The Florida Bar - Board Certified Badge
Martindale-Hubbell - AV Preeminent Badge
Super Lawyers - Michael B Cohen Badge

Ineffective Assistance of Counsel

Once a person is placed under arrest and instructed that they have the right to remain silent, the second order of business is to advise them of their right to an attorney to aid in all aspects of their defense. This statement by law enforcement known as the Miranda warning must of course be verbally stated at the time the arrest takes place.

With close to forty combined years of experience in the legal field as an Assistant United States Attorney prosecuting cases for the government as well as an Assistant State Attorney working for the State of Florida, and now, for the past fifteen years practicing as a criminal defense attorney in South Florida mostly in the Dade, Broward and Palm Beach County area, my law office is the proper choice to raise an appeal after conviction, particularly in federal cases in which my law firm specializes.

When a criminal case comes to a conclusion and a verdict goes against a defendant, one method of appealing the decision is a valid claim of ineffective assistance of counsel.

Under the Assistance of Counsel Clause of the United States Constitution's Sixth Amendment it is specified that any person accused of a crime will not only have the aid of counsel in their defense, but the advocate who is either hired or provided for them will be competent to a degree that when they attempt to defend the charges against their client it is done without a lack of capability that may undermine their client and influence the outcome of the verdict by their actions.

Reversing a lower court jury's verdict in a court of appeals is not any easy task to achieve but there are considerable amounts of cases where when the conditions were met conclusively, the decision of the higher court produced instances that overturned the original result of the lower court's verdict.

The most notable point of law on this matter and now the basic standard is based on Strickland v. Washington, where it was decided by the court that a two part test would be taken into consideration to prove a claim of ineffective assistance of counsel.

The first part of these tests is known as the "deficient performance prong", where the convicted individual by way of their new attorney must prove that the actions of their original lawyer was indeed "deficient" and fell below an "objective standard of reasonableness" which most other attorneys would believe to be below the professional standard and were basically unacceptable. Arguing that the attorney in question was just a bad lawyer would not bear this point out. Specific instances of poor judgments, bad advice, and other obvious failures and inadequacies brought the defendant's level of defense below these accepted standards, making errors so serious that they fell below the accepted concepts guaranteed within the Constitution's Sixth Amendment.

Once a court of appeals accepts this first test as valid, the second more important "prong" will be explored. To satisfy this second test it must be proved that any of these specific serious deeds performed by the attorney during trial or any preliminary hearings led to a "reasonable probability" that the actions would have definitively affected the outcome of the case.

For example, if during jury selection (voir dire) a lawyer does not challenge a prospective juror who when questioned has obvious predisposed opinions about a matter that can affect the case of his client negatively and the juror is then accepted into the panel for trial, at appeal the new attorney can demonstrate this point as a probable reason where the outcome of the trial may have differed based on this jurors partiality and acquaintances. Walker v. State, (Tex. App. 2006)

Or if it is proved that the original attorney did not do a proper investigation of witnesses who testified at trial and substantiated the defendant's principal defense the outcome most likely would have differed if evidence known was introduced as testimony during the proceedings. People v. Grant (Mich. 2004)

Although it is a rare instance to raise an ineffective assistance of counsel claim on a direct appeal it is possible to do so where the record below is sufficiently developed

More likely however an ineffective assistance of counsel claim known as a collateral attack will be raised in the first instance in the State or Federal trial court which tried the matter or where the plea and sentence was imposed. From there if necessary an appeal of an adverse finding in the case of a Petition to vacate the plea or judgment could be appealed to the intermediate appellate court and in some cases where jurisdiction is accepted to the State or Federal Supreme Court as the case might be.

If you or someone you care about has been convicted for a state or federal crime and believe your case meets the above criteria for appeal due to ineffective assistance of counsel, call my office for a free case evaluation.

To view all of my qualifications and discuss my assistance for moving forward to raise an appeal after conviction for what you believe to be an ineffective assistance of counsel situation, or contest any other criminal charges, click here.

To read detailed examples involving this topic follow either or both of the following links: and this page from the Louisiana Law Review

*All Articles, Web pages and PDF documents that have been used to research this topic found on the Internet are listed below: