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Denny_Crane

Counsel is Vouching

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While working to amend a petition for post-conviction relief counsel vouches for certain misconduct which the state committed prior to trial. Appointed counsel claims he knows the prosecutor and that he doubts that the actions were intentional.

 

Counsel then strips from the complaint certains errors the court made during trial, again vouching, but explaining that he appears before the court often.

 

As the petition continues to be amended, counsel disagrees with the defendant, attempting to persuade and to change defendants unwillingness to concede the integrity of numerous participants alleged off-the-record improper actions; before, during and after trial - which led defendant to file the petition in the first place.

 

Appointed counsel concedes that he has insufficient personal knowledge, he wasn't employed or working in the court at the time, but counsel also claims he's "heard" about what happened and can vouch for the records' accuracy. 

 

Some reassurances by counsel are allowed, but when does too much vouching for the "system" become a problem?

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Is this YOUR appointed counsel? And he is unwilling to tell you his sources?

 

No, this is about someone I'm helping source her post-conviction.

Though, I've heard "vouching" over the years.

 

See other post on petition: https://boards.answers.findlaw.com/index.php/topic/236330-assisting-counsel/

 

Of note, defendant filed a timely post, providing a "gist" of a constitutional claim. The court moved her case to the "second stage" and appointed counsel. So, upon review some valid constitutional issue was recognized.

 

Now, the defendant is facing the gutting or stripping of the many constitutional issues revolving around ex parte communications, improper conduct by attorneys and misconduct by court personel.

 

How much vouching by counsel of those he works with is allowed and how much is too much?

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A prosecutor may express an opinion based on the record, and may draw reasonable inferences from the evidence presented; however, a prosecutor may not vouch for the credibility of a government witness or use the credibility of the State's Attorney's office to bolster a witness's testimony. People v. Williams, 2015 IL App (1st) 122745.

 

In the present case, we find that the State impermissibly vouched for the victim's credibility when it argued that the victim "was credible and you should believe her," and "we believe [the victim is] credible." The State further erred when it said in its rebuttal argument that "we believe [the victim is] credible, that she told—everything she said was completely credible and makes perfect sense as to how everything happened."

 

2016 IL App (3d) 140203 PEOPLE v. EFFINGER (2016)

 

Is the defense under the same restrictions? Though, the poster is speaking of private advice, I believe.

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It appears it's the good 'ol boy system at work. Counsel is more concerned about what is said about court employees, fellow attorneys and judges...

 

As for constitutional issues, it is slow work the frame the arguments without ruffling feathers.

 

Vouching may become an issue of divided loyalties.

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"Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony" ( United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)" U.S. v. Weatherspoon (2005)  410 F.3d 1142 at 1146.   It only applies at trial and it can be reversible error.

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The term refers directly to the prosecutor's actions, not the defense.  If a prosecutor does it, it can be reversible error.  If the defense did it, obviously it was unsuccessful if the defendant is convicted....Unless asserting an affirmative defense, the defense has no burden of proof and obviously they want the jury to believe their witnesses and not those of the prosecution. 

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Sounds more like a conflict of interest.

 

 Courts recognize both actual and potential conflicts of interest. "An actual conflict of interest exists when the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests." United States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000) (internal quotations omitted). In such a case, "f there is any adverse effect on the attorney's performance, prejudice is presumed and the defendant's argument prevails." Blake, 723 F.3d at 880 (internal quotations omitted).

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