The Oklahoma Bar Journal December 2024

T HE FEDERAL COURTS CHURN OUT OPINIONS on the issue of ineffective assis tance of counsel on habeus review all the time, particularly in death penalty cases. It is the chief issue raised on post-conviction relief applications. The issue always rears its head in death penalty cases, but the rules apply in all cases. This last term, the Supreme Court, in Thornell v. Jones , 1 overturned a 9th Circuit opinion that inappropriately applied the standard of what the reviewing courts must examine on habeus review. The 9th Circuit dis regarded the weight of the aggravating circumstances and gave more weight to mitigating circumstances previously presented at the trial court but in more detail.

a strong possibility counsel was ineffective for failing to identify or utilize the evidence . 8 For practitioners in Oklahoma, this standard applies not only in criminal cases, but the Supreme Court has adopted this standard for deprived or terminated paren tal rights cases. 9 For all practicing trial attorneys, the rest of this arti cle will focus on how trial attor neys can ensure they are the most effective advocates for their clients and give them the best chance the first time around.

investigate, in part because the analysis is fact and case specific but, at a minimum, requires the attorney to consult with the defen dant, file discovery motions and pretrial motions and attempt to find readily available witnesses. Not investigating further could be a reasonable decision if it is an informed decision. 6 In Oklahoma, if raising ineffective assistance of counsel for failing to investi gate, appellate counsel can seek a remand under Rule 3.11 for an evidentiary hearing with support ing affidavits. 7 To overcome the strong presumption of trial coun sel’s effectiveness, the appellant’s affidavits must show by clear and convincing evidence that there is

The seminal case on ineffective assistance of counsel is Strickland v. Washington, 2 which requires the petitioner to show: 1) the attorney’s performance was deficient, and 2) a reasonable probability that but for counsel’s deficient perfor mance, the outcome would have been different. To show deficient performance, the petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” 3 Further, on the second prong, the reasonable probability means a “probability sufficient to undermine the out come.” 4 The probability must be “substantial, not just conceivable.” 5 The courts have not defined what is required in the duty to

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL