Effective <---> Ineffective Assistance of Counsel
by Jamison Koehler on August 28, 2015
I am doing a court-appointed criminal appeal, and I am cranky with the defense lawyer who tried the case. He won’t return my phone calls. He won’t send me the trial file. I have no idea why he appealed. And I find, upon reviewing the trial transcript, that he messed up the one potential area for reasonable doubt by asking questions on cross-examination that he should have left alone. Sometimes the unwitting defense lawyer can be the government’s best friend.
Our client was convicted of possessing drug paraphernalia. The case law is clear that, when it comes to implements with both legal and illegal uses, the government needs to prove something more than simple possession. This might be the presence of other things suggesting drug use – drug residue, for example. In some cases, the government even calls an expert to testify to possible uses of the device.
There was no evidence of any of that in this case. That is, of course, until my colleague began his cross-examination. Oh yeah, said the officer when prompted. I almost forgot: There was residue from a white powdery substance at one end of the straw. I field tested it and it came back positive for cocaine.
Because he won’t return any of my calls, I track the trial lawyer down in court. He tells me he filed the appeal because he wanted to cover his behind. I am still puzzling over this.
Now compare this guy with my friend and colleague Noah Clements. I had mixed feelings about being assigned a case for which Clements had served as trial counsel. What if I have to go with ineffective assistance of counsel?
Clements puts my mind to rest immediately. You need to claim ineffective assistance of counsel. This is the first thing he tells me while handing over the trial file.
As it turns out, there is no basis for an ineffective assistance of counsel claim. No surprise there. And, because Clements knows how to preserve the record, the brief is one of the strongest I have filed in a while.