July-August 2011

Preventing claims of ineffective assistance of counsel

What prosecutors can do during trial to ensure that justice is done

Andrea L. Westerfeld

Assistant Criminal ­District Attorney in Collin County

The assistance of counsel “is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. … The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’”1

    As prosecutors, we are charged that our duty is not to simply convict, but to see that justice is done. With that in mind, we take classes and read articles ensuring that we understand every last in and out of the Fourth Amendment’s protections on searches and seizures, the Fifth Amendment’s restrictions of interrogations, and the Eighth Amendment safeguard against cruel and unusual punishment. But we can sometimes forget that the Sixth Amendment is also an essential component in seeing that justice is done.

    When I was asked to write an article on ineffective assistance of counsel, my first thought was that it seemed out of place for a prosecutor magazine. But if we take seriously our obligation to see that justice is done, then we must guard a defendant’s Sixth Amendment rights as closely as any other. And more personally, nothing is more frustrating than winning a hard-fought case only to have it reversed for an error the State did not commit. Prosecutors have our own role to play, and the majority of defense attorneys do more than well enough on their own, but only when both sides of our adversarial system are playing their parts fully can we reach “the ultimate objective that the guilty be convicted and the innocent go free.”2

       So what follows are some tips to get prosecutors through situations that might otherwise result in a claim of ineffective assistance, taken from both caselaw and anecdotes. While it is far from an exhaustive list, I hope that it will provide a starting point in difficult situations.

1Be proactive in providing discovery. A frequent ineffective assistance complaint is that the defense attorney did not obtain pretrial discovery. This is an easy issue for the prosecutor to help avoid simply by providing discovery as part of the case’s preparation, regardless of whether a motion has been filed. If a discovery has not been picked up and trial is nearing, remind them to pick it up or simply mail it to the defense. Also, many offices have now switched to an open-file policy, not requiring formal discovery motions before providing access. This is very helpful in avoiding later complaints, but it needs to be documented to be useful. Note on the file when the defense attorney has viewed it, and put that on the record at the start of trial. “Your Honor, just for the record, we had an open-file policy on this case, and Mr. Defense Attorney viewed the file on March 1, April 10, April 30, and May 10.”

2Give notice early and often. Another common complaint is that the defense attorney did not know about prior convictions or extraneous offenses that the State used in trial. While notice is required only if the defense requests it, it pays to be proactive here. Provide the defense attorney with ample notice of priors and extraneous offenses even if he has not filed a formal request. If the defense attorney seems to have forgotten or simply mixed up his cases, provide a supplemental notice or simply remind him in person. There’s no reason hide this kind of evidence, especially because it can often encourage a defendant to plead, and there are many reasons for making sure it’s disclosed.

3Make offers on the record. Another frequent complaint of ineffectiveness is that the attorney did not convey plea offers or other information to the defendant. Making a record of this information is an easy way to both ensure that the defendant’s rights are safeguarded and protect cases against baseless claims. An easy way to do this is simply to repeat any plea bargain offers during a pretrial hearing or at the beginning of trial. That way, the defendant is undeniably aware of the State’s offer.

4Know what is admissible. Do not fall into the trap of thinking, “If they don’t object, it’s admissible.” While the State’s evidence will likely be admitted if there is no objection, prosecutors can still run into trouble later. Appellate courts have started to find defense attorneys ineffective where they do not object to clearly inadmissible evidence, even reversing on direct appeal because there could be no strategy not to object.3 And prosecutors should never rely on a defense attorney to decide if evidence is admissible. Always have a plan for what evidence—exhibits and testimony—the State needs to offer. Know if it is admissible and what conditions there may be, such as evidence that is admissible to rebut certain defensive theories. Resist the urge to offer “just one more” bit of evidence than should be offered, even if our opponent is not objecting.

5Predicates matter. Dovetailing along with knowing what is admissible is proving what is admissible. Predicates can be dull and are often shortened in a bench trial or for basic matters, but for more contentious or significant pieces of evidence, predicate can be very important. To prevent a later claim that an attorney was ineffective for not objecting to evidence that did not have the proper predicate, be sure to lay a foundation for all significant pieces of evidence. Even if the defense attorney would not object otherwise, it can only make your case stronger.

6Offer a chance to explain strategy. Sometimes the defense will offer evidence useful to the State that we could not otherwise get admitted, such as a police report or forensic interview. Instead of just thanking your lucky stars that it came in, take a moment to consider how this action could look to a court reviewing it years down the line. Sometimes the strategic value of the evidence for the defense is obvious, but sometimes it is not clear just why the evidence was offered. Prevent a later court from concluding that the attorney offered the evidence without knowing about the part beneficial to the prosecution by simply noting it on the record.

    In one excellent example, the prosecutor prevented the case from being reversed for ineffective assistance after the defense attorney offered the police report.4 She requested a sidebar conference on the record and said, “Your Honor, I have no objection to him admitting this, but he needs to be fully aware that the [first] paragraph states that [the defendant] is a well known member of the Bloods gang and a drug dealer.” The defense attorney affirmed that he was aware and had other reasons for admitting the police report. With that, the appellate court was able to conclude that the defense attorney was not ineffective.

    A polite warning can do no harm and will ensure either that an attorney who was unaware will be able to withdraw the exhibit or that an attorney’s strategic decision will be clear on the record. Any warnings should, of course, take place out of the presence of the jury, either while the jury is out of the courtroom or in a recorded sidebar conversation.

7Anticipate defensive strategies. Defensive issues, such as lesser-included offenses or self-defense, are not required to be in the jury charge unless the defense requests them. But a careful prosecutor should be aware of potential charge issues and consider bringing them to the court’s attention if the defense attorney does not. If the entire defense is centered on self-defense or that the defendant was reckless rather than intentional but the defense attorney does not request a charge on that issue, that could be a strong basis for an ineffective assistance claim down the road. Avoid the issue by raising it yourself during the charge conference: “Your Honor, the State has no objections, but I assume Mr. Defense Attorney wants a self-defense charge.”

8Continuances are not the enemy. It is very frustrating to have thoroughly prepared a case, assembled witnesses, gotten evidence in order, and be ready to go with a devastating opening statement … only to have the case continued. But sometimes a short continuance can be the difference between an affirmed conviction and a summary reversal. Continuances may be a few hours, if a defense attorney simply needs time to review a piece of evidence he was unaware of, or a few days, if he needs to prepare for prior convictions or extraneous evidence he did not realize the State was offering. Certainly a prosecutor does not need to agree every time a defense attorney claims surprise, but it can be an effective way of avoiding a problem.
    And in the rare circumstances that a defense attorney comes to trial obviously unable to effectively proceed, such as being clearly sick or intoxicated, be proactive and make sure the case is continued until he is recovered. Likewise, it may be preferable to allow the defense to re-open the case if they forgot to call a witness or omitted some crucial evidence, such as proving probation eligibility.

9Gently point out mis-steps. No one likes to make a mistake, and we all really hate to have them pointed out. Still, that temporary discomfort is far better than a case being reversed for ineffective assistance. Most cases of ineffective assistance are a result of simple negligence, not intent, and the defense attorney will quickly correct the mistake if she realizes it in time. If prosecutors recognize a mistake that can be corrected—such as the failure to file an application for probation or going to the judge on a case where he cannot grant probation—then we are doing everyone a favor by politely (and privately) pointing it out. Everyone has made stupid mistakes at some point in a career, and playing “gotcha” after the fact is not in keeping with a prosecutor’s oath to see that justice is done.

10Countering intentional ineffectiveness. This situation is thankfully rare, but some attorneys occasionally choose a strategy of ineffectiveness. They intentionally refuse to do anything to represent their client to ensure a reversal for ineffective assistance. The Court of Criminal Appeals has handled two such cases in just the past few years, one a death penalty case. In Medina v. State, the defense attorney refused to proceed after a continuance meant one defense witness was unable to attend.5 And in Cannon v. State, the defense attorney refused to do anything in the trial after being denied a continuance.6 In Medina, the case was upheld, largely because the defendant did not present enough evidence on appeal, but Cannon was reversed for ineffective assistance.

    For a prosecutor unfortunate enough to encounter one of these cases, what can you do to save your case? There is not a clear answer at this point. In Medina, the trial court tried ordering the attorney to proceed and held her in contempt when she refused.7 The Cannon court suggested that the trial court can admonish the defendant and ask if he is waiving his right to effective counsel.8 If the defendant does not agree with his attorney’s strategy of ineffectiveness, then the trial court can appoint a new attorney to proceed. In that situation, a continuance would be necessary to allow the new attorney to get up to speed, but it may be a better solution than having to retry the entire case.

    The Cannon court was confident that the attorney disciplinary rules and the threat of civil malpractice suits will restrain lawyers from engaging in a strategy of ineffective assistance,9 and I hope that few lawyers will have to face this situation. If you are one of the unfortunate forced to proceed, simply try the cleanest case possible in hopes of showing that there was no prejudice to the defendant from his attorney’s antics.


Most of the advice here boils down to two simple words: Restrain yourself. Our justice system is an adversarial one, and it is easy to get caught up in our own concerns and wanting to win, but prosecutors have an obligation to seek justice, not just win a case. By ensuring that the adversarial system is working and the defense receives zealous representation, we also ensure that justice is done.


1 Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938).
2 Herring v. New York, 422 U.S. 853, 862 (1975).
3 Lopez v. State, 315 S.W.3d 90, 100-102 (Tex. App.—Houston [1st Dist.] 2010, pet. granted).
4 State v. Provost, 205 S.W.3d 561, 564 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
5 Medina v. State, No. AP-76,036, 2011 WL 378785, at *14-15 (Tex. Crim. App. Jan. 12, 2011).
6 Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008). See also Mary Alice Robbins, The Quiet Man: Counsel Who Didn’t Participate In Trial Says He Was Protecting Client, Texas Lawyer, Oct. 29, 2007.
7 Id. at *14.
8 Cannon, 252 S.W.3d at 352.
9 Id. at 353.