Academic journal article Washington Law Review

State V. Grier and the Erroneous Adoption of the "Punishment-Based" Standard of Review for Ineffective Assistance of Counsel Claims Based on All-or-Nothing Strategies

Academic journal article Washington Law Review

State V. Grier and the Erroneous Adoption of the "Punishment-Based" Standard of Review for Ineffective Assistance of Counsel Claims Based on All-or-Nothing Strategies

Article excerpt

Abstract: In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier's second-degree murder conviction in State v. Grier.1 The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-ornothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts' approaches to questions of ineffective assistance of counsel involving all-ornothing strategies and argues that, when the Washington State Supreme Court resolves State v. Grier, it should review attorneys' strategic decisions under a highly deferential standard. This standard would align with state precedent and federal practice and would preserve trial attorneys' discretion, provide defendants with a true adversarial process, and repair the split State v. Grier created.


The lesser-included-offense doctrine has existed since the 1600s, when common law authorized juries to convict a defendant charged with murder of the "lesser offense" of manslaughter if the evidence supported the lesser charge.2 The lesser-included-offense doctrine "provides that a criminal defendant may be convicted at trial of any crime supported by the evidence which is less than, but included within, the offense charged by the prosecution."3 The doctrine, originally created to aid the prosecution where it could not prove all elements of the crime charged, is now recognized as being potentially beneficial to both parties.4

A defendant has the right to request that the jury receive lesserincluded-offense instructions where evidence suggests the defendant might have committed a less serious offense than the crime charged.5 For example, a defendant charged with second-degree murder has the right to request a jury instruction for any lesser-included offenses of which the evidence suggests the defendant may instead be guilty, such as first- and second-degree manslaughter.6 Providing lesser-includedoffense instructions provides the jury with more options because "[w]hen a charged offense involves one or more lesser included offenses . . . a jury not only has the options of acquittal or conviction of the charged offense, but also the options of acquittal or conviction of each lesser included offense."7 This approach can benefit the defendant who would face a lower penalty if found guilty of a lesser offense.8

However, while defendants have the right to such instructions, some - for instance, those charged with commission of a noncapital crime9 - might not want them. In a noncapital murder trial, for example, "[o]ne legitimate trial strategy for the defendant ... is an 'all-or-nothing' one in which the defendant seeks acquittal while realizing that the jury might instead convict of murder."10 Under this strategy, the defendant chooses to limit the jury's options and thereby risk the greater conviction in the hope that the jury will acquit. Defendants who take this gamble usually do so because they fear that, if presented with intermediate options, the jury will reach a compromise verdict, finding the defendant guilty of the lesser offense.11

If the gamble fails, a defendant may challenge an attorney's use of an all-or-nothing strategy through a claim of ineffective assistance of counsel.12 Defendants often raise this issue on appeal, hoping the courts will overturn their convictions and allow them new trials. Courts examining such claims look to the particular facts of each case to determine the tactical decision's reasonability.13 Like any trial strategy, the all-or-nothing approach "has both potential risks and potential rewards," and parties deciding on tactics "must weigh these risks and rewards. …

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