Now that Scooter Libby has been convicted, the appeals process will begin. Speculation already abounds as to whether and which evidentiary rulings made by Judge Walton will form the basis for a request for a new trial. Judge Walton seems to have anticipated those challenges in the memorandum he recently filed. However, there may be another basis upon which the Libby defense team seeks a new trial: Ineffective Assistance of Counsel, or IAC.
A claim of IAC is a useful tool for the defense in criminal cases. It raises a Constitutional right and is therefore not subject to the normal time limits for appeal because it can be raised at any time.
The U.S. Supreme Court has long held that the Sixth Amendment guarantee of counsel includes the guarantee of effective counsel, such as in the trial of the Scottsboro Boys. When counsel was appointed moments before the trial began it amounted to virtually no assistance at all:
[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. Powell v. Alabama, 287 U.S. 45, 71 (1932).
Since the time of Gideon v. Wainright in 1963, cases in which a defendant has had no lawyer at all are rare; states are required to provide counsel to any defendant charged with a crime for which he or she could face a loss of liberty. However, the possibility always exists that a lawyer appointed to represent a defendant may not, for whatever reason, provide effective counsel.
The Court has found that certain situations amount to a per se denial of effective counsel: when a party is kept from meeting with his or her counsel at all (Powell); when a party is not allowed to meet with counsel during breaks in critical stages of the proceedings (U.S. v. Cronic, 466 U.S. 648); when defense counsel falls asleep during the prosecution’s examination of the witnesses (Burdine v. Johnson,, 262 F3d 336 (5th Cir. 2001)); and in some instances when a defense attorney has a conflict of interest as between two clients (Holloway v. Arkansas, 435 U.S. 475 (1978)).
In other situations, the Supreme Court has set forth a two-part test for ineffective assistance:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington 466 U.S. 668, 687 (1984).
The above test has become known as the Strickland test. The criminal defendant has a heavy burden under this test; proving even the first prong of the test is exceedingly difficult.
"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., at p. 690.
Proving IAC may be difficult, but it is not impossible. The scrutiny this case has had by the bloggers does give one a rare opportunity to engage in speculation.
For example, Libby’s attorney, Ted Wells, indicated that he would show that there was a conspiracy to make Libby the ‘fall guy" in the outing of Valerie Plame. The observers seem to agree that he never presented any evidence of such a conspiracy. During his closing, Wells cried, and who is to say that he wasn’t crying because he knew he had not presented the defense he had promised? Only Ted Wells could say, and he might later file an affidavit to that effect.
I don’t know whether anyone will buy the crying defense; it is uncommon for attorneys to cry in closing, and I’ve never seen it, but a colleague of mine says he’s seen it several times. To me, it’s rare enough to be remarkable.
Further, it is generally regarded that the IAC typically fails for want of the second prong of the test, not so much the first. The defendant has to demonstrate that the errors of his or her counsel were so serious as to call into question not the result, but the process by which it was obtained. Any appellate lawyer will tell you that appellate courts are quite fond of the term "harmless error."
Here, however, we have some extraordinary happenings. Judge Walton has already discussed how he might have ruled differently as to the admission of numerous pieces of documentary evidence if some witnesses who were never called (Vice President Cheney and Karl Rove) had actually testified. Once they were on the stand, Wells might have been able to develop the "fall guy" theory as well.
Further, at least one juror has indicated that he feels Libby was the fall guy. Such a revelation lends some credence to the viability of the defense that was promised and never presented.
The IAC offers a distinct tactical advantage to the defense here. Unlike a simple appeal of the evidentiary rulings or the jury instructions, the defense can raise the issue again and again, because it is a Constitutional claim. The appeal may be dismissed, but Libby could then turn around and allege IAC in a writ of habeas corpus. If a reviewing court eventually buys the argument, he gets the new trial, even if the appeal has long since faded away.
Lest one wonder why an attorney would admit to making errors, it is generally considered proper, and even mandatory for trial counsel to assist appellate counsel in any way possible, even if that means the trial attorney must "fall on his sword."
There is one last thing that should make anyone suspicious: is it possible that Ted Wells would deliberately do something like this simply to preserve the chance of a later IAC claim that delays the finality of this case? Would any lawyer do such a thing?
At least one court has considered it in another context:
We reject [] rule for yet another reason that we regard as significant: the rule can encourage lawyers "who have lapsed into carelessness to deliberately expand their neglect to a level of egregiousness as a tactic to save their client's case." Panzino v. City of Phoenix, 999 P.2d 198, 204 (Ariz., 2000).
I don’t profess to be able to see the future, but an IAC claim won’t surprise me.