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Recently I taught Strickland v. Washington in my Professional Responsibility course.  This semester I'm using the Lerman and Schrag casebook, Ethical Problems in the Practice of Law, which includes some striking data in the notes and questions that follow the case.  These statistics suggest that most criminal defense attorneys do not conduct an extensive investigation into their cases.  Thinking about this data brought to mind a lawyering case that the Supreme Court will decide in the upcoming term, Harrington v. Richter.  (The SCOTUSblog link to briefs and related documents is here).

Here are the figures cited by Lerman and Schrag:

• In New York, only 36 percent of court-appointed lawyers in homicide cases visit their clients in prison, and only 31 percent visit the scene of the homicide.
• Even though the success of a defendant often depends on the availability of investigators, most public defenders in Pennsylvania are unable to recall having used an investigator.
• The office of the public defender in Calcasieu Parish, Louisiana, uses an expert in only 1 of 171 cases.  The criminal defense lawyers in that parish visit their clients in jail in only 1 out of 14 cases.
• New York City defense lawyers talk to their clients' families before sentencing to learn about the defendant's character and background and to explore whether the defendant might qualify for a treatment program rather than incarceration in only 12 percent of cases.

As they reflect, "[i]f most criminal defense attorneys do an excellent job of investigating the law and facts, a strong degree of deference to the decisions of trial counsel is warranted."  (2nd Edition, p. 290)  These statistics indicate, however, that this often is not the case. 

The real concern, of course, is what amounts to a sufficient investigation, and this is one of the questions presented to the Court in Harrington v. Richter.  At issue in Harrington is whether the defense attorney's decision to use vigorous cross-examination and other techniques instead of investigating forensic evidence constitutes ineffective assistance of counsel. 

The Ninth Circuit said yes in a divided en banc opinion authored by Judge Stephen Reinhardt that opens with a quote from Sun Tzu's The Art of War ("To ... not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues.").  The dissent, authored by Judge Bybee and joined by Judges O'Scannlain, Kleinfeld, and Ikuta, reached the opposite conclusion, opening with the observation that "[y]ears of consuming forensic science television have gone to our heads" and that this "isn't the pilot for CSI: Sacramento." 

Last term the Court decided a number of ineffective assistance of counsel claims, reversing the lower court decisions repeatedly.  Of the cases where the Court's reversal resulted in a favorable outcome for the criminal defendant, none involved a challenge to the lawyer's trial strategy like that in Harrington.  For example, the Court held that wrong advice about the deportation consequences of a guilty plea (Padilla v. Kentucky) or a missed deadline for filing a federal habeas petition (Holland v. Florida) may constitute ineffective assistance of counsel.  In contrast, when the Court faced questions involving a lawyer's trial strategy, the outcome for the defendant was not favorable.  For example, the Court declined to find for defendants where their attorneys delivered an unusually prejudicial closing argument (Smith v. Spisak) or failed to request a limiting instruction (Berghuis v. Thompkins). Based on the outcomes of these ineffective assistance of counsel cases, it seems Harrington v. Richter may be headed for reversal as well.  The case is scheduled for oral argument on October 12.

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