Response 1 530

100 word response 1 reference due 9/16/2023

Puck

1.  In post-conviction settings, the interest shifts from the protection of the accused to the finality of judgment.  Argue for and against this position from both a legal and policy perspective. 

The protection of the accused in a post-conviction setting is to ensure that everyone has a right to fight against a wrongful conviction and not have to suffer any longer. Although the law wants to do right by those who were innocently-convicted, it can be very conflicting with the prosecutorial office that made the determination in the first place. It is basically asking the person who decided the fate of an individual to recant their decision and provide reasoning as to why they were wrong to do so. It has been said that "when other lawyers are asked to turn against their own work, they typically must tell the client to obtain another lawyer" (Swisher, 2012). It can definitely be difficult for someone to receive the opportunity to basically re-do the trial and clear them of their conviction. There are many types of ineffective assistance in which most deal with counsel not doing what is expected of them for their job. For example, being on time or doing the proper research into the case and the person that they are representing. 

The finality of judgement for a case often comes after the previously convicted individual requested to appeal their conviction. The process of reviewing cases and their verdicts often creates doubt with the original decision of the court. In other terms "It delays the execution of a sentence and undermines the certainty of the original decision by destroying the finality of the original verdict" (Malleson, 1994). While most individuals who choose to immerse themselves in this process are doing it with good intent, some people have tried to do it for their personal gain. Either viewpoint of the situation of protecting the accused but ultimately shifting to the finality of the judgement, had valid arguments. The whole point of having the ability to clear someone's name post-conviction is to allow those who should not have been incarcerated in the first place to have a voice. There is always a chance that their counsel could have absolutely butchered their chances at the trial and made them have to deal with the unfortunate consequences. 

 

2.  The rights of the accused are dependent upon the effectiveness of counsel.  Is this a correct statement?  Explain and provide a factual example, (of which can be hypothetical), that would justify your answer.  

The rights of the accused are not dependent upon the effectiveness of their counsel. The accused has a right to an effective counsel as per the Sixth Amendment. As the Miranda rights mention, "You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you" (Miranda v. Arizona, 1966). The Sixth amendment aims to protect the accused of having counsel that could potentially be ineffective at trial. Every U.S. Citizen has their protected rights and not having an effective counsel would not change anything. When trying to prove that the counsel is ineffective, it could simply include the "counsel's inability or unwillingness to conduct a basic pretrial investigation, whether that involves interviewing eyewitnesses or exploring alibi testimony, may constitute ineffective assistance" (Zimpleman, 2011). There can be many instances where the counsel does not do what is expected of them by their client. It was not always required for an accused person to have a competent defense, but in the 1980s it became the standard. For example, the case of Strickland v. Washington, the counsel did not go into detail when speaking about the defendant or when trying to defend them against the crime. The accused still had their rights in the courtroom even if their counsel declined to thoroughly research and help their client. It was said that "In preparing for the sentencing hearing, defense counsel spoke with respondent about his background, but did not seek out character witnesses or request a psychiatric examination" (Strickland v. Washington, 1984). With this information, it resulted in the defendant's reversal of what their counsel had not done for them properly.