This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which rema
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Just correcting it : It is written : ” the other is reach ” should be of course : Rich .
Apologizing …..
Posted by: El roam | May 24, 2018 10:40:02 AM
Indeed Justin , just to notice also , as mentioned , that much depends upon the particularity of the case . For , if you would deal only with narrow legal issue or question , wouldn’t be similar of course , to a case , where the defendant pleads not guilty ( has nothing to do with that indictment let alone he argues ) . And , Sentence is severe , and the factual configuration is complicated .
Imagine that :
The defendant could get away with it , if only he could hire , private detective , to dig new or equitable evidences .But , One needs hell of fortune not once .
That is why I have reached very simple conclusion :
If there is , in certain system , 95 per cent convictions rate , notwithstanding objective guilt or innocence :
If only the representation was the optimal , it could drop easily to : 80 percent approximately . That is an astonishing hypothesis or finding or assumption. But the point is , that it is not up to the judiciary , but , simply money !! But then of course , we shall reach the eternal strategic equation or puzzlement :
Why wrongdoers profit , while victims suffer ? Why one is poor , the other is reach ? Why one would get away with it finally , and the other , shall live the rest of his life , behind bars ?
I don’t think , you would like right here right now , to debate on it . I guess you have enough troubles with your particular expertise .
Thanks
Posted by: El roam | May 24, 2018 10:36:44 AM
That’s right — resource shortages are among the best prospective indicators of whether a defendant is likely to receive ineffective assistance in her criminal proceedings. Accordingly, most of the prospective challenges to failing indigent defense systems across the country have focused on underfunding and the closely related problems of too few lawyers & excessive caseloads. It’s frustrating to see many (though by no means all) of these often-meritorious suits getting dismissed at the pleading stage on the theory that outcome-determinative prejudice is essentially unprovable until the criminal proceeding has culminated in an outcome that can be reviewed in a postconviction posture.
Posted by: Justin Murray | May 24, 2018 10:00:58 AM
And just to relate it to prospective occurrence or prejudice : One can imagine or describe a case , where clear tangible evidences or analysis , may suggest that prospective tangible prejudice may occur :
If the resources of the lawyer dealing with the case , are so narrow . If the case itself is a criminal one . If he would plead not guilty . if the sentence may be very harsh . If the case itself bears very complicated factual and legal configuration , one may argue :
That there is , probable occurrence , that the defense , wouldn’t be able , to assist him effectively , due to shortage in resources .
So , that is the best prospective tangibility , it seems , that one defendant may present . Thanks
Posted by: El roam | May 24, 2018 6:13:07 AM
Interesting indeed , you claim that : And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”
Yesterday indeed , you were referring to ” Weaver V. Massachusetts ” and there , the majority , and particularly the dissenting judge , were referring to such problem of ” proof of actual prejudice ” when dealing with public trial , here I quote ( dissenting opinion of Justice Breyer ) :
The problem is evident with regard to public-trial violations. This Court has recognized that “the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance.” Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984). As a result, “a requirement that prejudice be shown ‘would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.’”
End of quotation :
Now go and prove it when the trial wasn’t public one. One needs to dig hell of speculations indeed , in order to show , how a public trial , could change indeed the outcome , and , from a post-conviction position .
Thanks
Posted by: El roam | May 23, 2018 7:59:47 PM