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93 Marq. L. Rev. 515 (2009-2010)


Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line of recent Supreme Court cases that have breathed new life into Strickland as a meaningful guarantee of effective defense representation. These cases - all of which involved sentences of death - pointedly reject the understanding of Strickland that made it exceedingly difficult to prevail on ineffective-assistance claims. Although the new line of Strickland cases were undoubtedly motivated by concerns about the proper administration of the death penalty, the more rigorous understanding of Strickland should not be limited to capital cases. Whether or not the death penalty is at stake, appellate courts should be vigilant in policing the effectiveness of defense attorneys so that the determinative factor in criminal proceedings will be the strength of the government's case on the merits, not the weakness of the defense put forth by the lawyers for the defendants.


Reprinted with permission of Marquette Law Review.



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