Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel may be pursued during an appeal
and a collateral proceeding, such as 440 motions. A person should consider a claim of ineffective assistance of counsel after a trial or plea bargain if the person believes that his attorney gave incorrect legal advice or provided poor representation. Ineffective assistance of counsel may be based on a series of mistakes or one catastrophic mistake. These claims may be pursued in both state and federal appeals, habeas corpus motions, and collateral proceedings.
The federal standard for ineffective assistance of counsel requires proof of unprofessional legal representation that effected the outcome of the criminal proceeding. The state of New York only requires the client to prove that his attorney failed to provide meaningful representation. These standards may sound vague -- and they have been interpreted by various courts along a spectrum of case law. Whether he is contesting a hearing, trial, sentencing, or plea negotiation, an attorney arguing for ineffective assistance of counsel must use the state and federal case law to show how a prior attorney failed to protect his client's rights.
In New York, an attorney can request a collateral proceeding or file a post-conviction motion with exhibits and other evidence to show that the prior attorney failed to provide meaningful representation. Proof of ineffective assistance of counsel usually helps to vacate a conviction, ruling, or judgment where the unprofessional mistake occurred. For example, if a trial attorney failed to give an opening or closing statement, the motion may ask to vacate an unfavorable jury verdict. If the unprofessional mistake occurred during the plea negotiations -- because the attorney mislead his client about the terms of the plea bargain or did not understand the potential sentencing exposure -- the attorney may move to vacate the sentence and to ask for a fairer sentence.
The purpose of an ineffective assistance of counsel claim is not to get a client off the hook completely. Rather, it is more like a "do over," where the court requests a new hearing, trial, sentencing, or other legal proceeding where attorney error prevented a fair outcome. However, in practice, an ineffective assistance of counsel claim can give the defense bargaining leverage and can help a person to avoid many years of prison.
The key to ineffective assistance of counsel claims is proof, proof, proof. A person always should ask his attorney to put in writing every piece of formal advice relating to trial strategy, plea negotiations, and sentencing. A person's word is usually not enough to sustain an ineffective assistance of counsel claim. A client should ask for an email or a one page letter from his attorney explaining what is happening and how he thinks the defense should proceed. If a person loses his case, this documentation allows for an appellate attorney or a judge to see whether the prior attorney gave effective representation.
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