ACJ II - RIGHT TO COUNSEL AND SELF REPRESENTATION

Indigent defender assistance board (previously the LA Indigent Defender Board)

- To provide supplemental funds when appropriated by legislature for that purpose to judicial district indigent defender boards only as authorized herein. - Took over the role of the former indigent defender board - This is an arm of the executive branch & not the judicial branch (like the indigent defense board was). - In cases where there are insufficient funds, the trial judge has the authority to stay the proceedings until the funds become available - this puts pressure on the legislature to do something

arraignment make an application to the local indigent defender office who will inquire into the accused's economic status & upon determining the accused is indigent, shall file a certification thereof & record counsel

A preliminary inquiry & determination of indigency of any accused shall be made by the court not later than ________ and such determination may be reviewed at any other stage o Who is deemed indigent: Who is unable without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own. o After preliminary determination: If court makes preliminary determination that the accused is/may be indigent, then the court shall require the accused to:

1. Time afforded for investigation and preparation 2. Experience of the counsel 3. Gravity of the charge 4. Complexity of possible defenses 5. Accessibility of witness to counsel

Criteria to determine effectiveness of counsel 1. 2. 3. 4. 5.

self representation

Waiver of the right to counsel must be made knowingly and intelligently - based on a totality of the circumstances

1. Denial of counsel at a critical stage of trial 2. Counsel entirely fails to subject case to meaningful adversarial testing 3. Some circumstances may be of such magnitude that although counsel if available to the ∆, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without looking to the actual conduct of the attorney 4. But there is no presumption that late appointment of counsel, even a few minutes before trial, automatically amounts to ineffective representation... and this does not justify the abandonment of the requirement of a showing of ineffectiveness and prejudice

What is a definite denial of effective counsel (and do not have to determine if there is actual prejudice): 1. 2. 3. 4.

1. MUST be assigned before ∆ pleads to indictment, but may be assigned earlier 2. Counsel for a capital case must have been admitted to the bar for at least 5 years

When a ∆ charged with capital crime appears for arraignment without counsel, the court shall provide for his defense: 1. MUST be assigned before ∆ pleads to __________________, but may be assigned earlier 2. Counsel for a capital case must have been admitted to the bar for at least _______________

Minute entry

Must show that the ∆ was either represented by counsel or informed by the court of the ∆'s right to counsel (including court appointed counsel) and that he waived such right.

LA v. Citizen

case - How is indigent defense funded? - A judge should appoint counsel to represent an indigent ∆ from the time of the indigent ∆'s first appearance in court, even if the judge cannot then determine that funds sufficient to cover the anticipated expenses & overhead are likely to be available to reimburse counsel. - Appointed attorney may then file a motion to determine funding & if judge determines that adequate funding is not available, the ∆ may then file a motion to halt the prosecution of the case until adequate funding is available (not to interfere with right to speedy trial). Judge may then prohibit the state from continuing until the state determines appropriate funding is likely to be available.

State v. Peart

case - ordered that the legislature provide funding for improved indigent defense and ordered a lower caseload - he brought to a standstill the docket in his court; LASC: "Because we find that the statutes are not unconstitutional and that the remedies ordered are inappropriate at this time, we reverse the trial court's rulings." 621 So.2d 780 @ 783. The court did remand the matter and set out a procedure for the trial judge to follow on a case-by-case basis to determine, before trial, the issue of constitutionally effective assistance of counsel. - If the case is called and you have time to prepare and have resources there is no basis for the judge not to go forward - "the true inquiry is whether an individual defendant has been provided with reasonably effective assistance, and no general finding by the trial court regarding a given lawyer's handling of other cases, or workload generally, can answer that very specific question as to an individual defendant and the defense being furnished him. We find that a determination of effectiveness of counsel requires that the trial court examine each case individually."

Roe v. Flores-Ortega

case Counsel is not always required to file a notice of appeal after their clients plead guilty unless the clients specifically ask them to do so. We cannot say, as a constitutional matter that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable and therefore deficient. We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.

LA v. Pearl

case LA indigent defense statutes which required political subdivisions to fund the indigent defender board were NOT unconstitutional.

State v. Wigley

case The Louisiana Supreme Court held that attorneys appointed to represent indigent defendants must be reimbursed "properly incurred and reasonable out-of-pocket expenses and overhead costs. However, a fee for services need not be paid, as long as the time the attorney must devote to cases for which he does not receive a fee does not reach unreasonable levels." Uncompensated representation of indigents, when reasonably imposed, is a professional obligation burdening the privilege of practicing law.

State v. Craig

case The government may be forced to pay necessary expenses for expert witnesses & investigators, if, after a hearing, both the need of the services & the inability of the local indigent defender board to provide either services or funds is established.

Argersinger v. Hamlin/Scott v. Illinois:

case o In criminal cases in which the defendant is going to be incarcerated he is entitled to counsel if he cannot afford it. The court declined to require state provided representation for indigents charged with misdemeanors carrying possible jail sentences but whose actual sentence did not include a period of confinement. Apparently, this means that even if the offense charged is a felony under state law, the state does not have to supply an indigent with counsel as long as the judge is willing merely to impose a fine. o Actual imprisonment as the line defining the constitutional right to appointment of counsel has proved to be reasonably workable, whereas any extension would create confusion and impose unpredictable, but substantial costs.

Nix v. Whiteside

case • defense feared that the defendant himself intended to give perjured testimony • D ended up not testifying - then he complained that counsel was ineffective • As a matter of law, D could not be prejudiced when his lawyer prevented him from committing perjury. • If the client wants to perjure himself (remember the client decides whether he wants to take the stand) the attorney shouldn't ask questions that would elicit perjured testimony; just ask the D to tell a narrative of his story, can't argue the case either

US v. Cronic

case • ∆ was appointed young attorney whose primary practice was real estate & allowed him only 25 days for pretrial preparation. Government had prepared for nearly 5 years. Is this effective assistance of counsel? • Makes it clear that if the lawyer's conduct is so deficient that there is no meaningful adversarial conduct - this will be treated as if there were no lawyer there at all - D is entitled to overturning whether there was prejudice or not • The D has the burden of showing that his attorney is or was not reasonably competent during trial. Accordingly, the D may make out a claim of ineffective assistance of counsel only by pointing to specific errors made by trial counsel. There is a presumption that the attorney is competent, but this not always the case. Thus, the appropriate inquiry focuses on the adversarial process, not on the accused's relationship w/ his lawyer. If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. • If the lawyer has failed to bring the state's case to "meaningful adversarial testing," there is no requirement that the D show prejudice.

McKaskle v. Wiggins

case ∆ was permitted to represent himself, but was forced to have two standby attorneys. Was his pro se right to self represent infringed? o His pro se right is not violated if • ∆ maintains actual control over the defense, and • If counsel's participation does not destroy the jury's perception that the ∆ is representing himself.

State v. Touchet

case - Indigent ∆ requests funding for experts. The petition may be filed ex parte & considered in camera by the court. - If the disclosure of the defense will prejudice the ∆, then the court will not hold a contradictory hearing & it shall be ex parte. - ∆ must show a need for the funding and D must show with reasonable specificity what type of expert is needed & for what purpose • The expert would be able to answer a specific question that is vital to the ∆'s case Then, the court must order the funding if it finds the above to be true.

Faretta v. CA

case A defendant cannot have counsel forced upon him against his will if he refuses appointed counsel in a voluntary and intelligent manner. A defendant in a state criminal trial has the constitutional right to refuse appointed counsel and conduct the trial when he or she voluntarily and intelligently elects to do so. However, such a defendant may not later complain that he received ineffective assistance of counsel -this defense is waived on appeal.

Gideon v. Wainwright

case The Sixth Amendment right to counsel is a fundamental right applied to the states via the Fourteenth Amendment to the United States Constitution's due process clause, and requires that indigent criminal defendants be provided counsel at trial.

Strickland v. Washington

case The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. • The right to counsel is the right to the effective assistance of counsel. • (Strickland test has both and objective prong and a prejudice prong) • A criminal defendant may not obtain relief unless he can show that (1) counsel's performance fell below an objective standard of reasonableness, and that (2) counsel's performance gives rise to a reasonable probability (probability sufficient to undermine confidence in the outcome) that, if counsel had performed adequately, the result of the proceeding—the trial, the sentencing hearing, the appeal—would have been different. • Objective standard =>prevailing legal norms • Prejudice presumed when counsel has an actual conflict of interest • A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy