On July 15, 2013, The Constitution Project filed an amicus brief in the case of Long v. United States, in the U.S. Supreme Court. In the initial case, Colie Long filed an ineffective assistance of counsel claim, arguing that he did not receive proper representation because his lawyer failed to present a witness in his second trial who provided key testimony in his first trial rebutting the prosecution’s star witness’ important testimony. The DC Court of Appeals ruled against Long, holding that even though his lawyer failed to act because he was ignorant of the law, the lawyer’s rationalization of his actions after the fact entitled him to the heightened standard of review reserved for “strategic” decisions. TCP’s brief supports Long’s request to hear his case in the next term.
TCP argues in its brief that not only does the DC Court of Appeals’ decision fly in the face of established Supreme Court precedent, it significantly impairs defendants’ constitutionally guaranteed right to counsel. When a defendant’s attorney makes a decision based on ignorance of the law, in violation of professional ethics and norms, a court should not use the same highly deferential standard as in cases where counsel made a strategic choice.
As TCP pointed out in its Justice Denied, a comprehensive report that documents failures of the criminal justice system to protect the Sixth Amendment right to counsel, the current test for ineffective assistance of counsel is nearly impossible to meet. Increasing the standard as the DC Court of Appeals did would eliminate any meaningful review of decisions made out of ignorance of the law.