The federal courts churn out opinions on the issue of ineffective assistance of counsel on habeus review all the time, particularly in death penalty cases. It is the chief issue raised on post-conviction relief applications. The issue always rears its head in death penalty cases, but the rules apply in all cases. This last term, the Supreme Court, in Thornell v. Jones,[1] overturned a 9th Circuit opinion that inappropriately applied the standard of what the reviewing courts must examine on habeus review. The 9th Circuit disregarded the weight of the aggravating circumstances and gave more weight to mitigating circumstances previously presented at the trial court but in more detail.

The seminal case on ineffective assistance of counsel is Strickland v. Washington,[2] which requires the petitioner to show: 1) the attorney's performance was deficient, and 2) a reasonable probability that but for counsel’s deficient performance, the outcome would have been different. To show deficient performance, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness.”[3] Further, on the second prong, the reasonable probability means a “probability sufficient to undermine the outcome.”[4] The probability must be “substantial, not just conceivable.”[5]

The courts have not defined what is required in the duty to investigate, in part because the analysis is fact and case specific but, at a minimum, requires the attorney to consult with the defendant, file discovery motions and pretrial motions and attempt to find readily available witnesses. Not investigating further could be a reasonable decision if it is an informed decision.[6] In Oklahoma, if raising ineffective assistance of counsel for failing to investigate, appellate counsel can seek a remand under Rule 3.11 for an evidentiary hearing with supporting affidavits.[7] To overcome the strong presumption of trial counsel’s effectiveness, the appellant’s affidavits must show by clear and convincing evidence that there is a strong possibility counsel was ineffective for failing to identify or utilize the evidence.[8]

For practitioners in Oklahoma, this standard applies not only in criminal cases, but the Supreme Court has adopted this standard for deprived or terminated parental rights cases.[9] For all practicing trial attorneys, the rest of this article will focus on how trial attorneys can ensure they are the most effective advocates for their clients and give them the best chance the first time around.

COMMUNICATION WITH THE CLIENT

It all begins with communication with clients. Communication is different with each client, and new practitioners may struggle with the kinds of pitfalls they may face. Some clients will tell the same story a hundred times. Others will barely talk at all. More will act as unrealized attorneys, giving you the law they found on Google or in the law library.

Rule 1.14 of the Oklahoma Rules of Professional Conduct addresses lawyers’ duties when dealing with a client with diminished capacity. As much as possible, the lawyer should deal with that client as any other. If the lawyer feels that the client could be exploited because of the condition, the lawyer may take steps to protect the client, and this rule authorizes revealing otherwise protected privileged information under Rule 1.6. In a criminal case, when the client is unable to rationally assist in their defense, a lawyer may need to file an application for competency evaluation. Moreover, even if the first professional deems the client competent, a lawyer who still has concerns may request a jury trial on competence or request a second evaluation.

Client communication is one of the most difficult parts of this profession, but it is necessary. Communication and client interviews with criminal defendants may look different than in other types of cases because the goal is to defend your client, ensure that law enforcement did not violate any of the client’s constitutional rights and hold the state to its burden of proof beyond a reasonable doubt. Sometimes, the job may be explaining to the client that their story does not match the evidence or that that story does not equal a legal defense, but the lawyer must know what the story is to prepare a defense and to investigate any possible defense that may exist, which leads to tip number two.

INVESTIGATION

In light of the evolving decisions under ineffective assistance of counsel claims, trial counsel’s duty to investigate has reached a higher duty of importance. At a minimum, the attorney must file any pretrial motions: a discovery motion, motions in limine to attempt to prohibit the state from introducing certain kinds of evidence or making certain kinds of statements, a motion to suppress, a motion for a Jackson v. Denno hearing if the client made any statements, and file any subpoenas for witnesses. Further, the client or an investigator should interview or attempt to interview the state’s witnesses and talk to potential defense witnesses. Investigator involvement or second attorneys are particularly important when interviewing witnesses for impeachment purposes. The investigation phase should help in developing a defense for the client.

Investigation of a potential defense or defense witnesses does not require calling the witnesses, nor does it prevent defense counsel from making strategic decisions the defendant may not like or accept.[10] In State v. Jones,[11] the defendant argued on appeal that defense counsel was ineffective for not presenting conflicting alibi evidence and for not calling witnesses who were not credible. However, the court held that the trial lawyer’s main duty is to make informed decisions and not to throw all arguments against the wall and hope one works.[12] Trial lawyers must investigate to make those informed choices. Clients nearly always turn against their trial lawyers after a conviction, so they should document in their trial notebooks or files what they did and why they made certain decisions in case the client raises an ineffective assistance claim or files a grievance.

TRIAL PREPARATION

Communication with the client and investigation are part of trial preparation, but in addition, the lawyer should study the discovery material so that they know it better than opposing counsel. Another great strategy is to prepare the case – at least theoretically – from both the state and the defense perspectives to help better learn the pitfalls for each side. In preparing cross-examination topics, if an alleged victim or witness has written any reports or statements, given interviews or testified previously in a hearing, make a chart of the differences between the statements; this will also help when moving to closing arguments. If a video or audio recording exists, develop a transcript. Many artificial intelligence or AI applications can assist with this. In addition, watch or listen and note time stamps of important material so that you are armed with the impeachment material and not fumbling to find it if and when the time comes. If the litigator is adequately prepared when a witness says something new or different, they automatically know upon hearing it and will be armed with the ammunition to challenge that witness’s credibility.

KNOW THE LAW AND RULES OF EVIDENCE

To be a successful trial attorney, knowing and understanding the rules of evidence is essential. Based on the review of discovery and pretrial hearings, the lawyer should have an idea of what the major legal arguments will be and the major evidence admissibility challenges. One needs to know how to admit evidence for their side and how to prevent the other side from introducing evidence damaging to the client. It is always a good practice to have a list of common objections with the rules and, if an issue is anticipated, research the case law ahead of time to address pretrial or when the evidence is presented. Even if objected prior to trial in a motion in limine, the lawyer must object again at trial to preserve the error and maybe again on demurrer. Frivolous objections can irritate a jury, but the practitioner must object to anything that is essential or prejudicial to their client with a valid evidentiary basis. It is best practice to avoid speaking objections and state the objection, such as hearsay, and ask to approach if further argument is necessary.

A trial lawyer’s job is to zealously defend their client within the bounds of the law. Communication, preparation, investigation and knowledge of the rules of evidence and law applicable to the case are essential to performing that function; however, no lawyer is perfect, and in every trial, practitioners should audit the trial and performance and look for ways to improve in the next case. As long as the lawyer follows these tips, they can be an effective advocate.

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ABOUT THE AUTHORS

Shelley L. Levisay earned her undergraduate degree at Oklahoma Baptist University in2007, her J.D. in 2011from the OU College of Law and her master’s degree in Indigenous peoples law from OU in 2022.She is the Oklahoma Indigent Defense System contractor for Pottawatomie and Lincoln counties and has tried about 50 jury trials. In addition, she is an author who writes legal thrillers and nonfiction.

 

 

 

 

 

David T. McKenzie earned his bachelor’s degree from Southwestern Oklahoma State University, two master’s degrees from Northeastern Oklahoma State University and his J.D. from the OU College of Law. Mr. McKenzie has tried nearly 300 jury trials during his 37 years of practice and has served as an adjunct professor of trial practice at OCU. He has received the Clarence Darrow Award, Barry Albert Award, Golden Quill Award, Earl Sneed Award and Professional Advocate of the Year Award.

 

 

 

 

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ENDNOTES

[1] 602 U.S. ____ (2024).

[2] 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[3] Id., at 687.

[4] Id., at 694.

[5] Cullen v. Pinholster, 563 U.S. 170 (2011).

[6] United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990); Denton v. Ricketts, 791 F.2d 824 (10th Cir. 1986).

[7] Taylor v. State, 1998 OK CR 64, 972 P.2d 864.

[8] Id. ¶2.

[9] Matter of D.D.F., 1990 OK 89, n. 15, 801 P.2d 703, 707.

[10] Strickland, 466 U.S. 668.

[11] D-2002-534.

[12] Id.