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August 30, 2018


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"The Strickland Court held that a defendant receives constitutionally unacceptable representation when (1) counsel’s representation falls below an objective standard of reasonableness that (2) prejudiced the defense, and therefore had an effect on the judgment. "

If memory serves, the Rehnquist courts "innovation" was greater emphasis the second prong, which is not to say that the first prong was satisfied, IMHO, in the cases described above. With respect to coerced confessions, etc., the emphasis on "prejudice" demonstrated by a hypothetical "an effect on the judgment" has been a very tough standard, no?

The standards amounts, in perhaps an overly simplistic iteration, to a free pass for the conviction to be upheld if sufficient evidence of guilt was adduced independent of the error to justify the verdict. Boiled down to its essentials, so long as there was sufficient evidence of guilt, "who cares?," the courts seemed to be asking. No more defendants walking on "technicalities."

The question today therefore seems to me to be whether the courts should revise that analysis, with respect to ineffective assistance, and all the other errors that are so rife in the criminal justice system.

With regard to the treatment of that young man, watching "Making a Murderer" should have made any reasonable person cringe. But, perhaps we should add an issue: were the actors involved all behaving in a way that suggested that the purpose of the going after the boy so hard was to "get" someone else? Should we tolerate so much "leaning on" people to "get" others?

And, of course, we remember that, Wiki errors excepted:

On August 12, 2016, Avery's nephew Brendan Dassey, who was also found guilty, had his conviction overturned by a federal judge on the grounds that he was unconstitutionally coerced by the police into confessing to the murder, and this was the only substantial evidence in his case.[11] On November 14, 2016, Federal Judge William Duffin ordered Dassey's release from prison within 90 days, if Wisconsin prosecutors do not move forward with a retrial.[12] On November 17, the U.S. Court of Appeals for the Seventh Circuit blocked Dassey's release while the appeal is being heard.[13] A three-judge panel from the 7th Circuit affirmed the Judge Duffin decision to release Dassey and stated that Dassey should be freed unless the state chooses to retry him.[14] In December 2017, a panel of seven judges of the United States Court of Appeals for the Seventh Circuit ruled in favor of upholding the original conviction in a split vote of 4 to 3, ruling that police had properly obtained Dassey's confession.[15] In June 2018, the U.S. Supreme Court rejected a motion to hear arguments to overturn the Appeals Court ruling reinstating Dassey's conviction.[1

Scott Pruitt Edndowed Chair in Environmental Justice

It's real simple for you newbie lawyers and old attorneys who do closings and PI work. The PO PO don't want to talk to INNOCENT people. Massive waste of time and resources. If the PO PO wants to talk to your client, it's bad news. Nothing they say will get them off if the cops think you guy is involved.

Scott Pruitt Edndowed Chair in Environmental Justice

….even if the you think a statement is mitigation and you client is found guilty, the State will use prior statements as aggravation at a sentencing hearing. They will argue is demonstrates a lack of remorse and as evidence of dishonesty.

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