If a defense attorney consistently files the same brief for different clients, should I do something about it? If so... suggestions?
Hmm... perhaps be thankful you don't have to reinvent the wheel for your response....
This is an issue I've struggled with, as a particular attorney I've had to deal with continued raising the exact same issue with the exact same briefing despite having received 20-something opinions telling him he was wrong.
Unfortunately, I don't think that there's much we can do. The courts -- both trial and appellate -- hold the power here. The trial judges can stop appointing attorneys who do this; the appellate judges can send a brief back for rebriefing, rip him in the opinion, or even refer things to the disciplinary board. But us? The only thing I've figured out to do is to put a footnote in every brief, pointing out that the exact issue has been raised by this attorney and rejected repeatedly. It puts the courts on notice of what's going on. After that, it's up to them.
[This message was edited by AndreaW on 08-11-08 at .]
Well, I love the fact that my brief is usually written before I even have to respond but an appellate ineffective assistance of counsel claim on habeas would be difficult to defeat...
Well, for an applicant to prevail via habeas on a claim that he or she received ineffective assistance on appeal, the applicant would first have to show there was a meritorious point of error not raised by appellate counsel. That means the applicant has to show both that the trial court erred (at trial) and that defense counsel erred (on appeal).
That's usually an extremely high hurdle-- so high a hurdle that I never saw a habeas applicant clear it outside of the failure to file a timely notice of appeal arena.
But never fear, Aggregation. Your caseload may ease up some once you get your new judge next year.
I suppose those defendants/Appellants are simply out of luck if the "wheel of fate" designates certain attorneys.
As far as caseloads go, I guess we will have to wait and see...
In one of the last briefs I wrote, I dropped a footnote and cited to the last 4 opinions where the lawyer made the same argument.
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