Blawg Review

Blawg Review
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Montana Winning Cases http://montana-winning-criminal-cases.blogspot.com
WINNING FEDERAL CRIMINAL CASES - http://winning-federal-criminal-cases.blogs
Ineffective Assistance of Counsel - http://iineffective-assistance-of-counsel.com
Interesting Criminal Cases - http://interestingcriminalcases.blogspot.com
Winning SSI Disability Cases - http://winningsssdisabilitycases.blogspot.com
Dissenting Opinions-http://dissentingopinions.blogspot.com

“read em, plead em, and roll em”

See Tarlow, The Moral Conundrum of Representing the Rat, The Champion (Aug. 1995). Francisco Laguna, “the guiding hand of counsel,” Argersinger v. Hamlin, 407 U.S. 25, 40 (1972), “an attorney’s ethical duty to advance the interests of a client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence.” Nix v. Whiteside, 475 U.S. 157, 168 (1986).
The sordid tale of former California lawyer and Hall of Shame member Ron Minkin ought to be enough to dissuade the fervid advocates of “read em, plead em, and roll em” school of thought. United States v. Marshank, 777 F.Supp. 1507 (N.D.Cal. 1991); War of the Ruses – prosecutorial invasion of the defense camp: RICO Report, The Champion (May 1996). After being contacted by two individuals who desired to exit the drug business with a grant of immunity, Minkin developed a lucrative specialty practice in representing a series of defendants, each of whom rolled on the other, like a series of dominoes. Gary Crawford and Gary Ohlgart had never been indicted and were not under investigation, but they wanted to dissociate themselves from the drug trade by providing information in exchange for immunity, complete anonymity and a promise that they would never have to testify in court. Id., at 1512.
In the course of the debriefing session, Crawford, Ohlgart and Minkin provided information about persons involved in marijuana smuggling, including one of Minkin’s former clients and two of his current clients, including Robert Wehe, Seth Booky, and Steven Marshank. Id. Because Ohlgart’s and Crawford’s deal exempted them from testifying, the prosecutors, along with the active assistance of so-called defense lawyer Minkin, targeted a number of smaller fish to roll their way up. Since Wehe was already the subject of a sealed indictment and Minkin represented Wehe in the past, Minkin contacted Wehe and negotiated an agreement calling for him to surrender and become an informer. Id.
After the agents decided Wehe would not be such a great witness, they set their sights on Booky, who was not only a past Minkin client, but still had an ongoing attorney-client relationship with him. Upon learning that Booky was involved in a 1500 pound marijuana deal, Minkin relayed that information to the investigating agents, who arrested Booky and nine others. Id., at 1513. When Booky was interviewed in the jail by federal agents and an AUSA who was unaware of the fact that Booky’s arrest was prompted by information obtained directly from Minkin, as well as through Minkin’s clients Crawford and Ohlgart, Booky asked to contact Minkin. Despite being taken aback by the advice, mistakenly believing he was receiving unbiased legal counsel from someone who cared about him personally, Booky acceded to Minkin’s urgent pleas that “you got no choice. You gotta make up your mind right now . . . you’ve gotta help them. Seth, tell them everything you know.” Id., at 1513-14 & n.6.
Having been told by his own lawyer “your life is over” if he didn’t become an informer because “there’s a lot you don’t know,” Booky rolled. The prosecution then set its sights on Marshank and another suspected smuggler, Daniel Hartog. United States v. Marshank, 777 F.Supp. at 1514-15. The prosecution decided that, with the help of Minkin and Booky, they would indict Marshank and, with Minkin’s assistance, induce him to roll on Hartog. Id., at 1515-16. Although the prosecution did not believe it had a sufficiently strong case to try, they nonetheless sought Marshank’s indictment in the expectation that Minkin would convince him to become an informer against Hartog. Id., at 1518. All the evidence presented to the grand jury came from Minkin’s clients. Id., at 1516.
When prosecutors had difficulty locating Marshank after indictment, Minkin made inquiries and provided federal law enforcement with Marshank’s exact location. After being arrested, “[a]s expected, Marshank called Minkin.” Id. Always eager to provide helpful assistance, Minkin persuaded Marshank “as a sign of good faith” to tell the agents of two false passports he possessed. The agents did not know about the passports before Minkin mentioned them. The prosecution then used Marshank’s admission to argue for detention. Id., at 1516-17.
Contrary to Minkin’s predictions, Marshank refused to become an informer, a situation Minkin blamed on the interrogating agent’s failure to be “heavy enough” with Marshank and returning Marshank to a holding cell when he began “crying hysterically” rather than taking advantage of Marshank’s emotional state. Id., at 1517. Marshank dismissed Minkin before arraignment and retained the San Francisco firm of Topel & Goodman who, after exhaustive investigation, ultimately uncovered the facts underlying this fetid affair. (Even after Marshank fired Minkin, Minkin continued to provide prosecution agents with substantive evidence against his former client as well as the identity and location of potential prosecution witnesses.)
Id., at 1517-19. Judge Marilyn Hall Patel ultimately dismissed Marshank’s indictment based on the prosecution’s complicity in providing ineffective assistance of counsel, and outrageous government conduct in facilitating defense counsel’s active involvement in seeking the indictment of his own clients, as well as Minkin’s conflict of interest and divided loyalties among clients, and under her supervisory powers. Id., at 1520-30.

Winning Cases: Ineffective Assistance of Counsel

Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2005)(2254)(impartial juror; ineffective appellate counsel).

Van Patten v Deppish, 434 F.3d 1038 (7th Cir. 2006)(2254)(Ineffective assistance of counsel; counsels appearance at guilty plea via speaker phone structural error).

US v. Alferhin, 433 F.3d 1148 (9th Cir. 2006)(Ineffective assistance of counsel; erroneous jury instruction; materiality).

Cox v. Donnelly, 432 F.3d 388 (2nd Cir. 2005)(2254)(ineffective counsel failing to object to jury instruction shifting burden).

US v. Booth, 432 F.3d 542 (3rd Cir. 2005)(counsels failure to inform defendant of open plea to both charges required evidentiary hearing).

Galviz-Zapata v. US, 431 F.3d 395 (2nd Cir. 2005)(2254)(failed to file appeal claim; evidentiary hearing).

Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005)(2254)(Ineffective assistnace of counsel; failure to investigate).

Marshall v. Cathel, 428 F.3d 452 (3rd Cir. 2005)(counsel's total failure to prepare for penalty phase of capital murder trial constituted unconstitutionally ineffective assistance of counsel).

Thompson v. Varner, 428 F.3d 491 (3rd Cie. 2005)(2254)(Ineffective assistance of counsel, Kimmelman claim, suggestive photo array).

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005)(2254)(killed two sheriffs deputys)(defendant constructively denied his right to counsel; conflict between counsel and defendant prejudical; ineffective assistance of counsel).

Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005)(Ineffective assistance of counsel at guilt and sentencing ).

Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005)(2254)(Ineffective assistance of counsel)(See Summerlin v. Stewart, 267 F.3d 926 (9thCir. 2001), withdrawn, 281 F.3d 836 (2002). The case was remanded for an evidentiary hearing as to whether the state trial judge was competent when he was deliberating on whether to impose the death penalty. Id. at 957. That the sentencing judge’s purported marijuana addiction did not affect his performance in Summerlin’s case.

In re Brown, 436 F.3d 699 (6th Cir. 2006)(2254)(petitioner's ineffective assistance of counsel claim could be raised in numerically second habeas petition, without subject to the AEDPA restrictions on successive petitions).

Edwards v. Lamarque, 439 F.3d 504 (9th Cir. 2006)(2254)(Ineffective assistance of counsel; eliciting testimony from petitioner sufficient to waive marital privilege).

Landrigan v. Schriro, 441 F.3d 638 (9th cir. 2006)(2254)(Ineffective assistance of counsel at death penalty phase).

Campusano v. US, 442 F.3d 770 (2nd Cir. 2006)(2255)(when defense counsel does not file requested notice of appeal and fails to file adequate Anders brief, courts may not dismiss the hypothetical appeal as frivolous on collateral review).

Davis v. Grigas, 443 F.3d 1155 (9th Cir. 2006)(2254)(Ineffective assistance of counsel remand for hearing).

Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006)(2254) (State habeas ineffective assistance of counsel winner).

US v. Embree, 169 Fed. Appx. 761 (4th Cir. 2006)(Unpublished)(Waiver of right to collateral review did not bar claim of ineffective assistance of counsel depriving him altogether of appellate proceedings).

Satterlee v. Wolfenbarger, 453 F.3rd 367 (6th Cir. 2006)(Ineffective assistance of counsel, failed to convey plea offer).

Adams v. Bertrand, 453 F.3rd 428 (7th Cir. 2006)(trial counsel’s failure to investigate properly a crucial witness, stemming from an intransigence regarding his trial strategy, however, constituted ineffective assistance of counsel. The Wisconsin Courtof Appeals acted unreasonably in its application of Stricklandto the facts on this point. We, therefore, REVERSE the decision of the district court and REMAND with instructions to grant the writ, unless the state gives Adams a new trial within 120 days.