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Ineffective Assistance Of Counsel - How A Criminal Defendant Can Prove It

5/14/2013

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OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 
"In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense."

-U.S. Constitution, Amendment VI
That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

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Closing Arguments in Michael Jackson Death Trial

11/3/2011

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Closing arguments are set today in the trial of Michael Jackson's doctor, Conrad Murray.  This is the point where each side will pull together all the evidence the jury has heard, and explain why the evidence points to guilt or not.

Closing arguments are often the most exciting part of a trial because this is the only time that the lawyers are permitted to "argue."  They must confine their arguments to the evidence that was admitted at trial, or reasonable inferences that can be made from that evidence.  The lawyers must also tailor their arguments to the law that the jury is instructed to apply.

Procedurally, the prosecution goes first.  This is because the prosecution has the burden of proof.  The prosecution must prove the defendant guilty beyond a reasonable doubt.  During closing argument, the prosecutor will explain how the evidence proves the defendant guilty.

The defense then argues why the evidence does not prove the defendant's guilt beyond a reasonable doubt.  The defense attorney may even argue that the evidence demonstrates innocence, although such argument is rare.  Usually, the defense strategy is to poke holes in the prosecution's case, bit by bit, to show there is a reasonable doubt about guilt.

Finally, the prosecution is permitted a rebuttal argument to respond to the defense.  Again, because the prosecution has the burden of proof, they are permitted the last word.

In the end, however, the jury's decision must be based on the evidence and the law.  The attorneys' statements and arguments are not evidence.  They are merely provided as an attempt to guide the jury in its decision.
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Michael Jackson Death Trial Watch: Goals of Cross-Examining an Expert Witness

10/28/2011

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Several experts have testified for both sides in the manslaughter trial of Michael Jackson's doctor, Conrad Murray.  There are two basic, and competing, goals when an attorney cross-examines an expert witness.

Generally, the side presenting the expert will have spent considerable time laying a foundation for the expert witness's expertise:  their credentials, education, publications, and experience in the field about which they are testifying. 

The opposing side may try to attack the expert's credentials.  Maybe they have book knowledge, but little real-world experience.  Perhaps their studies have been on a related subject but not directly about the matter in dispute at trial.  Regardless, to the extent possible, the opposing attorney will try to minimize the expert's impact by challenging his or her expertise.

Before doing that, however, the opposing counsel should try to use the expert to advance his or her own case.  For example, if a defense expert can offer anything in support of the prosecution's case, the prosecutor should try to get that information before the jury.  It is very powerful evidence for a witness engaged and called by the other side to give favorable testimony for your case. 

Eliciting any favorable testimony should be done before attacking the expert's testimony because the impact of the expert's testimony will be lessened after he or she has been discredited (hopefully).
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"The Prosecution Rests"

10/21/2011

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The prosecution is expected to rest today in the trial of Michael Jackson's doctor.  What does it mean when the prosecution "rests?"  It basically means the prosecution has finished presenting the evidence it has to try to prove the defendant guilty.  It has finishind its case-in-chief.  The defense then has the opportunity to put on evidence if it so chooses. 

Unlike the prosecution, the defense in a criminal trial need not put on any case at all.  This is because the prosecution has the burden of proof.  To convict someone, the prosecution must prove the defendant is guilty beyond a reasonable doubt.  Here, the prosecution must prove, beyond a reasonable doubt, that Dr. Murray committed involuntary manslaughter against Michael Jackson.  (See prior posts here and here for more about the involuntary manslaughter charges.) 

Once the prosecution has presented all the evidence it believes proves the defendant guilty, it rests its case.  The defense then has the option of putting on its own case.  However, the defendant need not do anything.  He may simply attempt to poke holes in the prosecution's case, and argue to the jury that the prosecution did not meet its burden of proof. 

If the jury has a reasonble doubt, whether based on weaknesses in the prosecution's case or the strength of the defense evidence or both, it must acquit.  Although they need not do so, Dr. Conrad Murray's defense attorneys have indicated they intend to call witnesses in his defense.  If Dr. Murray chose to testify, that would also happen during the defense case. 
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Crime Scene and Dead Body Photos: When Are They Permissible?

10/13/2011

2 Comments

 
This week in the manslaughter trial against Michael Jackson's doctor, the prosecution showed a photo of Michael Jackson's dead naked body.  News reports were that it was a shocking moment in court, with audible gasps and at least one spectator leaving the room.  Why was the prosecution allowed to admit the photo?

In a homicide case, the prosecution must prove that the victim is dead and that the defendant is responsible for that death.  Photos or sketches or diagrams are often introduced.  They are generally relevant to show the person is dead, and sometimes to show how they died or did not die.

Unless there is some reason to exclude, evidence that is relevant to an issue in the case is generally admissible.  Evidence is relevant if it has some tendency to prove the defendant committed the charged crime.

Even relevant evidence can be excluded, however, if it is unduly prejudicial, repetitive, confusing, or will take a long time.  Often, crime scene photos or dead body photos will be excluded as unduly prejudicial.  In other words, any value the evidence may have of proving a fact is substantially outweighed by prejudice to the defendant.

If a crime scene photo is especially gruesome, it may be excluded.  The concern is that the jury would be so upset by the photo that they would judge the defendant guilty based on emotion rather than evidence.  It is up to the judge to determine whether a photo will be admitted in a particular case.
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Why Michael Jackson's Doctor's Prior Statements Are Admissible

10/7/2011

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Dr. Conrad Murray spoke to the police a couple days after Michael Jackson died.  Those statements were recorded, and the recording was played for the jury in his manslaughter trial today.  Why were such out-of-court statements admissible?

Generally, a statement made to another person outside of court, is inadmissible as hearsay.  The idea is that what someone told someone else at some other time is not subject to cross-examination, and is therefore unreliable.  There are, however, many exceptions to the hearsay rule.

One exception is called a "party admission" or an "admission by a party-opponent."  When a party to a court proceeding, a criminal defendant in this case, makes a statement to someone outside of court, those statements are allowed to be used against him in court.  This is because the person who made the statement - the defendant here - can testify to explain or deny the statement. 

It is important to note that only the prosecution can introduce a defendant's prior statements under this exception.  A defendant may not introduce his own out-of-court statements.  This is to prevent the defendant from presenting his story to the jury without undergoing cross-examination. 

To ensure the jury has a clear picture of what was said, however, the defendant may instroduce part of the statement if the prosecution presented only part of the statement.  This is called the rule of completeness.

Miranda and the Fifth Amendment right not to incriminate oneself may play a role as well where the statements sought to be introduced are a defendant's statements to the police.  But that is a different topic for another day.  See my prior related post about why someone suspected of a crime should almost never talk to the police.
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Nancy Grace Was Wrong About "Murder One"

9/30/2011

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Earlier this week on Dr. Drew's CNN show, Nancy Grace said Michael Jackson's doctor, Conrad Murray, should have been charged with "murder one."  Murder one is, of course, a short-hand term for first-degree murder.  Grace went on to explain that murder one did not require an intent to kill, only an intent to do the act that resulted in death.  She stated, "It's very confusing, but murder one requires intent to commit the act – not to kill."  Nancy Grace was wrong.

In California, first-degree murder, or murder one, requires the prosecution to prove and the jury to find, that the defendant acted "willfully, deliberately, and with premeditation."  The key word here is "willfully."  Willfully in this context is explicitly defined as an intent to kill. 

Jurors considering a first-degree murder charge are instructed, "The defendant acted willfully if he intended to kill."  Thus, to convict someone of first-degree murder absolutely requires an intent to kill.

Nancy Grace may have been thinking of the requirements for second-degree murder.  Second-degree murder in California can be found with either an intent to kill or intentionally doing an act with a conscious disregard for human life.  This is a state of mind called implied malice, which I discussed a couple days ago. 

Although my opinion on the propriety of charging Dr. Murray with murder differs from Nancy Grace's, I am more concerned with making sure people know the truth about our laws. 
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Why Michael Jackson's Doctor Wasn't Charged With Murder

9/28/2011

 
Many fans were upset when Michael Jackson's doctor, Conrad Murray, wasn't charged with murder.  After hearing a preview of the evidence in yesterday's opening statements, it seems clear why Dr. Murray is not facing a murder charge.

Murder in California requires that the killer acted with a state of mind called "malice aforethought," which is generally referred to simply as malice.  Malice may be either express or implied.  

Express malice is where the defendant intended to kill.  There is no evidence that Dr. Murray intended to kill Michael Jackson.  Indeed, it appears that Michael Jackson's death cost Dr. Murray a lucrative contract of $150,000 per month to be Michael Jackson's personal physician.  Dr. Murray thus had every incentive to keep Michael Jackson alive.

Implied malice occurs when:  1) the defendant intentionally committed an act, the natural consequences of which were dangerous to human life, 2) at the time he acted, he knew the act was dangerous to human life, and 3) he did the act with a conscious disregard for human life.

There is a stronger case for implied malice than express malice here.  The combination and amount of drugs found in Michael Jackson's system have been described as extraordinarily high.  However, if Michael Jackson was an addict who had developed a high tolerance for these medications, and if Dr. Murray had been giving Michael Jackson similar doses in the months prior to his death without issue, he would have a strong argument that he did not act with a conscious disregard for human life.  Similarly, if Dr. Murray was attempting to wean Michael Jackson off the more dangerous drugs, like Propofol, as he claims, he could argue that he was not acting with a conscious disregard for human life. 

However, such arguments will have a harder time overcoming the "criminal negligence" standard for involuntary manslaughter.  (See posts from yesterday and the day before for more information on criminal negligence and involuntary manslaughter.) 

Sometimes overcharging a case can backfire and lead to an acquittal (like some suggest happened in the Casey Anthony case).  The DA's office likely charged conservatively to have a better chance of success, and the charge of involuntary manslaughter is really a better fit for the evidence here (as discussed yesterday). 

Michael Jackson Death Case Shows Why Suspects Shouldn't Talk

9/27/2011

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There is something that always happens in legal dramas, but almost never happens in real life.  A suspect has a lawyer.  The lawyer and suspect agree to talk to the police.  The suspect gives damaging information or outright confesses with the lawyer sitting right there, saying nothing, or even nodding in assent.

This almost never happens in real life because criminal defense attorneys know that whatever the suspect says will later come back to bite him or her.  When the police warn a suspect that "anything you say can and will be used against you in a court of law," they mean it.  And defense attorneys know that.

Generally, if a suspect agrees to talk to the police, it is before he has a lawyer.  Police rarely even try to talk to someone with a lawyer because they know the answer is likely to be, "no."

Dr. Conrad Murray, who is on trial in Michael Jackson's death, and his attorneys did not follow this general rule.  Two days after Michael Jackson's death, when there was wide speculation in the media that Dr. Murray was hiding and may have been involved, Dr. Murray and his attorneys agreed to speak to the police.

The prosecution's opening statement today capitalized on Dr. Murray's decision to speak to the police.  The prosecutor played clips of the recorded interview for the jury.  He showed quotes from the interview on a screen.  The prosecutor used Dr. Murray's own words against him to show his lack of credibility.

The lesson here is that it is almost never a good idea for a potential suspect to talk to the police, no matter how often they do so on TV.
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Prosecution: Michael Jackson's Doctor Grossly Negligent

9/27/2011

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The prosecution completed its opening statement in the trial of Michael Jackson's doctor, Dr. Conrad Murray.  The prosecution alleges that Dr. Murray is guilty of involuntary manslaughter because he breached a duty of care to Michael Jackson.

A person may be convicted of involuntary manslaughter based on the failure to perform a legal duty owed to the victim.  Under this theory, the prosecution must prove:  1) Dr. Murray owed a legal duty to Michael Jackson; 2) Dr. Murray failed to perform that duty; 3) Dr. Murray's failure to perform that duty was criminally negligent; and 4) Dr. Murray's failure to perform that duty caused Michael Jackson's death.

I discussed the concept of criminal negligence at length here yesterday.

The prosecutor identified numerous acts and omissions (failure to act) that qualified as Dr. Murray breaching his duty of care as Michael Jackson's doctor:
* Michael Jackson's home was an improper setting for using Propofol, which is intended for use in hospital surgery rooms
* Using Propofol to treat insomnia, when it was intended as a general anesthetic
* Failure to properly continually monitor Michael Jackson's vitals, as required with Propofol
* Administering Propofol without resuscitation equipment available
* Failure to maintain constant visual monitoring and presence, as required with Propofol
* Administering benzodiazepines combined with Propofol, which heightens its dangers
* Failure to provide and receive informed written consent for medical procedures
* Failure to chart and document what was administered
* Failure to call 911 immediately upon finding Michael Jackson unresponsive
* Abandoning the doctor-patient relationship, where the doctor is in charge of care and refuses inappropriate treatment, in favor of an employer-employee relationship
* Deceiving the paramedics and ER doctors, by refusing to tell them of his administration of Propofol when asked what he had given Michael Jackson

The prosecution asserted that each of these breaches of care was an "extreme deviation" of the standard of care expected of a medical doctor. 
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    Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers.  See About Me.  This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts.  It is also a place to discuss any crime or law related topics of interest.  Contact me for a free initial consultation on your film or writing project.

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