Anda di halaman 1dari 42

Chapter 2 Basic Elements of Law

Practice
Ineffective assistance of counsel
and the rights of immigrants
Constitutional Protections in
Criminal Cases
Right to effective assistance of
counsel
Public defenders
Right to counsel in removal
(deportation) cases
Ch. 2 Ineffective assistance and
the lawyer client relationship

The fair trial

That in all capital or criminal prosecutions


a man hath a right to demand the cause
and nature of his accusation, to be
confronted with the accusers and
witnesses, to call for evidence in his favor,
and to a speedy trial by an impartial jury
of twelve men of his vicinage, without
whose unanimous consent he cannot be
found guilty; nor can he be compelled to
give evidence against himself; that no
man be deprived of his liberty, except by
the law of the land or the judgment of his
peers.
Ch. 2 Ineffective assistance and
Art. 8, Virginia
Constitution
- Bill 2of Rights
the lawyer
client relationship

Amendment VI - Constitution of the


United States of America

In all criminal prosecutions, the accused


shall enjoy the right to
a speedy and public trial, by an
impartial jury
be informed of the nature and cause of
the accusation
be confronted with the witnesses
against him
have compulsory process for obtaining
witnesses in his favor
have the Assistance of Counsel for his
defence.
Ch. 2 Ineffective assistance and
the lawyer client relationship

Amendment VI - Constitution of the


United States of America

The Sixth Amendment right to counsel


exists in order to protect the
fundamental right to a fair trial
Powell v. Alabama, 287 U.S. 45 (1932)
Johnson v. Zerbst, 304 U.S. 458 (1938)
Gideon v. Wainwright, 372 U.S. 335
(1963)

Ch. 2 Ineffective assistance and


the lawyer client relationship

Powell v. Alabama (1932)


The Scottsboro Boys case

Rape of 2 white girls by 7


African American boys all
travelers on a freight train
At arraignment all members of
the bar appointed as counsel by
trial judge
Trial began 6 days after indictment
Counsel appointed that morning
All sentenced to death
Ch. 2 Ineffective assistance and
the lawyer client relationship

Powell v. Alabama (1932)


The Scottsboro Boys case

A defendant, charged with a


serious crime, must not be
stripped of his right to have
sufficient time to advise with
counsel and prepare his defense.

Ch. 2 Ineffective assistance and


the lawyer client relationship

Powell v. Alabama (1932)


The Scottsboro Boys case

To fail to do that is not to


proceed promptly in the calm
spirit of regulated justice but to
go forward with the haste of the
mob.

Ch. 2 Ineffective assistance and


the lawyer client relationship

Knowing and Intelligent waiver required


Johnson v. Zerbst (U.S. 1938)

The accused were unable to


employ counsel for trial (for
passing 4 counterfeit bills)
At arraignment, both pleaded
not guilty, said that they had no
lawyer
In response to the court -- stated
that they were ready for trial.
Tried, convicted and sentenced,
without assistance of counsel.
Ch. 2 Ineffective assistance and
the lawyer client relationship

Ineffectiveness of Counsel

Diggs v. Welch (D.C. Cir. 1945)


Even serious mistakes on the
part of an attorney are not
ground for habeas corpus
standing alone.
[Reversal is granted only] if the
circumstances surrounding the
trial shocked the conscience of
the court and made the
proceedings a farce and a
Ch. 2 Ineffective assistance and
the lawyer client relationship

Right to counsel at government expense


Gideon v. Wainwright (1963)

Justice Black:

Reason and reflection require us


to recognize that in our
adversary system of criminal
justice, any person haled into
court, who is too poor to hire a
lawyer, cannot be assured a fair
trial unless counsel is provided
for him.
Ch. 2 Ineffective assistance and
the lawyer client relationship

10

10

Assistance of Counsel means

The special value (to a fair trial)


of the right to the assistance of
counsel explains why "[it] has
long been recognized that the
right to counsel is the right to
the effective assistance of
counsel."

McMann v. Richardson,
397 U.S. 759, 771
Ch. 2 Ineffective assistance and
the lawyer client relationship
11
(1970)

11

Maxims

"To satisfy the Constitution, counsel


must function as an advocate for the
defendant, as opposed to a friend of
the court"

An indispensable element of the


effective performance of [defense
counsel's] responsibilities is the
ability to act independently of the
Government and to oppose it in
adversary litigation".
Ch. 2 Ineffective assistance and
the lawyer client relationship

12

12

U.S. v. Cronic (U.S. 1984)

The right to the effective


assistance of counsel is thus the
right of the accused to require the
prosecution's case to survive the
crucible of meaningful adversarial
testing. the kind of testing
envisioned by the Sixth Amendment.
Ch. 2 Ineffective assistance and
the lawyer client relationship

13

13

U.S. v. Cronic (U.S. 1984

Objective test

Must show actual breakdown of


adversarial process

Reference point: 6th Amendment

Ch. 2 Ineffective assistance and


the lawyer client relationship

14

14

U.S. v. Cronic (U.S. 1984)

Factors applied by circuit court


(1) Time afforded for investigation
and preparation
(2) Experience of counsel
(3) Gravity of the charge
(4) Complexity of possible
defenses
(5) Accessibility of witnesses to
counsel.
Ch. 2 Ineffective assistance and
the lawyer client relationship

15

15

Testing Effectiveness in
an Adversarial System
Should professional practice
standards provide bright line
rules for courts?
Ch. 2 Ineffective assistance and
the lawyer client relationship

16

16

Q. 2-37 p. 122 Was Matlack s


representation ineffective?

(A) No -Matlocks conduct was was


reasonable because he interviewed
family members.
(B) No - Matlocks conduct was
unreasonable but it was not
prejudicial.
(C) Yes Ineffective assistance.
Matlock failed to provide zealous
representa tion.
(D) Yes. Matlocks unreasonable
Ch. 2 Ineffective assistance and
the lawyer client relationship

17

The Public Defenders


Dilemma
http://blackstonetoday.blogs
pot.com/2013/05/pds-may-refu
se-cases-due-to-excess.html
Ch. 2 Ineffective assistance and
the lawyer client relationship

18

Model Rule 1.0 Terminology

(h) "Reasonable" or "reasonably"


when used in relation to conduct
by a lawyer denotes the conduct
of a reasonably prudent and
competent lawyer.

Ch. 2 Ineffective assistance and


the lawyer client relationship

19

19

Model Rule 1.1: Competence

A lawyer shall provide


competent representation to a
client.

Competent representation
requires the legal knowledge,
skill, thoroughness and
preparation reasonably
Ch. 2 Ineffective assistance and
the lawyer client relationship

necessary for the

20

20

ABA Practice Standards

Appellate Review of Sente


nces
Collateral Sanctions and Di
scretionary Disqualificatio
n of Convicted Persons
Criminal Appeals
Defense Function
Discovery
DNA Evidence
Electronic Surveillance of
Private Communications
Fair Trial & Free Press
Guilty Pleas
Joinder & Severance
Legal Status of Prisoners

Mental Health

Post-Conviction Remedies

Pretrial Release

Prosecution Function

NEW:
Prosecutorial Investigation
s

Providing Defense Service


s

Sentencing

Special Functions of the Tr


ial Judge

Speedy Trial

Technologically-Assisted Ph
ysical Surveillance

Trial
Ch. 2 Ineffective assistance
and by Jury
the lawyer client relationship

Urban Police21Function

Practice guidelines are merely that

Objective reasonableness is the


standard.
American Bar Association standards
and the like are only guides to what
reasonableness means, not its
definition.
Strickland v. Washington (1984)
Ch. 2 Ineffective assistance and
the lawyer client relationship

22

Ineffective assistance of counsel

Constitutional right of the accused to


"the Assistance of Counsel," U.S.
Const. amend. VI
* "guarantees the effective
assistance of counsel," McMann v.
Richardson, 397 U.S. 759 (1970)
* applies to the States under due
process clause of 14th Amendment
Evitts v. Lucey, 469 U.S. 387(1985)
Ch. 2 Ineffective assistance and
the lawyer client relationship

23

Rompilla v. Beard (U.S. 2005) p. 115

Even when a capital defendant's


family members and the defendant
himself have suggested that no
mitigating evidence is available, his
lawyer is bound to make reasonable
efforts to obtain and review material
that counsel knows the prosecution
will probably rely on as evidence of
aggravation at the sentencing phase
of trial.
Ch. 2 Ineffective assistance and
the lawyer client relationship

24

Rompilla v. Beard (U.S. 2005) p. 115

When new counsel entered the


case to raise Rompilla's
postconviction claims, however,
they identified a number of likely
avenues the trial lawyers could
fruitfully have followed in
building a mitigation case.
Ch. 2 Ineffective assistance and
the lawyer client relationship

25

Rompilla v. Beard (U.S. 2005) p. 115

The duty to investigate exists


regardless of the accused's
admissions or statements to the
lawyer of facts constituting guilt
or the accused's stated desire to
plead guilty."

1 ABA Standards for Criminal Justice


4-4.1 (2d ed. 1982 Supp.)
Ch. 2 Ineffective assistance and
the lawyer client relationship

26

Rompilla v. Beard (U.S. 2005) p. 120

Rompilla's parents were both severe


alcoholics who drank constantly. His
mother drank during her pregnancy
with Rompilla, and he and his
brothers eventually developed
serious drinking problems.

Ch. 2 Ineffective assistance and


the lawyer client relationship

27

Rompilla v. Beard (U.S. 2005) p. 120

His father, who had a vicious temper,


frequently beat Rompilla's mother,
leaving her bruised and black-eyed,
and bragged about his cheating on
her.

Ch. 2 Ineffective assistance and


the lawyer client relationship

28

Rompilla v. Beard (U.S. 2005) p. 115

His parents fought violently, and on


at least one occasion his mother
stabbed his father. He was abused
by his father who beat him when he
was young with his hands, fists,
leather straps, belts and sticks. All of
the children lived in terror.
Ch. 2 Ineffective assistance and
the lawyer client relationship

29

Rompilla v. Beard (U.S. 2005) p. 115

Places to search:

School records

Records of Rompilla's juvenile and


adult incarcerations

Evidence of a history of dependence


on
Ch. 2 Ineffective assistance and
the lawyer client relationship

30

Prejudice
Strickland v. Washington (U.S. 1984)

Errors so serious that counsel


was not functioning as the
"counsel" guaranteed by the 6th
Amendment

Errors deprived the defendant of


a fair trial, a trial whose result
can be relied upon as just
Ch. 2 Ineffective assistance and
the lawyer client relationship

31

31

The Strickland test

Def. Must show

1) his counsel's performance was


unreasonably deficient because

it fell below an "objective


standard of reasonableness"
compared to "prevailing
professional norms."
Ch. 2 Ineffective assistance and
the lawyer client relationship

32

The Strickland test

2) the deficiency prejudiced him.


* "[T]here is a reasonable
probability that, but for
counsel's unprofessional errors,
the result of the proceeding
would be different."
"A reasonable probability is a
probability sufficient to
undermine confidence in the
outcome."
Ch. 2 Ineffective assistance and
the lawyer client relationship

33

Reasonable competence
Strickland v. Washington (U.S. 1984)

D need not show errors more


likely than not altered the
outcome

But Defendant must show


deficient performance prejudiced
Ch. 2 Ineffective assistance and
the lawyer client relationship

34

34

Reasonable competence
Strickland v. Washington (U.S. 1984)

D can show a reasonable


probability that, but for
counsel's unprofessional errors,
the result of the proceeding
would have been different.

Ch. 2 Ineffective assistance and


the lawyer client relationship

35

35

Reasonable competence/fundamental
fairness
Strickland v. Washington (U.S. 1984)

A reasonable probability is a
probability sufficient to
undermine confidence in the
justness of the outcome.

Ch. 2 Ineffective assistance and


the lawyer client relationship

36

36

The burden of proof

* "[t]he result of a [criminal]


proceeding can be rendered
unreliable, and hence the proceeding
itself unfair, even if the errors of
counsel cannot be shown by a
preponderance of the evidence to
have determined the outcome."
Strickland

Ch. 2 Ineffective assistance and


the lawyer client relationship

37

Strickland v. Washington (1984)


at every stage of the proceeding

Death case - capital sentencing


hearing

An adversary proceeding in a
criminal trial entitles one to
reasonably effective
assistance of counsel
Ch. 2 Ineffective assistance and
the lawyer client relationship

38

Asserting ineffectiveness
Strickland v. Washington (U.S. 1984)

Specificity required

A convicted defendant making a


claim of ineffective assistance
must identify the acts or
omissions of counsel that are
alleged not to have been the
result of reasonable professional
judgment.
Ch. 2 Ineffective assistance and
the lawyer client relationship

39

39

Strickland: Strong Presumption of


Effectiveness Deference to Counsel
the wide range of reasonable
professional assistance
Every effort must be made to
- eliminate the distorting effects
of hindsight
- reconstruct the circumstances
of counsel's challenged conduct
- evaluate the conduct from
counsel's perspective at the
time.
Ch. 2 Ineffective assistance and
the lawyer client relationship

40

40

Crisis in immigration courts

2d Circuit : 27 months to resolve a


Board of Immigration Appeals appeal
John M. Walker, Chief Judge: "a
severe lack of resources and
manpower at the immigration judge
and BIA levels
"I fail to see how immigration judges
can be expected to make thorough
and competent findings of fact and
conclusion of law under these
circumstances.
Ch. 2 Ineffective assistance and
the lawyer client relationship

41

Immigrants rights
Is deportation punishment?
All persons subject to removal have
the right to due process?
Should they have a Gideon-type right to
counsel?
Are asylum applicants different?
Children brought here by parents?
Undocumented parents of children born
here? Raised Here?
Ch. 2 Ineffective assistance and
the lawyer client relationship

42