Tuesday, February 19, 2008

All the Justice You Can Afford

A defendant charged with child abuse resulting in great bodily harm was determined to be indigent and had counsel appointed to represent him. The family was able to scrape together sufficient funds to hire counsel but not a defense expert. The matter was brought to the attention of the trial court, who would not permit retained counsel to withdraw and would not authorize funds to pay an expert. The New Mexico Supreme Court reversed the conviction on grounds of ineffective assistance of counsel:

  "This is not a case where the district court was simply a passive witness to attorney incompetence. Rather, it is a case where the court, interpreting the law as it then existed, felt compelled to deny counsel access to the necessary funding and therefore to become ineffective. Despite counsel's indications that his client could not pay for any experts and that he would be rendering ineffective assistance if he went to trial without the assistance of such experts or the ability to interview the State's experts, the court refused to allow counsel to withdraw. Thus, counsel was placed in an untenable position: refuse to proceed without an order of withdrawal and risk being held in contempt, or proceed without necessary experts. This is not a choice any effective counsel should have to make. A presumption of prejudice most certainly applies when counsel's potential ineffectiveness is expressly brought to the attention of the district court and is occasioned by the rulings of the court itself." (Mike Frisch)


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