11/25/2006

3 Responses to “Beldar’s Second Post in Two Days — It’s a Good One”

1. Patterico, thank you for the links and kind words.

   As I wrote the post you’ve linked here, I wondered what your take would be on the situation as a prosecutor, and whether you’d ever seen a felony defendant represented by a close family member (like a parent).

   I also wondered whether a prosecutor might have serious concerns that any conviction he might obtain would inevitably be seeded with a probable appeal based on ineffective assistance of counsel. That, plus of course the prosecution’s general interest in the dignity and fairness of the justice system — you won’t laugh at that, and I won’t, even though others might — might both be grounds for the prosecutor to raise the issue of disqualification.

   In the old Fifth Circuit, there was a long, long line of ineffective assistance cases that drew a distinction between the standard of competency required for court-appointed counsel and that for retained counsel. Court-appointed counsel actually had to perform to a much higher standard to render constitutionally effective service, based on the theory that there was “state action” for Fourteenth Amendment purposes in their selection and supervision by the trial judge, whereas no such “state action” was present when counsel were retained (meaning retained counsel’s ineffectiveness had to rise to the travesty and mockery of justice level to be actionable). The “retained/appointed” distinction was killed as a practical matter in n Cuyler v. Sullivan, 446 U.S. 335 1980), but I had a pair of Fifth Circuit appointed appeals in the early 1980s which I almost, but not quite, got the Fifth Circuit to so admit.

   I was reminded of the distinction by this case, though, because there may be a strong natural inclination for folks (especially laymen) to argue, “Who could be better than a defendant’s mom to identify with his case and do her best to defend him?” My response, of course, is “Who could be worse in terms of providing him with objective judgment that is at least as important as fierce advocacy?

   Beldar (360a1f) — 11/25/2006 @ 10:26 pm

   
   

2. As I wrote the post you’ve linked here, I wondered what your take would be on the situation as a prosecutor, and whether you’d ever seen a felony defendant represented by a close family member (like a parent).

   Never seen anything like it.

   I also wondered whether a prosecutor might have serious concerns that any conviction he might obtain would inevitably be seeded with a probable appeal based on ineffective assistance of counsel. That, plus of course the prosecution’s general interest in the dignity and fairness of the justice system — you won’t laugh at that, and I won’t, even though others might — might both be grounds for the prosecutor to raise the issue of disqualification.

   Given the pro-Balko crowd hanging out here nowadays, probably most will indeed have a hearty, misinformed laugh at that.

   I would be very concerned, myself, and would certainly raise the issue, and would want to see, at a minimum, 1) the kind of haranguing from the judge that you describe, and 2) a detailed, written waiver of the evident conflict, signed by the defendant.

   Even then I’d be nervous.

   Patterico (de0616) — 11/25/2006 @ 10:59 pm

   
   

3. I’m not a prosecutor or a criminal law attorney, but if I were the judge or prosecutor I would be concerned that representation of the defendant by a related attorney would be a backdoor method of vouching for the defendant’s character, veracity, and innocence.

   DRJ (0df497) — 11/25/2006 @ 11:06 pm