How the First Woman Supreme Court Justice Set the Rules for Criminal Lawyers

By Zachary Margulis-Ohnuma

United States Supreme Court Justice Sandra Day O’Connor died Friday. She will be remembered as the first woman justice, a fearless Republican who put principles of liberty and the rule of law above her personal distaste for abortion in Planned Parenthood v. Casey in 1992, a case that safeguarded a woman’s right to choose for the following thirty years.

But for criminal lawyers — and especially for their clients — Justice O’Connor’s most important opinion was written eight years earlier and would come to define how we do our jobs for three generations of criminal defense lawyers. In Strickland v. Washington, Justice O’Connor, writing for a 6-3 majority, spelled out standards that define what criminal lawyers must do for their clients, and what happens when we fail.

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel. This fundamental right ensures that defendants have a fair trial and are not prejudiced by inadequate legal representation. In Justice O’Connor’s decision in Strickland, the Supreme Court established a two-pronged test for determining whether a convicted person’s right to effective assistance of counsel has been violated so seriously that their conviction should be reversed. The two prongs are (1) deficiency, i.e. that counsel's performance fell below the prevailing professional norms and (2) prejudice, i.e. that the deficient performance deprived the defendant of a fair trial. O’Connor’s Strickland test has become the touchstone for evaluating claims of ineffective assistance in federal and state courts across the nation.

To satisfy the deficiency prong, a defendant must show that counsel's representation was unreasonable under the circumstances, which requires assessing whether counsel's actions or omissions were unreasonable in light of the known facts and circumstances. To satisfy the prejudice prong, a defendant must demonstrate that the deficient performance likely affected the outcome of the proceeding. This means showing that there is a reasonable probability that, but for counsel's errors, the case would have been decided differently.

The Strickland case itself involved the imposition of the death penalty against David Leon Washington, who pled guilty to three murders and various other acts of violence in Florida in a ten-day period in 1976. In the sentencing phase, Washington’s lawyer failed to present evidence regarding his character and emotional state at the time of the murders which might have mitigated the punishment. Washington appealed the death penalty, arguing that his counsel's performance was so deficient as to constitute ineffective assistance of counsel.

Justice O’Connor agreed that the defendant was entitled to reasonably effective counsel:

Because of the vital importance of counsel's assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

The Court also held that lawyers have at least a duty to consider what investigation is necessary, if not a full-blown duty to investigate their clients’ cases:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

This duty-to-investigate requirement has spawned thousands of challenges to counsel’s decision-making where the client was convicted. The vast majority of these challenges fail because counsel’s decisions are strategic, based on the wishes of the client, or because they don’t ultimately affect the outcome of the case. Washington’s case was one of those. O’Connor held that his lawyer had done enough at sentencing to defend him. He was executed on July 13, 1984. According to a news report from the time, Washington said after he was strapped into the electric chair: “I'd like to say to the families of all my victims, I'm sorry for all the grief and heartache I brought to them.”

Justice O’Connor’s decision in Strickland emphasizes the importance of the defense function, while making it nearly impossible for a defendant to get their conviction reversed based on their lawyer’s mistakes. But her legacy endures because Strickland provides a clear-enough framework for assessing claims based on the ineffective assistance of counsel. For many, it provides a slim reed of hope because it promises a lawyer good enough to make sure that the trial is fair, and that the outcome of the trial is reliable.