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Defective Assistance

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posted on 2023-07-28, 19:04 authored by Jenna Bolonik

Picture yourself driving down a steep San Francisco hill. You are driving 45 miles per hour and decelerate while approaching a red light. The light turns to green so you accelerate again. As you are approaching a second red light, you break — except your car isn’t slowing down. You are going faster. Your brakes are defective. What do you do? Do you turn the wheel towards the houses on the left or the other cars on the right? Do you crash full speed into the car ahead of yours? What does one do when an essential part of their safety defects in the moment they need it most?

The best person to ask is Terence Andrus, a man sentenced to death in 2012, a man whose court-appointed attorney neglected to present or even look for mitigating evidence. Any reasonable entity would consider this assistance of counsel to be ineffective — the Supreme Court sure did. However, while Terence Andrus faced a capital murder charge, his lawyer James Crowley failed to meet with him for nearly eight months. They met outside of court a total of six times over the course of four years, with Crowley admitting that he did not begin any work until just before jury selection.

The allegations made against Andrus at age 16 for his role as a robbery lookout resulted in his detention in a juvenile facility for 18 months. There, he was forced to partake in gang culture, ingest psychotropic drugs, and spend time in solitary confinement.[1] This experience, coupled with the harsh conditions of his childhood, resulted in extreme trauma for Andrus. In his early years, Andrus assumed the role of caretaker to his four siblings before reaching adolescence because of his mother’s absence, which was due to drug addiction and abusive relationships. None of this evidence ever reached the jury because Andrus’ counsel failed to present it. His attorney did not investigate Andrus’ young adult life or any evidence that could have worked in his favor. Indeed, the attorney did not present an opening statement and affirmed Andrus’ guilt in his closing argument.[2] The importance of this case, however, lies in the lower courts’ original decisions. As expected, Terence Andrus was found guilty and sentenced to death. Years later, Andrus filed a habeas corpus claim on the basis of ineffective counsel. After presenting his case, the Texas trial court recommended that Andrus be granted habeas relief on the basis that his counsel’s representation was indeed ineffective. However, the Texas Court of Criminal Appeals disagreed. They decided that Andrus failed to achieve his burden of proving ineffective assistance according to the Strickland standard set in Strickland v. Washington (1984).[3]

This standard[4] established that a defendant must prove two things in order to successfully claim habeas corpus: (1) “that the attorney’s representation fell below “an objective standard of reasonableness” and (2) “that the attorney’s inadequate representation prejudiced the defendant.”[5] Representation is deemed prejudiced if the defendant can prove that the outcome of the proceeding would have been different if the attorney did not err in the manner they did. In hopes of being granted habeas corpus, petitioner Terence Andrus presented numerous pieces of evidence supporting his claims of ineffective representation: his attorney did not deliver an opening statement, conceded Andrus’ guilt in his closing argument, rested his case extremely early, failed to contact the expert witness until just before voir dire, and failed to contact Andrus’ parents in a timely matter.[6]

The second leg of the Strickland standard specifies that a defendant must prove they were prejudiced by their attorney’s representation;[7] but this requirement is ironically prejudicial. If the first leg of the standard is met, meaning that representation was below a reasonable level, it is inherent that the defendant was prejudiced. With little resources, it is already difficult for those incarcerated to file a habeas corpus claim. Requiring that they must prove they were prejudiced only serves the courts to be deferential to attorneys and reject claims. The flaws in this standard facilitate mass incarceration due to the difficulty of successfully claiming habeas corpus on the grounds of ineffective assistance of counsel.

The Sixth Amendment explicitly outlines the rights guaranteed to the accused; one being the right to assistance of counsel.[8] The Supreme Court of the United States concluded that Terence Andrus “demonstrated counsel’s deficient performance under Strickland,” but has not adequately demonstrated that his attorney’s performance prejudiced him. Therefore, they granted Andrus writ of certiorari, vacated the Texas Court of Criminal Appeals’ decision, and remanded the case back to a lower court.[9]

Terence Andrus spent months of his life wondering if he was next on death row. Wondering if the Supreme Court would accept his case. Wondering if his lawyer truly ruined his life. So, what does one do when the system fails them? What does one do when the only thing that can save them is defective? Terence Andrus awaits a final decision as does the rest of the world, but we can all agree that his defense was not only ineffective, it defected.



American University (Washington, D.C.); Juris Mentem Law Review


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