It’s not unusual for a defendant to appeal a conviction after trial. Appellate counsel will scour the record for possible errors at the trial made by the judge, the prosecution, or the defense. A common claim on appeal is that the trial counsel for the defense was “ineffective;” in other words, the lawyer made mistakes that affected the outcome. The right to counsel is guaranteed by the Sixth Amendment and that right includes effective assistance of counsel. To prevail on appeal on the grounds of “ineffective assistance of counsel,” a defendant-appellant must establish that his lawyer’s performance was deficient and had it not been for his lawyer’s deficient performance, the result of the trial or sentencing would have been different. This claim has been made in numerous high profile cases.
Kennedy nephew Michael Skakel was convicted in 2002 of bludgeoning to death his Greenwich, CT neighbor Martha Moxley in 1975 when they were both 15 years old. Connecticut attorney Mickey Sherman (who used to be a regular guest on Court TV) represented Skakel. Skakel appealed and argued, among other points, that Sherman was ineffective. In October 2013, a Connecticut appeals court agreed with Skakel, vacated the murder conviction, and ordered a new trial. The State appealed the decision and is seeking to have the conviction reinstated. There is no decision yet; Skakel is currently out of prison, awaiting the appellate decision.
Steven Avery, convicted of murdering Theresa Halbach in 2005 in Wisconsin, and made famous through the Netflix series Making a Murderer, is now asserting that his trial attorneys, Dean Strang and Jerome Buting, were ineffective. Avery is currently represented by Kathleen Zellner who successfully represented Ryan Ferguson. Netflix reportedly recently contracted to produce a sequel to Making a Murderer based on Zellner’s appellate representation and post-trial investigation.
Scott Peterson, convicted in 2004 of murdering his pregnant wife Laci and their unborn son Connor, filed an appeal in 2012 that did not assert ineffective assistance of counsel. However, a petition for a writ of habeas corpus, drafted by a different attorney from the appellate brief, and filed last fall with the California Supreme Court, does make the claim. It points out numerous failings by the defense team, led by LA-based attorney Mark Geragos, that Peterson now claims rise to the level of ineffectiveness. The case is still on appeal.
The latest high-profile defendant to make the “bad lawyer” claim is Jerry Sandusky, the convicted child molester and former assistant football coach at Penn State. Sandusky was convicted in June 2012 of molesting 10 boys over several years. About three times as many boys (now adults), however, came forward when Penn State was settling a civil suit. Now, Sandusky alleges that his trial counsel, Joe Amendola, was ineffective. Among Amendola’s mistakes, according to Sandusky, is that he wanted to testify in his own defense. Sandusky will be in court today and, this time, is expected to testify in an effort to convince the judge that he deserves a new trial. I think it’s a long shot for Sandusky but you never know…