All in all, it is a topic lawyers would rather not talk about--ineffective assistance of counsel. But there are times when it is in the best interests of the client to talk about it, even to litigate it. Tasked with addressing the topic "Developing Ineffective Assistance through Cross-Examining Trial Counsel" during the NACDL program in Denver Aug. 5-8 on cross-examination, Houston attorney Randy Schaffer deemed that title a misnomer. "The divining principle," he said, is that "you will increase your opportunity for obtaining relief tenfold if you can convince trial counsel to acknowledge his mistakes and that they were not strategic." The goal is to enlist the cooperation of trial counsel and to avoid entering into an adversarial relationship that might require cross-examining trial counsel.

Schaffer advised that before talking with trial counsel, post-conviction counsel conduct a thorough review of the trial record, identifying record issues including ineffective assistance. Always determine from the record what the defense strategy appeared to be, said Schaffer, noting that if the strategy is not apparent from the record, "you know there is a potential problem." For instance, in one case, the prosecutor said in closing argument that he didn't know if the defense was self defense or a denial that the incident happened. If the prosecutor could not tell, neither could the jury, he said.

After reviewing the record, interview the client, the client's family and "anyone else of consequence" to determine whether there are any non-record issues and to evaluate whether there is an IAC claim under Strickland v. Washington, 466 U.S. 668 (1984). It must be established, first, that counsel's performance was deficient, i.e., that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and, second, that the deficient performance prejudiced the defense. The latter requires a showing that there is "reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Approach trial counsel first. Schaffer takes the position that post-conviction counsel should never file a petition alleging IAC without: attempting to speak with trial counsel, saying that it is "unprofessional to accuse without first providing an opportunity to explain." It has been his experience that often up to a third of the problem areas can be eliminated by trial counsel's explanations. "It might not be the way you would do it," he said, but the actions may be "within the zone of reasonable trial strategy."

Furthermore, if trial counsel learns of the IAC claim from the prosecutor, "you can bet he will he hostile to your position," Schaffer said. The prosecutor may even suggest to the trial attorney what the trial strategy "must have been" and offer to prepare an affidavit for trial counsel that would defeat the IAC claim.

"You need to get to the lawyer first," he said, advising obtaining a release from the client for access to the trial lawyer's file which belongs to the client. Schaffer strongly recommends that the meeting take place not at the courthouse but at trial counsel's office, which affords a more private setting for discussion of sensitive issues. Furthermore, "you always learn something you didn't know" through a visit to the lawyer's office, Schaffer said, noting that he learned from an elderly country lawyer's secretary that the lawyer took a daily post-lunch nap. This would explain the lawyer's inattention as the trial went on around him, Schaffer said.

If there are other potential issues, try to enlist the lawyer's cooperation on those issues before bringing up IAC, Schaffer advised. Ascertain what the trial strategy was and find out whether the client confessed to the lawyer, saving yourself from the embarrassment of filing a writ in which you accuse the lawyer of failing to put on what the client says was a great alibi.

If there is an issue relating to the government suppressing favorable evidence, get an affidavit on that issue alone, Schaffer recommended. For instance, if post-conviction discovery' yields information about prior convictions or pending cases of the government witnesses, have the trial lawyer detail in an affidavit what he would have done during investigation, cross-examination, and closing argument if the information had been disclosed.

He advised that IAC always be pled in tandem with a suppression issue, given that the government 5 strategy will he to allege that trial counsel could have discovered the information. What appears to be a suppression issue may actually be IAC, said Schaffer, describing a case in which trial counsel did not bring out at trial that witnesses in a death penalty case had identified someone other than the defendant in a photo spread. The trial attorneys claimed they had no knowledge of this information and further that their files had been lost. Five minutes before the hearing in federal court was to begin, one of the lawyers announced he had found the missing file. Notes in that file showed that the lawyers were aware of the other identifications and "we would have been down the tubes" if an IAC issue had not been raised along with the suppression issue, said Schaffer.

At the point when the IAC issue must be broached with trial counsel, Schaffer recommends against relying simply on memory. Take a copy of the trial record along so that the lawyer can be confronted with actual passages and asked to explain whether particular actions supported or subverted the claimed trial strategy. Two-thirds of the time, said Schaffer, the lawyer will admit, "I don't think I gave this guy a good trial. What can I do to help?" One-third of the time, the lawyer will say, 'I see where you are going with this. Don't expect any help from me." In the latter situation, "at least the line is drawn and you know where you stand," said Schaffer.

Need for affidavit. Stressing the need to get an affidavit from trial counsel, Schaffer warned that if the prosecutor is the first one to get an affidavit, the state will argue that the affidavit obviates the need for a hearing. This, of course, deprives the defense of an opportunity to cross-examine trial counsel, said Schaffer. (Alluding to a possible "shoe is on the other foot" argument, Schaffer suggested that the transcript of the state's demand for a hearing when the defense has obtained the affidavit-- "How can you cross-examine an affidavit?"--can be used to the defense advantage in the next case.)

Get the affidavit even if it seems unfavorable to the IAC claim, Schaffer said, giving an example where he used the affidavit and a similar one later given to the prosecutor to contradict the trial counsel during the hearing. Offer to prepare the affidavit for trial counsel. "If you rely on the lawyer to do it, it will be the last thing they ever do." If the prosecutor has obtained the affidavit, determine whether the source of the information in the affidavit was the lawyer or the prosecutor, he advised.

In the 'ideal affidavit," the lawyer admits to making a mistake and acknowledges that the action was not taken for any strategic reason, said Schaffer. He has used sample affidavits to convince the trial counsel that the "most painless way to go" is to admit the mistakes rather than undergo cross-examination in a public proceeding.

If trial counsel is uncooperative (either hostile or unresponsive), create a trail of evidence showing the lack of cooperation so that bias can be established at the hearing. Schaffer suggested sending a letter containing pertinent pans of the record and case citations, asking the lawyer to address questions such as whether, in light of the case law, the failure to object to certain evidence supported or subverted trial strategy. If trial counsel refuses to respond, Schaffer proposes a second letter explaining that they are not necessarily in "adverse positions," and saying "We all make mistakes. When I make a mistake, I admit it. My greatest concern would be that my mistake might have contributed to the conviction or excessive punishment of a client. If I thought that had occurred, I would cooperate fully with my client's post-conviction counsel in an effort to remedy the situation." Samples of such letters, along with a sample letter to a potential expert witness in an IAC case, appear at the end of this article.

Preparation for hearing. In preparing for the hearing, Schaffer advised checking whether trial counsel has a criminal record or has been the subject of any disciplinary proceedings. "It is nice to drop a footnote in a petition" mentioning that, for instance, trial counsel had been suspended for lying to the court or had been ordered to participate in drug or alcohol testing and treatment.

Get trial counsel's time records, especially in court appointed cases, he advised, noting that in one murder case, the records showed that trial counsel had spent a total of 9.25 hours prior to the trial. Obtain letters the lawyer sent to the client or the client's family and don't rely on the lawyer's file for such letters, as the lawyer may have stripped some of them from the file. Determine the relationship between trial counsel and the trial judge. Were they friends or former law partners? Did the judge continue to appoint the lawyer to subsequent cases, a fact which might make him reluctant to find IAC? Did the lawyer contribute to the judge's campaign? (Schaffer described the bearing testimony of one trial lawyer, who claimed the timing of his campaign contribution to the judge was just a "coincidence.")

As a general rule, when cross-examining trial counsel, "start out polite and respectful" and do not "take off the gloves unless you get the high sign from the court."

The following outline was submitted by Randy Schaffer, Houston, as part of his presentation on "Developing Ineffective Assistance Through Cross-Examining Trial Counsel" during the National Association of Criminal Defense Lawyers meeting in Denver in August. Following his suggestions for litigating a claim of in effective assistance of counsel are sample letters to trial counsel and to a prospective expert witness.

LITIGATING A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

A. Evaluating The Appellate Record.

1. The issue of ineffective assistance of counsel has usually not been developed in the appellate record.

a. If trial counsel represented the defendant at the hearing on the motion for new trial, it is self-evident that he will not have raised the issue of ineffective assistance.

b. If a different counsel represented the defendant at the hearing on the motion for new trial, he usually will not have sufficient familiarity with the case at that point to be able to raise and develop the issue of ineffective assistance.

c. Post-conviction counsel ordinarily finds the record without development of any possible strategic reasons for the questionable acts or omissions of trial counsel.

2. Post-conviction counsel should initially outline the record.

a. Summarize the testimony of each witness.

b. List each act or omission which might indicate deficient performance.

c. If the direct appeal has concluded, habeas counsel should list all appellate issues that should have been raised on direct appeal.

(1) If counsel determines that a meritorious issue could have been, but was not raised on direct appeal, that might form the basis for a contention of ineffective assistance of counsel on appeal.

3. Deciding to raise the issue.

a. Appellate counsel should not raise the issue of ineffective assistance unless there is a legitimate argument that no reasonable trial strategy could justify the acts of omissions of trial counsel.

(1) The primary difficulty with raising the issue on direct appeal is that, in the absence of an evidentiary hearing, trial counsel has not had the opportunity to articulate his strategy, if any.

(2) The Fifth Circuit will generally not consider the issue of ineffective assistance on direct appeal unless it has been raised and developed in the trial court. United Stares v Higdon, 832 F.2d 312 (5th Cir. 1987), cert. denied, 484 U.S. 1075(1988).

b. To successfully raise the issue on direct appeal, the defendant must demonstrate that there was no reasonable strategic basis for trial counsel's acts or omissions.

(1) Where the primary complaint is that trial counsel failed to object to inadmissible evidence or improper argument, appellate counsel can persuasively contend that the absence of an evidentiary hearing does not preclude proper determination of the issue on direct appeal.

c. On habeas corpus, counsel should interview the defendant to determine whether he and trial counsel discussed any strategic basis for the questioned conduct.

B. Briefing The Issue an Direct Appeal

1. Counsel should raise a single point of error contending that the conduct of trial counsel denied the defendant the effective assistance of counsel and a fair trial.

a. If counsel raises separate points of error for each act or omission, the appellate court is more likely to scrutinize the claims separately rather than together.

b. Ultimately, ineffective assistance can only be determined after reviewing the totality of the representation, rather than by isolating each act or omission.

2. The point of error should be divided into three sections.

a. The legal standard which governs appellate review.

b. The specific acts or omissions which constitute deficient performance.

c. The impact of that deficient performance on the verdict.

(1) The absence of any reasonable trial strategy.

C. Developing the Standard Of Competent Representation On Habeas Corpus.

1. Interviewing trial counsel.

a. Determine trial counsel's position before filing the application for writ of habeas corpus.

(1) If a defendant files a habeas corpus application alleging ineffective assistance of counsel, the prosecutor will generally contact trial counsel to obtain a response.

(a) Some prosecutors use the tactic of telling trial counsel that if he is found ineffective, he may be sued for legal malpractice and/or disciplined in a grievance proceeding, but if counsel can justify his conduct as a matter of "trial strategy," he can defeat the allegation of ineffective assistance and avoid civil liability, disciplinary sanctions, and possible damage to reputation.

(b) Some prosecutors will assist counsel by suggesting what his "strategy" probably was, and may even draft an affidavit for counsel to sign.

(c) Habeas counsel should contact trial counsel before the application is filed and the prosecutor has a chance to do so.

b. Review trial counsel's file and discuss the case.

(1) If trial counsel will. cooperate, discuss the specific issues.

(2) Habeas counsel should bring the record so trial counsel can review, and attempt to explain, precisely what he did or failed to do.

(3) Habeas counsel should then request an affidavit from trial counsel addressing each complained of act or omission.

c. If trial counsel will not agree to an interview, send a letter setting forth the matters in question, and request an affidavit in response.

(1) More often than not, trial counsel will respond, thereby enabling habeas counsel to evaluate the issue of trial strategy before filing the application.

(2) If trial counsel refuses to respond, habeas counsel should explain that this may result in the district court requiring an evidentiary hearing.

(a) Most lawyers would prefer to give an affidavit rather than be cross-examined in public.

(b) If trial counsel fears that candor may result in a civil lawsuit or a grievance, those concerns can be alleviated if the defendant will sign a release.

(3) As a practical matter, a criminal defendant cannot prevail in such a lawsuit unless he can demonstrate that he was factually innocent and was convicted only because of the incompetence of trial counsel.

2. Obtaining expert opinions.

a. Counsel should draft that portion of the application raising the issue of ineffective assistance of counsel.

(1) Attach as exhibits pertinent portions of the record and trial counsel's affidavit.

b. Send the application and exhibits to several experienced criminal lawyers for review.

(1) Ask each lawyer for an affidavit providing his opinion on whether the conduct of trial counsel was ineffective under the prevailing legal standard.

(2) The purpose of obtaining such affidavits is to establish the standard of competent representation, that trial counsel's conduct tell below that standard, and what reasonably competent counsel should have done.

(a) A criminal defense lawyer qualified as an expert can give an opinion on deficient performance on the basis of reading the habeas corpus application, excerpts from the trial, and the affidavit, if any, of trial counsel.

(b) It is difficult to obtain a valid opinion regarding the effect of trial counsel's deficient performance on the outcome of the trial unless the expert has read the record.

(c) Accordingly, habeas counsel may want to imit the affidavit to the issue of deficient performance unless the expert will read the record, or the harm was egregious and obvious.

D. Drafting The Application For Writ at Habeas Corpus.

1. After counsel obtains affidavits from experts, he should complete the application for writ of habeas corpus.

a. Summarize the facts of the case to enable the court to consider the allegations of ineffective assistance in the context of the evidence at trial.

b. Set forth the specific allegations of ineffective assistance.

2. After the State flies an answer, if it does, counsel must determine whether to request an evidentiary hearing.

a. If counsel has obtained adequate affidavits from trial counsel and experts, he may not need an evidentiary hearing.

b. If there is no hearing, counsel should submit proposed findings of fact and conclusions of law in support of his position.

(1) If there is an evidentiary hearing, counsel should submit the proposed findings of fact and conclusions of law after the hearing.

LETTER TO TRIAL COUNSEL

Dear ____:

I have reviewed the record in State v. _____ in an effort to determine the issues for an application for habeas corpus. I have questions about certain evidence and argument to which you did not object. I would appreciate your response setting for the reasons for same.

I am enclosing excerpts from the record to refresh your memory. I have summarized each portion of the testimony or argument, followed by several questions. Please send me a letter explaining your reasons, if any, for not objecting. In each instance, I need to determine whether the absence of an objection was part of a reasoned trial strategy, or, in retrospect, whether you believe that you should have objected.

I appreciate your cooperation in this matter. Please call me should you have any questions.

SECOND LETTER TO TRIAL COUNSEL

Dear ____:

Thank you for your letter of [date].

At this point, I am simply trying to determine the basis for some of your acts or omissions at trial. It is premature to make a judgment as to whether there is an issue of ineffective assistance of counsel, although that issue does merit investigation. It will be difficult for me to evaluate the case properly if you do not answer the questions previously sent. Moreover, your failure to answer those questions will merely prolong the inevitable. If I file an application for writ of habeas corpus raising ineffective assistance, you will have to answer those questions at an evidentiary hearing or in a court-ordered affidavit.

Contrary to the representation in your letter, we are not in "adverse positions." In cases where I have raised ineffective assistance, I try not to become adversarial with trial counsel. We all make mistakes. When I make a mistake, I admit it. My greatest concern would be that my mistake might have contributed to the conviction or excessive punishment of a client. If 1 thought that had occurred, I would cooperate fully with my client's post-conviction counsel in an effort to remedy the situation.

I have always liked you and respected your abilities as a lawyer. I do not expect this case to change my feeling in that regard. However, I have an obligation to my client to investigate this issue. I need you to cooperate in a professional manner. It would be irresponsible for me to allege that you were ineffective without first obtaining your explanations for the matters in question. Accordingly, I ask that you reconsider your position.

Please call me to discuss the situation.

LETTER TO EXPERT WITNESS

Dear____

Enclosed please find a draft of an application for writ of habeas corpus, a copy of the opinions of the appellate courts, and the affidavit of trial counsel. Please review the allegation of ineffective assistance of counsel. If you believe that counsel's performance was deficient, please provide an affidavit by [date] setting forth your background, your opinion, and the basis for same.