4th 5th and 6th Amendments

10 October

• Where does the "effective assistance of counsel" notion come from? Not the plain text, anyhow. Maybe the idea that if the adversarial process is designed to find truth, both sides need to be engaged.
• Strickland
  You can definitely see why the attorney has a "sense of hopelessness."

  Did the lawyer even have a strategy? Well, he didn't do much. But maybe that was a calculated move.

  Is this a fair result? Think of the record on which SCOTUS decides this-- there might be enough there to cause people to question the fairness of the final result.

  Machner is the way this is done in WI: a post-conviction hearing at which trial counsel has to testify, in order to make a record as to whether things were done for strategic reasons or as a result of error. Ineffective assistence of counsel does not equal malpractice, by the way. But we still have a conflict between human nature (not wanting to look like a fool), candor to the court, and duty to advance the client's interest. Of course, you're expecting to lose at the Machner hearing-- it's about creating a record for appeal, most of the time.

  Note that there's hindsight bias in play here as well-- this case was 6 years old by the time it went to SCOTUS.

  IAC claims are hard to present: creating the record, doing the appeal, and passing the test are all tricky.

  The reason the judge's testimony is irrelevant-- the question is answered de novo, without deference to the trial judge, so the standard is whether it would have persuaded a hypothetical judge.

  Possible exploit: did counsel tank the case in order to create a great record for collateral appeal.

• Cronic
  This comes down the same day as Strickland.

  SCOTUS: the 7^th Cir's test would often lead to reversal even if counsel's performance was flawless, so the test is bad.

• State v. Thiel
  This is the most recent standard for WI - the rule is Strickland. It can be IAC to fail to read all discovery materials. In a he-said-she-said case, it can be IAC to fully investigate the complainant's credibility. Multiple minor IACs might have a cumulative effect that would meet the standard, even though one standing alone might not.
• Also in WI, we don't have to reach an IAC determination if the controversy wasn't fully tried: it's another path to a retrial. That's State v. Hicks and State v. Jeffrey A.W.; there are exceptions (State v. Flynn).
• Wiggins v. Smith: the standard is the ABA guidelines (stated for death penalty cases (follow the ABA guidelines). However, at the same time, there's no minimum qualification for trying a death penalty case: Wilson v. Parker.
• Most IAC claims that succeed these days are about scientific evidence; see Harrington v. Richter just argued before SCOTUS.
• Padilla v. Kentucky: it is IAC to fail to inform a client thinking of pleading guilty about mandatory deportation. (i.e., is a plea knowingly, voluntarily, and intelligently entered if the defendant is unaware of the collateral consequences?)
• The right to counsel of choice has limits: economics, conflicts of interest, e.g. Also, if you are indigent, you're not entitled to substitute counsel (6A doesn't guarantee a friendly-happy attorney-client relationship).
• If you have the right to counsel, do you have the right to reject counsel? Faretta.
• For Wednesday, we'll skip the confrontation section (that will go to Monday). Instead, we'll do Hezzie R and Brillon

20 October

• So we have these various burdens associated with different trial rights.
  1. Waiver of counsel and stand trial, representing self
  2. Competence to stand trial (§ 971.14)
  3. Waiver of counsel and plead guilty
  Courts haven't really done a good job distinguishing/ranking them. They might vary with the severity of the charge (i.e., a guilty plea will probably be accepted, unless there are red flags). Competence tends to fall in the middle. Trials with pro se defendants are "interesting," and the court has a disincentive to allow them. See State v. Klessig
• There's also forfeiture of right to counsel: if you burn through enough appointed attorneys, you might not get another. See State v. McMorris: serially firing counsel right before trial dates forfeits right to counsel (both in state and federal court). The court needs to make a finding that the defendant is doing this, and needs to warn the defendant.
• Indiana v. Edwards
  Discussion of competency school. Don't forget that having been found incompetent can be as much of a stigma in future life as a criminal conviction.

  Anyway, here the guy is competent to stand trial, but he has some issues. The court doesn't state a rule about how competent you have to be to run your own defense.

• What about standby counsel-- a lawyer that sits on the sidelines and can step in when the pro se litigant becomes not competent to handle the case. Moussaui, e.g. He wasn't allowed to have a say in who his counsel was (his preferred counsel wouldn't agree to subscribe to the CIPA confidentiality rules). Hard to provide effective assistence of counsel when your client is trying to torpedo the case.
• Be sure and cite the state constitution, not just the federal constitution.
• Trial rights include not only constitutional issues, but also statutes: Wis. Stat. § 971.10 (speedy trial defined; note that any party can demand a speedy trial-- it's not just a right for the defendant. also continuances, and what bases there are for them); 18 USC § 3161-- this is an alphabet soup of what counts as delays... far more complex than the state law.
• Speedy trial: delay can come as delay in charging, delay between charging and arrest, delay between arrest and trial.
• VT v. Brillon
  Delays because of defendant firing counsel, conflicts of interest, etc. 3 years from the time of charging to the time of trial. VT SC says this was the state's problem, insofar as state public defenders are part of the state. SCOTUS reverses: if the delay is attributable to the defendant, it's an implicit waiver of the right to a speedy trial.

  Lesson 1: you can forfeit your right to counsel, and it doesn't take that much to do so.

  Lesson 2: systemic delays in the government or state gaming of the system might get you a dismissal on speedy trial grounds, though.

• Why do we have 12 jurors? Sort of historical accident. Lord Coke suggests it's because of 12 apostles. For a while, WI only had 6-person juries for misdemeanor trials. But not all states require 12 in all cases.
• Vicinage: (a jury of the vicinage) - this is a right of the defendant, and the defendant can move for a different venue; a judge can't order venue changed over the defendant's objection. Change of venue is a statutory right, not a constitutional one, and usually you base it on media coverage or polling data.
• Hezzie R
  You don't always get the right to a jury trial as a juvenile.

  Lots of states are moving moving away from childrens' codes to juvenile justice codes. KS seems to be more rational about this; it's unclear how WI squares this with Winship.