Mitigation: Ineffective Assistance of Counsel

[The World According]

Beyond a reasonable doubt, does not mean beyond ANY doubt!!

Why did Mr. Baez think that if ONE juror believed that the body was placed in the woods , that would facilitate Casey's acquittal?
I wonder if Cheney ever talks to Casey alone about the need to change game plans?

 

[Anais]

ITA. I swear, the attitude of some people here is that if a body is left to rot out in the elements so long that no proof is possible, then the person who committed the crime should get away with it. That is just ridiculous. People can draw a reasonable conclusion from the mountain of evidence in this case without a video of Casey doing the deed or direct evidence like fingerprints on the duct tape. Sheesh.

And to get back on topic, yeah, she's going to try to appeal for ineffective counsel, and it will be the quickest turn down of an appeal in history. She has no chance.

ITA. With her current defense team it will not fly. And to add to matters since they've had HHJS recuse himself they now have HHJP who has not had any of his cases turned over by appeal. His trias and convictions are rock solid!

 

[Anais]

Beyond a reasonable doubt, does not mean beyond ANY doubt!!

Why did Mr. Baez think that if ONE juror believed that the body was placed in the woods , that would facilitate Casey's acquittal?
I wonder if Cheney ever talks to Casey alone about the need to change game plans?

You know TWG this seems to get overlooked more often than not by many!

 

[sleutherontheside]

Bump for reference after discussion regarding hearing 7-02-2010.

 

[nums24]

I have not read this whole thread yet, but I found this very interesting writing about Ineffective Assistance of Counsel and wanted to share with everyone:

http://www.truthinjustice.org/Lawyering[1].doc

 

[Melanie]

Is it just me, or did JB look like a fool in court today? I just can't get past this he actually passed the BAR. My take is this is a set up for ineffective counsel down the road. Not that it would help much - but I do agree they are working on the sentencing phase and not paying much mind to the actual trial. More along the lines of how long they can keep CA in that cushy cell with her candy bars.

Just my opinion of course.

Mel

 

[wonders]

Ineffective assistance of counsel has been a concern to me for such a long time. I had felt that JB was doing it on purpose back when there was Caylee cash. I still worry about it even after reading the emergency hearing thread today. My concern is that KC is so isolated that she only sees her lawyers or the mitigation specialist once in a while and maybe correction officers who may enjoy tormenting her with things we know here as the public. KWIM? Could she appeal on that?
I so much want her to have a fair trial so that she has no grounds to appeal successfully. I would hate it if she were to be released because of her bumbling stammering lawyer.
I know that its not a shock to a lot of people for his actions to today regarding the 5000 pages. But I was. First that he would even bring it up today. Second why he would say "no relevance" or whatever he called it through out his ramblings. If there is no relevance then why worry about? I do think he is scared he will get into trouble for passing contraband. I personally think he should get into trouble.
When Judge Perry lead him by the hand to filing a motion for sanctions a law suit against the jail and pointing him in the direction of the federal court I think I could almost see JB's eye expression change to a panic. He has spent all of the Caylee cash so how would he afford a suit and if he did file a suit would someone turn around and file one on him for jail misconduct in passing contraband to KC?

Thank you for letting me express my concerns here and bless you if you are able to calm them.

 

[ThinkTank]

Ineffective assistance of counsel has been a concern to me for such a long time. I had felt that JB was doing it on purpose back when there was Caylee cash. I still worry about it even after reading the emergency hearing thread today. My concern is that KC is so isolated that she only sees her lawyers or the mitigation specialist once in a while and maybe correction officers who may enjoy tormenting her with things we know here as the public. KWIM? Could she appeal on that?
I so much want her to have a fair trial so that she has no grounds to appeal successfully. I would hate it if she were to be released because of her bumbling stammering lawyer.
I know that its not a shock to a lot of people for his actions to today regarding the 5000 pages. But I was. First that he would even bring it up today. Second why he would say "no relevance" or whatever he called it through out his ramblings. If there is no relevance then why worry about? I do think he is scared he will get into trouble for passing contraband. I personally think he should get into trouble.
When Judge Perry lead him by the hand to filing a motion for sanctions a law suit against the jail and pointing him in the direction of the federal court I think I could almost see JB's eye expression change to a panic. He has spent all of the Caylee cash so how would he afford a suit and if he did file a suit would someone turn around and file one on him for jail misconduct in passing contraband to KC?

Thank you for letting me express my concerns here and bless you if you are able to calm them.

I agree, and share your concerns.
In my lay opinion, I can definitely envision grounds for appeal by the Inmate if/when she is convicted.
Necessitating a RE-trial. I would think a delay now, before trial starts would be better than a RE-do.
If this "problem" is not addressed now, and resolved - it cannot be overlooked.
The Inmate, with the support of her parents, can argue that it was public knowledge that the attorney representing the Inmate was repeatedly committing a third degree felony, and nothing was done about it. She can say that she was not adequately represented by this particular attorney. She can argue that she relied upon him and his knowledge of the law.
I foresee all kinds of landmines resulting from this issue, if left unresolved.

If the rules in the Inmate Handbook do not really matter, pertaining to contraband, why does the Handbook say it is a third degree felony, punishable by $ 5,000 or 5 years in prison? Which rules do they "really" mean to enforce?

The Jail rule and the Florida law do not say that it is a third degree felony, ONLY if the content of the letters introduced as contraband was a "security risk". The law is that NO contraband, written communication of any kind is allowed (and for good reason).

 

[ThinkTank]

IMO JB is the worst example of courtroom decorum with all of his laughing, smirking, face-making, rolling eyes during a serious Hearing regarding the murder of a child. He shows no respect for the gravity of the situation at any Hearing. His behavior is UNprofessional and encourages his client to behave in the same manner. The Inmate never fails to find something to make her smile and laugh at the Hearings.

At the last "Emergency" Hearing on July 2, 2010, both the attorney, JB, and his client, the Inmate, begin laughing and smirking and the Inmate is stifling a bust-out laugh, when Prosecutor LDB says the OCSO wants to video tape the inspection of the evidence, and the Judge asks "for what reason?", then Ms. Burdick replies - to preserve the integrity of the evidence for trial.

While the attorney and Inmate show no respect for the seriousness of the issue, the Judge agreed and will allow the inspection to be video recorded.

While the attorney was at the podium speaking to the Judge, the Inmate was having FUN writing notes and smiling and laughing with JB's law clerk. The Inmate takes her cue from her attorney and makes no attempt to show respect for the official proceeding, regarding the DEATH of her daughter.

http://www.wftv.com/video/24124701/index.html
(20:19 min on video) JB is laughing/smirking and Inmate is stifling an audible laugh

http://www.wftv.com/video/24124701/index.html
(20:19 min on video) JB is laughing/smirking and Inmate is stifling an audible laugh

http://www.wftv.com/video/24124701/index.html
(8:07 min on video) Inmate is writing notes and smiling/laughing with JB law clerk

 

[CentralFLMama]

Consider this: If you are charged you are guaranteed a trial, but you are not guaranteed an appeal. If you get a sentence of execution the State will prepare an appeal for you, but it may be summarily dismissed by the appeals court.

To intentionally "throw" a trial would be horribly risky and would destroy the reputation of the attorney - and if it's even happened once in the history of the USA I'm unaware of it.

THANK YOU. The notion that JB or KC would take this chance is, in my mind, absurd. Not that either of them are the sharpest knives in the drawer. I do think JB is incompetent, but I don't know if either of them realize that.

 

[Gma Kat]

Based upon the article at the link below.......the argument regarding ineffective assistance of counsel could actually be part of an AL plan from the beginning. Here is an interesting snippet....

http://www.lawschool.cornell.edu/research/JLPP/upload/CJP202-2.pdf


Although mitigation specialists utilize their prior
professional training when they work on capital trial teams, mitigation is
its own profession and is not a subspecialty of any one discipline.
One could view the increasing number of appointments and training
of mitigation specialists on capital defense teams as evidence of an improvement in safeguarding the integrity of a capital defendant’s constitutional right to a fair trial by ensuring effective assistance of counsel.7 At the same time, the rise of capital mitigation specialists has not occurred
without the potential to introduce social costs into the capital trial system.
These costs include the tension an interdisciplinary capital team
experiences when its legal obligations and directives conflict with the
non-legal professional training of some of its team members. Such internal
tensions can in turn impact the effectiveness of the capital defense,
especially if conflicting norms result in a mitigation specialist disagreeing
with the attorney’s directives or compromising client confidentiality
during the mitigation investigation. Moreover, competing ethical norms
and world views may also impact the defendant’s family or society at
large, such as when a social-worker-trained mitigation specialist struggles
against what she believes to be mandatory reporting requirements
for child abuse—especially when mandatory reporting would detrimentally
affect the defense at the sentencing phase of the capital trial.

One of the first things that come to mind.......AL pushing for family visits from day one, while JB had not and seemed to be isolating KC. Does this offer support for a mitigation argument?
Another.......Terry L. stepping down due to a disagreement on how best to handle the issue of mental health coupled with JB not ordering an ind psych evaluation.
My suspicious mind says, this was all in the big plan from day one.........but that's just me.

Please read the rest at the link. I should mention, that the author.....is an associate of AL. I ask that you please read or at least skim the article before discussion. It will make for much more valuable discussion.

Your point is very valid and ITA.
Here is why I agree:

A million years ago while working for a death penalty criminal defense attorney.....it was not unheard of to throw a monkey wrench into a case that was "unwinable" by deliberatelty doing something that would allow an appeal based on inaffective counsel. Appellate attorneys are consulted from the beginning of a defense case, not at the end, as most laypersons assume. Setting up a case for appeal is as important as the case you present to the jury. There are atty's who would never do something like that as it reflects poorly on the attorney to most observers; however, a client pays you to get them off, by any means, and for the right price, a criminal defense atty, a dp criminal defense atty, will do surprising things and use bizarre tactics to set the case up for the inaffective counsel issue. I think AL's perception of the case was astute and it would not surprise me to see an appeal based on IAOC.

 

[countzero]

Your point is very valid and ITA.
Here is why I agree:

A million years ago while working for a death penalty criminal defense attorney.....it was not unheard of to throw a monkey wrench into a case that was "unwinable" by deliberatelty doing something that would allow an appeal based on inaffective counsel. Appellate attorneys are consulted from the beginning of a defense case, not at the end, as most laypersons assume. Setting up a case for appeal is as important as the case you present to the jury. There are atty's who would never do something like that as it reflects poorly on the attorney to most observers; however, a client pays you to get them off, by any means, and for the right price, a criminal defense atty, a dp criminal defense atty, will do surprising things and use bizarre tactics to set the case up for the inaffective counsel issue. I think AL's perception of the case was astute and it would not surprise me to see an appeal based on IAOC.

You are so right. We saw this happen with the DC sniper case. I believe at least two attorneys quit on him, he decided to represent himself and was found guilty. In the penalty phase he tried the abusive childhood routine, lost that, and was sentenced to death. Claimed he didn't want to appeal, then he did. Lost that too. Finally, on a calm and cold evening last year, seven years after he murdered at least 13 people in the DC metro area and many more across the country he got his way, and a lethal ejection may have ended a final and painful saga for his victims.

 

[Reagan]

Indeed KC's counsel is ineffective (amongst other things), and I've always said I'd rather be defended by a group of monkey's...but I think come appeal time KC wont have a leg to stand on if she tries to claim ineffective counsel.

Judge Strickland has asked her at least twice if she was happy with her representation. She replied yes. Also, correct me if I'm wrong someone, but I recall Judge Perry asking her the same thing.

Both judges made it mandatory for KC to show up at each hearing so she can't claim she was in the dark about her attys apparent incompetence.

Regardless of who ends up jumping ship (I think LKB is next), KC still has the luxury of private attorneys and costly out-of-state experts that you and I would never have the advantage of retaining.

All these things, plus the fact that KC is required to have a DP atty first chair and not Jose "err, um, uh" Baez, I am confident she will never get an appeal based on Ineffective counsel.

ETA: I loved Judge Strickland, but it is a huge sigh of relief to have Judge Perry now. The defense isn't going to pull the wool over that mans eyes. There's no way KC will be able to appeal her inevitable conviction.

 

[faefrost]

I could be wrong on this, but doesn't an ineffective council appeal require more than simply "My Lawyer was a Bobo"? I mean the requirement is not simply that the attorney is clueless or incompetent, but that the incompetence has a direct and observable impact on the outcome of the trial, and that a reasonable person could conclude that different council would have had an extremely high probability of a different verdict. In other words as an example, the ineffective lawyer failed to do proper due diligence and missed key pieces of exonerating evidence, that are then readily apparent on review. So if there was some clear piece of evidence buried in the stacks of documents dumps that in some way proves that KC could not have done it, and Baez missed it or failed to bring it up in court, then yes there might be a case. If Baez failed to comunicate with his client at all, never meeting with her, then yes there is a chance. if Baez never filed any motions or took appropriate steps to move her case forward or defend her, than yes maybe.

But

- The evidence is public from the word go because of the Sunshine laws. We see it all and deeply analyze it here. Anyone see anything glaringly exculpatory in there? Will anyone here be shocked or surprised when she is convicted? Would a different lawyer be able to interpret or use that evidence in such a manner as to insure a high probability of acquittal? if no then any IAC appeals are dead as soon as they look at them.

- Baez has certainly communicated with his client. We have hours of news footage of her going to his office for days at a time. Meeting with his client in jail at stressful points. Extensive jail logs of visits. Far more than any of us would expect or hope for from our lawyer should we ever face serious criminal charges.

- While Baez files tons of poorly referenced motions that we all get much amusement from, he is in fact filing motions and taking actions. Having a bad legal strategy is not an appeal able issue. Not winning the case is not the root reason for an appeal. He is creating a clear paper trail in the trial record of a steady stream of activity in support of his client. While some of his motions are laughable, there volume and presense is a sign that he is doing his job as required. Whether or not he is very good at his job is not something that the appeals court really cares about. Only that he is doing it. Stupidity is not appealable. Negligence is.

Now there is one little gotcha I can see on the horizon, given KC's history and her propensity to throw anyone under the bus in her own defense. I would not be surprised to see a claim slip out from KC, of a sexual relationship with JB, during that period when she was on bail and at his office every day. It's just too easy to pull off, and we know she already pulled this "sexual abuse" trigger on both her brother and her father. How that would play out would be anybodies guess at this point. (and please note I am NOT accusing JB of an inapropriate sexual relationship with his client. I am merely pointing out that his lying sociopath of a client has already pulled that charge on the men closest to her in her life, for her own purposes. So he should be expecting it at some point.) Regardless even if there was some charge of such a relationship or proof of it, they would still have to show that it had a gross impact on the trial outcome, or that a different outcome would have been likely given the evidence.

So in a word. She will file an IAC appeal, it will get a review or a hearing, and I think it will be immediately shot down.

 

[essies]

IMO JB is the worst example of courtroom decorum with all of his laughing, smirking, face-making, rolling eyes during a serious Hearing regarding the murder of a child. He shows no respect for the gravity of the situation at any Hearing. His behavior is UNprofessional and encourages his client to behave in the same manner. The Inmate never fails to find something to make her smile and laugh at the Hearings.

At the last "Emergency" Hearing on July 2, 2010, both the attorney, JB, and his client, the Inmate, begin laughing and smirking and the Inmate is stifling a bust-out laugh, when Prosecutor LDB says the OCSO wants to video tape the inspection of the evidence, and the Judge asks "for what reason?", then Ms. Burdick replies - to preserve the integrity of the evidence for trial.

While the attorney and Inmate show no respect for the seriousness of the issue, the Judge agreed and will allow the inspection to be video recorded.

While the attorney was at the podium speaking to the Judge, the Inmate was having FUN writing notes and smiling and laughing with JB's law clerk. The Inmate takes her cue from her attorney and makes no attempt to show respect for the official proceeding, regarding the DEATH of her daughter.

http://www.wftv.com/video/24124701/index.html
(20:19 min on video) JB is laughing/smirking and Inmate is stifling an audible laugh

http://www.wftv.com/video/24124701/index.html
(20:19 min on video) JB is laughing/smirking and Inmate is stifling an audible laugh

http://www.wftv.com/video/24124701/index.html
(8:07 min on video) Inmate is writing notes and smiling/laughing with JB law clerk

ITA with your obsevations of JB and ICA and I'm sure Judge Perry is aware of them also! I wish we could have seen ICA's face when Judge Perry was stating that the state was seeking the ultimate punishment by lethal injection! I hope she was not busy passing notes to JB's law clerk!!:furious:

 

[Chiquita71]

Hello WS

This is my first rodeo, so threads like this one are a huge learning experience. For my own information I decided to look up "ineffective assistance of counsel" to see what I would see. This was a Google "Education" search. If it violates TOS, mods please delete. TIA
BBM, UBM, IBM.

http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=80246

Since Powell v. Alabama, it has been accepted that a defendant has the right to the assistance of counsel whose performance does not fall below a minimum level of effectiveness; however, the courts have been struggling to give meaning to the term 'effectiveness of counsel.'

The 'farce and mockery' standard, which originated in Diggs v. Welch, was adopted in most of the States and Federal circuits, although many courts adopted less restrictive standards. The U.S. Supreme Court has yet to provide a standard by which effectiveness of defense counsel can be evaluated under the sixth and fourteenth amendments. The lower courts have used McMann v. Richardson as authority for the development of standards more liberal than 'farce and mockery.' Twenty-nine of the State courts have rejected or modified the 'farce and mockery' test, and five States are currently reevaluating this test. Although attitudes are changing, many courts have held that a different standard applies to retained counsel than to appointed counsel, with the defendant being ineligible for relief when retained counsel is used, since there has been no 'state action' depriving the defendant of due process of law.

Generally, trial counsel is presumed to be effective unless the defendant shows the contrary under whatever standard applies in the relevant jurisdiction; however, the burden of proving prejudice differs among the many jurisdictions. Examples of ineffective assistance of counsel from court decisions are provided in the areas of pretrial, guilty pleas, inadequate time to prepare, trial tactics, and post trial. The relief that may be granted when counsel is deemed ineffective is briefly discussed. Twelve secondary sources are listed.
(end)

If I read the underlined correct, would it matter then JB being retained counsel as opposed to appointed? TIA.

...js...

 

[faefrost]

Hello WS

This is my first rodeo, so threads like this one are a huge learning experience. For my own information I decided to look up "ineffective assistance of counsel" to see what I would see. This was a Google "Education" search. If it violates TOS, mods please delete. TIA
BBM, UBM, IBM.

http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=80246

Since Powell v. Alabama, it has been accepted that a defendant has the right to the assistance of counsel whose performance does not fall below a minimum level of effectiveness; however, the courts have been struggling to give meaning to the term 'effectiveness of counsel.'

The 'farce and mockery' standard, which originated in Diggs v. Welch, was adopted in most of the States and Federal circuits, although many courts adopted less restrictive standards. The U.S. Supreme Court has yet to provide a standard by which effectiveness of defense counsel can be evaluated under the sixth and fourteenth amendments. The lower courts have used McMann v. Richardson as authority for the development of standards more liberal than 'farce and mockery.' Twenty-nine of the State courts have rejected or modified the 'farce and mockery' test, and five States are currently reevaluating this test. Although attitudes are changing, many courts have held that a different standard applies to retained counsel than to appointed counsel, with the defendant being ineligible for relief when retained counsel is used, since there has been no 'state action' depriving the defendant of due process of law.

Generally, trial counsel is presumed to be effective unless the defendant shows the contrary under whatever standard applies in the relevant jurisdiction; however, the burden of proving prejudice differs among the many jurisdictions. Examples of ineffective assistance of counsel from court decisions are provided in the areas of pretrial, guilty pleas, inadequate time to prepare, trial tactics, and post trial. The relief that may be granted when counsel is deemed ineffective is briefly discussed. Twelve secondary sources are listed.
(end)

If I read the underlined correct, would it matter then JB being retained counsel as opposed to appointed? TIA.

...js...

It matters hugely! That is the specific reason why HHJS insisted that KC be at every hearing and HHJP has pretty much continued that policy. Retained counsel may be fired at any time by the defendant. The defendant is free to evaluate their performance and make a reasonable decision concerning their employ. This differs from appointed counsel such as public defenders. Choosing to willfully hire a stupid lawyer is not a real strong position for appeal of conviction.

 

[gitana1]

Is it just me, or did JB look like a fool in court today? I just can't get past this he actually passed the BAR. My take is this is a set up for ineffective counsel down the road. Not that it would help much - but I do agree they are working on the sentencing phase and not paying much mind to the actual trial. More along the lines of how long they can keep CA in that cushy cell with her candy bars.

Just my opinion of course.

Mel

Took him 8 years to pass.

 

[celticthyme]

It matters hugely! That is the specific reason why HHJS insisted that KC be at every hearing and HHJP has pretty much continued that policy. Retained counsel may be fired at any time by the defendant. The defendant is free to evaluate their performance and make a reasonable decision concerning their employ. This differs from appointed counsel such as public defenders. Choosing to willfully hire a stupid lawyer is not a real strong position for appeal of conviction.

yup!

However she really hooked up with JB, she's definitely getting what she's paying for. . . in other words zilch. I have to wonder if she really understands just how out of his depth he is?? At this stage of the game to still be whining about a "nameles" witness, he should be getting what he can from the witnessed he has. Well therein lies the problem . . What witnesses??? See where this is going Casey? If even the legal folks on your team know that this is hopeless, and it's questionable who might wind up being "character" witnesses, should you need them,besides her parents, but then there's those damn letters . .
...
This runaway train is bolting down the track away from the station

 

[gitana1]

Is it just me, or did JB look like a fool in court today? I just can't get past this he actually passed the BAR. My take is this is a set up for ineffective counsel down the road. Not that it would help much - but I do agree they are working on the sentencing phase and not paying much mind to the actual trial. More along the lines of how long they can keep CA in that cushy cell with her candy bars.

Just my opinion of course.

Mel

Ineffective assistance of counsel has been a concern to me for such a long time. I had felt that JB was doing it on purpose back when there was Caylee cash. I still worry about it even after reading the emergency hearing thread today. My concern is that KC is so isolated that she only sees her lawyers or the mitigation specialist once in a while and maybe correction officers who may enjoy tormenting her with things we know here as the public. KWIM? Could she appeal on that?
I so much want her to have a fair trial so that she has no grounds to appeal successfully. I would hate it if she were to be released because of her bumbling stammering lawyer.
I know that its not a shock to a lot of people for his actions to today regarding the 5000 pages. But I was. First that he would even bring it up today. Second why he would say "no relevance" or whatever he called it through out his ramblings. If there is no relevance then why worry about? I do think he is scared he will get into trouble for passing contraband. I personally think he should get into trouble.
When Judge Perry lead him by the hand to filing a motion for sanctions a law suit against the jail and pointing him in the direction of the federal court I think I could almost see JB's eye expression change to a panic. He has spent all of the Caylee cash so how would he afford a suit and if he did file a suit would someone turn around and file one on him for jail misconduct in passing contraband to KC?

Thank you for letting me express my concerns here and bless you if you are able to calm them.

Listen guys, no lawyer wants a finding of "ineffective assistance of counsel" on his or her record. When that happens, you are automatically reported to the bar and it is also public record that seriously hurts your reputation. JB has not been a lawyer long. He certainly wants to minimize how many times that happens to him.
The bottom line with JB is that he is very arrogant and very cocky and fancies himself much, much brighter than he is. That's a toxic combination.
But so far I have not seen anything (as an attorney myself - not criminal) that I think would lead to a successful appeal based on ineffective assistance. He may be bumbling but he can likely give valid reasons for all his legal tactics and the decisions he has made. And while I don't agree with his tactics or decisions, I haven't seen any motions or other courtroom procedures on his part that really screamed out to me: "Lordy, he is totally blowing it" and his client has a say. She has plenty of people around her who can advise her other than JB, like CM and earlier, AL, as well as her family. If she chooses not to listen that is her choice. She is there every time a motion is made and denied. She knows what's going on and how JB argues. He is a buffoon and I sometimes think she'd be better off with public counsel, but it's casey's choice to make. After all, she has no intellectual disability to impair her ability to assist in her own defense.