Miscellaneous

Effective Assistance

By Anne Skove, Esq.

After writing about ineffective assistance of counsel claims (and we should clarify that the rarity was the success, not the making of the claims themselves) we heard from a Washington state trial judge on the matter:

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Ineffective assistance is a very common claim on appeal in Washington. In fact, a Lexis search shows that it was referenced in 337 appellate cases by the Court of Appeals and Supreme Court in Washington in 2007. Prosecution misconduct was referred to in 163 cases. Lawyers use ineffective assistance on appeal often because there are perceived errors of law to which no object was taken, so they turn to "manifest constitutional error," namely the Sixth Amendment, to try and resurrect the purportedly missed issue by trial counsel. In 2007, there were two published reversals for ineffective assistance by Washington appellate courts.
 
The failure to raise appropriate lessers has been the law here for a few years. In 2004, the Court of Appeals reversed the learned trial judge in a felony assault case for failing to offer a misdemeanor lesser, unlawful display of a weapon. They did the same thing in 2006 in an attempted burglary case, for failure to offer attempted criminal trespass as a lesser.
 
A recent panel discussion addressed the judge's role where the judge observes ineffective assistance and prosecution misconduct and no objection is taken. It's an interesting challenge. We also discussed what the judge does after finding one or the other, i.e., should we report it?

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See "Zealous Advocacy in a Time of Uncertainty," Ellen Yaroshefsky, University of the District of Columbia Law Review (Fall 2004).

See also Report and Recommendation on Professional Responsibility and Accountability of Prosecutors and Defense Lawyers, California Commission on the Fair Administration of Justice (October 18, 2007).

Full post as published by court-o-rama.org on June 05, 2008 (boomark / email).