The promise that everyone is equal before the law is a broken promise for the poor. - Professor Peter Joy

More disturbing, however, is the footage of Dassey’s former attorney Len Kachinsky and his private investigator. Criminal defense lawyers have a duty to act as zealous advocates for their clients. Instead, Kachinsky is shown in the documentary supporting the prosecution’s case.

The lawyer pressures his client to plead guilty. His private investigator coaches Dassey into a confession, which included gruesome drawings of the alleged crime scene. Kachinsky then arranges a meeting with police officers so they can question Dassey without a lawyer present. In the end, Dassey was convicted of first-degree intentional homicide and sentenced to life in prison.

If Brendan Dassey’s attorney was not considered ineffective, then how egregious does the representation have to be for the Strickland standard to apply?

Strickland v. Washington

In Strickland v. Washington, the defendant pleaded guilty to murder and was sentenced to death. He argued on appeal that his attorney delivered ineffective counsel when he failed to present mitigating evidence at his sentencing hearing that could have spared his life.

The U.S. Supreme Court found that, “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

Based on this finding, the court established a two-pronged test to determine whether the attorney’s conduct met the benchmark for ineffectiveness:

• Did the attorney provide “reasonably effective assistance” considering the totality of the circumstances?
• Is there a reasonable probability that, but for the attorney’s ineffective assistance, the outcome would have been different?

In Dassey’s case, the Wisconsin appellate court rejected his argument that his attorney was ineffective. The court found a strong presumption that Dassey’s lawyer, “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

Having ruled Dassey did not meet the burden on the first prong, the court did not consider the second prong of the Strickland standard.

Unequal Assistance of Counsel

More than 50 years ago, the U.S. Supreme Court ruled in Gideon v. Wainwright that the state must appoint an attorney to felony defendants in need of council. This ruling, in essence, required states to establish public defender systems that, when financially supported and staffed by competent attorneys, successfully protect the rights of defendants.

Unfortunately, defendants who must rely on a public defender system must often accept underfunded attorneys who deliver ineffective counsel because their huge caseloads cause them to be poorly prepared.

This was surely the case for Dassey.

Washington University School of Law Professor Peter Joy explains this inequality in his research paper “Unequal Assistance of Counsel”:

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor… . The potential counterweight to such a system, a lawyer by one's side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

In theory, an objective application of Strickland v. Washington should correct this inequity. However, Joy contends, “As a result of the Strickland standard, only the most outrageous conduct by defense counsel leads to a new trial.”