Do not raise ineffective assistance of counsel on direct appeal

The Tennessee Court of Criminal Appeals just denied an inmate’s post-conviction petition based on ineffective assistance of counsel because the issue was previously raised in the inmate’s motion for new trial and on direct appeal.  The court noted that raising ineffective assistance of counsel on direct appeal is “fraught with peril.”  Even if the reasons why counsel was ineffective are different, litigating the issue before post-conviction precludes litigating it during post-conviction.

That isn’t to say that there is never a time to argue ineffective assistance of counsel on direct appeal.  Theoretically, an attorney could be so horrible and the evidence could be so weak that a win is guaranteed on direct appeal.  Imagine an attorney breaking down in front of a jury and saying, “My client really is guilty.  He killed her.  He told me he did it.”  If the evidence against the client was also weak, it wouldn’t make sense to wait in jail for the appeals process to finish before arguing the issue during post-conviction.  However, in reality, this would almost never happen because a trial judge would declare a mistrial.  Thus, there is almost never a good reason to raise ineffective assistance of counsel on direct appeal.

If you’re interested in the Tennessee appeals process, check out this document from the Tennessee Attorney General’s Office.

Kirkwood v. State, No. W2016-00948-CCA-R3-PC (Tenn. Crim. App. Aug. 7, 2017)

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