Claims of ineffective assistance of counsel are unfortunately common and the legal definition of what makes a lawyer incompetent can be unclear and disheartening. I heard of a criminal case in Texas years ago where the defendant's attorney was asleep throughout most of the trial. The defendant was convicted. He later argued that he should be granted a new trial with a new lawyer because his lawyer was asleep and therefore ineffective to represent him. The case went up to the higher courts where it was decided that a sleeping lawyer is not an incompetent lawyer so long as the lawyer was asleep during parts of the proceedings that would not have made a difference to the defendant's case had he been awake! Shocking and sad.
While our criminal justice system may not be perfect, improvements are being made in our courts demanding a higher quality of legal representation for criminal defendants. in In a recent United States Supreme Court decision, Lafler v. Cooper, filed on March 21, 2012, the Supreme Court expanded the rights of defendants in the plea bargaining process. In a 5-4 decision, it was held that if an attorney's ineffective advice leads to a plea offer rejection and the accused has to stand trial rather than accept the plea offer because of that ineffective advice, then the court may force the prosecutor to reoffer the plea if certain circumstances exist. The defendant must show that "but for" the ineffective advice, he/she would have accepted that plea offer, that the plea offer would have been presented and accepted by the court, and that the terms of that offer were less severe than what the sentence received by the defendant. This is a big win for criminal defendants.