It’s All YOUR Fault!: Examining the Defendant’s Use of Ineffective Assistance of Counsel as a Means of Getting a “Second Bite at the Apple.”

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction. This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties criminal defendants face when asserting Sixth Amendment claims in both the federal and state context.

This article takes a deep dive into a criminal defendant’s rights and the defendant’s burden of proof on appeal. Finally, this article concludes with a “survivor’s guide” for newly-licensed trial attorneys who work as defense counsel in criminal cases. As part of this guide, this author suggests various methods attorneys can implement, which may help defense attorneys defend themselves against claims of ineffective assistance of counsel. Criminal defense work, regardless of public opinion, is a noble profession and is vital to maintaining a healthy judicial system for society as a whole.

Many criminal cases present defense attorneys with difficult arguments to make. Nevertheless, criminal defense attorneys must represent their clients to the best of their abilities, like all other attorneys, and ensure that their clients receive fair and impartial trials. At the same time, defense attorneys must always be aware of potential pitfalls that can turn the defense counsel into the defendant. Criminal defendants, as part of their habeas petitions, will not hesitate to attack their attorneys while pursuing their second bite at the apple.