Defining Ineffective Counsel

By Amy E. Feldman

PHILADELPHIA (CBS) - When can a defendant get a conviction overturned because his lawyer did a bad job?

A Nevada man who shot a divorce judge through a courthouse window and also killed his wife is now claiming ineffective assistance of counsel - in other words, that he was convicted because his lawyers were no good. Apparently, he has a different view of a good outcome in a case.

If I were his lawyer, right about now I'd duck.

Obviously no one who is convicted of a crime is thrilled with his lawyer's performance. But when does a defendant get the right to a new trial if his lawyer was actually terrible?

The Sixth Amendment to the Constitution guarantees the right to a lawyer in a criminal case. You know from Miranda warnings on tv: if you can't afford a lawyer, one will be provided for you. Courts have taken this to mean that you get more than a warm body with a law degree, you get to have a reasonably competent attorney.

But, in order to win your case and get a new trial, a defendant has to show that the lawyer's performance was deficient (like falling asleep, being drunk, mentally ill, or senile - all of which have happened) and also that the lawyer's deficiency was the reason the defendant was convicted, not because of the overwhelming evidence of his guilt.

So, it will be hard for the Nevada man to win an ineffective assistance of counsel claim even if his lawyer was the worst ever, if the judge who hears the case is afraid to go near his window when he makes his decision.