CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

From the initial appearance, the defendant must understand what to expect of defense counsel whether hired, appointed or standby. The defendant who does not take responsibility does so at their own peril. The defendant must evaluate counsel’s performance at every step of the pre-trial and trial process and demand substitute counsel at any time if the attorney’s performance is deficient or prejudicial. The defendant must take responsibility or face the dire consequences of ineffective assistance of counsel.

The defendant must direct counsel to advise, advocate and pursue meritorious legal arguments, investigations, negotiations and plea agreements advantageous to the defendant and not the prosecution. The defendant can and must through legal research and due diligence supplement counsel’s efforts. More often than not defense counsel is cooperating with the government, doesn’t build an adequate record for appeal, doesn’t communicate or advocate for the defendant, and doesn’t investigate inculpatory evidence or pursue any legal arguments or motions. Defendants are often pressured into plea agreements before defense counsel has lifted a finger in his/her defense.

Unfortunately, In practice, competent and effective assistance of counsel is virtually non-existent. Defense counsel should: (1) defend the defendant’s constitutional, substantive, due process rights; (2) raise objections to protect the record for appeal; (3) do legal research and investigations relating to defendant’s case; (4) challenge jurisdiction of the court, if appropriate; (5) challenge the statutory and regulatory authority of the complainant, if appropriate; (6) prepare motions to dismiss.

Defense counsel must be active in every aspect of the proceeding and expected to perform competently and proficiently. Defense counsel is presumed to be advocating for the defendant, not beholding to the prosecution or the government. However, the political reality is court-appointed counsel and federal public defenders receive their paychecks from the government and are loyal to the court. Most defense counsel are most concerned about their paychecks and are indifferent to the outcome for the defendant.

There exists inherent conflicts of interest in the criminal justice system and most tip unfavorably against the defendant. A vast majority of indictments result in convictions not necessarily because every defendant is guilty as charged, but because the vast impersonal bureaucracy is designed to profit attorneys and administer justice efficiently at the lowest cost to the taxpayer. Due to heavy case loads, the assembly line method of administering justice results in a juggernaut of convictions with the least effort possible from all parties involved including the courts, prosecutors and defense counsel.

A defendant must be aware of the conflicts of interests amidst huge disparities in sentencing factors that affect a defendant’s decision to go to trial or to negotiate a plea agreement. A defendant must design a defense strategy along with counsel to minimize the risk of trial, conviction and punishment.

The political reality is that both innocent and guilty defendants are routinely convicted and punished. The criminal justice system appears to have lost interest in protecting the constitutional rights of defendants and of the truth, the whole truth and nothing but the truth so help us God. A defendant with counsel should track and document counsel’s performance throughout the proceedings and if it is deficient the defendant should make a pre-trial claim on the record for ineffective assistance of counsel. This is essential to raise the issue on direct appeal or post-conviction in a section 2255 motion.

A. Sixth Amendment Right to Effective Counsel

The Sixth Amendment provides in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his or her defense. Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55 (1932). Absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he or she was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972); Moran v. Godinez, 57 F.3d 690 (9th Cir. 1994), cert.denied, 516 U.S. 976 (19951, superseded by statute on other grounds as stated in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000).

The right to counsel is so precious it cannot be denied, without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Powell, at 67. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other right he may have.” Penson v. Ohio, 488 U.S. 75, 84, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988).

The Sixth Amendment right to be represented by counsel includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984)(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L.Ed.2d 763, 90 S.Ct. 1441 (1970)); Wainwright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982). Mere physical presence of counsel does not fulfill Sixth Amendment requirements. United States v. Quintero-Barraza, 78 F.3d 1344 (9th Cir. 1995), cert,denied, 519 U.S. 848 (1996). When attorney for criminal defendant sleeps through substantial portion of the trial, such conduct is inherently prejudicial. Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984). The actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice and casts such doubt on the fairness of the trial process that it can never be considered harmless error. Penson, at 304.

The Sixth Amendment right includes the right of those unable to afford to hire counsel to be provided appointed counsel. Brewer v. Williams, 430 U.S. 387, 398, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977). “This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice.” Brewer, at 398. This includes the right to adequate time in which to prepare for trial. United States v. Wadsworth, 830 F.2d 1500, 1510 (9th Cir. 1987).

The defendant is entitled to “the guiding hand of counsel at every step in the proceedings against him.” Powell, at 69. Waiver of counsel is only valid if it is unequivocal, knowing and intelligent. United States v. Allen, 153 F.3d 1037, 1041-42 (9th Cir. 1998), cert.denied, 525 U.S. 1170 (1999).

The Sixth Amendment right to counsel extends to all “critical stages of the prosecution, including appeal.” Menefield v. Borg, 881 F.2d 696, 698 (9th Cir. 1989). The Eighth Circuit has adopted the majority view that a defendant need not demonstrate prejudice when denied the Sixth Amendment right to be represented by his chosen attorney in order to obtain a reversal of his conviction. United States v. Gonzalez-Lopez, No.03-3487 (8th Cir. 2005).

Denial of right to counsel at trial is never harmless error. United States v. Onimex, Inc., 991 F.2d 546, 551 (9th Cir. 1993); Satterwhite v. Texas, 486 U.S. 249, 100 L.Ed.2d 284, 108 S.Ct. 1792 (1988)(citing Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963); Penson v. Ohio, 488 U.S. 75, 88, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988).

The due process clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right; nominal representation on such an appeal does not suffice to render the proceedings constitutionally adequate. Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985). The due process clause of the Fifth Amendment requires that a defendant be accorded the right to be present in person or by counsel at every stage of his trial. Hopt v. People, 110 U.S. 574, 28 L.Ed. 262, 4 S.Ct. 202 (1884).

B. Conflicts of Interest

The Sixth Amendment right includes the right to counsel unhindered by conflicting interests. Holloway v. Arkansas, 435 U.S. 475, 482, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978); United States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995), cert.denied, 519 U.S. 870 (1996). Defendant establishing this ground must show counsel had actual conflict of interest. United States v. Finlay, 55 F.3d 1410 (9th Cir. 1995), cert.denied, 516 U.S. 871 (1995).

Failure to appoint new counsel results in a presumption of prejudice because of trial counsel’s conflict of interest. United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996); United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). To establish a Sixth Amendment violation based on counsel’s alleged conflict of interest, a defendant must show an actual conflict which affected performance not just the possibility of conflict. United States v. Moore, 159 F.3d 1154, 1157-59 (9th Cir. 1998).

If a conflict of interest is only a possibility, the defendant must meet the Strickland standard for performance and prejudice. The defendant need not show prejudice when the breakdown of the attorney-client relationship from irreconcilable differences results in the complete denial of counsel. If the relationship between attorney and client collapses, a refusal to substitute new counsel violates the Sixth Amendment right to effective assistance of counsel. Moore, at 1157-59.

In Cuyler v. Sullivan, 446 U.S. 335, 345-50, 64 L.Ed.2d 333, 100 S.Ct. 1708 (1980) the Supreme Court held that “prejudice is presumed when counsel is burdened by an actual conflict of interest.” Strickland, at 696. To establish a Sixth Amendment violation based on counsel’s alleged conflict of interest, defendant must show that an “actual conflict of interest adversely affected his lawyer’s performance.” Moore, at 1154.

Pre-trial activities, such as plea bargaining, should be examined in determining whether conflict of interest adversely affected lawyer’s performance. United States v. Mett, 65 F.3d 1531 (9th Cir. 1995). In United States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979) the attorney-client relationship was so bad that defendant elected to proceed pro se.

“In representing a criminal defendant, counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest, a duty to advocate the defendant’s cause, a duty to consult with the defendant on important decisions, a duty to keep defendant informed of important developments in the course of the prosecution, and a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland, at 677.

Alleged verbal assault of defendant by appointed counsel was irreconcilable with duty of loyalty and responsibility of providing meaningful assistance. Frazer v. United States, 18 F.3d 778 (9th Cir. 1994).

“To establish Sixth Amendment violation arising from multiple representations of defendants, defendant who raised no objection at trial must demonstrate that actual conflict of interest adversely affected his lawyer’s performance.” United States v. Finlay, 55 F.3d 1410 (9th Cir. 1995). Whether multiple representations in a particular case give rise to a conflict of interest is a mixed question of law and fact. Cuyler, at 342; Strickland, at 700. “In every case of joint representation, if court knows or reasonably should know that particular conflict exists, it must initiate inquiry about that conflict.” United States v. Allen, 831 F.2d 1487, 1488 (9th Cir. 1488).

“Factors to be considered in determining whether irreconcilable conflict between defendant and counsel amounts to total denial of counsel, in violation of Sixth Amendment, are the same as those used to determine if the district court erred in denying a motion to substitute counsel, and these factors are: (1) the extend of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion.” Moore, at 1155.

“Defendant who establishes actual conflict of interest with counsel need only show that some effect on counsel’s handling of particular aspects of trial was likely to prove violation of his Sixth Amendment right to effective assistance of counsel.” Prejudice presumed from conflict of interest created by district court in forcing trial counsel to prove his own ineffectiveness deprived defendant of his Sixth Amendment right to effective assistance of counsel. Del Muro, at 1079.

“To demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, the defendant must establish that a conflict of interest adversely affected counsel’s performance. Defendants who retain their own lawyers are entitled to no less protection under the Sixth Amendment than defendants for whom the state appoints counsel. ‘Actual conflict of interest,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.

The purpose of relieving the defendant of the need to show that defects in his attorney’s assistance had a probable effect upon the outcome of the proceeding, in order to establish Sixth Amendment violation in certain situations, such as when his attorney was actively representing conflicting interests, is not to enforce Canons of Legal Ethics, but to apply needed prophylaxis in situations where the ordinary requirements of Strickland are evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel.” Mickens v. Taylor, 535 U,S. 162,152 L.Ed.2d 291, 122 S.Ct. 1237 (2002).

If a defendant claiming ineffective assistance of counsel based on a conflict of interest shows that a conflict of interest existed and that it adversely affected the counsel’s performance, prejudice will be presumed and the defendant need not demonstrate a reasonable probability that, but for the attorney’s conflict of interest, the trial’s outcome would have been different. Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002), cert.denied, 123 S.Ct. 637 (2002).

When a possible conflict of interest in the defense counsel’s representation has been entirely ignored by trial court, reversal is automatic. United States v. Rogers, 209 F.3d 139 (2nd Cir. 2000).

C. Substitute Counsel

Defendant has the right to substitute counsel or to proceed pro se with hybrid counsel if counsel is determined to be incompetent or ineffective at any time during the proceeding. Defendant may hire substitute counsel or have the court appoint a replacement. If the court denies the defendant substitute counsel after a showing of ineffectiveness or a conflict of interest, the issue could be raised in a section 2255 proceeding and reviewed for abuse of discretion.

If the relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates the defendant’s Sixth Amendment right to effective assistance of counsel. Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970); United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998).

The Ninth Circuit has identified specific factors the court must consider in making discretionary decisions on the refusal to substitute counsel. United States v. Rutgard, 116 F.3d 1270, 1278 (9th Cir. 1997); United States v. George, 85 F.3d 1433, 1438 (9th Cir. 1.996); United States v. D’Amore, 56 F.3d 1202 (9th Cir. 1995); Bland v. California Dep’t of Corrections, 20 F.3d 1469 (9th Cir. 1994) ; United States v. Fagan, 996 F.2d 1009 (9th Cir. 1993); United States v. Ono, 997 F.2d 651 (9th Cir. 1993).

In reviewing a trial court decision whether to grant a motion for new counsel, the Ninth Circuit will consider the adequacy of the court’s inquiry into the defendant’s complaint about present counsel, the extent of the conflict, the timeliness and extent of resulting inconvenience or delay. The appellate court may reverse for not holding an evidentiary hearing on the conflict and exacerbating the conflict by having counsel contradict the defendant’s statements in open court. United States v. Gonzalez, 113 F.3d 1026, 1028-29 (9th Cir. 1997).

D. Ninth Circuit Review

In reviewing a trial court decision whether to grant a motion for new counsel, the Ninth Circuit will consider the adequacy of the district court’s inquiry into the defendant’s complaint about present counsel, the extent of the conflict, the timeliness and extent of resulting inconvenience or delay. The appellate court may reverse for not holding an evidentiary hearing on the conflict and exacerbating the conflict by having counsel contradict the defendant’s statements in open court. United States v. Gonzalez, 113 F.3d 1026, 1028-29 (9th Cir. 1997).

The Ninth Circuit held the defendant had a right to new counsel at an evidentiary hearing on a motion for new trial, where the basis for the motion was ineffectiveness of trial counsel. Appellate review for denying motion for new counsel is abuse of discretion standard. Appellate review for ineffective assistance of counsel is de novo.

Claim of ineffective assistance of counsel is inappropriate on direct appeal unless: (1) record on appeal is sufficiently developed to permit review and determination of issue or; (2) representation is so inadequate that it obviously denies defendant his Sixth Amendment right to counsel. United States v. Adelzo-Gonzalez, 268 F.3d 772, 776 n.1 (9th Cir, 2001).

The Ninth Circuit reviews claim solely by determining whether some reasonable attorney would have acted in the circumstances, as defense counsel acted at trial. Coleman v. Calderon, 150 F.3d 1105 (9th Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998); cert.denied, 525 U.S. 1058 (1998). In reviewing whether counsel was ineffective, the Ninth Circuit is highly deferential and indulges a strong presumption counsel’s conduct fell within wide range of reasonable professional assistance. Smith v. Stewart, 140 F.3d 1263, 1268-69 (9th Cir. 1998) ; cert.denied. 525 U.S. 929 (1998).

Actual or constructive denial of the assistance of counsel altogether is reversible without a showing of prejudice. United States v. Miquel, 111 F.3d 666 (9th Cir. 1997).

A general waiver of appeal does not waive the right to bring a section 2255 motion, unless the plea agreement does so expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000), cert.denied, 534 U.S. 921 (2001). A defendant waives the right to argue ineffective assistance of counsel at sentencing on direct appeal when he waives the right to appeal the sentence. Nunez, at 959.

The Supreme Court has divided federal constitutional errors into two categories: “structural” error and “trial” error.

A structural error “undermines the structural integrity of the criminal tribunal itself.” Vasquez v. Hillery, 474 U.S. 254, 263-6488 L.Ed.2d 598, 106 S.Ct. 617 (1986); United States v. Annigoni, 68 F.3d 279 (9th Cir. 1995).

Structural errors are never considered harmless errors because they are presumed to prejudice the defendant. Cuyler V. Sullivan, 446 U.S. 335, 349, 64 L.Ed.2d 333 100 S.Ct. 1708 (1980)(defendant is not required to establish prejudice where unconstitutional multiple representation occurs); Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995).
Structural errors require automatic reversal “without regard to the evidence in the particular case.” Rose v. Clark, 478 U.S. 570, 577, 92 L.Ed.2d 460, 106 S.Ct. 3101 (1986).

The Supreme Court and Ninth Circuit have reviewed case law on types of error considered structural. Rice v. Wood, 77 F.3d 1138, 1141 (9th Cir. 1996)(en banc), cert.denied, 519 U.S. 873 (1996).

Examples of structural errors are:

• Denial of right of self-representation
• Denial of qualified right to counsel of defendant’s own choosing
• Failure to appoint new counsel to represent defendant at evidentiary hearing on new trial where ground is ineffectiveness of counsel
• Denial of right to counsel either throughout entire proceeding or critical stage
• Denial of right to effective assistance of counsel as the result of multiple representation in which an actual conflict of interest affects the adequacy of representation

E. Counsel Rules of Professional Conduct and Disciplinary Complaints

Counsel’s responsibilities in providing effective assistance include competence, diligence and adequate communications to the defendant. Counsel may advise, argue meritorious claims and contentions of behalf of the defendant and must balance the defendant’s interest with that of the court and the public. “As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.” Hawai’i Rules of Professional Conduct, Adopted and Promulgated by the Supreme Court of the State of Hawai’i (Effective January 1, 1994); Preamble: A Lawyer’s Responsibilities [2].

“In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communications with a client concerning the representation.” Id, at [3]. “A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.” Id, at [7].

“However, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living.” Id, at [8].

Many of these conflicts of interest are institutionalized and because the legal profession is largely self-governing, autonomous and not regulated by the government except by the procedures established by the court. The legal profession has a duty “to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” Id, at [Il].

F. Questionnaire to Counsel

1. As counsel to the defendant, will you at all times abide by the Hawai’i Rules of Professional Conduct?
2. As counsel for the defendant, will you provide effective assistance of counsel pursuant to Strickland and the American Bar Association Standard for Criminal Justice?
3. As counsel to the defendant, will you aggressively defend the defendant’s constitutional rights including the Fourth, Fifth, Sixth, Seventh and Fourteenth Amendments?
4. As counsel for the defendant, will you provide “the guiding hand of counsel at every step in the proceedings” and all “critical stages of the prosecution, including appeal?”
5. As counsel for the defendant, will you advocate and negotiate on behalf of the defendant unhindered by any conflict of interest including institutionalized conflicts of interest such as self-interested concerns of the bar?
6. As counsel for the defendant, will you uphold a high standard of ethics in balancing your responsibilities to the defendant, the legal system and your own self-interest in earning a satisfactory living?
7. As counsel for the defendant, will you advocate zealously on behalf of the defendant’s position under the rules of the adversary system?
8. As counsel for the defendant, will you advise the defendant as to his legal, constitutional and statutory rights, argue meritorious claims and contentions on behalf of the defendant, negotiate advantageous plea agreements and/or advocate at trial the defendant’s theory of the case?
9. As counsel for the defendant, will you use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of the defendant?
10. As counsel for the defendant, will you effectively investigate the defendant’s case, move for suppression of illegally obtained evidence, discover exculpatory evidence in the possession of the government and find inculpatory or mitigating evidence favorable to the defendant’s case?
11. As counsel for the defendant, will you subject the prosecution’s case to meaningful adversarial testing?
12. As counsel for the defendant, will you be competent, prompt, diligent and maintain adequate communications with the defendant throughout this case from beginning until after sentencing or direct appeal?
13. As counsel for the defendant, will you voluntarily remove yourself as counsel for the defendant, motion for substitute counsel and be willing to subject yourself to an inquiry sufficient to make a record for appeal, if the defendant deems your performance inadequate and unreasonable?
14. If the defendant is pro se, will you as standby counsel assist the defendant effectively in the same manner as if you were appointed or hired counsel directing the case?

G. Defendant Bound By Attorney Acts Absent Demonstration of Ineffectiveness

“Pertaining to the conduct of a criminal trial, the defendant is deemed bound by the acts of the defendant’s lawyer-agent…” New York V. Hill, 528 U.S. 110, 145 L.Ed.2d 560, 562, 120 S.Ct. 659 (2000).

“Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has-and must have-full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417-18, 98 L.Ed.2d 798, 108 S.Ct. 646 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.'” Link V. Wabash R. Co., 370 U.S. 626, 634, 8 L.Ed. 2d 734, 82 S.Ct. 1386 (1962)(quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1880).

Thus, decisions by counsel are generally given effect as to what arguments to pursue. See, Jones v. Barnes, 463 U.S. 745, 751, 77 L.Ed.2d 987, 103 S.Ct. 3308 (1983), what evidentiary objections to raise, See, Henry v. Mississippi, 379 U.S. 443, 451, 13 L.Ed.2d 408, 85 S.Ct. 564 (1965), and what agreements to conclude regarding the admission of evidence.

Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last. Hill, at 566-67.

A federal district court has the right to insist that lawyers who are retained as criminal defense counsel agree to represent the client throughout the entire proceeding. Requiring criminal defense lawyers to certify that they have been “fully retained” before appearing in a criminal case is not at odds with the section of the Criminal Justice Act that allows mid-case appointment of counsel at public expense for defendants who cannot afford to continue paying their retained counsel. United States v. Parker, 439F.3d 81 (2nd Cir. 2006).