Monday, June 2, 2014
Right to Counsel Outline - Waiver of Right to Counsel - Ineffective Assistance of Counsel - Strickland v. Washington
RIGHT TO COUNSEL
Powell v. State of Alabama (1932): black men charged with crime and not really given counsel. The court appointed the bar association, but it was right before the trial.
· Held: denial of assistance of counsel violates 14th Amendment. Court must appoint counsel individually.
o Court cannot appoint counsel on day of trial; need time for preparation; appoint in advance for meaningful representation.
Betts v. Brady (1942): declined to extend right of counsel to appointment for indigent defendants in non-capital cases under due process- said it was not required for a fair trial or due process.
· Originally the right to counsel was not thought to be a fundamental right to a fair trial.
· States were allowed to use their discretion and decide when to appoint counsel. Overturned by Gideon.
Gideon v. Wainwright (1963): D filed a habeas petition that was denied w/out opinion; charged w/ a felony- breaking into a poolroom with intent to commit a misdemeanor therein; lower ct had denied request for appointment to counsel b/c a non-capital offense
· Held: The 6th Amendment’s guarantee of counsel is a fundamental right, made obligatory upon the States by the 14th Amendment. States must appoint counsel for indigents in felony cases
o “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.”
o Court did not put any limits on this right until Argersinger.
Argersinger v. Hamlin (1972): - indigent in FL charged for carrying a concealed weapon, an offense punishable by imprisonment up to six months. FL SC held that the right of court-appointed counsel applies only to trials for “non-petty offenses punishable by more than six months imprisonment.”
· Held: No person may be imprisoned for any offense (whether petty, misdemeanor, or felony) unless represented by counsel at trial. If someone is facing jail time, they’re going to get counsel.
o “Those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of the ‘guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.
Rothgery v. Gillespie (2008): D arrested for being felon in possession of firearm based on erroneous police records. D did not have sufficient funds to post bond for release. Counsel was appointed 6 months after his first hearing. He was released on bail and charges dismissed.
· Held: 6th Amendment right to counsel attaches at a defendant’s first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.
· Right to counsel attaches at initial proceedings.
Waiver of Right to Counsel
Faretta v. California (1975): D charged with grand theft and was appointed a public defender. Appellant tried to waive his right to counsel because he wanted to represent himself b/c he believed office had heavy caseload. The court tested his legal skills and rejected his request.
· Held: right to self-representation is a personally held right; D in a state criminal trial has a constitutional right to proceed without counsel.
· Rule: It is an individualized right to represent oneself if one wishes “voluntarily and intelligently” – be aware of the risks
· “After all, the defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.”
· No duty to tell D about this right, they have to ask for it themselves.
Iowa v. Tovar (2004): D charged with drunk-driving 3 times in 4 years. D pled guilty to first conviction waiving right to counsel. The third time, D faced a harsher sentence. D argued first conviction should not be used against him b/c he invalidly (argues he was insufficiently informed) waived his 6th Amendment right to counsel.
· Held: 6th Amendment requires judge to inform the accused of the charges against him, of right to counsel when invoking a plea and, range of allowable punishments.
o Because Judge informed D, his waiver was not in violation of 6th Amendment.
· The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a “critical stage” at which the right to counsel adheres.
· The law considers a waiver knowing, intelligent, and sufficiently aware if the D fully understands the nature of the right and how it would likely apply in general in the circumstances – even if the D does not know the specific detailed consequences of invoking waiver. (D bears burden of proof of in collateral attack).
· If the D lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the State’s showing that the information it provided to him satisfied the constitutional minimum.
· Information a D must possess to make an informed decision will depend on a range of case-specific factors (education, complexity of case, stage of proceeding).
Waiver & Mental Illness
Indiana v. Edwards (2008): D was convicted by jury of attempted murder and battery with a deadly weapon, while trying to steal a pair of shoes. Trial court noted that D suffered from schizophrenia and concluded that he wasn’t competent to conduct his own trial like he wanted to; D was represented by appointed counsel and convicted on two accounts.
· Held: Constitution permits states to insist on representation by counsel for those who are competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.
· This means you can be declared sufficiently competent to stand trial, but insufficiently competent to waive counsel.
McKaskle v. Wiggins (1984): On appeal D decided to go pro se and asked that the standby counsel be barred from interfering. D changed his mind regarding the standby counsels' role throughout and allowed or even requested standby counsels' participation. D was convicted and moved for a new trial on the grounds that his standby counsel had interfered with his defense.
· Held: D’s right to present own defense was not violated, since "it appears that he was allowed to make his own appearances as he saw fit and that his standby counsel's unsolicited involvement was held within reasonable limits."
· Rule: Counsel may explain and enforces basic rules of courtroom protocol to assist the defendant in overcoming routine obstacles that stand in the way of a defendant’s achievement of his own clearly indicated goals
· The pro se D must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. The record reveals that D was in fact accorded all of these rights.
Ineffective Assistance of Counsel
Strickland v. Washington (1984): After being sentenced to death, D filed for a writ of Habeas Corpus on the grounds that he was given ineffective assistance of counsel. Counsel experienced a sense of hopelessness about the case when he learned that against his specific advice, D had confessed to the first two murders.
· Held: Benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined proper functioning of adversarial process that trial cannot be relied on as having produced a just result.
Strickland Two-Part Test
· After meeting benchmark, D must meet a two prong test to show IAOC:
o Deficiency? Must show the counsel’s performance must be deficient
§ This requires showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed by the 6th Amendment.
o Prejudice? Must show that deficient performance must have prejudiced the defendant so much as to have deprived him of a the right to a fair trial
§ Reasonable probability that but for deficiency the result of the proceeding would have been different.
ú The appropriate test for prejudice: but for counsel’s unprofessional errors, the result of the proceeding would have been different.
ú There could be an error shown, but it can’t be harmless.
§ This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.
§ The proper standard for attorney performance is that of reasonable effective assistance.
ú Defendant must show that counsel’s representation fell below an objective standard of reasonableness.
· When judging the performance of an attorney, counsel must be given a great deal of latitude, considering all circumstances. Each case must be considered on a case-by-case basis
· Note: Strickland applies to any critical stage of a proceeding (including pretrial, sentencing, and appeal). Also applies to counseling defendants about their immigration status (Padilla) and consequences of a guilty plea (Lockhart).
Extrinsic Factors & IAC
United States v. Cronic (1984): D indicted on mail fraud charges, retained counsel withdraws and court appoints young real estate lawyer. Given 25 days of pretrial prep. D was convicted. Appellate court overturned conviction on extrinsic factors (experience, time, gravity, etc).
· Held: D can make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.
Defense Strategy & IAC
Florida v. Nixon (2004): Substantial evidence indicated respondent D’s guilt. His counsel settled on a strategy of admitting guilt so as to gain a better position at sentencing. Counsel attempted to explain strategy 3x. D was generally unresponsive and unhelpful.
· Held: It was not ineffective assistance in a capital murder trial to fail to obtain a D’s consent to the strategy of going to trial and not challenging guilt (rather than pleading guilty) in hopes of having more credibly at sentencing and showing mitigating factors
· Rule: “When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent.”
o Attorney has duty to consult with client regarding important decisions and defense strategy.
Knowles v. Mirzayance (2009): D advised to withdraw NGI plea b/c medical testimony at trial failed to when he tried to get charge changed to second degree that he was insane and incapable of premeditation failed.
· Held: Appellate Court used wrong standard when it determined counsel had "nothing to lose" in pursuing NGI. To find counsel ineffective, the defendant must show both "deficient performance" and "prejudice."
· The Court reasoned that D’s counsel was not deficient when he abandoned an NGI plea that had "almost no chance of success."
Deficiency in IAC
Rompilla v. Beard (2005): D’s counsel didn’t look at a file that prosecuting attorney was going to use as a basis, even though D’s counsel had the file.
· Held: Counsel was deficient in failing to examine file on D’s prior convictions that prosecutor was going to use and quote from, and that was easily accessible to counsel.
o If D counsel would have looked in D’s file, it is uncontested they would have found range of mitigation leads.
· Rule: Although reasonably diligent counsel may have to draw a line when they have good reason the think further investigation would be a waste, defense counsel must obtain information that the State has and will use against the D.
Prejudice in IAC
Glover v. United States (2001): D was charged with money laundering and other crimes. District court said that money-laundering charge should not be grouped with D’s other offenses even though sentencing guidelines allowed for grouping of counts that involved same harm. Counsel did not challenge court’s no-grouping argument. D received higher sentence.
· Held: Any increase in a prison sentence is sufficient to show prejudice in a claim for ineffective assistance of counsel. (NOT harmless error).
o Don’t need to show significant increase – one day longer is enough.
IAC and Pleas
Missouri v. Frye (2012): Defense counsel failed to inform D of two plea offers from the prosecution. The offers expired and D received a harsher sentence than one of the lapsed offers made by the prosecution.
· Held: The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.”
· To show prejudice from ineffective assistance of counsel during plea negotiation stage, must show two things:o Reasonable probability that D would have accepted the plea AND reasonable probability that the prosecution would not have cancelled the offer.
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