6 responses

  1. Chris Seaton
    March 1, 2017

    This whole incident makes me want to go flip a table now.

    Great analysis.

    Reply

  2. Vandy
    March 1, 2017

    According to the Pennsylvania Supreme Court no disciplinary charge was filed against the defense attorney for this incident. Shouldn’t a finding by any court that an attorney has provided “ineffective assistance of counsel” be grounds for automatic disbarment?

    Reply

    • Andrew Fleischman
      March 1, 2017

      There are many great lawyers who have been ineffective on a case. Sometimes, you just aren’t paying attention or get distracted by another issue. While the name sounds stern, IAC is really just a way to rescue an issue that is otherwise waived so that a higher court can rule on it.

      While prosecutors often say we should disbar “ineffective” lawyers, what they really want is for lawyers to lie about their reasons for doing things at trial so that criminal defendants can’t get new trials.

      As for what the defense attorney should have done, probably a lot of options. Could have asked the judge not to meet in chambers, could have moved to recuse the judge after the meeting, and could have followed client’s wishes and gotten a new judge.

      Reply

      • Vandy
        March 1, 2017

        I should be a bit more specific. There are many times that IAC is used as a basis for a collateral challenge. In my mind, a claim of IAC is pretty much meaningless in and of itself. In fact, is is probably IAC for an appellate attorney to not make an IAC claim in a habeas proceeding.

        However, given the “strong presumption”, Strickland, and the AEDPA, for a federal court to grant a habeas petition on the basis of IAC means that something serious must have been going on. (Strangely, in many states, for a state court to determine that may mean even worse conduct was present.)

        I agree, even great lawyers make mistakes that could arguably be classified as IAC. However, for an appellate court to make that determination these days means it is far beyond “run of the mill.” Or at least that is my impression. Given that reality, I would suggest that such a finding should at the very least cause the state ODC to take a hard look.

        Reply

    • NickM
      March 2, 2017

      Consider the facts of Smith v. Spisak, 558 U.S. 139 (2010).
      What should the defense lawyer have done to not leave himself vulnerable to second-guessing as to IAC?

      Reply

  3. Dwight Mann f/k/a “DM”
    March 1, 2017

    Out of curiosity, what would the objection be while in chambers? Moving for recusal afterward is obvious, but I am puzzling over the basis of objecting during the clusterfuck conference.

    Reply

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