Ineffective Assistance of Counsel

United States v. Timothy W. Spence, No. 05-1848 (June 13, 2006): Mr. Spence was ordered to provide handwriting exemplars and refused. At first, his attorney questioned the validity of the order and requested a stay of the order so that he might research the issue. At the next hearing the attorney conceded the validity of the order and informed the judge that he had so advised his client. Mr. Spence continued to refuse compliance and was charged with contempt.

Mr. Spence eventually plead guilty to contempt (and other offenses). On appeal, he raised a claim of ineffective assistance of counsel, arguing that the attorney’s prior advice caused him to resist compliance. The Court held that the attorney’s later advice removed any claim of ineffective assistance of counsel, since once the attorney told him that he had to comply, Mr. Spence could not blame his plight on the attorney’s advice.

The Court once again reminded the bar that claims of ineffective assistance have almost no chance of success when raised on direct appeal and should be raised in a section 2255 proceeding. This case maintains the Court’s record of never granting relief on direct appeal. Indeed, one wonders why appellate counsel ever embark on this course of action. Of course, it must come from the client’s insisting, but one wonders if the client would insist if he or she knew that this strategy has never worked before and will almost never work in any future case.

One aspect of the case did not receive any comment from the Court, but raises a question. How ethical or wise was it for counsel in the lower court to tell the judge the content of his advice to the client, essentially giving evidence on the question of wilfullness, which could have been an issue had the client gone to trial on the contempt charge. As far as can be told from the opinion, this possible claim of ineffectiveness was not presented on appeal.