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April 6, 2013

"Toward a Right to Litigate Ineffective Assistance of Counsel"

The title of this post is the title of this timely new paper by Ty Alper. Here is the abstract:

The Supreme Court's decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court's increasing willingness to grant some relevance to the competence of postconviction counsel.  While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide.

In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum.  At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel.  My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.

April 6, 2013 at 11:00 PM | Permalink


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An appellate court decision of ineffective assistance counsel should be considered to be lawyer malpractice per se. Let the lawyer rebut this presumption. The decision overcomes the litigation privilege. To deter.

Posted by: Supremacy Claus | Apr 7, 2013 9:30:16 AM

Every time I cite the study showing all public defenders are no more effective than pro se criminal defendants in trial outcomes, a glitch happens, and the post disappears. However, it is likely, all PD's are ineffective. Studies that show the worthlessness of these rent seekers, and of Gideon are beyond the pale, I suppose.

Posted by: Supremacy Claus | Apr 7, 2013 7:11:33 PM

These are going through.


The major study on the subject of self representation:


Posted by: Supremacy Claus | Apr 7, 2013 7:27:24 PM

Amazing how a joke of a decision like Maples v. Thomas has respectability.

Posted by: federalist | Apr 7, 2013 8:06:29 PM

In a time when liberals are screeching that we need to cut back costs in the criminal justice system, they propose and unlimited increase in costs by the nifty expedient of an infinite regress of expensive litigation, in which lawyer X challenges the competence of the lawyer before him, who challenged the competence of the lawyer before him, who challenged the competence of the lawyer before him, who challenged................

The proposal in this post is a wonderful illustration of a fact that deserves more notice: All this defense bar yelping about cost is a fraud. The idea is not to save money but to shift it: To shift it, that is, from imprisonment, which keeps the public safe, to litigation, which keeps lawyers rich.

Posted by: Bill Otis | Apr 8, 2013 10:48:37 PM

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