LAW REVIEW: ​“Toward a Right to Litigate Ineffective Assistance of Counsel”

In a forth­com­ing arti­cle in the Washington and Lee Law Review, Ty Alper (pic­tured), Clinical Professor of Law at the University of California at Berkeley, exam­ines how recent U.S. Supreme Court deci­sions may affect the abil­i­ty of defen­dants to raise claims of inef­fec­tive assis­tance of coun­sel. Although the right to effec­tive coun­sel is con­sti­tu­tion­al­ly guar­an­teed, most defen­dants, espe­cial­ly those charged with non-cap­i­tal crimes, do not have ade­quate oppor­tu­ni­ties dur­ing appeals to raise claims of inef­fec­tive coun­sel, in part because such a claim requires the aid of coun­sel. Alper argues that the recent Supreme Court cas­es Martinez v. Ryan (2012) and Maples v. Thomas (2012) ​“por­tend a legal land­scape in which it is pos­si­ble to obtain a rem­e­dy for a Sixth Amendment vio­la­tion with­out extend­ing the right to coun­sel to post­con­vic­tion cas­es in their entire­ty.” He con­cludes that ​“If…the Court even­tu­al­ly adopts a rule that actu­al­ly ensures states pro­vide coun­sel to inves­ti­gate and raise inef­fec­tive­ness claims (as opposed to mere­ly cre­at­ing ten­ta­tive incen­tives for them to do so), cap­i­tal defen­dants will ben­e­fit from the increased abil­i­ty to estab­lish cause for pro­ce­dur­al default in fed­er­al court. But the real sea change will be with respect to the many more non­cap­i­tal defen­dants who will be able to sur­face vio­la­tions of Gideon in a way that has nev­er before been possible.”

(T. Alper, ​“Toward a Right to Litigate Ineffective Assistance of Counsel,” Washington and Lee Law Review, forth­com­ing; DPIC Posted, June 5, 2013). See U.S. Supreme Court and Representation. Read more Law Reviews about the death penalty.