Since 1984, it has been clear that the Sixth Amendment right to “the assistance of counsel for his defense” means the right to effective counsel. This is what is called, in criminal law practice, the Strickland rule. As more than one court has put it, “[r]epresentation by counsel means more than just having a warm body with ‘J.D.’ credentials sitting next to you during the proceedings.” In re M.D.(S)., 168 Wis. 2d 995, 1003, 485 N.W.2d 52, 54 (1992) (footnote omitted). Yet, shockingly, that is not what the Constitution demands, according to two of the nine Justices of the United States Supreme Court.
In Garza v. Idaho, 2019 U.S. LEXIS 1596, __ S.Ct. __, 2019 WL 938523 (decided February 27, 2019), the Court had to address whether counsel was ineffective for failing to file a notice of appeal after a defendant pleaded guilty and waived his right to appeal as part of the plea bargain. The majority said “yes,” because there is always something to appeal and lawyers must at least protect the right to seek review.
Justices Thomas, Alito and Kavanaugh dissented, averring that even under the Strickland ineffectiveness standard there was no failing by counsel after the clear waiver of appellate rights. But Justice Thomas, joined here only by Justice Kavanaugh, went further. In the context of urging the majority to be careful when extending the right to effective counsel and determining remedies, the two argued that based on the historic origins of the Sixth Amendment, the right to counsel was only the right to have some lawyer be present and not an enforceable right to effective representation. Here is some of what they opined:
the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area.
the Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.
our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney. The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments.
Garza v. Idaho, 2019 U.S. LEXIS 1596, *37-43.
The Garza majority, which included Chief Justice Roberts, made no comment on this view and instead stated as a matter of fact that “[t]he right to counsel includes the right to the effective assistance of counsel.” Garza v. Idaho, 2019 U.S. LEXIS 1596, *8. So no change in the law is likely – but one may feel concerned when a view of the Sixth Amendment as form rather than substance is espoused by two Supreme Court Justices.