Getting Out Of Prison – Ineffectiveness Of Counsel Claims

                                                                      by Attorney David Grossack –

Perhaps because the United States has more laws than any other country, it has a higher ratio of people in jail than any other nation.

Rather than an impartially-run, fair, level playing field, too often, criminal prosecutions are an assembly line. Judges and prosecutors frequently work together to make sure that criminal defense counsel is hamstrung, jurors are deceived, and helpful evidence kept out, while prejudicial testimony and outright perjury is accepted.

Where are the defense lawyers when this is going on?

All too often, they are unprepared, disorganized and not thinking clearly, and that can lead to a deprivation of a defendant’s rights.

In the author’s estimate, there are at least a hundred thousand people in jail (whether innocent, guilty or somewhere in-between) who are needlessly imprisoned because their lawyers were lazy, incompetent, or even intimidated by the government, and did not perform adequately.

The legal system describes the situation as “ineffective assistance of counsel,” and it is valid grounds for appeal.

To prevail on a claim of ineffectiveness of counsel, an appellant must show: (1) that the defense counsel’s performance was deficient, and (2) that the petitioner was prejudiced by the deficient performance.

Just what is it that lawyers do wrong?

Sadly, the list is endless.

The defense counsel must object (or move to strike) when an hostile witness says something that is speculative, irrelevant, has no basis in fact, or can be prejudicial more than probative (i.e. proving anything of substance).

Failure to make these objections is ineffective representation.

Defense counsel also has a duty to investigate in an attempt to locate evidence favorable to the defendant. If the defendant is in a financially difficult situation, a defense lawyer can petition the court for funds to hire a private investigator.

Even when a defendant has located helpful witnesses, the author knows of cases where lawyers don’t even bother to call them to the stand, causing great hardship to their clients.

Expert witnesses, state-of-the-art scene reconstruction, challenges to forensic evidence (even challenges to fingerprints) are now available more than ever before, and the burden is on defense lawyers to know what resources are out there to challenge prejudicial evidence.

There is case after case of wrongful convictions, and of lives wasted because lying policemen and shaky evidence went unchallenged.

Inadequate cross-examination, poor witness preparation, faulty legal research, failure to file necessary motions to exclude prejudicial testimony and so forth all make a difference and lead to disastrous results.

In one incredible case, an attorney fell asleep during the prosecutor’s cross-examination (Muniz v. Smith 647 F. 3d 619 (6th Cir. 2011). Another one appeared heavily intoxicated throughout the trial (People v. Garrison, 47 Cal. 3d 746 (1989). One was in very poor health or senile, Bellamy v. Cogdell, 974 F. 2d 302 (2d Cir. 1992). Perhaps an extreme case is an attorney who was a convicted felon, whose sentence included community service in the form of defending accused murderers, State v. Wille, 595 So. 2d 1149 (La. 1992). What’s more shocking is that even if a new trial occurs, in some of these cases, the courts still uphold the criminal convictions because “ineffective assistance of counsel” has not been properly proven.

You may have a case for ineffective assistance of counsel if your lawyer repeatedly files notices late, fails to show up for hearings, does not read or respond to correspondence, or fails to raise objections. But beware that you must prove that the unfair outcome of the trial was specifically due to the counsel’s ineffectiveness.

Nevertheless, proving “ineffective assistance of counsel” is often difficult. For example, in Moran v. Burbine 475 US 412 (1986), the respondent, after being apprehended by the police, confessed to murder and waived his right to counsel. Unbenknowst to him, a relative obtained him counsel, but the police ultimately failed to inform the accused or facilitate attorney/client communication. The court stated that the rights guaranteed by the Fifth and Sixth Amendments had not been violated in this case.

However, in Geders v. United States, U. S. 80 (1976), a petitioner was prevented from speaking to his counsel during the 17-hour overnight recess in the trial between his direct and cross-examination. In this case, the court ruled that the petitioner’s Sixth Amendment rights were indeed violated, because he has a right to have access to a lawyer.

The Sixth Amendment, which guarantees the right to counsel, guarantees the right to effective counsel. Like the rest of the Bill of Rights, the Sixth Amendment, as interpreted by our nation’s courts, is still evolving.

If you (or somebody you care about) is trapped in prison, reviewing defense counsel’s performance must be among your top priorities.

Attorney David Grossack is in private practice in Newton, Massachusetts. His phone number is 617-965-9300. Email:

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