Does Informed Tactical Decision Constitute Ineffective Assistance of Counsel ?
An informed tactical decision made by defense counsel does not constitute ineffective assistance of counsel. (In re Ibarra (1983) 34 Cal. 3d 277, 284 193 Cal. Rptr. 538, 666 P.2d 980.)
As a corollary rule, "ineptitude or lack of industry" on the part of counsel falls well short of the mark. (In re Saunders (1970) 2 Cal. 3d 1033, 1042, fn. 7 88 Cal. Rptr. 633, 472 P.2d 921.)
'While acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, we stress that the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation." (In re Hall (1981) 30 Cal. 3d 408, 426 179 Cal. Rptr. 223, 637 P.2d 690.)
Often the "Great Writ" is abused. (McCleskey v. Zant (1991) 499 U.S. 467, 467-468 111 S. Ct. 1454, 1454-1457, 113 L. Ed. 2d 517 (dis. opn. of Marshall, J.); In re Clark (1993) 5 Cal. 4th 750, 769 21 Cal. Rptr. 2d 509, 855 P.2d 729; In re Gatts (1978) 79 Cal. App. 3d 1023, 1035 145 Cal. Rptr. 419.)
Many claims of ineffective assistance of counsel arise from tactical decisions rather than from the denial of fundamental rights. (People v. Knight (1987) 194 Cal. App. 3d 337, 344 239 Cal. Rptr. 413 defendant's "buyer's remorse" is not grounds to set aside a plea; People v. Potter (1978) 77 Cal. App. 3d 45, 49 143 Cal. Rptr. 379 defendant accused his defense attorney of running for the office of district attorney.)
"In determining whether a trial lawyer performed in a manner to be expected of reasonably competent attorneys acting as diligent advocates, appellate courts should be cautious of the apparent intellectual acuity gained by hindsight.
Although Monday morning quarterbacking may be stimulating, it is inappropriate when judging lawyers who deal in the demanding and uncertain turf of the courtroom. . . ." (People v. White (1981) 118 Cal. App. 3d 767, 779 173 Cal. Rptr. 575.)
It is therefore no surprise that not many applications claiming ineffective assistance of counsel are granted.
"Nor will the court consider on the merits successive petitions attacking the competence of trial or prior habeas corpus counsel which reflect nothing more than the ability of present counsel with the benefit of hindsight, additional time and investigative services, and newly retained experts, to demonstrate that a different or better defense could have been mounted had trial counsel or prior habeas corpus counsel had similar advantages. . . ." (In re Clark, supra, 5 Cal. 4th at p. 780.)