Ineffective Assistance of Counsel
Can a bad lawyer get you a new trial?
August 14, 2020
People on social media have commented on Lori Vallow Daybell’s attorney, Mark Means. Mr. Means’ website lists family law, workers’ compensation, personal injury, bankruptcy, business litigation, and mediation as his specialties. Criminal law is missing from his resume. Means’ apparent lack of criminal law experience has been the topic of many questions, including questions about whether Means’ performance could be the basis of an appeal.
Some of you may think that I an defending Mark Means in this post because you think attorneys stick together. I don’t know Mark Means, so like you, I can only is what I’ve seen in the media. The difference is, I can also apply what I know from experience. That experience leads me to conclude that Means is not incompetent or ineffective as the law defines it.
The Idaho Rules of Professional Conduct govern lawyers in Idaho. The rule regarding competence and the related comments are as follows:
RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Commentary Legal Knowledge and Skill [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. [3] In an emergency lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest. [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2 Thoroughness and Preparation [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
Sixth Amendment of the U.S. Constitution guarantees “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The appellate challenge that a defendant had ineffective counsel is memorialized in Strickland v. Washington. The Strickland case outlines the test for determining if a defendant’s counsel was ineffective. Both retained, and court-appointed attorneys can be found ineffective under Strickland. The Strickland test asks two questions (what judges call a two-pronged test). 1) Was counsel’s performance deficient? And, 2) Had it not been for counsel’s deficient performance, would the result of the trial or sentencing have been different? If you recall, this is precisely what the appeals court in the Jodi Arias case said about prosecutor Juan Martinez. The court ruled even though Martinez’s performance was deficient because he was leaking information about the case to a blogger he was sleeping with, Arias was convicted on the strength of the evidence against her.
Many convictions have been upheld, including a notorious case where the defense attorney slept through most of his client’s trial, because of the no-harm-no-foul rule. In other words, a defense attorney appearing and performing little better than a potted plant is permissible if the state can prove the evidence against the defendant proved their guilt anyway.
Mr. Means doesn’t seem to be a polished and experienced trial attorney, but let’s be clear, he’s also not a potted plant. Not all lawyers excel in the courtroom. We are convinced by television that trials should look like a Law and Order episode, where, in the space of an hour, polished actors find simple solutions to complex crimes. Lawyering requires many skills, most of which don’t happen in the courtroom. A lawyer’s ability to analyze a case and communicate with their client can be more important than the ability to think fast on their feet and not stutter. It appears Mr. Means doesn’t have an experienced legal assistant, and typos and mistakes creep into his pleadings. Sometimes it’s hard for a layperson to look past style to the substance.
Lawyers are flawed, fallible humans with both strengths and weaknesses, just like everyone else. We don’t know why Lori hired Mark Means and fought to keep him on the case, but the relationship between an attorney and his client requires trust and confidence, and it appears he has Lori’s. Even if you believe he is not the most likable, accomplished, or polished trial attorney, in my estimation, he is competent, which makes it unlikely that an appeal for ineffective assistance of counsel would prevail.
