Archives for: July 2010, 25
07/25/10
N.D. Ill.: IAC does not mean that defendant failed to get the "best defense"
Defense counsel is not ineffective for not being the best possible criminal defense lawyer. "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010):
With this in mind, although Hale has broken his argument into nine "instances" of ineffective assistance (nearly every instance consisting of several different allegations of error), one overarching theme permeates almost every allegation in one way or another. This makes an overall comment on that theme appropriate, that is, a look at the forest before getting lost in the trees. The theme, stated as the first "instance" of ineffective assistance (with six sub-allegations of error), is that, with respect to Hale's conviction on the solicitation count in violation of 18 U.S.C. 373, his counsel's performance fell below the level of competence required because he pursued the wrong defense, and not Hale's "best" and "true" defense. Hale argues that if his attorney had pursued Hale's "actual, bona fide defense which was much stronger," taking that course "would likely have resulted in Mr. Hale's exoneration." (DE # 18 at 13.)
This argument, to be blunt, is preposterous. First, because it is built entirely on the incorrect premise that if his attorney failed to pursue Hale's "best" defense, that automatically equals ineffective assistance of counsel. That premise finds no support in the law governing ineffective-assistance claims. As long as Hale's attorney utilized a defense strategy that was not so misguided that it fell outside the wide range of professional competence, Hale received constitutionally-effective representation. As the Court of Appeals has remarked, "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).
OH: Judge disciplined as lawyer for being heavy-handed against defense counsel
Back in 2007 or so, I testified that a public defender was duty-bound to say he could not proceed with a trial he was appointed on two hours earlier, and the lawyer could not be held in contempt. The contempt judgment was set aside on appeal. State v. Jones, 2008 Ohio 6994, 2008 Ohio App. LEXIS 5860 (11th Dist. December 31, 2008), discretionary appeal not allowed 121 Ohio St. 3d 1502, 2009 Ohio 2511, 907 N.E.2d 325 (June 3, 2009). The judge did not run for reelection, and he was disciplined and briefly suspended as a lawyer for his conduct in other cases for being heavy-handed against other defense lawyers, favoring the prosecution, and manipulating the record for appeal. Disciplinary Counsel v. Plough, 2010 Ohio 3298 (Ohio July 21, 2010). As to one count:
{¶ 13} Respondent’s conduct in expressing his personal opinion on a factual issue to be resolved by the jury and in castigating defense counsel during closing argument caused defense counsel to forfeit closing argument, thereby prejudicing the defendant and adversely affecting public confidence in the judicial system. Therefore, the parties stipulated, the board found, and we agree that respondent violated Canon 1 (requiring a judge to uphold the integrity and independence of the judiciary), 2, and 3(B)(4) of the former Code of Judicial Conduct.
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"A lawyer shall represent a client zealously within the bounds of
the law."
—§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)
"The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that
the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)
"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. When a true adversarial criminal trial has been conducted
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if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)
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present the defendant's version of the facts as well as the prosecution's to
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to confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity
to present a complete defense.'"
—Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)).
"[O]ur so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the
truth. Our system assigns him a different mission. He must be and is interested
in preventing the conviction of the innocent, but, absent a voluntary plea of
guilty, we also insist that he defend his client whether he is innocent or guilty.
... [A]s part of our modified adversary system and as part of the duty imposed
on the most honorable defense counsel, we countenance or require conduct which
in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)
We, as criminal defense lawyers, are forced to deal with some of the lowest
people on earth, people who have no sense of right and wrong, people who will
lie in court to get what they want, people who do not care who gets hurt in
the process. It is our job–our sworn duty–as criminal defense lawyers,
to protect our clients from those people.
—Cynthia Roseberry
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