Strickland’s IAC standard and Brendan Dassey

When a defendant is convicted of a crime, his or her appellate lawyer will often attack the defendant’s trial counsel for ineffective assistance of counsel (IAC) in an attempt to win a new trial.  The applicable legal standard is (usually) found in Strickland v. Washington.  However, Strickland’s IAC standard is both too broad and too narrow.

Strickland is too broad in the sense that it’s often used to go after the defendant’s trial counsel not for his or her own conduct, decisions, and errors, but rather for failing to correct the trial judge’s errors or to properly monitor the prosecutor’s misconduct during trial.  In other words, it unfairly requires the defense lawyer to do three jobs in one.

But on the other hand, Strickland is too narrow, as the standard often fails to provide any remedy for true defense-lawyer ineffectiveness, such as failing to consult with the client, showing up to trial drunk, or even falling asleep in court (which, in fairness, could be due to being drunk).

In Constraining Strickland, 7 Texas A&M L. Rev. 351 (2020), I explained how Strickland’s IAC test is way too broad and needs to be, well, constrained.  And in this interview on the Sixth Hour podcast, host Tracy Keogh and I discuss how Strickland is too narrow and failed to provide the wrongly-convicted Brendan Dassey with any remedy for the ineffective representation he received.

Tracy has been a tremendous advocate for Brendan Dassey and for criminal procedure reform in Wisconsin.  You can find her other Sixth Hour podcast episodes here, her Brendan Dassey website here, and her twitter page here. 

Keep up the fight, Tracy!