Ch. 2 Ineffective Assistance of Counsel; counsel for immigrants facing removal

8/9/2019 Ch. 2 Ineffective Assistance of Counsel; counsel for immigrants facing removal

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Constitutional Protections inCriminal Cases

Right to efective assistance ocounsel

Public deenders

Right to counsel in removal(deportation) cases

Chapter 2 Basic Elements of Law

Practice

Ineffective assistance of counsel

and the rights of immigrants

1Ch. 2 Inefective assistance andthe lawer client relationship


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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 beconfronted with the accusers andwitnesses, to call for evidence in his favor,

and to a speedy trial by an impartial juryof twelve men of his vicinage, withoutwhose unanimous consent he cannot befound guilty; nor can he be compelled to

give evidence against himself; that noman be deprived of his liberty, except bythe law of the land or the judgment of his

peers.

Art. 8, Virginia onstitution ! "ill of #ights2Ch. 2 Inefective assistance andthe lawer client relationship


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Amendment VI - Constitution of the

United States of America

In all criminal prosecutions, the accusedshall enjoy the right to

a speedy and public trial, by animpartial jury

be informed of the nature and cause ofthe accusation

be confronted with the witnessesagainst him

have compulsory process for obtainingwitnesses in his favor

have the Assistance of Counselfor hisdefence.

!!Ch. 2 Inefective assistance andthe lawer client relationship


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Amendment VI - Constitution of the

United States of America

"he )ixth Amendmentright to counsele#ists in order to protect theundamental right to a air trial

*owell v. Alabama, +8' .). - /&01+2%ohnson v. 3erbst, 14- .). -8 /&0182

5ideon v. 6ainwright, 1'+ .). 11

/&0(12

$$Ch. 2 Inefective assistance andthe lawer client relationship


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Powell v. Alabama (!"2#

$he %&cottsboro Bo's case Rape of 2 white girls! by "

African American boys! alltravelers on a freight train

At arraignment all members ofthe bar! appointed as counsel bytrial judge

#rial began $ days after indictment Counsel appointed that morning All sentenced to death

%%Ch. 2 Inefective assistance andthe lawer client relationship


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$he %&cottsboro Bo's case A defendant, charged with a

serious crime, must not be

stripped of his right to havesu%cient time to advise with

counsel and prepare his defense.

&&Ch. 2 Inefective assistance andthe lawer client relationship


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$he %&cottsboro Bo's case #o fail to do that is not to

proceed promptly in the calm

spirit of regulated justice but togo forward with the haste of the

mob.

''Ch. 2 Inefective assistance andthe lawer client relationship


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)nowing and Intelligent waiver re*uired+ohnson v. ,erbst (-.&. !"#

#he accused were unable toemploy counsel for trial &forpassing ' counterfeit bills(

At arraignment, both pleadednot guilty, said that they had nolawyer

In response to the court )) statedthat they were ready for trial.

#ried, convicted and sentenced,

without assistance of counsel. Ch. 2 Inefective assistance andthe lawer client relationship


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Ineffectiveness of Counsel

iggs v. *elch (.C. Cir. 1+$%) *ven serious mista+eson the

part of an attorney are notgroundfor habeas corpusstanding alone.

Reversal is granted only- if thecircumstances surrounding thetrial shoc+ed the conscience ofthe courtand made the

proceedings a farce and a ++Ch. 2 Inefective assistance andthe lawer client relationship


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/ight to counsel at government e0pense

1ideon v. ainwright (!3"#

,ustice -lac/ Reason and reection re/uire us

to recogni0e that in our

adversary system of criminal

justice, any person haled into

court, who is too poor to hire alawyer, cannot be assured a fair

trial unless counsel is provided

for him. 1010Ch. 2 Inefective assistance andthe lawer client relationship


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Assistance of Counsel means

#he special value &to a fair trial(

of the right to the assistance of

counsel e1plains why it- has

long been recogni0ed that the

right to counsel is the right to

the e3ective assistance of

counsel. cann v. Richardson !+' 3.4. '%+ ''1

(1+'0) 1111Ch. 2 Inefective assistance andthe lawer client relationship


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4a0ims

#o satisfy the Constitution, counselmust function as an advocate for thedefendant, as opposed to a friend ofthe court

An indispensable element of thee3ective performance of defensecounsel4s- responsibilities is theability to act independently of the5overnment and to oppose it inadversary litigation.

1212Ch. 2 Inefective assistance andthe lawer client relationship


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-.&. v. Cronic (-.&. !5# #he right to the e3ective

assistance of counsel is thus the

right of the accused to re/uire the

prosecution4s case to survive the

crucible of meaningful adversarial

testing. the ind o testing

envisioned b the 4i#th 5mendment.

1!1!Ch. 2 Inefective assistance andthe lawer client relationship


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-.&. v. Cronic (-.&. !5 6bjective test

7ust show actual brea+down of

adversarial process!

Reference point8 $thAmendment

1$1$Ch. 2 Inefective assistance andthe lawer client relationship


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-.&. v. Cronic (-.&. !5# 7actors applied by circuit court &9( #ime a3orded for investigation

and preparation &2( *1perience of counsel &:( 5ravity of the charge &'( Comple1ity of possible

defenses &;( Accessibility of witnesses to

counsel.

1%1%Ch. 2 Inefective assistance andthe lawer client relationship


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Ch. 2 Inefective assistance andthe lawer client relationship

4hould proessional practice

standards provide bright linerules or courts6

$esting Effectiveness in

an Adversarial &'stem

1& 1&


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6. 27"8 p. 22 as 4atlac9 :s

representation %ineffective; (5) 7o8atloc9s conduct was was

reasonable because he interviewedamil members.

(-) 7o8 atloc9s conduct wasunreasonable but it was notpre:udicial.

(C);es Inefective assistance.atloc ailed to provide


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Model Rule 1.0 Terminology

&h( Reasonable or reasonablywhen used in relation to conduct

by a lawyer denotes the conduct

of a reasonably prudent and

competent lawyer.

1+1+Ch. 2 Inefective assistance andthe lawer client relationship


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Model Rule 1.1 Com!etence

A lawyer shall providecompetent representation to a

client.

Competent representation

re/uires the legal +nowledge,

s+ill, thoroughness and

preparation reasonably

necessar for the 2020Ch. 2 Inefective assistance andthe lawer client relationship


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ABA Practice &tandards

Appellate Review of


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Practice guidelines are merel' that

>?b:ective reasonableness is thestandard@.

>5merican -ar 5ssociation standardsand the lie are onl guides to whatreasonableness means not itsdeAnition.@

4tricland v. *ashington (1+$)

Ch. 2 Inefective assistance andthe lawer client relationship 22


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Ineffective assistance of counsel

Constitutional right o the accused toBthe 5ssistance o CounselB .).onst. amend. V

Bguarantees the efectiveassistance o counselB 9c9ann v.#ichardson, 10' .). '0 /&0'42

: applies to the )tates under dueprocess clause of &-thAmendmentvitts v.


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Rom!illa ". #eard (-.&. 2>>?# p. ?

Dven when a capital deendantEsamil members and the deendanthimsel have suggested that nomitigating evidence is available hislawer is bound to mae reasonableeforts to obtain and review materialthat counsel nows the prosecution

will probabl rel on as evidence oaggravation at the sentencing phaseo trial.

Ch. 2 Inefective assistance andthe lawer client relationship 2$


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Rom!illa ". #eard (-.&. 2>>?# p. ?

Fhen new counsel entered thecase to raise Rompilla4s

postconviction claims, however,

they identi>ed a number of li+ely

avenues the trial lawyers could

fruitfully have followed in

building a mitigation case.

Ch. 2 Inefective assistance andthe lawer client relationship 2%


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Rom!illa ". #eard (-.&. 2>>?# p. ? #he duty to investigate e1ists

regardless of the accused4s

admissions or statements to the

lawyer of facts constituting guilt

or the accused4s stated desire to

plead guilty.

1 5-5 4tandards or Criminal ,ustice

$8$.1 (2d ed. 1+2 4upp.)Ch. 2 Inefective assistance andthe lawer client relationship 2&


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Rom!illa ". #eard (-.&. 2>>?# p. 2> RompillaEs parents were both severe

alcoholics who dran constantl. Fis

mother dran during her pregnanc

with Rompilla and he and his

brothers eventuall developed

serious drining problems.

Ch. 2 Inefective assistance andthe lawer client relationship 2'


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Rom!illa ". #eard (-.&. 2>>?# p. 2> Fis ather who had a vicious temper

reGuentl beat RompillaEs mother

leaving her bruised and blac8eed

and bragged about his cheating on

her.

Ch. 2 Inefective assistance andthe lawer client relationship 2


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Rom!illa ". #eard (-.&. 2>>?# p. ? Fis parents ought violentl and on

at least one occasion his mother

stabbed his ather. Fe was abused

b his ather who beat him when he

was oung with his hands Asts

leather straps belts and stics. 5ll o

the children lived in terror.

Ch. 2 Inefective assistance andthe lawer client relationship 2+


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Rom!illa ". #eard (-.&. 2>>?# p. ?

Places to search/ 4chool records

Records o RompillaEs :uvenile andadult incarcerations

Dvidence o a histor o dependenceon

Ch. 2 Inefective assistance andthe lawer client relationship !0


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$re%udice

Stric&land ". 'ashington (U.S. 1)*+,

*rrors so seriousthat counselwas notfunctioning as thecounsel guaranteedby the $th

Amendment

*rrors deprived the defendant of

a fair trial, a trial whose resultcan be relied upon as just

!1!1Ch. 2 Inefective assistance andthe lawer client relationship


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$he &tric9land test e. ust show

9( his counsel4s performance was

unreasonably de>cient because

it fell below an objective

standard of reasonableness

compared to prevailing

professional norms.

Ch. 2 Inefective assistance andthe lawer client relationship !2

$he &tric9land test


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$he &tric9land test 2( the de>ciency prejudiced him.

#-here is a reasonableprobability that, but forcounsel4s unprofessional errors,the result of the proceedingwould be di3erent.

A reasonable probability is aprobability su%cient to

undermine con>dence in theoutcome.

Ch. 2 Inefective assistance andthe lawer client relationship !!


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Reasonale com!etence


=need not show errorsmore

li+ely than not altered the

outcome!

Jut =efendant must show

de>cient performance prejudiced

!$!$Ch. 2 Inefective assistance andthe lawer client relationship


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Reasonale com!etence


= can show !a reasonable

probabilitythat, but for

counsel4s unprofessional errors,

the result of the proceeding

would have been di3erent.!

!%!%Ch. 2 Inefective assistance andthe lawer client relationship


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$he burden of proof

BHthe result o a Hcriminalproceeding can be rendered

unreliable and hence the proceeding

itsel unair even i the errors o

counsel cannot be shown b a

preponderance o the evidence to

have determined the outcome.B

4tricland Ch. 2 Inefective assistance andthe lawer client relationship !'


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Stric&land ". 'ashington (1)*+,

/at e"ery stage of the !roceeding

=eath case ) capital sentencing

hearing

An adversary proceeding in a

criminal trial entitles one to

reasonably e3ective

assistance! of counsel

!Ch. 2 Inefective assistance andthe lawer client relationship


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Asserting ineffecti"eness


city re/uired

A convicted defendant ma+ing aclaim of ine3ective assistancemust identify the acts oromissionsof counsel that are

alleged not to have been theresult of reasonable professional

judgment.

!+!+Ch. 2 Inefective assistance andthe lawer client relationship

St i &l d St $ ti f


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Stric&land Strong $resum!tion of

ffecti"eness 2 3eference to Counsel the wide range of reasonable

professional assistance! *very e3ort must be made to ) eliminate the distorting e3ects

of hindsight ) reconstruct the circumstances

of counsel4s challenged conduct ) evaluate the conduct from

counsel4s perspective at thetime.

$0$0Ch. 2 Inefective assistance andthe lawer client relationship


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Crisis in immigration courts

2d Circuit / 2' months to resolve a-oard o Immigration 5ppeals appeal

,ohn . *aler Chie ,udge/ Basevere lac o resources andmanpower at the immigration :udgeand -I5 levels

BI ail to see how immigration :udges

can be e#pected to mae thoroughand competent Andings o act andconclusion o law under these

circumstances.@Ch. 2 Inefective assistance andthe lawer client relationship $1


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Is deportation punishment65ll persons sub:ect to >removal@ havethe right to due process6

4hould the have a Jideon8tpe right tocounsel6

5re aslum applicants diferent6

Children brought here b parents63ndocumented parents o children bornhere6 Raised Fere6

Immigrants rights

Ch. 2 Ineffective Assistance of Counsel; counsel for immigrants facing removal

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