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(Huffington Post)   In a 5-4 decision, the Supreme Court affirms that your constitutional right to a lawyer actually guarantees you someone vaguely competent at their job, and not some random idiot who barely passed the Bar Exam   (huffingtonpost.com) divider line 138
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4640 clicks; posted to Politics » on 21 Mar 2012 at 9:48 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-03-21 10:26:01 PM
I'm sure I'm missing something, but it sounds like you always have an out for a reduced sentence.

For example, you're up for a crime that could cost you 40 years.
Prosecutor offers 20 years for a plea deal.
(a) if you accept the deal, but probably would have been found not guilty, then you claim you got bad legal advice.
(b) if you don't accept the deal, but are found guilty, then you claim you got bad legal advice.
 
2012-03-21 10:28:42 PM

Descartes: I'm sure I'm missing something, but it sounds like you always have an out for a reduced sentence.

For example, you're up for a crime that could cost you 40 years.
Prosecutor offers 20 years for a plea deal.
(a) if you accept the deal, but probably would have been found not guilty, then you claim you got bad legal advice.
(b) if you don't accept the deal, but are found guilty, then you claim you got bad legal advice.


An innocent person got a reduced sentence! JUSTICE!!!! WHEEEE!!!!
 
2012-03-21 10:30:31 PM

Gyrfalcon: Why Scalia can't just concur in part and dissent in part remains a mystery.


Same reason I can't fark a 15 year old and claim that I didn't nothing wrong because she had a massive rack and she looked 18?
 
2012-03-21 10:31:03 PM
Sixteen years ago, I was brought up on misdemeanor charges. I requested an attorney, and the guy they gave me was a moron. He made no attempt to defend me, and said "just plead guilty."
 
2012-03-21 10:40:57 PM

dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia


I don't speak lawyer, but am I correct in thinking that he's saying that the reality of whether or not someone actually did something is irrelevant in the face of a conviction in a fair trial?
 
2012-03-21 10:48:38 PM

buckler: Sixteen years ago, I was brought up on misdemeanor charges. I requested an attorney, and the guy they gave me was a moron. He made no attempt to defend me, and said "just plead guilty."


Damn when my fiance got arrested he was facing a class C felony,he wouldn't have even been arrested had he told them it was the other guys drugs. But no he didn't. Instead he sit for 13 days in jail with a $15,000 cash only bond. The public defender he got was awesome. He managed to get a C felony and 3 class A misdemeanors plead down to one misdemeanor possession of pot charge. My fiance ended up only having to pay a $264 fine,do two years of unsupervised probation and they let him out they same day.

/Mr.Brophy where ever you are know that you are awesome and you probably don't get paid nearly enough for being a public defender.
 
2012-03-21 10:51:06 PM

Descartes: I'm sure I'm missing something, but it sounds like you always have an out for a reduced sentence.

For example, you're up for a crime that could cost you 40 years.
Prosecutor offers 20 years for a plea deal.
(a) if you accept the deal, but probably would have been found not guilty, then you claim you got bad legal advice.
(b) if you don't accept the deal, but are found guilty, then you claim you got bad legal advice.


B is a little more complicated than that. You'd have to claim you rejected the deal because the lawyer promised you you wouldn't be found guilty or didn't inform you of the deal. And no lawyer, no matter how stupid, is going to promise a client a certain outcome in a jury trial.
 
2012-03-21 11:00:32 PM

A Terrible Human: buckler: Sixteen years ago, I was brought up on misdemeanor charges. I requested an attorney, and the guy they gave me was a moron. He made no attempt to defend me, and said "just plead guilty."

Damn when my fiance got arrested he was facing a class C felony,he wouldn't have even been arrested had he told them it was the other guys drugs. But no he didn't. Instead he sit for 13 days in jail with a $15,000 cash only bond. The public defender he got was awesome. He managed to get a C felony and 3 class A misdemeanors plead down to one misdemeanor possession of pot charge. My fiance ended up only having to pay a $264 fine,do two years of unsupervised probation and they let him out they same day.

/Mr.Brophy where ever you are know that you are awesome and you probably don't get paid nearly enough for being a public defender.


He prolly sells pot on the sly. I hear he gets it cheap
 
2012-03-21 11:02:38 PM
The logoc behind the dissents is pretty simple. If you're wealthy you can afford a good lawyer. If you have a bad lawyer, you are ipso facto not wealthy. Therefore, who gives a fark about what happens to you?
 
2012-03-21 11:05:01 PM

dookdookdook: dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia

I don't speak lawyer, but am I correct in thinking that he's saying that the reality of whether or not someone actually did something is irrelevant in the face of a conviction in a fair trial?


I believe this is about evidence coming to light after the conviction and whether appeals courts can overturn a conviction based on that new evidence.

Your 'actual innocence' matters less than the convenience of the bureaucracy of the justice system...
 
2012-03-21 11:09:49 PM

StopLurkListen: Your 'actual innocence' matters less than the convenience of the bureaucracy of the justice system...


...if conservative heros like Scalia are involved.
 
2012-03-21 11:13:39 PM

dookdookdook: dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia

I don't speak lawyer, but am I correct in thinking that he's saying that the reality of whether or not someone actually did something is irrelevant in the face of a conviction in a fair trial?


My GED in law has lapsed, but I think that was exactly what he was saying. It is a quote from his dissent (Thomas concurring)Warning pdf (new window)
 
2012-03-21 11:22:57 PM
When was the last time a major Supreme Court decision didn't result in a 5-4?

The entire system needs an overhaul.
 
2012-03-21 11:24:15 PM
Dear Dharun Ravi,

Please see enclosed article.

Love,
Five Members of the SCOTUS
 
2012-03-21 11:27:28 PM

Fluorescent Testicle: When was the last time a major Supreme Court decision didn't result in a 5-4?

The entire system needs an overhaul.


REVOLUTION!

No seriously, let's do it. It's the only war I'd even consider signing up for.

(Hello DHS surveillance bots!)
 
2012-03-21 11:33:31 PM
This sure is a law bomb.

I will post this to my law blog.
 
2012-03-21 11:34:58 PM

SJKebab: Gyrfalcon: Why Scalia can't just concur in part and dissent in part remains a mystery.

Same reason I can't fark a 15 year old and claim that I didn't nothing wrong because she had a massive rack and she looked 18?


Except concurring in part and dissenting in part is quite legal and statutory rape is still not.
 
2012-03-21 11:36:27 PM
I served as an alternate on the jury for a murder trial. The PD was a complete farking joke. He would sit in chair and push back on the rear legs, like a kid in middle school. He would ask the witnesses questions from this position. Many times he had to be told to speak up. On three occassion, a juror held up a hand in the middle of testimony to tell the Judge we could not hear him. It was not just his volume, but he mumbled his word as well.

On the second day he started this again. The Judge, clearly exasperated, called him up to his box/bar/whatever and spoke with him for a few minutes. The PD from them on spoke much more clearly and would get up when addressing witnesses.

I really felt sorry for the poor kid who in crack fuel 7 day bender killed the crack whore that he thought was stealing his crack. It was a tragic situtation all around and here he was with no chance of hell getting any sympathy for a reduced or mitigated sentence (he was going to jail no matter what, he never denied the murder, just the level) because his PD was total crap.

The ADA on the other hand was like an F22. Precision cut, on target and laser focused.

It was an F22 against a wet box kite.

I hope I, or any one I care about, has to be represented by a wet box kite.
 
2012-03-21 11:53:26 PM

TofuTheAlmighty: omnibus_necanda_sunt: Fark Scalia. In the ass. With a big, rubber dick mace Elephant.

That's more like it.


FTFM :)
 
2012-03-21 11:54:14 PM
Haven't read the story yet. Let me guess, Kennedy joined the correct side and the right wing "originalists" were on the wrong side?
 
2012-03-21 11:55:36 PM

Sabyen91: Haven't read the story yet. Let me guess, Kennedy joined the correct side and the right wing "originalists" were on the wrong side?


Read the article.

/Yup
 
2012-03-22 12:00:49 AM
Huh. In the civil context, sometimes offers fall in to the "fark you" range and as a result may not get communicated beyond an attorney's drinking buddies. It would be a shame to have to call a client, tell him about the $1 offer, and then explain that we should probably not accept it.

In the criminal context, the problem is even worse because your client is normally a moron. Requiring that criminal clients be informed of offers basically amounts to requiring that criminal defense attorneys have a flawless ability to accurately convince their clients of whether to take an offer.
 
2012-03-22 12:03:45 AM

El_Dan: In the criminal context, the problem is even worse because your client is normally a moron. Requiring that criminal clients be informed of offers basically amounts to requiring that criminal defense attorneys have a flawless ability to accurately convince their clients of whether to take an offer.


Not really. It is quite easy to inform your client of deals.
 
2012-03-22 12:06:02 AM
It is even more of an issue in that in most states a lawyer acts unethically if they fail to communicate a plea bargain offer, see for example Calif. Rule 3-510. Communication of Settlement Offer.

(A) A member shall promptly communicate to the member's client:

(1) All terms and conditions of any offer made to the client in a criminal matter...;

I guess Scalia is ok with a defendant having not only an incompetent attorney but one who is not ethical.
 
2012-03-22 12:07:49 AM

sdd2000: It is even more of an issue in that in most states a lawyer acts unethically if they fail to communicate a plea bargain offer, see for example Calif. Rule 3-510. Communication of Settlement Offer.

(A) A member shall promptly communicate to the member's client:

(1) All terms and conditions of any offer made to the client in a criminal matter...;

I guess Scalia is ok with a defendant having not only an incompetent attorney but one who is not ethical.


It takes one to sympathize with one.

/Scalia is more than unethical, he is demonspawn.
 
2012-03-22 12:22:29 AM

jbc: Lionel Mandrake: Golly, I wonder which four decided that getting stuck with an incompetent boob was perfectly OK...hmmmmm

Thomas was the first person everyone thought of when they got to the end of that headline.


I just assumed Scalia-Thomas, Alito, and Roberts.

Big frickin surprise.
 
2012-03-22 12:24:52 AM

dookdookdook: dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia

I don't speak lawyer, but am I correct in thinking that he's saying that the reality of whether or not someone actually did something is irrelevant in the face of a conviction in a fair trial?


No, what he's saying is just because new evidence appears that casts doubt on the guilt (or innocence) of an already convicted (or acquitted) person, does not mean that person should automatically receive a brand new trial ... or that this new evidence, on it's face, automatically means the the original trial was incorrectly decided.
 
2012-03-22 12:25:49 AM
But my constitutional right to bear arms to protect my own life is contingent upon me having the money to apply for a gun card (in a shiatty state like the Land O Lincoln) and waiting 6 weeks for my right to bear arms card to arrive via US mail, having an address, traveling to a gun shop, purchasing a firearm, possibly being required to wait one to three days and having to travel back to that same gun shop, and then I have to have the money to purchase the ammo. But if I commit a crime or get accused of committing a crime, I not only have the right to a lawyer, I have the right to one with an above-minimal level of competence.

I'm not disagreeing with the decision, and I'm more than willing and able to purchase my own....everything. I just want to make some left-wing anti-gun whack job, the sort who thinks cable TV and cell phones are rights that working people need to pay for so non-working people can enjoy them, gets to buy a gun for the people he is so worried about.
 
2012-03-22 12:26:58 AM
It's nice if this case increases awareness that around 95% of convictions are plead not tried. I'd be fascinated to see a survey of what "real America" thinks that percentage is.
 
2012-03-22 12:32:10 AM
Herrera_v._Collins, the Supreme Court precedent for executing an innocent person who can demonstrate "actual innocence" (new window)

"Rehnquist's opinion (6-3, with the Rehnquist, O'Connor, Scalia, Kennedy, Thomas, White) noted that "[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.""
 
2012-03-22 12:34:47 AM

SunsetLament: No, what he's saying is just because new evidence appears that casts doubt on the guilt (or innocence) of an already convicted (or acquitted) person, does not mean that person should automatically receive a brand new trial ... or that this new evidence, on it's face, automatically means the the original trial was incorrectly decided.


So how's that different from what I said?

Is it like "Well we'd let you out if you could prove you were innocent, but for you to be able to do that you'd need a new trial, which we aren't going to give to you because eff you."?
 
2012-03-22 12:35:16 AM

Big_Fat_Liar: But my constitutional right to bear arms to protect my own life is contingent upon me having the money to apply for a gun card (in a shiatty state like the Land O Lincoln) and waiting 6 weeks for my right to bear arms card to arrive via US mail, having an address, traveling to a gun shop, purchasing a firearm, possibly being required to wait one to three days and having to travel back to that same gun shop, and then I have to have the money to purchase the ammo. But if I commit a crime or get accused of committing a crime, I not only have the right to a lawyer, I have the right to one with an above-minimal level of competence.

I'm not disagreeing with the decision, and I'm more than willing and able to purchase my own....everything. I just want to make some left-wing anti-gun whack job, the sort who thinks cable TV and cell phones are rights that working people need to pay for so non-working people can enjoy them, gets to buy a gun for the people he is so worried about.


Holy Logical Fallacies, Batman!

You have the right to have a lawyer provided to you because it is mandated by the Sixth Amendment. It is required by the constitution that counsel is provided. Nowhere in the constitution is it mandated that you be provided with a firearm.

Also, nice ridiculous strawman. Nobody thinks cable and cell phones are basic rights. Your post is bad and you should feel bad.
 
2012-03-22 12:37:30 AM

Shvetz: FTA:

In Missouri v. Frye, the justices held that the constitutional guarantee of a fair trial extends to pre-trial activities such as plea bargains. "This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."

I generally thought that this was already law. Your lawyer doesn't have to present plea deals to you?


Under the state's legal ethics, yes, you typically would have to do so. And it might be malpractice not to do so. So you could be disbarred and.or sued... But that would not impact the prosecution's ability to go for broke. The court is raising the bar and saying that such incompetence rises to a constitutional defect.

Having actually served as appointed counsel in a very big, very long, very complicated federal drug case, I can assure everyone that this sort of gig is really a specialized activity. I am a very good bankruptcy lawyer. I should not be your criminal defense attorney. I shouldn't. And anything that protects people who get stuck with me from my inexperience and lack of skill is a very, very good thing frankly. I say this because I believe in our justice system and I really want it to work properly.
 
2012-03-22 12:39:09 AM

Big_Fat_Liar: But my constitutional right to bear arms to protect my own life is contingent upon me having the money to apply for a gun card (in a shiatty state like the Land O Lincoln) and waiting 6 weeks for my right to bear arms card to arrive via US mail, having an address, traveling to a gun shop, purchasing a firearm, possibly being required to wait one to three days and having to travel back to that same gun shop, and then I have to have the money to purchase the ammo. But if I commit a crime or get accused of committing a crime, I not only have the right to a lawyer, I have the right to one with an above-minimal level of competence.


At least you don't have to be sexually violated under the direction of the state government in order to exercise your constitutional rights, like some people do.
 
2012-03-22 12:41:26 AM

dookdookdook: At least you don't have to be sexually violated under the direction of the state government in order to exercise your constitutional rights, like some people do.


(Heh, have any smartass state legislators introduced any bills requiring gun purchasers to insert the barrel of the gun they're trying to buy inside themselves as a condition of purchase?)
 
2012-03-22 12:50:39 AM
A solution to this would be to require an equal amount spent on public defenders and prosecutors
 
2012-03-22 01:05:46 AM

Nem Wan: It's nice if this case increases awareness that around 95% of convictions are plead not tried. I'd be fascinated to see a survey of what "real America" thinks that percentage is.


The justice system is interested in cost and expediency, not actual justice per se. A plea bargain moves a case along - a trial involves far more expense and some degree of uncertainty, what with the people, rather than the lawyers, deciding the thing.
 
2012-03-22 01:23:54 AM
My attorney has passed several bars, on his way to the next bar.
 
2012-03-22 01:34:37 AM
If I'm reading these quotes correctly, a lot of what Justice Scalia objects to is that issues that are not specifically addressed in the Constitution are not to be considered and resolved by the Court because they have been previously not considered or resolved by the Court?
 
2012-03-22 01:38:38 AM

Edsel: MaudlinMutantMollusk: 5 - 4 you say?

/gee, isn't that strange

Four justices take the absolute Tea Party line on every single vote. Guess which ones.

One more Republican-appointed justice on the court and we'll all be royally farked for the next decade at least.


Like that one time all the Democratic appointed justices voted for eminent domain and taking shiat from people for no good reason and the Republican justices voted for personal rights, right?
 
2012-03-22 01:51:34 AM

dookdookdook: SunsetLament: No, what he's saying is just because new evidence appears that casts doubt on the guilt (or innocence) of an already convicted (or acquitted) person, does not mean that person should automatically receive a brand new trial ... or that this new evidence, on it's face, automatically means the the original trial was incorrectly decided.

So how's that different from what I said?

Is it like "Well we'd let you out if you could prove you were innocent, but for you to be able to do that you'd need a new trial, which we aren't going to give to you because eff you."?


Because the way you phrased your question presumes that simply because there is new evidence that comes to light, it means the person was wrongly convicted. It is very possible (and more likely than not) that a person could commit a crime, be found guilty of that crime at trial, and then new evidence appears that puts into doubt his guilt. Under the premise of your question, he's innocent and should automatically receive a new trial. What Scalia is saying is that the appearance of new evidence doesn't necessarily mean this convicted person wasn't correctly found guilty.
 
2012-03-22 02:20:52 AM

dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia


Are you quoting that because you disagree? What he said was true. The court has never had a ruling in those regards.
 
2012-03-22 02:23:08 AM

dookdookdook: dsmith42: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

-Justice Antonin Scalia

I don't speak lawyer, but am I correct in thinking that he's saying that the reality of whether or not someone actually did something is irrelevant in the face of a conviction in a fair trial?


No, he is saying the court has never made that decision.
 
2012-03-22 02:49:14 AM
i.imgur.com

Your Honor I approve and recommend that you expel me from the courtroom at once.
 
2012-03-22 03:03:00 AM
This is why, 60 and 70 and 100 years ago, our ancestors thrashed butts of members of the younger generation when they got into trouble. Because the former knew that the "justice" system was a meat grinder, and really nothing they wanted their children to ever want to get sucked into as a wrong-doer, suspect, whatever.
 
2012-03-22 03:19:35 AM

Huck And Molly Ziegler: This is why, 60 and 70 and 100 years ago, our ancestors thrashed butts of members of the younger generation when they got into trouble. Because the former knew that the "justice" system was a meat grinder, and really nothing they wanted their children to ever want to get sucked into as a wrong-doer, suspect, whatever.


I think I just saw someone on your lawn.
 
2012-03-22 04:08:07 AM
As some random idiot who barely passed the Bar Exam, I agree.
 
2012-03-22 04:53:43 AM

what_now: what if you have a GED in law? Does that count?


You're guaranteed to have Deep Thoughts.
 
2012-03-22 04:59:41 AM

Edsel: One more Republican-appointed justice on the court and we'll all be royally farked for the next decade at least.


THAT right there.
 
2012-03-22 05:59:20 AM

Altair: Huck And Molly Ziegler: This is why, 60 and 70 and 100 years ago, our ancestors thrashed butts of members of the younger generation when they got into trouble. Because the former knew that the "justice" system was a meat grinder, and really nothing they wanted their children to ever want to get sucked into as a wrong-doer, suspect, whatever.

I think I just saw someone on your lawn.


Was he wearing a hoodie?
 
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