Systemic Constitutional Violations Can’t Be Fixed by SCOTUS Decision

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By Jessica DaSilva

Indigent defendants navigating state appeals face problems that are so fundamental and systemic, even an upcoming U.S. Supreme court opinion on the issue likely won’t be able to help them.

If Erick Daniel Davila wins at the high court, he’ll be allowed to make the claim, in a federal habeas corpus case, that the performance of his lawyer on direct appeal was deficient. Currently, that kind of claim is barred if it hasn’t been made in an earlier state habeas case.

But even if the Supreme Court allows his claim—here, that Davila’s appellate counsel failed to raise an argument about an allegedly improper jury instruction—the court won’t address the larger failings of the systems that provide appellate legal services to poor defendants across the country, said Eric Freedman, a law professor at Hofstra University, East Garden City, N.Y., who studies habeas corpus issues.

Many of the same problems that came to define the constitutional right to effective trial counsel—overworked attorneys with unmanageable workloads and inadequate time to prepare—are present in appellate systems in many states, Freedman said.

Allowing defendants to challenge their appellate lawyers’ performance in federal court is a step in the right direction, but it’s an incremental step at best, he said.

What the court needs to do—but almost surely won’t—is to set out a substantive right to effective appellate counsel and start to define what that looks like, he said. Such a decision could provide the kind of guidance seen in the evolution of the right to trial counsel, which has been recognized as a substantive constitutional right

Creating a substantive right would broaden the ability to argue ineffective assistance of counsel instead of a procedural rule that will result in continual challenges to the parameters of making those claims.

A win for Davila would only be a Band-Aid on a much larger problem, Freedman said.

Automatic Violations

States hampered by systemic obstacles in the criminal justice system present defendants in post-conviction proceedings with a high—if not impossible—bar. Like many trial-level public defenders, appellate public defenders face minimal funding, massive case loads and potential conflicts of interest.

In all likelihood, none of those issues will be addressed in the Davila decision.

Most states set up their criminal appellate systems in ways that automatically violate defendants’ constitutional right to effective counsel, said David Carroll, executive director of the Sixth Amendment Center in Boston.

For example, the procedure in 34 of the 37 states with capital punishment is for trial attorneys to file the direct appeal following conviction. That means the state systems violate defendants’ rights by essentially requiring attorneys to claim ineffective assistance of trial counsel against themselves, Carroll said.

Any decision in Davila would have minimal, if any, effect on that procedure, Carroll said.

States with well-functioning post-conviction systems usually abide by best practices for indigent defense as set out by the American Bar Association, Freedman said. That includes creating an adequately-funded, independent, statewide agency for post-conviction appeals, with continuing education programs for the attorneys who work there, he said.

States with poorly-functioning systems replicate trial-level problems at the appellate level, Freedman said. That can include issues like under-funding and huge caseloads.

Defense attorneys with enormous caseloads are more likely to have conflicts of interest because they represent defendants whose interests are at odds with those of other clients, Carroll said.

And the requirement to exhaust the state post-conviction process is relatively new, Freedman said. States heavily lobbied Congress to add that requirement to the federal habeas rules in the late 1980s, Freedman said. By forcing defendants to make their arguments in state courts before filing a claim in federal court, states interposed themselves into a process that now results in automatic violations when trial attorneys are tasked with filing the direct appeal.

“If the states are going to take that position, then basic judgment and fairness says that if we’re going to require you to go through it, we should enable you to do that,” Freedman said.

A Right to Appellate Counsel?

But the decision in Davila won’t address any of those systemic obstacles. The court will likely issue a narrow ruling on the procedural question: whether defendants can make ineffective assistance of appellate counsel claims in a federal habeas appeal, Freedman said.

Although the court has recognized the right to counsel in appellate proceedings, it has only seen that right as procedural, Freedman said.

When the right is considered procedural and not substantive, the only check is on whether the rules—rather than the results—are fair. Davila argued that the rules for filing an ineffective assistance of appellate counsel claim are unfair.

If attorneys filing state habeas appeals don’t make ineffective assistance claims against the attorney who handled the direct appeal, the claims are procedurally defaulted—in other words, the defendant isn’t allowed to bring them up in a federal claim, Freedman said.

That’s the entire issue in Davila: whether those otherwise lost claims can nevertheless be made in a federal habeas case.

“That legalistic trap has been visible to everybody in the system for some time,” he said. “It can only be described as a death trap, and it has been.”

Potential Erosion

Although a decision in Davila likely won’t solve many problems, Professor Steven Schwinn at John Marshall Law School, Chicago, said he worries about the case making existing problems worse by offering a “gratuitous” stance on the right to counsel.

“In cases like this, I always worry a little bit about the court doing something that would undo or chip away at the underlying right” to counsel, Schwinn said.

Because the right to effective appellate counsel is procedural, it essentially exists in theory, Schwinn explained. But it doesn’t receive the same weight as the substantive right to trial counsel under the Sixth Amendment, he said.

That’s how the court has justified issuing piecemeal decisions regarding ineffective appellate counsel claims rather than what constitutes ineffective trial assistance, Freedman said.

Davila could boil down to how the court views those rights and whether they should receive the same weight, he said. Making a broad decision on that weight could “trim that right around the edges,” Schwinn said.

Substance Versus Procedure

The Supreme Court hasn’t provided any guidance on how the right to appellate counsel should be treated in state post-conviction proceedings, Carroll said.

That includes seminal cases like Gideon v. Wainwright, which established that indigent defendants have the right to appointed attorneys, and Strickland v. Washington, which set out the constitutional test for ineffective representation at trial.

Strickland isn’t able to fix the problem because when you look backward at a case, there are all these hurdles that a poor client has to go through to show they didn’t get their fundamental right to an attorney,” Carroll said.

On the same day the Supreme Court released the test for determining whether counsel had been ineffective, in Strickland, it fleshed out that test with its opinion in U.S. v. Cronic.

The defendant in Cronic was charged with 13 counts of mail fraud. His assigned defense attorney had minimal legal experience in a real estate practice. The attorney had only 25 days to prepare for trial; the government had more than four years to prepare the case.

Such circumstances essentially created an automatic violation of the right to trial counsel, the Supreme Court held.

But where the right to effective trial counsel has enjoyed overt guidance from the Supreme Court, the right to appellate counsel has yet to receive such treatment.

Davila highlights systemic problems in the appellate criminal justice system that simply can’t be solved with a judicial opinion, Carroll said. Guidance on how to deal with ineffective counsel in the appellate process is necessary, he added.

The court needs to issue a Cronic-equivalent opinion to provide guidance to states in how to apply ineffective assistance of appellate counsel claims, Carroll explained.

Cronic gives you a pretrial right to effective assistance of counsel—that the structure is set up such that you have ineffective assistance,” Carroll said. “I think that needs to be expanded to appeals as well.”

Slow Expansion

Murray v. Giarratano further complicated the scene when the Supreme Court in 1989 held that the constitution doesn’t expressly require counsel for habeas claims.

In the 2012 case Martinez v. Ryan, the court once again issued a procedural remedy under the due process clause—but not an absolute constitutional right.

Rather than basing the ultimate decision in a right, the remedy essentially acts as a quick-fix that can’t be expanded.

Basically, the court created an exception to the rule. Defendants are not able to file claims in federal habeas that were not ruled on in the state post-conviction process. That exception allows defendants to make ineffective assistance of trial counsel claims in a federal appeal, even if they weren’t raised during the state post-conviction process.

That decision drew a blistering dissent from the late Justice Antonin Scalia, who examined the flaws in the post-conviction process.

“Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas,” Scalia wrote in his opening to the dissent.

Scalia in his dissent questioned how the majority arrived at its decision. It had the same effect for the defendants in that case, but a right could potentially get expanded to other situations like Davila’s and an exception can’t.

Appellate counsel can inadvertently waive an ineffective assistance of counsel claim for a defendant or even cause more constitutionally deficient representation by missing statutes of limitations or committing discovery errors, Freedman said.

“As the prisoners are arguing, ‘What’s the point of trial counsel preserving all the right things if the case is going to get blown on appeal?’” he asked.

Davila could expand the Martinez exception to state habeas attorneys who fail to make a claim against the attorney filing the direct appeal.

“The problem is likely that the court sees it’s a widespread problem, and reform would have a profound effect on the problem,” Freedman said. But the court doesn’t like making big decisions, he said.

The court has been providing incremental, narrow remedies for right to counsel claims in the post-conviction process. It’s likely that it will continue to do so here, creating only another procedural exception, he said.

“It would mean a step toward justice and fairness, but only a step,” Freedman said. “None of which will change the pressure and fatal unfairness in the system.”

Reducing ‘Procedural Tangles’

Interestingly enough, states that follow best practices are more likely to preserve the finality of criminal convictions, Freedman said.

“Once they fix the problem by giving you an effective lawyer on appeal, then the states win overwhelmingly,” he said. But if an ineffective appellate lawyer defaults a defendant’s claim through ineffective assistance, “then they get to do it all over again in federal court where” the defendant is “likely to get a better lawyer.”

A conviction has a better chance of being overturned on federal habeas, he said. And effective state habeas representation means there would also be fewer “procedural tangles” by the time the case got to the federal system.

But states that have funding issues for public defenders at the trial level face the same funding issues for the appellate level, Freedman said. Some states have prioritized criminal justice changes while others haven’t.

Although the Supreme Court hasn’t imposed any specific requirements as a constitutional matter, Congress could legislate a solution, he said.

Congress could pass a law guaranteeing the right to effective counsel to the post-conviction process—an option that could save the federal courts time and money, Freedman said.

Federal public defenders spend more time on cases that haven’t seen effective representation in state appeals or on state habeas, he said.

“From the point of view of the federal government, costs are being shifted from the states to the feds,” Freedman said. “From a cost matter, it’s a matter of dollars and cents. From a justice matter, it’s a disaster for the prisoner. It would both save money and promote justice.”

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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