On Thursday, I have another oral argument scheduled in my fight through the Connecticut courts to overturn my 2007 convictions. The lawyer I retained for that trial on identity theft-related crimes conducted no investigation, called no witnesses and, during closing arguments, advised the jury on three occasions that there was no reasonable doubt. In essence, my defense attorney told the jurors to convict me.
But that’s not technically what this week's hearing is about. This hearing is about the ineffective counsel I had in 2013, during the appeal of my convictions, which was filed in 2010, over ineffective counsel. If I win, I might get a trial in 2021 to determine if my original counsel was ineffective. If I lose, I will have fought to prove my innocence for nearly 15 years, and only cemented an extremely low standard for attorney performance in Connecticut — namely, that a criminal defense lawyer can work against his client’s interests and face zero consequences for it.
In many ways, though, I’m lucky: My bid to overturn my convictions outlasted my punishment — I was released in 2014 — while the freedom of many other incarcerated people is determined by a win in court and a win alone. If they lose appeals like mine, they remain confined.
The courts have held in theory that ineffective counsel is a strong basis to appeal an conviction but, in reality, they rarely hold bad defense lawyers to account. Just ask Adnan Syed, the subject of the hit podcast "Serial," who’s challenging his 2000 conviction for murdering his high school girlfriend on the basis of ineffective counsel. The Supreme Court refused to even hear his case last week, even though his defense lawyer failed to call an alibi witness that placed him in the school library with her during the 20-minute time frame the prosecution argued that Hae Min Lee was killed.
The Maryland Court of Appeals, whose ruling was upheld by the court last week, recognized that Syed’s attorney failed to do her job but held that it didn’t matter because the jury could — not that it did — have had a different theory of the crime and could have viewed other evidence as sufficient for guilt.
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There are thousands more people like Adnan and I, despite laws that ought to protect us.
In 1984, the Supreme Court established in a case called Strickland v. Washington that, to succeed in proving that an attorney provided constitutionally deficient representation, an inmate has to prove two things: that the lawyer’s performance was deficient; and that the deficiency prejudiced him. In other words, he has to prove that the result would have been different if the lawyer had done his or her job properly.
The impossibility of defense under these circumstances lets attorneys off the hook. Having to prove that the outcome of someone’s trial would have been different is already a daunting, hypothetical task under Strickland, but allowing a conviction like mine or Adnan's to stand without further inquiry would eventually mean that any lawyer's performance would pass as effective and competent as long as jurors could just believe you're guilty even if the prosecution's case doesn't prove it.
And it’s not as if a dangerous erosion of criminal defense standards hasn’t already started. Courts have already betrayed the clients of the attorney who slept through portions of a trial and the lawyer arrested for drunk driving on the way to jury selection. That’s how low the bar for effective lawyering is; it’s perfectly acceptable for an attorney to sleep during the proceedings or be intoxicated.
It seems — from outside the system — inconceivable that an innocent person can be convicted and sentenced in the United States for a crime he didn’t commit, but it happens. The rate of wrongful convictions in the United States is estimated to be somewhere between 2 percent and 10 percent. In a sea of 2.3 million incarcerated people, that means anywhere between 46,000 and 230,000 people are wrongfully charged or convicted.
The University of Michigan tracks all formal vindications since 1989 in the National Registry of Exonerations and has found 2,521 cases where even the system admits that it got the case wrong. There have been 120 of those exonerations in 2019 alone. That means one prisoner's claims of innocence are being vindicated approximately every three days.
Ineffective assistance of counsel complicates many more convictions than we know — 453 of the overturned convictions in the National Registry of Exonerations were complicated by grossly incompetent defenses. But those cases are counted that way in the national registry only because the defendants were successful in their ineffective assistance of counsel claims.
The truth is that, statistically, Syed and I are not likely to succeed. The Strickland decision already makes proving ineffective assistance of counsel a vertical climb, but courts usually don’t side with defendants who complain about their attorneys. In a study of the first 255 people to be cleared by DNA evidence, 54 of them claimed that their wrongful conviction was the result of ineffective assistance of counsel. Of those claims, 87 percent were denied; the court sided with the government.
If DNA testing hadn’t come along, they might still be sitting in prison. About half of all habeas corpus petitions filed in state courts allege ineffective assistance of counsel; only about 8 percent of them are successful.
Just this February, Justice Clarence Thomas held in a dissent in Garza v. Ohio that defendants have a right to a lawyer, but not to any degree of reliability in that attorney’s performance. Essentially, Thomas said you have a right to counsel but not effective assistance from that attorney. The majority didn’t agree with him — but the fact that Thomas scribbled such a sentiment endangers everyone in this country.
When I point all of this out, I’m usually met with the same refrains: my case and Syed’s are outliers and most criminal lawyers do their job competently and many ineffective assistance of counsel claims may be unfounded. Based on my experience, I disagree. But even if that’s true, it shows that we’ve settled for “most” — not all — defendants to be adequately protected when they’re facing prison time. “Most” isn’t enough when someone's liberty is on the line.
The Supreme Court could have taken the first step in reversing this Sixth Amendment rights crisis by hearing Syed Adnan's case. They chose not to do so, and have imperiled each of our freedoms — not just Syed’s.