In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction.  Ineffective assistance law should reflect this reality.  Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction.  Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer. 

In United States v. Washington (No. 08-3313), the defendant was convicted of distributing about 62 grams of cocaine base.  Between conviction and sentencing, Washington submitted to a routine interview with a probation officer as part of the presentence investigation.  Washington’s lawyer neither attended the interview in person nor advised Washington that admission of uncharged criminal conduct might aggravate his sentence as “relevant conduct” under the then-mandatory federal sentencing guidelines.  Washington ultimately admitted to distributing an additional 2.5 kilograms of cocaine base, which helped to boost his sentence to the statutory maximum of forty years per count of conviction.

In arguing that his right to effective assistance was violated, Washington had a serious problem: Tenth Circuit precedent established that the presentence investigation is not a “critical stage” in the criminal process that triggers a right to counsel.  The precedent seems of questionable wisdom to me, but, in any event, the majority concluded it was distinguishable.  Although the presentence investigation may not be a critical stage, sentencing itself plainly is.  Effective representation at a critical stage implies that appropriate preparations are made to maximize the chances of a good outcome at the critical stage.  Thus, while an attorney need not be physically present during the presentence investigation interview, the attorney at least needs to provide sound advice in advance of the interview regarding the potential effect of admissions on the sentence.

Washington seems clearly correct to me in its reasoning, but two considerations may limit its applicability to other cases.  First, the court emphasized the lawyer’s extraordinary ignorance regarding the whole guidelines system (“counsel’s failure to understand the basic mechanics of the sentencing guidelines,” as the court put it).  So what would happen if counsel understood and related to the defendant the concept of relevant conduct in a general way, but did not provide specific counsel regarding admissions or provided misinformation regarding the weight given to relevant conduct?  Second, Washington was sentenced under the old mandatory guidelines system.  Now that the guidelines are advisory, it is arguably less important for counsel to provide accurate advice about relevant conduct.  Given the continuing requirement that sentencing judges calculate and “consider” a guidelines sentence, as well as the data indicating that the guidelines sentence is still routinely imposed in many districts, I would think effective representation still requires good advice about how the presentence investigation affects the guidelines calculus.  It is not clear, however, whether the Washington court would agree.

Cross posted at Life Sentence.