{"id":1769,"date":"2026-04-14T07:24:04","date_gmt":"2026-04-14T11:24:04","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/?page_id=1769"},"modified":"2026-04-14T07:31:20","modified_gmt":"2026-04-14T11:31:20","slug":"in-the-sixth-round-you-go-down-on-your-sword-the-practical-constitutional-and-ethical-considerations-of-deliberately-providing-ineffective-assistance-of-counsel","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/in-print\/volume-38-issue-4-fall-2025\/in-the-sixth-round-you-go-down-on-your-sword-the-practical-constitutional-and-ethical-considerations-of-deliberately-providing-ineffective-assistance-of-counsel\/","title":{"rendered":"In the Sixth Round, You Go Down (On Your Sword): The Practical, Constitutional, and Ethical Considerations of Deliberately Providing Ineffective Assistance of Counsel"},"content":{"rendered":"

In 1984, Calvin Burdine was on trial in Texas for the murder of W.T. Wise.<\/span> His attorney, Joe Cannon, did not perform well. He failed to prepare, or call all a single witness at sentencing.<\/span> Nor did he object to completely improper arguments.<\/span> But most strikingly, Cannon repeatedly sunk his head into his chest, closed his eyes, and remained motionless for ten minutes at a time.<\/span> Spare for himself and the prosecutor, everyone else in the courtroom believed he was sleeping.<\/span> Unsurprisingly, Burdine was found guilty of murder and was sentenced to death.<\/span> Effectively, Cannon gave his own client a death sentence.<\/span><\/p>\n

But after sixteen years, Cannon\u2019s performance overturned his former client\u2019s conviction.<\/span> Because his performance was so unreasonably <\/span>ineffective, the Fifth Circuit determined that Cannon\u2019s representation did not qualify as the \u201ccounsel\u201d Burdine was guaranteed under the Sixth Amendment.<\/span> As such, his conviction and death sentence were vacated.<\/span> Afterwards, Burdine negotiated with the prosecution and received a life sentence with the possibility of parole.<\/span> Through Cannon\u2019s ineffective assistance, he eventually spared Burdine from the death penalty he had once guaranteed him.<\/span><\/p>\n

Even with Burdine\u2019s life ultimately spared, Cannon\u2019s behavior remains inexcusable.<\/span> And throughout the nation, there are numerous examples of bafflingly poor decisions by trial attorneys<\/span> and plausible justifications for unintentional ineffectiveness.<\/span>\u00a0<\/span><\/p>\n

But when reviewing cases like Burdine\u2019s sleeping attorney, Judge Michael McCormick perceived something different. As a former Texas Court of Criminal Appeals judge, he did not believe these bizarre failures were simply by-products of poor lawyering or ineptitude. Rather, he postulated that it was intentional. He commented, \u201c[m]aybe the point was to have the jury see the sleeping lawyer and think, \u2018[w]ell, he\u2019s not going to help the guy, so maybe it\u2019s up to us.\u2019\u201d<\/span><\/p>\n

Here lies the conundrum: Burdine\u00a0 avoided execution for a brutal murder solely because Cannon was too incompetent.<\/span> If Cannon raised a few obvious objections, or just remained plausibly conscious, he would be in a dead-zone: not competent enough to save Burdine from the death penalty but too competent for Burdine to receive relief on appeal. Paradoxically, Cannon <\/span>bettering<\/span><\/i> his performance in most cases only <\/span>worsens<\/span><\/i> Burdine\u2019s outcome.\u00a0<\/span><\/p>\n

This paradox strikes at the core assumption in reviewing any ineffective assistance of counsel (IAC) claim: that any deliberate strategy by a defense attorney should be reviewed with a strong presumption of competency and reasonableness.<\/span> Deliberate ineffectiveness violates this assumption. Because, if Cannon\u2019s closed eyes and tilted head were intentional, it did far more to save Burdine\u2019s life than any of his arguments or cross-examinations. In fact, it resulted in a better outcome than many death-row inmates with lawyers who did not fall asleep but lost regardless. If this was intentional, Burdine owes his life to deliberate IAC.<\/span><\/p>\n

Just mentioning this concept\u2014that a defense attorney may be deliberately ineffective\u2014attracts impassioned responses. In the eyes of some judges and practitioners, entertaining this is no better than an insult.<\/span> For others, a defense attorney must be blind\u2014especially in a death penalty trial\u2014to not consider withholding some effectiveness if doing so guarantees significantly better odds of reversing on appeal.<\/span>\u00a0<\/span><\/p>\n

ABA Model Rule 1.1 requires a lawyer to \u201cprovide competent representation to a client.\u201d<\/span> At the same time, a series of trial tactics has emerged since the Supreme Court\u2019s decision in <\/span>Strickland v. Washington<\/span><\/i>. \u201cFalling on your sword\u201d refers to an attorney either exaggerating or admitting to incompetent representation in the hopes that a client\u2019s interest <\/span>will be better served.<\/span> This is complemented by \u201csandbagging\u201d<\/span> or \u201cgetting a second bite of the apple,\u201d where a defense attorney purposefully fails to object to statements or evidence with the aim to raise their admissibility problems on appeal.<\/span> All of these tactics would be considered incompetent if unintentional. But when employed intentionally, they seem too effective to truly be viewed as violating the competency requirement.<\/span><\/p>\n

Part I of this Note will define the test for IAC set in <\/span>Strickland<\/span><\/i> and demonstrate that IAC has become a commonly utilized ground for relief. Then, this Note will examine the pressures and motivations that would lead a criminal defense attorney to provide ineffective assistance deliberately. The tactic is predicated on the belief that a successful IAC appeal may justify a less effective trial; the lack of consequences for providing IAC will lessen the attorney\u2019s disciplinary risks; the normalization of IAC reducing the stigma of being deemed ineffective; and defending against an IAC claim pits a client against their attorney. Part II of this Note examines whether deliberate ineffectiveness is possible under the <\/span>Strickland<\/span><\/i> test given the test\u2019s extreme deference to any deliberate trial strategy. The part will conclude that a defendant who received deliberate IAC will still be able to get relief, because deliberate IAC denies the defendant the right to an adversarial process crucial for a fair trial. Lastly, Part III will consider the costs that deliberate IAC imposes on the legal system and criminal defendants. The part will conclude that the legal system should not condone this practice, because it is based on a false understanding of a defense attorney\u2019s goals and forces the client through a gauntlet of unnecessary and painful litigation.\u00a0<\/span><\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In 1984, Calvin Burdine was on trial in Texas for the murder of W.T. Wise. His attorney, Joe Cannon, did not perform well. He failed to prepare, or call all […]<\/p>\n","protected":false},"author":14207,"featured_media":0,"parent":1755,"menu_order":4,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1769","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1769","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/users\/14207"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/comments?post=1769"}],"version-history":[{"count":2,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1769\/revisions"}],"predecessor-version":[{"id":1778,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1769\/revisions\/1778"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1755"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/media?parent=1769"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}