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.