Preempting habeas
Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.
The question I’m currently considering, however, is whether there is a need – or does anyone have the responsibility – to preempt habeas corpus petitions by stopping the damage while it occurs.
Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?
A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?
Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here – cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.
Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can – or should – be done during a trial?
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about 2 years ago
Too heavy a burden on the system. To objectively judge whether counsel is doing their job would require a waiver of privilege.
about 2 years ago
The other issue is that ineffective rep doesn’t mean reversal . . . .
about 2 years ago
I actually think the ineffective assistance of counsel appeal is about as good as we’re gonna get.
about 2 years ago
If you want to argue for something useful, argue for a lower standard of prejudice for IAC appeals.
Let me add something cynical: What about clients that make it almost impossible to be represented? What can we do about them? While they are surely hurting themselves, they are harming society’s general interest in fair trials. Can someone step in and order them to cooperate with counsel?
about 2 years ago
That analogy doesn’t apply. There’s a significant difference between the role of the client and the role of the defense attorney.
For one, a competency eval can be sought. Also, a client’s actions rarely ever cast doubt as to the fairness of a trial. There is a reason for Gideon. Defendants are entitled to have someone trained and experienced speak on their behalf in the complicated world of litigation.
about 2 years ago
I once had a judge stop me in trial and in chambers indicated he thought I was doing a disservice for my client. He thought this because I was allowing in certain hearsay statements. The problem was that i WANTED those statements to come in and the judge couldn’t see my strategy, therefore to him i was ineffective. The bottom line: I appreciate the judge who wanted to stop what he perceived to be bad lawyering; HOWEVER, he should have asked me pertinent questions before shutting down my trial. At least ask me the questions ex-parte to assure himself that I indeed knew EXACTLY what i was doing.
It is highly presumptuous to assume a lawyer is ineffective merely because one would do things or try a case differently. BAd lawetering is kind of like porn, can’t describe it; but I know it when I see it….or do I?
I am a public defender currently litigating only capital cases in a major city that’ s been in the news quite a bit becasue of our numerous capital cases. We have about 125 capital cases pending in the county.
Our superior court system has instituted a system that i was wary of at first, but now can appreciate it. We have one trial judge (rules on substantive trial matters and tries the case); we have one resolution judge (who tries to settle the case); and we have one mitigation master judge (who meets ex-parte with defense to track the progress of mitigation, who signs orders ex-parte, and ALL hearings and requests in this venue are SEALED).
Is it a tremendous amount of oversight? Yes. But it sure cuts down on ineffectiveness.
Lawyers are notorious loners who want a hands off approach. But I daresay our system here holds attorneys’ feet to the fire, makes sure they are doing their jobs in both trial and penalty phase. Plus they make sure we are working diligently towards some type of resolution. As long as the lawyers’ are doing their jobsl, they give us the time to prepare our cases. The minute they think we’re screwing around and not working….the tighten up on the time rules.
I didn’t like it at first, but it has been very helpful when utilized correctly by attorneys.
about 2 years ago
That’s really interesting. Has there been a noticeable difference or impact?
about 2 years ago
The answer is the Court has a duty sua sponte to address on the record IAC. IAC that is not apparent from the face of the record is best handled in either a new trial motion or whatever device the state provides for postconviction relief.
The number of cases where a judge in fact stops the trial is not nearly enough.
I agree with Victoria that there comes a time when a judge may stick his/her nose in where it doesn’t belong, however, those are relatively few compared to where the judge needed to inquire and didn’t, IMHO. There is nothing more painful than watching not merely bad lawyering, but lawyering so beyond the pale that everyone in the courtroom, save counsel, knows an injustice is happening – and that applies to both incompetence by the defense and the prosecutor.
about 2 years ago
K, I agree with most of your post. Do you know of any caselaw that would back up your first paragraph? (I’d like to read it)
about 2 years ago
Massaro v. United States
538 U.S. 500, 123 S. Ct. 1690 (2003)
Court held that an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. § 2255, “whether or not the petitioner could have raised the claim on direct appeal.” The Court did not hold that ineffective assistance claims “must be reserved for collateral review” because counsel’s ineffectiveness may be so apparent from the record that appellate counsel or the court sua sponte will consider it advisable to address the issue on direct appeal.
See also http://capdefnet.org/hat/contents/constitutional_issues/ineffective_assist/ineffective_assistance_of_counsel.htm