In the June 2010 Champion (not yet online): "Compassion and the Criminal Defense Attorney" by Steven R. Morrison.

"The constitutional right to present a defense is not satisfied simply because some defense, any defense, is presented." Jackson v. Norris, 4:08-CV-03319 GTE-JTK, at 13 (E.D.Ark. July 20, 2010) (Eisele, J.) (holding that Arkansas Supreme Court's limits on defense evidence by construction of its rape shield statute violated the right to present a defense).

On Law.com today: Courts Differ About Retroactive Effect of High Court Counsel Ruling by Noeleen G. Walder.

Defense counsel is not ineffective for not being the best possible criminal defense lawyer. "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010):

With this in mind, although Hale has broken his argument into nine "instances" of ineffective assistance (nearly every instance consisting of several different allegations of error), one overarching theme permeates almost every allegation in one way or another. This makes an overall comment on that theme appropriate, that is, a look at the forest before getting lost in the trees. The theme, stated as the first "instance" of ineffective assistance (with six sub-allegations of error), is that, with respect to Hale's conviction on the solicitation count in violation of 18 U.S.C. 373, his counsel's performance fell below the level of competence required because he pursued the wrong defense, and not Hale's "best" and "true" defense. Hale argues that if his attorney had pursued Hale's "actual, bona fide defense which was much stronger," taking that course "would likely have resulted in Mr. Hale's exoneration." (DE # 18 at 13.)

This argument, to be blunt, is preposterous. First, because it is built entirely on the incorrect premise that if his attorney failed to pursue Hale's "best" defense, that automatically equals ineffective assistance of counsel. That premise finds no support in the law governing ineffective-assistance claims. As long as Hale's attorney utilized a defense strategy that was not so misguided that it fell outside the wide range of professional competence, Hale received constitutionally-effective representation. As the Court of Appeals has remarked, "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).

Back in 2007 or so, I testified that a public defender was duty-bound to say he could not proceed with a trial he was appointed on two hour earlier, and the lawyer could not be held in contempt. The contempt judgment was set aside on appeal. State v. Jones, 2008 Ohio 6994, 2008 Ohio App. LEXIS 5860 (11th Dist. December 31, 2008), discretionary appeal not allowed 121 Ohio St. 3d 1502, 2009 Ohio 2511, 907 N.E.2d 325 (June 3, 2009). The judge did not run for reelection, and he was disciplined and briefly suspended as a lawyer for his conduct in other cases for being heavy-handed against other defense lawyers, favoring the prosecution, and manipulating the record for appeal. Disciplinary Counsel v. Plough, 2010 Ohio 3298 (Ohio July 21, 2010). As to one count:

{¶ 13} Respondent’s conduct in expressing his personal opinion on a factual issue to be resolved by the jury and in castigating defense counsel during closing argument caused defense counsel to forfeit closing argument, thereby prejudicing the defendant and adversely affecting public confidence in the judicial system. Therefore, the parties stipulated, the board found, and we agree that respondent violated Canon 1 (requiring a judge to uphold the integrity and independence of the judiciary), 2, and 3(B)(4) of the former Code of Judicial Conduct.

In an eyewitness ID case, it was IAC for defense counsel to fail to object to the prosecutor’s eliciting that defendant refused to consent to taking DNA evidence and then argue in it close. The other IAC claims are moot by the granting of a new trial. State v. Banks, 2010 Wisc. App. LEXIS 561 (July 21, 2010).

For CJA lawyers, even federal defense lawyers, the Federal Defender's Office of Defense Services Training Branch has added materials online. It is added to the sidebar.

Armstrong playing it safe by hiring defense lawyer in NewsDay.

San Jose defense attorney convicted on five money-laundering counts, by Howard Mintz:

Once a prosecutor who put criminals behind bars, San Jose lawyer Jamie Harley now finds herself on the other side of the legal system and facing the prospect of time in prison.

A federal jury in San Jose on Tuesday convicted Harley of five counts of laundering money for a former client, punctuating a nearly two-week trial and almost three days of tense deliberations that for a time appeared deadlocked.

. . .

A federal grand jury indicted Harley more than two years ago, accusing her of laundering more than $100,000 for Christian Pantages, a client who wound up pleading guilty to charges in the case and testifying against her during the trial. Prosecutors alleged that Harley laundered money from Pantages' illicit business trafficking in stolen computer equipment, after he had been charged with state crimes related to the theft ring.

Outside the courtroom, jurors indicated they simply could not believe an experienced, savvy attorney such as Harley would not know what she was doing with her client's money.

A lawyer was suspended for 30 days for having sex with a client that started in a marriage dissolution case and he was relieved from that but represented her in criminal proceedings. There is no per se rule that sexual relations prejudices the administration of justice, but the marriage dissolution case is aggravating. Supreme Court Attorney Disciplinary Board v. Monroe, 10–0193 (July 16, 2010):

Monroe had a sexual relationship with his client that spanned several weeks. Cf. Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285–86 (Iowa 1979) (publicly reprimanding attorney who had inappropriate physical contact with client during prison visit with client). There is no gray area with respect to the prohibition of such conduct, no nuance subject to differing interpretations. See Marzen, 779 N.W.2d at 767 (“Our ethics rules are clear, and our cases have consistently and explicitly condemned sexual relationships between an attorney and a client.”); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001) (“Professional responsibility involves many gray areas, but sexual relationships between attorney and client is not one of these.”). Therefore, the ethical violation is obvious and should have been obvious to Monroe before he engaged in sex with his client.

. . .

Clearly, Monroe needs a better understanding of his ethical obligations, the vulnerability of clients under the stress of a dissolution or facing criminal charges, and the impact a sexual relationship between him and his client has on his client and his own ability to professionally represent that client. Without this knowledge, Monroe poses a risk to the public. ... Taking all of the pertinent factors [omitted] into consideration, we concur in the commission’s recommendation that Monroe’s license to practice law in this state be suspended for thirty days.