In an unpublished opinion entitled State v. Berryhill from the Minnesota Appellate Court that came out this last Tuesday, August 4,2009, a big discussion was held about the difference between the appellant’s claim of “ineffective assistance of counsel” and something the Court called “trial strategy”. Sound a little scary? It is: Claims of ineffective assistance of counsel are something that good lawyers and the courts take very seriously. But what constitutes “ineffective assistance of counsel” and how do you avoid it?
It’s common knowledge that in among our constitutional rights such as the right to remain silent, the right to a trial by our peers, and the right to confront witnesses against us, we also have the right to a lawyer in criminal matters. But it wasn’t until 1963, in the famous case of Gideon v. Wainwright, that the right to a lawyer in a criminal case meant public defenders would be appointed to represent individuals who meet certain income guidelines, and that the magic language “effective assistance of counsel” became part of our legal rights, too. Technically, this right to the “effective assistance of counsel” is a 14th amendment right, because having a competent lawyer by your side during a criminal case is said to go to the “fairness of the proceedings”.
So, what happened in Berryhill? Mr. Berryhill had been drinking in his van with friends, and had parked the van in a Wal-Mart parking lot. The manager of the store called the police, and then watched as someone drove the van from one end of the parking lot to the other, while waiting for the police to arrive. The police arrived and arrested Mr. Berryhill for felony DWI, based on open containers in the van, the keys in the ignition and Mr. Berryhill’s failure of a field sobriety test. Mr. Berryhill later had a breath test result of 0.23.
After a jury convicted Mr. Berryhill of two counts of felony DUI, he appealed the conviction on the grounds that his lawyer had provided ineffective assistance of counsel by not filing the proper paper work to raise an affirmative defense on Mr. Berryhill’s behalf during trial. The affirmative defense in question was one called “Post-Driving Consumption of Alcohol,” and consists of exactly what it implies – that the defendant should not be found guilty of DUI because the defendant’s intoxication was due to alcohol consumed after the defendant drove the vehicle. This affirmative defense is only allowed to be used in trials, according to Minnesota law, if the defense attorney has provided the statutorily required notice to the prosecution that the defense will be raised. Mr. Berryhill’s attorney did not provide this notice because the attorney did not use that defense during trial.
The Appellate Court reasoned that the defense attorney’s decision not to provide notice and not to use that affirmative defense was not conduct that rose to the level of ineffective assistance of counsel. The Court said that in order for the lawyer’s decision to rise to the level of ineffective assistance:
“The defendant must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
The Court continued to state that in fact, Mr. Berryhill’s defense attorney’s decision not to use that particular affirmative defense was a trial strategy that the defense attorney had decided to use, and that therefore it was well within the bounds of the objective standard of reasonableness because “the waiver of an affirmative defense or the failure to assert a defense is a permissible exercise of the defense attorney’s discretion is selecting a trial strategy.”
Now, how do you avoid a situation in which you have to try to raise a claim of ineffective assistance of counsel? Fortunately, the answer is simple: Choose your attorney carefully. You should hire someone with whom you feel comfortable talking candidly about your case and the attorney’s strategy for handling it, so as to avoid any confusion. Communication and trust between you and your Minnesota DUI lawyer are critical to the successful resolution of your case.
To read the full Appellate Opinion, click on this link: