To reverse a conviction or capital sentence based on ineffective assistance of counsel, a defendant must meet the two-prong standard set out in Strickland v. Washington. The standard requires a defendant to show that (1) “counsel’s performance was deficient,”[1] and (2) “the deficient performance prejudiced the defense.”[2] In meeting the first prong, a defendant must show that counsel’s performance “fell below an objective standard of reasonableness.”[3] In the majority of jurisdictions, courts evaluating the first Strickland prong examine the performance of the actual defense attorney involved in the case.[4] Yet a minority of jurisdictions[5] allow courts to “untether themselves from the record and imagine what a hypothetical lawyer would do.”[6] This means that, rather than evaluating the specific defense counsel’s rationale for her actions or omissions while representing her client, the court may imagine reasons a hypothetical attorney could have for making those same actions or omissions.[7] These jurisdictions use the “injection of hindsight” when deciding whether an imagined lawyer in a counterfactual scenario acted reasonably.[8] They do not, however, allow hindsight when assessing the performance of the actual trial counsel at issue on appeal.[9] The idea behind this approach may be that if a hypothetical attorney could reasonably take a certain action, then that action does not fall below an “objective standard of reasonableness.” Under this interpretation of Strickland, second-guessing by the actual attorney with the benefit of hindsight would be irrelevant to the reasonableness of her action or omission. So long as a judge can envision a different hypothetical attorney’s reasoning that would be reasonable, the court can ignore the objectively unreasonable performance of the defendant’s actual defense counsel.

Colorado follows the minority approach in examining the first prong of the Strickland test.[10] The defendant in a case called People v. Garner[11] appealed the validity of the minority interpretation of the first Strickland prong. Justice Sotomayor granted an application extending the time to file a petition for a writ of certiorari to the Supreme Court. The case now awaits a decision on certiorari. In People v. Garner, the state charged Jason Garner with first-degree murder on the theory that he killed a companion “while in a drug-fueled craze.”[12] Upon request from the prosecutor at trial, the judge instructed the jury that “[d]iminished responsibility due to self-induced intoxication is not a defense to murder in the second degree or manslaughter.”[13] In fact, it is a defense to first-degree murder.[14] Garner’s counsel failed to object to the prosecutor’s instruction or ask for an instruction telling the jury that self-induced intoxication is a defense.[15]

Garner’s attorney later stated in an evidentiary hearing that she did not object to the instruction or request an opposing instruction because she believed it would have been inconsistent with the defendant’s denial defense.[16] Although the Colorado Court of Appeals determined that counsel’s explanation was inapplicable to the situation and her rationale was not reasonable,[17] the court nonetheless decided that Garner did not meet his burden under the first prong of Strickland. Applying the minority approach for evaluating the first prong of Strickland, the court theorized that a hypothetical attorney might have reasoned that, “leaving the instruction as it was allowed the jury to infer that, insomuch as self-induced intoxication was not a defense to [second degree murder and manslaughter], it would be a defense to first degree murder.”[18] The court reasoned that the hypothetical attorney may prefer this approach because it could allow the jury to acquit the defendant of first degree murder due to intoxication “‘without having to consider whether the intoxication had the requisite effect’ of negating the ‘specific intent’ element of first degree murder.”[19] By bringing in the motives of an imaginary attorney, the court ignored the reality that Garner’s actual attorney did not understand Garner’s case sufficiency to defend him.

The Court should grant certiorari and review the methods jurisdictions use to examine the first Strickland prong. Theoretically, if a hypothetical lawyer could have a rational reason for acting (or failing to act) in a particular instance, the act or omission itself may not be “deficit.” But the counsel’s performance may very well be. The first prong of Strickland is fact intensive and meant to focus on the performance of actual counsel in light of the record.[20] The current minority rule allows for unacceptable outcomes that flout the purpose of ineffective assistance of counsel claims. First, the minority approach decreases minimum standards for fair representation in criminal trials. When defense attorneys make mistakes, judges can use the imagined strategy of a nonexistent lawyer to dismiss Strickland claims. Such a departure from the facts prevents any sort of holistic and factual determination of what actually took place at trial. The test does not answer the question of whether the specific defendant was adequately represented. This is especially important given that counsel’s indefensible rationale for a particular act or omission may be indicative of their overall lack of knowledge of the defendant’s case and relevant law. Moreover, the minority approach raises the burden on defendants (and post conviction counsels) to absurd levels. The standard forces them to refute any “potential alternative strategy choices that were manufactured without any opportunity for counsel to defend against them, because they do not derive from the factual record.”[21] The approach effectively leaves effective representation up to the imagination of trial judges. Finally, failure to get past the first prong of Strickland makes it less likely that a court will evaluate the second prong: whether counsel’s actions actually prejudiced the defense. The right to counsel in criminal cases is fundamental;[22] the Supreme Court should thus assure that a real attorney, not an imaginary one, facilitates that right.

To read more about Strickland and appeals for ineffective assistance of counsel, see

[1] Strickland v. Washington, 466 U.S. 668, 687 (1984).

[2] Id.

[3] Id. at 669.

[4] Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petition for a Writ of Certiorari at 2, Garner v. State of Colorado, 2017 No. 16-857.

[5] Id. at 5. See, e.g., Bucci v. United States, 662 F.3d 18 (1st Cir. 2011); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000); Commonwealth v. Philistin, 53 A.3d 1 (Pa. 2012); Jones v. State, 740 S.E. 2d 147 (Ga. 2013); Dorsey v. State, 448 S.W.3d 276 (Mo. 2016)

[6] Brief of Amicus Curiae the National Association of Criminal Defense Lawyers at 2.

[7] Petition for a Writ of Certiorari at 7, Garner v. State of Colorado, 2017 No. 16-.

[8] See, e.g., Simpson v. State, 781 S.E.2d 762, 767 (Ga. 2016)

[9] Id.

[10] Brief of Amicus Curiae the National Association of Criminal Defense Lawyers at 2.

[11] People v. Garner, 2015 COA 174, ¶ 1, 381 P.3d 320, 322, cert. denied, No. 16SC66, 2016 WL 4611557 (Colo. Sept. 6, 2016).

[12] Petition for a Writ of Certiorari at 2.

[13] Id. (quoting Pet. App. 25a) (alteration in original).

[14] Petition for a Writ of Certiorari at 5.

[15] Id.

[16] Id. at 6.

[17] Id. at 6–7.

[18] Id. at 7 (emphasis in original) (quoting Pet. App. 29a).

[19] Petition for a Writ of Certiorari at 7–8 (quoting Pet. App. 30a).

[20] Brief of Amicus Curiae the National Association of Criminal Defense Lawyers at 2.

[21] Id. at 9.

[22] Gideon v. Wainwright, 372 U.S. 335 (1963).