A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate time for preparation -- may deprive the defendant of the effective representation by his attorney.
The discussion in this article of the various types of conduct and rulings that a trial judge may make that impede effective advocacy is not intended to suggest that there may not be other examples of judicial interference. Trial judges have extremely broad discretion to administer the trial, but must do so impartially and with deference to a defendant’s right to the competent assistance of his attorney. When a judge makes rulings that undermine counsel’s effectiveness and his ability to be the guiding hand to his client that the Sixth Amendment contemplates, where there is no clear justification for the judge’s intervention, and when the defendant suffers prejudice from the judge’s interference, then a reviewing court usually will reverse the conviction, concluding that the judge abused his discretion and infringed on the defendant’s right to a fair trial and the effective assistance of his counsel.
Bennett L. Gershman, Judicial Interference With Effective Assistance of Counsel, 31 Pace L. Rev. (forthcoming 2011).