The Sixth Amendment of the U.S. Constitution guarantees your right to representation by an attorney in a criminal case. However, there is no guarantee that the attorney be effective, thorough, or even competent.
For most people charged with serious crimes, unfortunately, coming up with the thousands of dollars necessary to hire a renowned private criminal defense attorney is simply out of reach.
If you can’t afford private counsel, you will be represented by a court-appointed lawyer to guide you through your criminal case, called a public defender. Their abilities and caseloads vary widely.
Most people will receive ethical, competent, and experienced representation from their public defenders. A court-appointed lawyer will generally be accustomed to handling criminal defense cases.
However, some people accused of a crime receive representation by overburdened, poorly paid, inexperienced, and sometimes barely competent court-appointed defense attorneys.
As a result, some people run the risk of being wrongfully convicted of a crime. If you are convicted at trial, however, you will have the right to appeal your conviction.
Ineffective assistance of counsel claims can stem from a variety of actions – or inactions. Your defense counsel can make these mistakes during pre-trial prep, trial, or appellate proceedings.
Some common examples of ineffective assistance of counsel is your attorney failing to:
Any of these common missteps by overworked and inexperienced defense attorneys can be fatal to your ability to prove your innocence.
Unfortunately, extreme cases of bad lawyering can result in wrongful convictions. In some cases, DNA testing has later exonerated defendants of serious crimes.
In these situations, the attorneys commonly were found to be:
These are common reasons that result in wrongful convictions – and years lost to wrongful incarceration – for the people sent to prison.
Listen to your instincts if you think your defense attorney is not doing their job. You can investigate their effectiveness by considering:
A common ground for appealing a criminal conviction is to claim “ineffective assistance of counsel” or “inadequate defense.” This means your attorney did not properly represent you.
These claims are not always successful. In general, it is difficult to overturn a criminal conviction. However, appellate courts have overturned convictions on this basis. Serious and substantial lawyer incompetence can occur to such a degree that you did not receive a fair trial.
When you file an appeal, an appellate court — such as a state appellate court — will review your conviction. If stated as your grounds for appeal, the court will review the original case and the performance of your defense attorney.
These courts could overturn the original conviction if you did not receive a fair trial for any reason. In this case, part or all of the reason would include ineffective assistance of counsel.
Most attorneys in these cases cost $100-$500 per hour. It will take them significant time to review the case and present a new case in your defense. This cost can be worth getting the potential results from a win, but winning is never certain.
The courts may offer the following as “remedies” to the situation:
If the court overturns your conviction, you can sue your old attorney for emotional distress, negligence, and possibly other claims. Your new attorney can help determine how to move forward with a legal malpractice case. Winning a lawsuit typically means you will win monetary compensation.
Other elements that lead to a wrongful conviction, such as witness misidentification, can also lead to lawsuits against responsible parties.
Most defense attorneys are ethical, hardworking attorneys. Many will passionately strive to give defendants the best defense available. But there are a few defense attorneys who have not properly represented their clients.
If you are wrongfully convicted after a poorly handled case, there may be help in state or national organizations. The Innocence Project is one such organization working with volunteers and lawyers to overturn wrongful convictions. They can offer pro-bono support in some situations.
If you suspect lousy representation from your current attorney, do not be afraid to seek a second opinion from another criminal defense attorney.
An arrest and conviction can change everything. Fines or time in jail are the immediate concern, but a conviction will also mean a criminal record that can make it harder to find a job and housing for years to come. If you are arrested or learn you are under investigation, the first thing you should do is contact an experienced criminal defense attorney. You can search LawInfo’s legal directory to find a local criminal defense attorney who can protect your rights, lay out your options, and help you determine the best way to proceed with mounting a defense and limiting potential penalties.