Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

New York Court of Appeals Says Judge Cannot Instruct on Lesser Included Offense Over Defense Objection

On October 23, 2012, New York’s highest court held that defense counsel has the ultimate authority in making the strategic decision whether the request lesser-included-offense jury instructions, and that the trial judge’s decision not to give lesser include offense instructions that defense counsel requested because the defendant objected was error requiring a new trial.  People v. Colville, No. 161, 2012 NY Slip Op 07047.  The appellate court refused to find the error harmless. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected." The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea , or to request consideration of an affirmative defense.

Michigan Defense Counsel Reform Moves Forward

There is an old lawyer’s joke that the “two things you never want to see how they are made are law and sausages.” The joke applies mostly to legislation (rather than litigation) where there is horse trading to get legislation through and get opponents to back down. HB5804 is the prime example. Most parties (prosecutors, defense counsel, and courts) agree that our current system is “broke,” but can’t agree on the fix or who is going to pay for the fix.

HB5804 is designed to increase the quality of representation, but has had to yield to various needs. Just as the bill was on the verging of passing, the Michigan Attorney General’s Office attempted to derail the bill. They argued that because most ineffective assistance of counsel challenges fail, there is no problem. The Sixth Amendment Center has a
nice piece on the bill, the Attorney General’s 11th hour efforts to derail this bipartisan effort and what is wrong with their position.

Indigent Defense Bill Introduced

In this year of partisan bickering, it is rare to see both party’s agree to anything. A rarely-seen majority of Michigan House Representatives from both sides of the aisle introduced sweeping reform legislation on August 15, 2012, to transform the state’s broken and underfunded indigent defense system. This bill focuses on trial level representation. (Juvenileand appellate representation are not part of it). HB 5804 was co-sponsored by 38 Republicans and 37 Democrats. State Representative Tom McMillin (R – District 45) which tracks the Governor’s recommendation. For more information, click here.

Maryland's High Court Extends Right to Counsel to Initial Bail Hearing

This Friday’s CBC’s news documentary “The Fifth Estate” focuses on Shaken Baby Syndrome and the problems with it. I found it troubling that Canada and the United Kingdom candidly acknowledge that this syndrome is flawed and that innocents have been swept up in it. Mean while on my side of the border, with the exception of the Edmunds decision out of Wisconsin, there is no standing higher level appellate court upholding the a Daubert challenge to the same. I have to wonder if the now discredited expert (Dr. Charles Smith) was testifying on my side of the border whether he would still be testifying to this “science.”

Michigan Legislature Considers Public Defense Overhall

Yesterday, Judge Kumar of the Oakland County Circuit Court put a stop to a practice that many District Court Judges throughout the state are doing. Prosecuting college students under the age of 21 for minor in possession has become the latest rage in District Courts. Daniel Sowell was a student at Oakland University who pled guilty without counsel to minor in possession. He was sentenced to eighteen months probation. The District Court sentenced Mr. Sowell to an eight day jail sentence sentence in the Oakland County Jail’s WWAM program. Judge Kumar of the Oakland County Circuit Court reversed the ruling stating that jail was not statutorily authorized for MIP violations. People v Sowell, Oakland Circuit No. 09-DA-9011-AR.

SCOTUS Allows Impeachment with Statements Taken in Violation of Sixth Amendment Right to Counsel

Statements taken in violation of the Sixth Amendment right to counsel are inadmissible as part of the state’s substantive case against an accused, but should they be admissibile for impeachment purposes. The Court had previously ruled that statements taken in violation of the Fifth Amendment right to remain silent could be admitted at trial. Unfortunately, the Court recently extended this to include statements taken in violation of the Sixth Amendment. Kansas v Vetris, SCOTUS No. 07-1356 For a detailed criticism of the court’s ruling, check out Professor Mark Godsey’s blog here and here.

Federal Defender's Can Represent State Capital Defendants in Clemency Proceedings

The federal statute, 28 USC 2253, that requires state prisoners to obtain a certificate of appealability before challenging a district court ruling in habeas corpus proceedings does not apply to appeals of orders denying requests for federally appointed counsel. The statute governs only final orders that dispose of a habeas corpus proceeding's merits. Federally appointed counsel are authorized to represent clients in state clemency proceedings and are entitled to compensation for that representation. Harbison v Bell, SCOTUS No 07-8521.

Michigan Supreme Court Again Rejects Halbert Retroactivity