I guess everyone has heard about the new Indigent Defense laws that supposedly improve the court appointed lawyers representing criminal defendants. What would you think about adding a rule to that law that requires lawyers and judges to report any act of ineffective assistance to that board? Should the reporting be done anonymously?

They could keep a statewide database on such incompetence and perhaps (1) disqualify lawyers from appointments, (2) forward the claims to a grievance committee, and (3) promote trainings to avoid the particular types of incompetence that seem to reappear.

I think that if you have an appellate finding of ineffective assistance, you probably should bring that to the attention of the judges appointing attorneys. However, my experience with the grievance committee in dealing with such findings has been entirely worthless.

One thing I've noticed is that there seldom is an express finding that joe blow was ineffective. Instead, there's normally lots pages of abstract discussion on the rights of a defendant followed by some vague statement about how the appellant or the applciant is entitled to relief. If they're going to bust a conviction because a defense attorney messed up they ought to expressly say that the guy was ineffective.

How about this as a way to promote more effective assitance: did you see the recent JAG where they charged Bud with the CRIME of ineffective assitance -- i.e., dereliction of duty. Couldn't we make ineffective assistance a Class A misdemeanor? Just kidding.

I attended the NDAA Appellate Advocacy course in Columbia, S.C., a couple years ago, and learned that California has a system like that described by John B. The Asst. A.G. from California made it sound like it was a pretty serious deal, too. Now, I'm not one to advocate adopting ANYTHING from California, but maybe we could get some useful input from their bar or prosecutor's association.

One other thing I have noticed is that the courts of appeals are willing to forward to the State Bar what they perceive to be misconduct on the part of attorneys. So, a rule that they had to forward ineffectiveness findings might work.

I say do it. We are supposed to self-police the profession, after all. And, to be completely fair, the same automatic reporting rule ought to apply to findings of prosecutorial misconduct, too.

A selected or appointed attorney at law participating in the performance of a governmental function is a "public servant". 1.07 (41), P.C. If with intent to obtain a benefit he violates a law relating to his office or employment, he commits a Class A misdemeanor. 39.02(a)(1), (b), P.C.

This is a continuing problem in our jurisdiction and the local judges do not adequately police it. I can see some horrible consequences to what John B. suggested but I need somewhere to go when I see lawyers who are consistently inadequate continuing to screw up cases. Other than the defendants, the prosecutors are the most affected because we have to figure out ways to defend what they have done. (This is a very small number of lawyers in a very small number of cases, but it is occurring.)

I also think that good lawyers sometimes intentionally insert some ineffective assistance to turn a case around. I had a big time Austin lawyer "fall on his sword" for a defendant when the guy did not get probation after an open plea. He said he had misadvised him about the law. Got a new trial. Certainly a reporting agency would put a stop to that.

Finally, the real question is what is the prosecutor's obligation when we see ineffective lawyers? Do we have a legal or moral obligation to report it and to whom or what?

While I complained for years (as appointed counsel for indigents) about the unfairness of the compensation paid for my services, it is also quite evident that offering more money (in some counties now $90 per hour or more) does not attract those who would render effective assistance (they participate for other reasons). But, it certainly does serve as a greater attraction for those who would skimp on their services.

Is it enough if there is a violation of the first prong of Strickland but no prejudice?

In setting standards for competent court appointed counsel, did any jurisdictions include standards for appellate lawyers as well?

In answer to wckirk, Rule 8.03 of the Disciplinary Rules states that "a lawyer having knowedge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority."

Ineffective assistance of counsel would certainly fall under a number of the rules, most notably those requiring zealous representation and those barring accepting work for which a lawyer is not competent to handle. There are others, I'm sure, that just don't come to mind right now.

So, yes, we are under an obligation to report, not as prosecutors, but as members of a self-policing profession. As noted in the Preamble to the Rules, "neglect of these responsibilities compromises the independece of the profession and the public interest which it serves." Not to mention, ill-prepared, poorly qualified defense attorneys make our jobs that much harder many times.

I don't think they did here, but I also don't think they're using the regular wheel(s) for appellate appointments. Still, we are seeing some unfamiliar names on some, ahem, "unorthodox" briefs.

In our county, you are drafted to the appointment list. People are on that list that truly do not want to represent an indigent defendant, or to take their appointed client's two thousand phone calls, most after 5pm, dealing with mundane matters, showing up month after month in court, waiting all day to take a plea for the client, or possibly a hearing, and, in the end, the Judge approves your abundant payment of $300.00 (Welcome to Guadalupe County). Meanwhile, you've spent approximately 10 - 15 hours on the case (which should equate to at least 1,000.00). All griping about pay or length of time in court falls on deaf ears. The prosecutors, at least, get fringe benefits from the County, and the ability to chose if they want to prosecute or not, you are not DRAFTED to prosecute.
Now to hear you propose the notion that if the PROSECUTORS aren't satisfied with how you defend a case, regardless of the fact that they are not privy to the information you receive from your client WHICH IS PRIVILEGED and affects your every move on the case, they might just turn you in. Then you can spend your extra time, that you aren't waiting around court all day, dealing with the grievance committee.
From an ex-prosecutor, SHAME ON YOU. How about the defense attorneys turn the prosecutors in when they aren't being above board. I had a prosecutor in my county lie to the Judge, at a hearing, on the record. Should I turn that in? Or, should we do the job we all are appointed to do, be it prosecution or defense, and the client can complain if he is truly unsatisfied, as has been the case for a long time.
I am truly disappointed with your ideas to be the school yard bullies (ie: not only prosecute defendants, but run off defense attorneys also). I've known a few bad prosecutors in my day also. I always enjoy this forum, and try to read it every day. I am truly suprised to see this from a group of prosecutors that I hold in high esteem.

The purpose of this forum is to encourage the enchange of ideas between prosecutors. Occasionally, others in the criminal justice system add their thoughts. We have had probation officers, defense attorneys, and an angry old man give us their thoughts.

And, almost without exception, those intial outside thoughts begin with name-calling and fingerpointing. And that is followed by prosecutors doing some of their own flame-throwing. And then, we all settle down, apologize to each other, and get back to talking in more civil tones about the real issue being presented.

Why don't we just skip the name-calling and flame-throwing and stick to the issues?

I opened this thread because, as a prosecutor, I find that I spend a large amount of my time teaching prosecutors how to avoid losing their cases to ineffective assistance by defense attorneys. There no doubt is room to discuss the misconduct of prosecutors, and that would make a great issue to discuss, but that was not my choice for a thread.

Having become frustrated by our system of dealing with ineffective assistance of counsel (which is largely designed to give the defendant a new trial and someone else that same ineffective lawyer), I thought I would make some suggestions for change that would spark a discussion and generate new ideas.

As a defense attorney, I am sure that you, too, are frustrated. But how about some constructive suggestions?

By the way, according to the Austin American Statesman, defense attorneys are ineffective because they don't spend all the money they are given. For a look at that leap of logic, see:

http://www.austin360.com/aas/metro/052602/0526indigent.html

Rebecca, John B. effectively responds to your post, but I have a few thoughts too, no flames intended. (1)The amount of compensation will never serve to excuse or justify the level of service rendered. Donation of services may be completely unfair, but the performance standards remain subject to enforcement. (2)Your suggestion that an attorney might have to be ineffective because her client demands it, by calling your every move, is far-fetched. (3) I also don't remember seeing anyone suggesting that a prosecutor "turn in" her opposing counsel because she, the prosecutor, was not "satisfied" with how the attorney defended the case. Ineffective assistance is something quite different. (4)If the disciplinary rules require a lawyer to be a school yard bully, then your complaint is with the rule and not the prosecutor who follows his own obligation to the profession and the public. And yes, you should report the conduct of any prosecutor who has crossed the line.

[This message was edited by Martin Peterson on 05-27-02 at .]

The non-binding Standards for Appellate Conduct could be a starting point for figuring out how to judge effective assistance upon appeal, but I think it is really hard to establish what falls within Evitts. It's a developing area. Plus I recently read a case where the defendant got an out-of-time appeal because his appellate counsel had not challenged the factual sufficiency of the evidence in his client's brief. (I thought the courts were supposed to review sufficiency on their own.) Turns out that was the ground on which he could have won an acquittal (and did on the subsequent appeal). But I'm not sure that attorney should be subject to disciplinary action or even thrown off the appointments list. Since so many appeals are lost for reasons other than the competence of the attorney, and we shouldn't use hindsight any more in this situation than where Strickland applies, and brief writing is so subjective, it would seem to be quite difficult to delineate very much ahead of time concerning what the appointed attorney must do or how he must do it.

Do we need a special board to evaluate or oversee competence? Why can't the prosecutor's concerns be voiced directly to the judges who are compiling and maintaining the rotation lists? Does the statute require more specific standards for the appointment of appellate counsel than have been adopted?

[This message was edited by Martin Peterson on 05-26-02 at .]

Ineffective assistance is one of those areas in which the defense attorney is more likely to be acting negligently rather than intentionally. Consequently, I am more interested in identifying the mistake and making sure the attorney is trained to avoid it the next time.

Prosecutors rightfully play a large role in that training. When a defense attorney forgets to file a motion to elect jury punishment, the prosecutor is the one that notices it and brings it to the attorney's attention before voir dire. Otherwise, we suffer with the new trial.

When the defense attorney fails to seek discovery, the prosecutor is the one that calls the attorney and sets an appointment to notify the defense of the evidence coming at trial. Otherwise, we suffer with the new trial.

When the defense attorney fails to request a jury charge on an obvious lesser-included offense, the prosecutor is the one that puts it in. Otherwise, we suffer with the new trial.

Now, when all of these things happen, the adversarial system itself suffers. Because we end up doing two jobs and speaking for the defendant.

The State Bar, and it's disciplinary system, are currently under sunset review by the Legislature. One of the perceived shortcomings of the current system is that it is solely complaint-driven; no one gets investigated for ineffective assistance, filing frivolous lawsuits, etc., unless someone reports the malfeasance to the Bar, and as this board (and testimony earlier this spring) makes clear, many instances of ineffective assistance never get reported to the Bar's disciplinary authorities.

John & others, should this be the vehicle to change the system to one in which certain reporting is automatic? If so, under what other circumstances must it be done, and by whom? And are there any "hidden mines" for us in doing so? These are some of the same questions you asked earlier, but the discussion seems to have digressed a little, and I'm looking for more concrete suggestions.

(P.S. - For those of you I have not yet met, I will be taking over Rob's old position eff. next week -- I'm just getting an early start here while on my lunch break!)

[This message was edited by Shannon Edmonds on 05-28-02 at .]

What happens when the appointed trial counsel is ineffective, we report that ineffectiveness to the Bar / Judge / or another entity, then the Defendant appeals or files a writ claiming that his counsel was ineffective? Can we ethically, having already presumably reported that counse WAS ineffective, argue on appeal or in response to a writ that counsel was NOT ineffective? Also, how does this mesh with the duty of the prosecutor to seek justice, not conviction? As John's earlier post indicates, the ineffectiveness is usually apparent DURING the plea or trial - so shouldn't we point it out at THAT point, thus eliminating the underlying problem before it becomes a bigger problem? Does the defense attorney have an argument that in failing to identify the ineffective assistance the prosecutor is violating the requirement that he seek justice? Sorry this post has more questions than answers - but it looks like a reporting requirement may put us in a box.

Shannon, I'm an appellate geek, so I say that a finding by a court of appeals that counsel was ineffective or the grant of 11.07 relief by the CCA on grounds of ineffective assistance should automatically be reported. I think the appellate courts would do it, no problem.

I'd also say that any finding by a court of appeals or the CCA that a prosecutor committed prosecutorial misconduct should likewise automatically be reported.

You could try extending the reporting requirement to trial courts, but I suspect there you will see much the same as you do now with the onus on the lawyers: nothing gets reported. Even if the rules were more explicit regarding reporting ineffectiveness, you'd probably see the same thing. Start with the higher courts--they're removed from personal relationships and the fear of "there but for the grace of God go I."