Re: Defense Counsel's Strategies?
by
fozzy
11/05/2009, 7:19 AM
The simple answer: It would be impossible to make a legally sound judgment without reading the actual trial transcript and defense files. "Ineffective assistance of counsel" is a term of art in the courts, with some specific -- and hard to reach -- standards. Behavior that most laymen would consider 'obviously ineffective' is often not considered so by the courts. Basically, according the law, you can have a downright "lousy" or "bad" lawyer, but that still does not necessarily mean they are "ineffective" in the legal sense.
Complicating the issue is the fact that since ineffectiveness if often an issue raised by the defendant on appeal, the burden is then on the defendant to prove it to the legal standard. For example, Texas didn't think that a lawyer sleeping during a trial was ineffective. IIRC the court reasoned that since there was no proof the attorney was sleeping during a 'critical point' of the trial, he must be assumed effective. Since the appeals court in such a situation is often "interpreting all the facts so as to support the non-moving party" (i.e. trying to protect the verdict, making it hard for the appellant) they will often "create" ( the judges will use the term "interpret") strategies that the attorney supposedly *could* have been using. For example, if you are inept in court the appeals court might say "you may have been faking ineptness to make the jury feel sorry for you."
The bottom line, the easiest/surest way to prove "ineffectiveness of counsel" is to show that the counsel failed some "bright line" rules, like failing to file papers in a timely manner. Virtually anything done (or not done) at trial can be written off as 'tactics'. And I should point out that as usual 'jurisdiction matters', what is ineffectiveness of counsel in the 5th federal district is often very different from that in, say, the 10th federal district.