How bad does your lawyer need to be for your trial to not be fair? I am watching the Kyle Rittenhouse trial, and his lawyer just seems horrible. He doesn't object to anything. For instance, he didn't object once when the police officer who downloaded the videos was testifying as to their content. How did he know anything about them? Shouldn't those questions have been directed to their creators? This officer wasn't there, he isn't a video expert, he has no more knowledge than anyone else in the courtroom. He didn't object to any of the videos having inflammatory titles or superchats even though they had nothing to do with his client. With this in mind, how bad does your lawyer need to be for your conviction to be overturned based on not actually having counsel?
The grounds for setting aside a conviction because you have a bad lawyer is called &quot;ineffective assistance of counsel&quot;. This can (usually) only be raised when your direct appeals have been exhausted in a collateral attack on a conviction which was historically called a habeas corpus petition, although some state systems give it a different name. In a nutshell, the lawyer's work must be very, very bad to the point where a responsible criminal defense lawyer would feel an urge to throw up upon hearing about it. The legal standard in making his ineffective assistance claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984): One must show that one's attorney's performance was deficient and (2) that deficient performance caused actual prejudice to the defendant’s defense. Id., 466 U.S. at 687. To prove deficient performance under Strickland, a state prisoner must “demonstrate that counsel’s representation fell below an objective standard of reasonableness” under the then “prevailing professional norms.” Id., 466 U.S. at 688. The Supreme Court has recognized that the American Bar Association Standards for Criminal Justice is the barometer for measuring “what is reasonable.” See: Rompilla v. Beard, 545 U.S. 374, 387 (2005). While the Fifth Circuit applies a strong presumption that counsel performed adequately and insulates his informed tactical decisions from ineffectiveness attack unless they are so egregious as to render the entire trial unfair, the appeals court has recognized the distinction between strategic judgment decisions and omissions that amount to no strategic decision at all. See: Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006); Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). Deficient performance alone is not enough to secure ineffective assistance relief. The state prisoner must establish prejudice by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to under confidence in the outcome.” Id., 466 U.S. at 694. The Fifth Circuit has interpreted this prejudice requisite to mean that there is a harmful constitutional trial error only if there is “more than a reasonable probability that it contributed to the verdict.” See: Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999). Federal relief after it has been denies at the state level in a state collateral attack, is even more limited by Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), especially 28 U.S.C. § 2254(d) (from the same linked source): “The AEDPA specifies that federal habeas relief ‘shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ “The Supreme Court has held that a state court’s decision that correctly identifies the governing legal rule but unreasonably applies it to the facts of a particular prisoner’s case is sufficient for a federal habeas court to grant the writ. For a federal court to find a state court’s application of Supreme Court precedent ‘unreasonable,’ however, the state court’s decision must have been more than simply incorrect or erroneous; its application of federal law must have been ‘objectively unreasonable.’ Moreover, the state court’s findings of fact are presumed to be correct, and the federal court only reviews the facts for clear and convincing error.” Id., at 385. For example, most of the instances described below have been held in particular cases to be insufficient to overturn a conviction in a death penalty case: In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol. While not precisely on point, the threshold for reversing a conviction based upon ineffective assistance of counsel is generally lower than the standard to be subject to discipline or to be disbarred as an attorney: Justice Ruth Bader Ginsburg was more direct in an Associated Press account: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-executions stay applications in which the defendant was well represented at trial.” Before the 2001 public criticisms offered by Justices O’Connor and Ginsburg, three major newspapers had conducted investigations that offered compelling evidence about the deplorable legal representation provided in capital cases. The Chicago Tribune reported on November 15, 1999 that 12% of those condemned to death from 1976 to 1999 were represented by “an attorney who had been, or was later, disbarred or suspended—disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” The newspaper said that an additional 9.5% had “received a new trial or sentencing because their attorney’s competence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict”). Less than a year later (September 9, 2000) the Charlotte Observer reported that at least 16 condemned inmates in North Carolina, including 3 who had been executed, were represented by attorneys who have been disbarred or disciplined for unethical or criminal conduct. The following day the Dallas Morning News reported that it had examined 461 capital cases in Texas and found that one in four of the condemned inmates had been represented at trial or on appeal by court-appointed attorneys who had been disciplined for professional misconduct at some point in their careers. (“Quality of Justice,” 09/10/2000). The most common issue that is successful is a complete or nearly complete failure to present meaningful mitigating evidence in the death penalty sentencing phase of a death penalty case. What Explains These Patterns? In Death Penalty Cases But, this pattern of granting relief for ineffective assistance of counsel is partially a function of jurisprudence politics. Many judges are opposed to the death penalty, but find on the record before them that it is likely to that defendant was not innocent of murder. If at least two appellate judges on a panel of three appellate judges believe this, a ruling that assistance of counsel was inadequate for this reason vacated the death penalty sentence, but not the conviction, usually leaving the defendant in prison for life without the possibility of parole. Also, due to &quot;death qualification of jurors&quot; and the particularly poor public defender systems for death penalty case defendants in the states that produce the most death penalties, the risk of wrongful convictions in close cases, and of ineffective assistance of counsel, is particularly high. Most states with quality public defender systems for first degree murder defendants have either abolished the death penalty, or have very few death penalty convictions. In Other Cases The difficulty of an ineffective assistance of counsel defense from a &quot;legal realist&quot; perspective is that lots of guilty criminal defendants received ineffective assistance of counsel. If the bar is not set very high, a colorable claim of ineffective assistance of counsel can be raised in a very large share of all felony convictions, even though they are unlikely to prevail on the merits, either because the defendant's guilt was clear, or because the lawyers error was immaterial to the result (two points which overlap). Keep in mind that there is no right to counsel on a collateral attack of a criminal conviction, that very few convicted criminals serving long terms in prison who had incompetent counsel are affluent, and that charitable free legal representation in collateral attacks on criminal convictions is mostly limited to death penalty cases and rape cases where DNA evidence is available. More than 95% of convicted felons serving long terms have never set foot on a college campus as a student. So, in the usual collateral attack on a conviction based upon ineffective assistance of counsel, you have a high school drop out, or high school graduate who never went to college and is marginally functionally literate trying to convince a judge who graduated from law school that his lawyer who graduated from law school didn't know as much about the law and how to defend a criminal prosecution as the defendant does. The likelihood that a defendant who received a marginal quality defense from their lawyer is guilty of a serious crime is particularly high for this subset of cases. Because it takes so long to adjudicate ineffective assistance of counsel claims (it isn't uncommon for it to take two or three years just to rule on a direct appeal from a conviction and another year or three to get a ruling on a collateral attack on a conviction that is denied before an appellate judge so it can make reported case law), almost all of the convictions appealed on this ground that produce case law precedent are very serious offenses like aggravated rape and murder. Otherwise, the issue would have become moot when the sentence of incarceration was served. For most kinds of offenses, the vast majority of strong cases for the prosecutor result in guilty pleas before trial, producing a substantial sentence discount, so only the hard cases go to trial. But, if the death penalty is on the table (and the prosecutor won't budge, perhaps for political and publicity reasons), or an extremely long sentence for a violent felony is on the table, the sentence one can bargain for in a plea bargain, and the sentence that would be dispensed if one is found guilty at trial, are much more similar. So, the incentive for a defendant to &quot;roll the dice&quot; by going to trial is greater, even if the defendant is actually guilty, so a larger proportion of cases with a high probability of conviction at trial go to trial anyway. Also, it is hard to provide &quot;competent&quot; acquittal creating criminal defense cases when the client is clearly guilty. Sometimes the defense was weak because the lawyer was incompetent, but sometimes the lawyer presented a dubious defense because that was the best available option under the circumstances. (This doesn't mean that there is nothing for a competent criminal defense lawyer to do; but most of the work for a competent criminal defense lawyer in these cases comes in the sentencing phase and in the plea bargaining stage.) Judges don't want to order the release of people convicted of serious, usually violent, felonies if there is a good chance that they are guilty and a good chance that a retrial might not result in a conviction simply because the evidence has grown stale. This is particularly true in this subclass of cases (when they don't involve the death penalty which presents some unique issues related to the &quot;death qualification&quot; of the jurors), with a higher than average percentage of actually guilty defendants. While judges don't want innocent people to rot in prison, due to the barrage of dubious collateral attacks on convictions filed in weak cases, without lawyers, by convicted criminals serving long sentences, judges tend to become jaded about the merit of these collateral attacks. About one in seven cases in federal district courts (the trial court level of the federal courts) is a prisoner's petition. One in five appeals in the federal appellate courts is a prisoner's petition. But only about 1% of those petitions are granted in non-death penalty cases. This is because the defendants serving very long sentences have little to lose and everything to gain by filing even a marginal collateral attack with a low chance of success.
The defence in a criminal case has no obligation to inform the prosecution of anything. The onus is on the prosecution to provide the evidence to convict and the defence doesn't have to and indeed shouldn't help them do it. The defence can and probably would use conflicting statements by a prosecution witness to discredit that witness in the eyes of the jury. These do not have to be material to the case: just showing the witness is inconsistent in general is helpful.
The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes &quot;interference&quot; is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal.
I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case.
I took my car to the mechanic to have a squeaky brake looked at. I was told it would cost $30. The mechanic fixed whatever the problem was. When I was checking out, they could not find a $30 brake-work item in their computer so they billed it as Tire Balancing $30. Or some such thing. Meh, accounting. This is not how the law works. The prosecution needs to prove every element of the crime you are charged with. They need to prove you did not signal. The way this usually works is the cop takes the stand and testifies, and you can cross examine him. Then you can testify if you want to, and can be cross-examined. There might be other evidence against you also, like a dash cam. Assuming there is no other evidence, and that the officer did not prove every element of failing to signal, you do not need to testify. You can tell the judge that the prosecution failed to make the case and ask to have the charge dismissed. Of course, if the judge thinks they did make their case, then you lose. On the other hand, you could take the stand and testify, and subject yourself to cross examination. Just a word of warning, if it's your word against a cop's word, you will lose. Your best bet is to get discovery, get the dash cam, and show that you did signal. Be aware, if you get too saucy, the prosecution can add charges. So they could add the speeding charge, but of course, (see above), they then need to prove it.
It isn't worth litigating a $60 fine for a non-moving violation that isn't likely to recur. You have a less than 50-50 chance of prevailing (something that is almost always true when you are appealing the decision of a judicial officer in a context like this one), you have no real long term harms as you would in the case of "points" for a moving violation, and you are even less likely to get costs of litigation or attorneys' fees if you prevail, so not having to pay a $60 fine would be a pyrrhic victory from an economic perspective. Even if it is free (and it probably isn't) it would easily take many hours to litigate that isn't worth you time. Any lawyer who would take the case would be cheating you because they would only leave you worse off than you are to start with due to their fees.
As George White says, it's hard to prove a negative, but in this instance, there's quite a bit of evidence supporting you. First, the ABA has standards for legal commentators but they are very weak. They say pretty much what you would expect, and, they are non-binding: they explicitly say they &quot;not intended&quot; to provide grounds for &quot;professional discipline.&quot; Second, there are articles by lawyers indicating there are no state bar standards. Taken together, the weak ABA standards and the articles should give you enough evidence to prove your case in the &quot;court of buddy opinion.&quot; The ABA rules on legal commentators were issued in 2013 as part of a Fair Trial and Public Discourse Black Letter. The letter covered public comments on cases by lawyers involved in the case, lawyers not involved (ie, commentators) and judicial and judicial employees. According to the ABA, the standards are: intended to provide a guide to best practices for lawyers who provide public commentary or consult on criminal cases in which they are not personally involved; (Standard 8-1.1(a)(ii)) To explain what it meant by a &quot;guide to best practices,&quot; the ABA included the following caveat about the applicability of the standards: While these Standards are intended to provide a basis for the formulation of internal guidelines within lawyers’ offices...they are not intended to serve as the basis in and of themselves for the imposition of professional discipline...(Standard 8-1.1(c)) In other words, the ABA's rules truly are just a guide to best practices. As for the guidance itself, it does not come close to requiring &quot;due-diligence.&quot; A lawyer who is serving as a legal commentator should strive to ensure that the lawyer’s commentary enhances the public’s understanding of the criminal matter and of the criminal justice system generally, promotes respect for the judicial system, and does not materially prejudice the fair administration of justice, in the particular case or in general. To that end, a legal commentator should: (i) Have an understanding of the law and facts of the matter so as to be competent to serve as a commentator; (ii) Refrain from providing commentary designed to sensationalize a criminal matter; and... It may be that some states provide more stringent restrictions, but a quick search suggests they don't. Otherwise, there would not be a law review article arguing &quot;The Legal Profession Must Broaden Ethical Standards for Legal Commentators,&quot; or an ABA Journal article (from this June) giving advice on becoming a legal commentator without mentioning state bar restrictions. I'm sure if you look, you can find more evidence.
In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so.