Criminal Justice

ABA brief criticizes trend in which courts fail to consider prevailing norms in ineffective assistance cases

  • Print.

documents brief and gavel

Image from

The ABA has filed an amicus brief urging the U.S. Supreme Court to reaffirm that courts must look to “prevailing professional norms” when assessing lawyers’ performance in ineffective assistance cases.

The brief was filed Thursday, according to an ABA press release. The brief urges the Supreme Court to grant cert in the case of Timothy Wayne Kemp to “restore the ‘prevailing professional norms’ analysis to its proper place in the Sixth Amendment framework.”

Kemp, an Arkansas man, was sentenced to death for killing four people after becoming angry at a party.

The ABA brief criticizes a trend in which courts assessing the reasonableness of attorney representation are making conclusions that are “not tethered to any benchmark or standard of professional norms in place at the time of the representation.”

The brief cites as a guidepost the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, approved in 1989 and updated in 2003.

Courts that fail to use the “prevailing professional norms” standard often mask the error by finding, in the alternative, that even if a lawyer’s performance was deficient, it was not prejudicial, the brief said.

In Kemp’s case, however, a trial judge found that Kemp likely would have avoided the death penalty if his lawyers had hired a mitigation specialist or performed a more thorough investigation of his background.

Although the lawyer interviewed four people about Kemp’s past, the lawyer did not learn the full extent of Kemp’s abusive childhood or discover that he had fetal alcohol spectrum disorder and post-traumatic stress disorder, the brief says.

The trial judge and the 8th U.S. Circuit Court of Appeals at St. Louis agreed that the lawyer’s representation fell below prevailing professional norms, “but inexplicably concluded that counsel’s performance was not deficient,” the ABA brief says.

Give us feedback, share a story tip or update, or report an error.