When faced with a Sixth Amendment claim for ineffective assistance of counsel, a court must determine whether counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). In Strickland, this Court held that a "defendant must overcome [a] presumption that * * * the challenged action might be considered sound trial strategy." Id. at 689 (quotation marks omitted). But the Court emphasized that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Id.

The federal courts disagree about how these principles apply when the record does not reveal the basis for an attorney's decision. In its decision below, the Seventh Circuit held that it was appropriate for an Illinois state court to retroactively construct a "strategic rationale" that "counsel himself ha[d] not articulated." The Fifth, Eighth, Tenth, and Eleventh Circuits have taken similar approaches. By contrast, the Second and Fourth Circuits have held that when an attorney has not articulated the rationale behind his or her decision, a court may not presume that it was based on strategy.

The question presented is: When evaluating a claim for ineffective assistance of counsel, may a court retroactively construct a strategic justification for a decision that the attorney has never articulated?

When evaluating a claim for ineffective assistance of counsel, may a court retroactively construct a strategic justification for a decision that the attorney has never articulated?