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By Colorado Criminal Sex Crimes Defense Lawyer – Attorney – H. Michael Steinberg
When Your Colorado Criminal Lawyer Fails In A Colorado Sex Crime Case… this is known to lawyers as ineffective assistance of counsel – the result is devastating and can lead to an indeterminate sentence of life in prison. This article – written by Colorado Criminal Defense Sex Crimes Defense Lawyer – H. Michael Steinberg – explores the law in this complex area attempting to simplify the issues for you to consider.
Ineffective assistance of counsel is more commonly known as bad lawyering. It strikes at the hert of the criminal justice system and constitutes a violation of a defendant’s Sixth Amendment right to counsel.
Lawyers who take on too many cases result in trusting defendants who are too often burdened with attorneys who lack the time, experience, or professional talent to do what the law requires – zealously represent their clients in court. Failure to investigate an alibi defense, investigate prosecution witnesses, locate experts to challenge the DA’s physical evidence all are the result of Colorado criminal defense lawyers accepting cases for which they are not qualified.
Bad lawyering – as noted below – means an un-level playing field for the defendant.
In Colorado – an ineffective assistance of counsel claim begins with the foundational case in this area of law – Strickland V. Washington:
A claim of ineffective assistance of counsel on appeal – presents a mixed question of law and fact. The benchmark for judging any claim of [ineffective assistance of counsel] is whether the lawyer’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984).
To prevail on an ineffective assistance of counsel claim, a defendant must therefore meet two prongs:
(1) counsel’s performance was constitutionally deficient;
(2) the deficient performance resulted in prejudice to the defendant.
To satisfy the prejudice prong, in the context of a guilty plea for example, a defendant must show that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
Ineffective assistance of counsel not only leads to unjust conviction, it results in an imbalance in the adversary process. Without an effective lawyer on your side – the balance of power is undermined and abuses of power as well as violations of your basic fundamental constitutional rights occurs. In short there is no equal justice.
You must examine the kind of case or area of law at issue. What follows is an examination of some sample areas of law where ineffective assistance claims have been made – (a separate article addresses ineffective assistance of counsel in Immigration Cases).
In a VERY RECENT and path breaking case – Missouri v. Frye, 132 S. Ct. 1399 (2012), the United States Supreme Court held that as a general rule:
A criminal defense attorney has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant, and that failure to communicate the plea offer constitutes ineffective assistance of counsel.
In another case decided at the same time – Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Court held that: a criminal defense attorney’s performance was deficient when he advised the defendant to reject a plea offer on the grounds he could not be convicted at trial.
The United States Supreme Court held that the remedy for this kind of deficient performance was to order the prosecution to reoffer the plea agreement, and, presuming the defendant accepts the offer, the trial court could then exercise its discretion in determining whether to vacate the convictions and resentence the defendant pursuant to the plea agreement, to vacate only some of the convictions and resentence the defendant accordingly, or to leave the convictions and sentence from the trial undisturbed.
Three years earlier in the case of Carmichael v. People, 206 P.3d 800 (Colo. 2009), the Colorado Supreme Court ruled:
.. that a criminal defense attorney’s failure to appropriately counsel his client regarding the attractiveness of a plea bargain in relation to the risks of going to trial is constitutionally deficient performance.
“Here the Court ruled that the remedy for this kind of deficient performance is to order a new trial, which would provide the defendant with an opportunity to engage in plea negotiations with the benefit of effective counsel.”
THEREFORE: where a plea-bargain has been offered, the defendant has a right to effective assistance of counsel in making the decision whether to accept or reject an offer. If in the resulting trial the defendant receives a more severe sentence than that which was available under the plea-bargain, the defendant has shown prejudice under the second tier of the Strickland test.
In a case called Silva v. People, the Colorado Supreme Court ruled that even though there is a limited statutory right to a lawyer after a conviction – the lawyer that is appointed to appeal a criminal case must ALSO be at least “minimally effective in order to give any meaning to that limited statutory right to appellate counsel. Therefore the Strickland test must be applied to claims of ineffective assistance in post conviction proceedings where a right to counsel exists.
In another very recent decision (2012) Kazadi v. People, the Colorado Supreme Court ruled that a criminal defendant does not have the right to post conviction review of a deferred judgment under Crim. P. 35(c) because a deferred judgment is not a conviction.
BUT a defendant may still file a motion to withdraw his deferred judgment guilty plea under Crim. P. 32(d) and that a successful claim of ineffective assistance of counsel does constitute a fair and just reason for withdrawal of a guilty plea under Crim. P. 32(d).
Also in 2013, the Tenth Circuit (which includes Colorado) held that the Sixth Amendment guarantees the “right to representation that is free from conflicts of interest.” as in all other cases – to prevail on an ineffective assistance claim – the defendant must show that her counsel’s performance was deficient and that prejudice resulted.
However, here –
“[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected [her] lawyer’s performance.’” Strickland, 466 U.S. at 692.
In order to establish ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient, i.e. “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
The defendant must also show that the deficient performance prejudiced the defense, i.e., “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
With respect to counsel’s conduct, the Court held that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” which must be judged under “prevailing professional norms.”
The Strickland Court stated that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and must be evaluated “from counsel’s perspective at the time.”
“Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”
With respect to the duty to investigate, the Court held that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”
“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Thus, “inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.”
With respect to prejudice, “a defendant need not show that counsel’s deficient conduct -more likely than not – altered the outcome in the case.” “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”
“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” In determining prejudice, the court should presume “that the judge or jury acted according to law.”
“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer- including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury,” because “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support,”
In applying these standards, “[t]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process.”
A claim of ineffective assistance of counsel is, at heart, a claim that the client’s right to the effective assistance of counsel under the Sixth Amendment has been violated.
The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.
H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options.
Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases. Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… When Your Colorado Criminal Lawyer Fails In A Colorado Sex Crime Case.