(The Return of) Ignatz, by Sam Heldman

Friday, February 21, 2003

Supreme Court prediction
The first case for Tues Feb. 25 is Massaro v. US. Here's the setup. You know about post-conviction relief (aka habeas corpus): if you're convicted of a crime and your conviction is affirmed on appeal, you can thereafter try again, filing another petition (the post-conviction/habeas petition), arguing that your conviction was unconstitutional for one reason or another. Ok, you know that.

You also know, if you have watched tv, that you are entitled to a lawyer if you're charged with a non-petty crime. And you probably know that you have a constitutional right to effective assistance of counsel, which is to say that a conviction is unconstitutional (and there must be a retrial) if your lawyer was a COMPLETE incompetent and this may have made the difference between conviction and acquittal. So, many habeas corpus petitions allege ineffective assistance of counsel, as one of the grounds for relief.

Ineffective assistance claims are generally NOT raised on direct appeal (i.e., in the first round of appeals immediately upon the conviction); you wait til your habeas petition, so that you can have an appropriate opportunity to present the evidence about how lousy your trial lawyer was. In this case, Massaro took the ordinary route, not raising ineffective assistance as an issue on direct appeal, but raising it in his post-conviction petition. But the Second Circuit said that this was too late because under the particular circumstances here, he could have raised the issue on direct appeal, so he should be hosed because he did not. Under this decision, Massaro will never get a chance to argue that his constitutional right to a competent defense was violated -- simply because his first appellate lawyer didn't have the clairvoyance to divine that the Second Circuit would think, years later, that he ought to do the unusual step of raising "ineffective assistance" on appeal.

The government's brief sounds pretty half-hearted about defending the Second Circuit's decision. Maybe I should not violate the cardinal rule of the Term so far (which is that the government wins, and the criminal defendant loses), but I have to say "REVERSE" here. The Second Circuit's rule would do nothing but create huge headaches and messy litigation as to whether, in each individual case, an ineffective assistance claim should or should not be raised on direct appeal. This is pretty clearly an area where a bright line rule is warranted (so that people don't get hosed by making what turns out to be the wrong procedural choice in a tricky situation), and that rule should be what most of us have always believed it to be: "it's ok to save your ineffective assistance claim for a post-conviction petition." If the Court decides to the contrary, I will consider it an awful decision.

posted by sam 7:20 AM 0 comments


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