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Denny_Crane

Assisting Counsel

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A defendant loses at trial. She appeals and is denied. She then files a collateral post-conviction petition claiming denial of her constitutional right to assist in her own defense.

 

Counsel was uncommunicative. He did not interview witnesses. He did not meet with his client. He did not want help or his clients assistance.

 

To what extent does a defendant have a right to assist in their own defense? Is it a due process violation or is this just a backhanded way to claim ineffective assistance? Is there a protected interest here?

 

If a defendant seeks to actively assist trial counsel, and they are denied; is it a form of constructive denial to withhold appointed counsel services and decline help?

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Assisting in your own defense is an amorphous concept that is always case and fact specific.  There are no direct S.Ct. cases that do more than mention it as a right in the context of having an attorney and having access to your attorney.  I doubt it will get much traction and the better way, especially in a habeas petition is to simply allege ineffective assistance of counsel. 

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Assisting in your own defense is an amorphous concept that is always case and fact specific. 

 

Is this a matter of competence?

 

If so: See Dusky, 362 U.S. at 402  A defendant's role in assisting counsel in his own defense is to "recognize and relat[e] relevant information to counsel and make the few trial-related decisions reserved for defendants (i.e., whether to plead guilty, whether to request a jury trial, whether to be present at trial, and whether to testify)."

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The Dusky case was.  The poster's question was not dealing with the defendant's competence and the Dusky decision does not stand for the per se proposition that a defendant has the constitutional right to assist in the preparation of their defense.  It's not a separate, enforceable right that gives rise to a viable basis to challenge a conviction collaterally.  It's a part of the general right to counsel....

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The phrase "assist in your own defense" is usually used in terms of a defendant being competent to be tried in a criminal case. The scenario contemplated by the original post seems to be using the concept in an alternate way to entitle themselves to relief from a lower court decision. Its creative but I think LegalwriterOne's responses are on point.

 

The FindLaw.com Team

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Assisting in your own defense is an amorphous concept that is always case and fact specific...

 

The Supreme Court has held that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Founded in the Sixth Amendment's Compulsory Process and Confrontation Clauses, a criminal defendant has a right to "a meaningful opportunity to present a complete defense." Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir. 2006). Thus, the Defendants' constitutional rights to assist in their own defense must not be abridged.

 

In UNITED STATES OF AMERICA, v. FISHENKO, 12 CV 626 (SJ) the court goes to elaborate efforts to ensure that the defendants can "assist":

 

"In this case, although certain discoverable material has been deemed classified pursuant to CIPA, the Court recognizes that the Defendants retain constitutional rights to participate in their own defense. Thus, this Court must ensure the Defendants' constitutional rights while taking into consideration the Government's legitimate concerns with respect to national security and the need for efficiency in administering this litigation..."

 

"The Court heard from all parties on this matter including Defense Counsel, the Government, the United States Marshals Service, as well as the United States Department of Justice, Litigation Security Group. In addition, the Court physically examined all available options including the isolation cells and the attorney-client interview rooms, with the technology in place. Throughout, the Court pursued its inquiry into how to ensure the Defendants were provided with the best available option to preserve their rights given the legitimate concerns of the Government and the Marshals Service and the constraints these concerns entail..."

 

"Based on these conversations, the Court's inspections, the relevant law related to classified material, and consideration of the constitution rights of the Defendants to assist in their own defense, the Court has fashioned an appropriate solution. Defendants shall have unlimited access to the classified documents within the parameters of relevant security constraints. In order to view the materials, the Defendants will be produced to the inmate isolation cells of the Eastern District of New York. The isolation cells are equipped with bars rather than the mesh wires found in the attorney-client interview rooms. The Court finds that the mesh wires are not an adequate option because the mesh obstructs the Defendant's view of the documents..."        

 

"Within the isolation cells, Defendants will not have direct access to the computers, per the legitimate security concerns of the U.S. Marshals. However, a paralegal or counsel with appropriate security clearance can manipulate and control the computers through a laptop. The Defendants will view the materials on a 20-inch screen placed immediately outside the isolation cell. The screen is large enough so that the Defendants can increase or decrease the text size of each document. The Defendant will have plain view of the documents through a sizable space between each bar.The Court finds that such a remedy is the proper balance of all parties' concerns, national security, and the security of staff while also protecting the Defendant's right to assist in his own defense..."

 

Should a typical defendant receive any less?

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Again, it's framed in the context of the right to counsel, not as a separate right.  It's included but not a separate thing that would serve as a viable basis for post-conviction relief.   In the Fishenko case, unregistered Russian agents were allegedly illegally procuring high-tech microelectronics on behalf of the Russian government which violated all kinds of laws restricting or forbidding it.  Classified information is involved so providing it to counsel for the defense and logistically managing how they would be able to meet and discuss it with their clients got tricky.  This was an interim order from a federal district court which has no actual precedence in a state court proceeding, it's irrelevant to the poster's original question AND Mr. Feshenko pled guilty this past September...

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To what extent does a defendant have a right to assist in their own defense?

 

What type of assistance are we talking about?

 

Found this little gem while researching another matter:

 

People [161 Cal.App.3d 806] v. Mattson, supra, and its progeny.

 

Courts in a variety of contexts have allowed a defendant to assist counsel in his own defense. (See People v. Evans (1963) 211 Cal.App. 2d 534, 538, [defendant allowed to cross-examine a witness]; People v. Bourland (1966) 247 Cal.App. 2d 76, 87, [Pro per defendant and advisor counsel shared handling of the case]; Goode v. Wainwright (11th Cir.1983) 704 F.2d 593, 600, [Pro per defendant had assistance of counsel. Counsel conducted most of trial but defendant cross-examined witnesses and made a short closing statement.]; United States v. Williams (8th Cir.1976) 534 F.d 119, 123, [Court treated defendant and his counsel as co-counsel and applied the same general rules as are applied when a party is represented by two attorneys.); United States v. Bennett (10th Cir.1976) 539 F.2d 45, 50, cert. den., [Court permitted defendant represented by counsel to cross-examine some witnesses.].

 

Sure, this is California and doesn't help much in Illinois, but you get the idea...

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The OP has an interesting question which fits closely to something I was looking for, but now can't find.

 

Please don't ridicule me, I once read a citation where it describes the client/defendant as crucial, a valuable resource of information to an attorney. The case citation read that to ignore this available/valued resource amounted to ineffectiveness.

 

But, I can't find the case or remember the context or keywords used when I found it.

 

Am I being vague enough?

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Counsel was uncommunicative. He did not interview witnesses. He did not meet with his client.

He did not want help or his clients assistance.

 

Denny, what kind of "assistance" did the defendant want to lend his counselor?

 

I ran across a few cases that could be cited, while resarching something else, so please describe.

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I once read a citation where it describes the client/defendant as crucial, a valuable resource of information to an attorney. The case citation read that to ignore this available/valued resource amounted to ineffectiveness.

 

Does anyone know the case I'm talking about?

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Denny, what kind of "assistance" did the defendant want to lend his counselor?

 

She wished to be involved in her own case.

 

Afterall, she was a professional, college educated and capable of filing her own pro se petition. She knew her case best.

 

Counsel closed-out nearly all participation and failed to interview witnesses or investigate or gather evidence.

 

The failure to allow assistance is one of her claims and she wishes to add several citations.

 

Got any?

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