This Article addresses the questions of attorney error and client competency and examines the following issues: the origin and development of the legal tests for intellectual competency to stand trial or enter a plea and the tests for evaluating Sixth Amendment effective assistance of counsel claims; the range of state and federal approaches to circumstances when those two situations converge; and whether and how our legal tests should be shaped to best assess attorney error when the client likely has an intellectual disability or incompetence. When consideration of a defendant's mental illness or mental disability forms the basis of a Sixth Amendment claim, should the prejudice analysis be limited to whether, but for counsel's unreasonable errors, a competency hearing would have been held? These questions address not only the need for counsel's identification of legal disability but also the need for a nuanced Sixth Amendment analysis under the circumstances. Without a legal finding of incompetency, a disabled prisoner can never prove prejudice under the Strickland and Hill standards as they are now routinely applied in many jurisdictions. Our deepening understanding of mental illness-and the extent to which mental illness and disability issues are entwined with questions of criminal justice--demands a more precise approach than many jurisdictions now employ. Lower courts' divergent decisions call out for the Supreme Court to clarify this issue to ensure that state courts across the country properly apply the Strickland prejudice analysis to better protect the most vulnerable defendants in our justice system.
Sarah Gerwig-Moore, On Competence: (Re)Considering Appropriate Legal Standards for Examining Sixth Amendment Claims Related to Criminal Defendants’ Mental Illness and Disability, 84 Tenn. L. Rev. 974 (2017).