Criminal Law Legal Topics

Intentionally Ineffective?

Update: The verdict is in and Casey Anthony was found not guilty of murdering her daughter. Her defense counsel was clearly not incompetent after all!

Casey Anthony is on trial for her life in a Florida courtroom for the murder of her young daughter. Could her inexperienced attorney’s courtroom missteps actually be part of a strategy to set up a claim for ineffectiveness of counsel?

As the ABA Journal reports, Anthony’s defense lawyer, Jose Baez, has only practiced since 2005 and has never led a death penalty case. He has made several faux pas in court and is taking hits from legal analysts.

The Orlando Sentinel lists several of Baez’s courtroom “mishaps” and “miscalculations,” including that he failed to timely raise the issue of blocking jurors from seeing portions of recorded jail visits and the judge had to remind Baez that it is the judge, and not the lawyer, who tells witnesses they may step down from the stand.

Some are wondering whether Baez is intentionally making these errors as part of a trial strategy for a case with very bad facts for the defense, i.e., setting up a claim of ineffective counsel.

Criminal defendants have a Sixth Amendment right to the effective assistance of counsel. A defendant who believes that he or she was prejudiced by ineffective assistance may petition for federal habeas corpus relief.

Courts use a two-part test to determine whether or not counsel’s assistance was ineffective (Strickland v Washington (1984) 466 US 668, 80 L Ed 2d 674, 104 S Ct 2052):

  • Were counsel’s actions objectively unreasonable?
  • Was there a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different?

It’s hard to believe that an attorney would use a defense strategy of feigning incompetence, but stranger things have happened in courtrooms.

What do you think? If it is a strategy, could it work?

To learn about arguing ineffective assistance of trial counsel on appeal, go to CEB’s Appeals and Writs in Criminal Cases, chap 4.  Also check out chapter 9 on writs of habeas corpus.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 replies on “Intentionally Ineffective?”

A longer term answer to the problem in general – require “certification” for potential death penalty or life cases, or a court waiver for counsel.

Legal counsel must be “licensed” now – state or federal court. Why not go the extra step for additional specialist or similar certification in cases that would imprison the defendant for life or suffer a death penalty. Maybe even an escalating series of certifications from serious crimes to major crimes to life or capital offenses?

This would not eliminate the possibility of ineffectiveness of counsel – but it would lead to the diminishment of this as an appellate issue or harm or even the wrongful death of a defendant. A small price to pay for a better system.

In my opinion, Jose Baez is representing his client to the best of his ability. I do not think there is an intentional strategy to “under represent” his client, in order to pave the way for an appeal. He is in over his head, but likelly does not realize it. The jury does not know, other than from observation in the courtroom.

I believe he is very similar to Casey Anthony in that he presents himself as more qualified and educated than he is. Casey lacks a high school education; i.e., she did not graduate from high school. From her manner and behavior displayed in court, it would appear that she is in control and directing the defense! She is in close contact with her attorney, and it seems that they are both “disdainful” of the prosecution…almost to the point of smirking during some of the questioning.

Although I really feel for the family that lost that little girl, I also feel for the tax paying citizens of Florida.

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