Just how important are ineffective assistance of counsel claims to the administration of real justice in this country? And if we conclude IAC claims are vital to rectifying injustices committed on criminal defendants by incompetent attorneys, how far is society prepared to go to correct the errors of incompetent counsel? The Supreme Court will confront these hugely important questions on Tuesday during arguments in a case asking whether defendants are entitled to the right of counsel when raising IAC claims during post-conviction proceedings, when the IAC claims could not have been previously raised on direct appeal. The case is Martinez v. Ryan, No. 10-1001.

Martinez is one of the more interesting criminal cases of this young Term. For one, it will address big issues involving the criminal justice system and the poor. Questions such as how can woefully uneducated pro se prisoners meaningfully litigate IAC claims? If poor defendants are the predominate victim of poor lawyering, how can we as a society rectify that problem? And how much of a burden should society shoulder for the mistakes of incompetent attorneys? These aren’t easy questions and it will be interesting to see how the Court resolves them.

The case is also interesting as a litigation matter. I was surprised to see the parties (and especially the petitioner) spend the bulk of the briefs primarily addressing two lines of precedent. One line of decisions holds that right to counsel is required on direct appellate proceedings where the defendant has not had the opportunity to previously press their claim. The other holds that there is a categorical ban against applying the right to counsel to post-conviction proceedings. So why am I surprised that petitioner spent so much valuable space arguing precedent? Well, precedent, smeshident.

We all know that Supreme Court Justices are incredibly smart. So smart in fact that they can take a rule applied to babies and distinguish it in a case involving twins. The resolution of this case will thus not boil down to the rather loose confines of precedent. Instead, it will be decided on whether or not Justice Kennedy believes that society should rectify the mistakes committed by incompetent lawyers. You can almost guarantee that how Justice Kennedy comes out on that question will ultimately decide which line of cases the Court settles on in deciding the case.

I can tell you as a matter of experience that IAC claims are vital to indigent prisoners both because, as a general matter, poor defendants seem to attract the poorest qualified attorneys and the fact that indigent prisoners are inherently bad at litigating any claims, let alone a claim as difficult as ineffective assistance.

During my time in the criminal injustice system, I routinely watched defendants receive constitutionally inadequate assistance at trial or sentencing. The same attorneys that flubbed those proceedings were often the same that were appointed for the appeal so obviously they weren’t noticing, let alone raising, their own incompetence. Prisoners would of course try to review the assistance they received but often they too would miss the place where their attorney’s poor performance really affected the proceedings. And even if they could perform the issue spotting, the chance that they could write such a claim in a coherent manner and provide a court with proof was less than the chance that Justice Scalia will vote to apply the Sixth Amendment to post-conviction proceedings in this case.