attorney is currently assigned. A defendant may not force an unwilling attorney to represent him or her, 
but a court does have the discretion to deny an attorney’s motion to withdraw from representation after 
inquiring about counsel’s reasons for wishing to withdraw. This may present an ethical dilemma for the 
attorney because professional rules of responsibility require that even when an attorney withdraws from a 
case, he or she must still maintain attorney-client confidences. If, for example, the attorney knows that the 
defendant insists on taking the stand and presenting perjured testimony, the attorney must withdraw. But, at 
the same time, the attorney cannot discuss with the court why he or she needs to withdraw. At some point 
in the inquiry, after the judge has asked and the attorney has talked around the subject, the judge hopefully 
catches on, and the judges will allow the attorney to withdraw. 
Effective Assistance of Counsel 
Defendant’s attorneys must provide competent assistance and should not harm the defendant’s case by 
their legal representation.  According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel 
means the right to effective assistance of counsel. The constitutional standard for evaluating effective 
assistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at 
two aspects of the representation to determine whether counsel was ineffective. First, the defense attorney’s 
actions were not those of a reasonably competent attorney exercising reasonable professional judgment; 
and second, the defense attorney’s actions caused the defendant prejudice, meaning that they adversely 
affected the outcome of the case (i.e., they likely caused the jury to find the defendant guilty). 
Courts may be more inclined to find ineffective assistance of counsel in a death penalty case than other 
run-of-the-mill cases. For example, the Court found the defense attorneys provided ineffective assistance 
in the sentencing portion of defendant’s death penalty trial for the murder of a 77-year-old woman because 
they had failed to conduct an adequate “social history” investigation of the defendant’s life and had not 
presented information to the jury they did have which showed that defendant had been subject to regular 
sexual abuse as a child. Wiggins v. Smith, 539 U.S. 510 (2003). The Court stated, 
“In finding that Schlaich and Nethercott’s investigation did not meet Strickland’s performance 
standards, we emphasize that Strickland does not require counsel to investigate every conceivable 
line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at 
sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing 
in every case. Both conclusions would interfere with the “constitutionally protected independence 
of counsel” at the heart of Strickland. We base our conclusion on the much more limited principle 
that “strategic choices made after less than complete investigation are reasonable” only to the extent 
that reasonable professional judgments support the limitations on investigation. . . . A decision not to 
investigate thus must be directly assessed for reasonableness in all the circumstances. 
Counsel’s investigation into Wiggins’ background did not reflect reasonable professional judgment. 
Their decision to end their investigation when they did was neither consistent with the professional 
standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the 
social services records–evidence that would have led a reasonably competent attorney to investigate 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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