In dissent, Justice Thurgood Marshall objected that the two-prong Strickland test was too permissive of attorney poor performance, and that the prejudice prong, in applying a form of harmless error review, would withhold relief from defendants who did not receive a fair trial, but for whom other evidence existed of their guilt.
"[5] Courts are "highly deferential," indulging a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
"[6] Strickland permits attorneys to make strategic decisions to emphasize one line of defense over another, so long as they are made "after thorough investigation of law and facts relevant to plausible options.
[11] Criminal convictions have been affirmed on appeal even where the defense attorney fell asleep during the prosecutor's cross-examination of the defendant,[12] was heavily intoxicated on alcohol throughout the trial,[13] was in extremely poor health and senile,[14] was mentally ill (and even discussed his delusions in opening argument),[15] or was himself a convicted felon whose sentence included community service in the form of defending accused murderers (despite his lack of experience in such cases).
In Rompilla v. Beard, the Supreme Court faulted the defendant's lawyer for not reviewing a file that the attorney knew would be used by the prosecution in the sentencing phase of the trial.
In Cronic, the Supreme Court acknowledged that "affirmative government interference in the representation process" or the lawyer's failure to subject the prosecution's case to "meaningful adversarial testing" could constitute ineffective performance and per se prejudice.
The Supreme Court recognized the last in Padilla v. Kentucky, when it reversed the conviction of a defendant who had been incorrectly advised by this lawyer that a guilty plea would have no immigration consequences (instead, he was slated for deportation).
Thus, a defendant making a constitutional claim for the first time on habeas review would argue that it was not made earlier on direct appeal because the lawyer was then ineffective.