2.7 RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
2.701 In General. The right to counsel, whether appointed or retained, means little if the attorney is unduly hindered or restricted in his or her ability to represent the accused or if the attorney fails to perform at the professional level of competence expected. One of the most serious problems facing the courts and the legal profession is the adequacy of counsel in criminal cases, especially the adequacy of court-appointed counsel. The number of cases alleging ineffective assistance of counsel has increased dramatically in recent years. In 2004, the General Assembly enacted section 19.2-163.03 to require an attorney to demonstrate threshold levels of training and experience
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before being appointed to represent indigent defendants. From the perspective of the profession, however, the problem is attributable, at least in part, to the failure of the Commonwealth to compensate court-appointed counsel at a level comparable to that normally received from a fee-paying client. 107
Regardless of the causes of the problem, recent cases demonstrate that the courts (especially the federal courts) are demanding a higher level of performance from attorneys in criminal cases, but at the same time are holding that a conviction will be reversed only upon a showing of actual prejudice. In Padilla v. Kentucky, 108 the United States Supreme Court upheld an ineffective assistance of counsel claim where the attorney failed to advise the defendant that his guilty plea subjected him to automatic deportation. In Knowles v. Mirzayance, 109 the Court found that defense counsel was not ineffective in recommending that the defendant withdraw his insanity defense where counsel reasonably concluded that the defense was almost certain to fail and the defendant was not prejudiced by its abandonment. In Wood v. Allen, 110 the Court found that the state court's factual determination that defense counsel made a strategic decision not to inquire further into a capital murder defendant's mental deficiencies, and not to present to jury information that counsel had about those deficiencies during the penalty phase of trial, was not an unreasonable determination of the facts in light of evidence presented in the state court. Federal habeas relief based on ineffective assistance of counsel was not warranted.
2.702 Right to Adversarial Performance. The accused has a constitutional right to expect that his or her lawyer will be allowed to fully perform the role as one of the opposing sides in an adversarial system. 111 All rules of evidence and procedure to some extent hinder a lawyer's ability to present the client's case as counsel might think best, but these rules cannot operate to deprive the accused of the basic elements of the adversarial factfinding process. Thus, it is a denial of the right to effective assistance of counsel for a state to refuse to allow a lawyer to call the client to the stand and question the client on direct examination. 112 It is also unconstitutional
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for a state to restrict the discretion of the accused and his or her attorney in deciding whether, and when in the course of the proceeding, the accused should take the stand. 113 The defendant also has a right, through counsel, to a closing summary of the evidence to the trier of fact, whether judge or jury. 114 Although the judge may set reasonable boundaries on the manner in which the trial develops, 115 the accused's right to effective assistance of counsel requires that the lawyer be allowed the opportunity to participate fully and fairly in the adversarial process of finding facts.
2.703 Right to Counsel in Preparing Defense. Effective representation can only follow effective consultation between lawyer and client. To the extent a conflict arises between the defendant's right to consult with his or her attorney during an overnight recess and the prosecution's desire to cross-examine before the intervention of counsel and the risk of improper coaching, the defendant's right to effective assistance of counsel must prevail. 116 The defendant, however, has no constitutional right to consult with counsel while testifying; thus, a court may order the defendant not to talk with anyone during a short recess taken after he or she finishes testifying on direct examination. 117 The risk that coached testimony will impair the integrity of the factfinding process must be dealt with through other means, such as cross-examination or delay of the recess.
Late appointment of counsel often precludes or hurries consultation between the defendant and a court-appointed attorney. Early decisions of the Fourth Circuit held that late appointment is proof of ineffective representation per se, which the state can rebut only by a clear showing that no prejudice resulted to the accused. 118 The Supreme Court of the United States, however, has refused to establish a per se rule on late appointment. 119 Likewise, the Supreme Court of Virginia has refused to adopt a rule that appointment of counsel within one day of trial is a per se denial of effective assistance of counsel. 120
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2.704 Right to Competent Counsel.
A. General Standard. In Strickland v. Washington, 121 the Supreme Court of the United States confirmed that the right to counsel guaranteed by the Sixth Amendment includes the right to the effective assistance of counsel. The Court declared that 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. The Court announced that an ineffectiveness claim has two components. First, the defendant must show that counsel's performance was deficient and that counsel's errors were so serious that counsel was not functioning as "counsel" guaranteed by the Constitution. Second, the defendant must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
The Court also stated that when a defendant complains of ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. 122 Counsel is strongly presumed to have rendered effective assistance, and every effort must be made to eliminate the effects of hindsight judgment. 123 It is not enough for the defendant to show that errors had some conceivable effect on the outcome of the proceedings. A defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. 124 Additionally, the defendant must show that counsel's errors were so serious as to have deprived the defendant of a trial whose result is fair and reliable. 125 The only decisions that have been identified by the United States Supreme Court as belonging exclusively to the defendant are whether to plead guilty, waive a jury, testify in his or her own
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behalf, or take an appeal. "Decisions that may be made without the defendant's consent primarily involve trial strategy and tactics, such as what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed." 126 Accordingly, defense counsel does not provide constitutionally ineffective assistance by refusing the trial court's offer of a mistrial without prejudice despite defendant's instructions to the contrary. 127
In most cases involving claims of ineffective assistance of counsel, the courts have found it unnecessary to rule on the first part of the two-part test and have held that, even assuming the validity of the allegation of deficient performance, the defendant suffered no prejudice, that is, no reasonable probability existed that, but for the deficient performance, the outcome of the proceedings would have been different. 128 This does not require, however, that there be an affirmative demonstration of likely acquittal. 129 The United States Supreme Court did find that defense counsel's performance fell below an objective standard of reasonableness when counsel failed to file a timely suppression motion because he conducted no pretrial discovery and erroneously believed that the state was required to turn over all exculpatory evidence. 130 The Court has also ruled that it was unreasonable for counsel to neglect to review the defendant's prior conviction file where counsel knew the prosecution would probably rely on...
