In an earlier era trial courts perceived their responsibility regarding the quality of legal assistance to be limited to the appointment of reputable counsel. Unless the circumstances were exceptional, judges confronted with a lack of adequate representation for a defendant "papered over" the problem either because they feared a flood of frivolous claims or because they were reluctant to upset the finality of criminal convictions. Even today, when a growing number of courts have formulated a more stringent sixth amendment standard for judging counsel effectiveness, there remains a judicial reluctance to recognize the fundamental nature of the right to effective assistance of counsel. This reluctance results not from an inarticulated suspicion that "all defendants are guilty anyway," but from conflicting policy interests at work in the criminal justice system. Courts today attempt to balance the constitutional mandate for effective defense counsel against an institutional desire to preserve the finality of criminal litigation. Consequently, the law surrounding effectiveness of counsel lacks clear standards and uniform enforcement. This Note will consider the constitutional nature of the standard for judging ineffectiveness that is applied by a majority of the federal courts and the West Virginia Supreme Court of Appeals. It will also survey the various types of claims of ineffectiveness considered by the West Virginia court and the procedural setting in which they arise. Finally, the Note will analyze the major procedural aspects of appellate review and their substantive effect on claims of ineffectiveness.
Irene M. Keeley,
Substantive and Procedural Aspects of the Right to Effective Assistance of Counsel,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol81/iss3/11