not only to the individual defendant, but to the judicial system as a whole and to the public confidence in it; they pose serious threats to the integrity of the court. In this article, I propose improvements to the trial court’s role in addressing this problem. There is significant jurisprudence holding that the integrity of the court is a factor that must be taken into account by courts when fashioning claims of and remedies for a number of different constitutional violations. However, for cases involving ineffective assistance of counsel, no court has defined when the integrity of the court is implicated. Both a definition of these cases and an approach to preventing them are necessary in order to prevent the recurrence of what occurred in Mr. Fisher’s trial. “Egregious ineffectiveness” is a term I have developed for use in this article to describe the subset of ineffectiveness cases that affect the integrity of the court. The cases in this subset are those in which attorney incompetence is so obvious that a trial judge is or should be aware of the threat to the defendant’s Sixth Amendment right to counsel. Thus, the distinction between the cases of ineffectiveness that are “egregious” and those that are not depends upon the trial judge’s awareness of attorney incompetence. The category of cases defined by the egregious ineffectiveness standard is by definition narrower than the category of ineffective counsel cases defined by Strickland because in the former, the ineffectiveness should have been identified and addressed by the trial court. While any case of poor attorney performance is important, I argue in this article that there is a unique harm to the judicial system when the inadequacy of attorney performance is especially flagrant. Thus, the definition of “egregious ineffectiveness” captures the subset of cases in which the nature of the ineffectiveness places judicial integrity at risk. The solution posed by this article to the problem of egregious ineffectiveness is simple: the Sixth Amendment should be interpreted as requiring trial judges to inquire into egregious ineffectiveness occurring before them. Furthermore, the court should presume prejudice when the issue of attorney incompetence is raised on appeal, and an appeals court finds that the trial judge failed to inquire into ineffectiveness about which the judge knew or should have known. This presumptive prejudice standard for unremedied egregious ineffectiveness is not a replacement for or rejection of the Strickland standard for addressing claims of ineffective assistance of counsel. Rather, with this standard I provide a procedure for avoiding constitutional violations in the first place. The framework I propose for resolving egregious ineffectiveness cases increased trial court responsibility and a different standard of appellate review is already in use for another subset of ineffectiveness cases: those based on a conflict of interest. The conflict cases thus provide a model for the duty to inquire in cases in which the trial judge knows or reasonably should know of the threat to the defendant’s right to counsel, and also for the proper standard of appellate review when the trial judge fails to inquire. This article is structured as follows: In Part II, I discuss the role of trial judges in appointing, compensating, and overseeing counsel for criminal defendants. This section also reviews the nature of the ineffective counsel problem. In Part III, I describe the different standards and procedures for review for different types of violations of the Sixth Amendment right to effective counsel. In Part IV, I examine the intersection of the Sixth Amendment right to counsel and the importance of the judicial function of maintaining the integrity of the court. This section provides an overview of the jurisprudence on the significance of the integrity of the court and shows that concern about the integrity of the court has been a force for many doctrinal changes. Part V discusses the jurisprudence surrounding conflict-of-interest cases. In conflict-of interest cases, the Supreme Court has established the duty of the trial judge to protect defendants’ Sixth Amendment rights, and provided an alternative to Strickland’s standard for judging claims of ineffectiveness when trial courts fail to protect defendants’ rights. Finally, in Part VI, I argue that the model for the role of trial courts in protecting defendants’ rights in ineffectiveness cases based on a conflict of interest should be applied to the egregious ineffectiveness cases, and that when a trial court fails to protect a defendant’s rights, prejudice should be presumed.
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