How Bad Lawyering Can Result in Wrongful Convictions

The Sixth Amendment of the U.S. Constitution guarantees you the right to be represented by an attorney in certain criminal cases. 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 are facing criminal charges and fear your current attorney may be inadequate for the task at hand, you should speak to another criminal attorney to get a second opinion on the representation you have received so far.

Getting a Court-Appointed Attorney

If you are ruled “indigent” and 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 should 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 risk being wrongfully convicted. If you are convicted at trial, however, you will have the right to appeal your conviction.

Examples of Ineffective Assistance of Counsel

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:

• Perform routine, necessary investigative work that would benefit your case
• Investigate or present any evidence proving your alibi
• Question, subpoena, or even contact a witness who might have information pointing to your innocence
• Hire an expert witness to counter the prosecution’s expert witness

Any of these common missteps by overworked and inexperienced defense attorneys can be fatal to your ability to prove your innocence.

Common Reasons for Inadequate Counsel

There are many flaws in our criminal justice system. One of them is how overworked public defenders are. 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:

• Sleeping
• Drunk
• Mentally or emotionally unstable
• Overworked
• Incompetent
• Completely overwhelmed

These are common reasons that result in wrongful convictions – and years lost to wrongful incarceration – for the people sent to prison.

How Do I Know if My Defense Attorney Is Ineffective?

Listen to your instincts if you think your defense attorney is not doing their job. You can investigate their effectiveness by considering:

• Records or news articles about the conviction of innocent people while the attorney was part of the team
• If they seem too busy or overworked to pay attention to you
• Any situations where they seemed incompetent, unreasonable, or prejudiced against you
• If they don’t commit resources or time to you
• Their lack of communication or help while you prepared for the trial
• If the overall investigation feels insufficient
• Poor communication, lack of calls, or getting details of your case wrong
• Asking for 50% or more of the money upfront (if you hired a private attorney)

Appealing a Case for Bad Lawyering

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, the court of appeals in most states has overturned convictions on the basis of competency. 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.

How Much Does it Cost To Resolve?

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:

• Giving you a new attorney
• Reversing your guilty verdict and letting you go
• Ordering a new trial
• Handing down a new sentence

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.

Help for Overturning Wrongful Convictions

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 that provide assistance for those seeking exonerations. The Innocence Project is one such advocacy organization working with volunteers and lawyers to overturn wrongful convictions. They can offer free legal support in some situations.

If you suspect lousy representation from your current criminal defense lawyer, do not be afraid to seek a second opinion from another criminal defense attorney.