INEFFECTIVE ASSISTANCE OF COUNSEL
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel.
PLEA DEAL
The
Sixth Amendment’s guarantee of “assistance of counsel” for the defense
of an accused has long been held to mean that a criminal defendant has a
right to the effective assistance of counsel. The U.S. Supreme Court
has interpreted this right as extending to all “critical” stages of a
criminal proceeding. In Missouri v. Frye,
132 S.Ct. 1399 (2012), the Court examined the issue of whether the
Sixth Amendment’s guarantee of effective assistance of counsel
encompasses the negotiation and consideration of plea offers.
In Frye,
the defendant was accused of driving with a revoked license—an offense
for which Frye had been convicted three times before. The prosecution
extended two alternative plea recommendations. Each recommendation was
formal and included an expiration date. Defense counsel allowed both
offers to lapse without communicating either of the prosecution’s
proposed plea recommendations to Frye. Subsequently, he was sentenced to
three years in jail. After learning of the lapsed plea offers, Frye
applied for relief after the court entered his conviction, alleging
ineffective assistance of counsel. He argued that had he known of the
offered plea recommendations, he would have pleaded guilty to the
misdemeanor. The Missouri Court of Appeals concluded that Frye had
shown a violation of the Sixth Amendment under the test set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984).
The
Supreme Court agreed. In holding that the Sixth Amendment’s guarantee
of effective assistance of counsel extends to the consideration and
negotiation of pleas, the Court recognized the prevalence of plea
bargaining within the criminal justice system. Noting that 95% of
criminal convictions are based upon guilty pleas, the Court determined
that “it is insufficient simply to point to the guarantee of a fair
trial as a backdrop that inoculates any errors in the pretrial process.”
Thus, the Court acknowledged that failing to recognize the
constitutional guarantee of effective assistance of counsel to the plea
bargaining stage would deny the accused the right to guidance “‘at the
only stage when legal aid and advice would help him.’”
The
Court outlined the steps a defendant must take to show that a violation
of a defendant’s Sixth Amendment right to effective assistance of
counsel has been violated at the plea bargaining stage. Under the test
set forth in Strickland,
the accused must prove (1) that counsel’s assistance had been
deficient, and (2) that, as a result of the deficient assistance, the
defendant was prejudiced.
In
cases alleging ineffective assistance in the plea bargaining stage, the
Court held that defense counsel has an obligation to communicate plea
offers to the accused and to advise the accused as to the favorability
of the recommendation. Thus, if the attorney for the accused fails to
communicate a plea recommendation to the accused and “allow[s] the offer
to expire without advising the defendant or allowing him to consider
it, defense counsel did not render the effective assistance the
Constitution requires.” As a result, if a plea recommendation lapses
and defense counsel fails to communicate the offer to his client, his
conduct is “deficient” under the first prong of the Strickland
test. Next, the defendant must show prejudice resulting from the
ineffective assistance of counsel. In order to demonstrate this, the
defendant must show that there is a “reasonable probability” that they
would have accepted the plea recommendation. The defendant must also
show a reasonable probability that the plea would have been accepted by
the court and not withdrawn by the prosecution. In essence, where
counsel fails to communicate a plea recommendation, the defendant must
prove that he would have accepted the plea and not gone to trial, or
that the later plea accepted was less favorable than the plea initially
offered.
Defense
counsel did not convey the terms of the plea offer discussed with
prosecutor Sandra Jo Streeter to Petitioner until April 6, 2012, after
voir dire began. The plea deal, while in the public defender’s attorney
notes, is not part of the trial record. What unfolded with respect to
the discussion regarding a plea deal and/or trial is set forth as
follows. On April 4, 2012, public defender Mike Kelly met with
Petitioner alone - at the courthouse - and advised her that the City
Attorney wanted to go to trial. There was no discussion about a plea
deal. Petitioner advised the public defender that she would plead not
guilty and refused to waive her right to a speedy trial. He noted that
this was acceptable because he had co-counsel on the case and would
have time to review the evidence over the weekend and prior to the
start of testimony. Unfortunately, the court appointed lawyers did not
participate in what could reasonably be viewed as simple, routine
preparation for trial (long before April 4, 2012) that would include
meeting with one’s client (at the jail or via video-conferencing) to get
the facts and details straight; discuss the evidence and issues; review
the prosecution’s case and potential witnesses for Petitioner; and so
forth. Due to this, facts were misstated, issues were confused,
witnesses did not receive subpoenas, motions were not filed, evidence
was not authenticated or suppressed; and many details were overlooked.
Both lawyers were aware that Petitioner was not served or notified of
the California order registered on May 25, 2011, and this should have
been addressed during trial and in a motion to dismiss the case due to
unlawful arrest. They were also aware of the egregious prosecutorial
misconduct which Petitioner discussed throughout the trial with one of
her court appointed lawyers although no objections exist with respect to
the misconduct and it was not raised in a motion with the court.
On
Friday, April 6th, , Petitioner asked Mike Kelly (whose co-counsel
Nikhil Ramnaney was present) why she wasn’t offered a plea deal.
Various LASD employees and inmates had advised her that this was
inconceivable with respect to a misdemeanor - as was the fact that it
was going to trial. At that time, Petitioner was told that the
prosecutor discussed the following terms with respect to a plea deal:
Plead guilty to two charges, 36 months of summary probation, and 180
days of county jail. This plea deal should have been confirmed in
writing with the prosecutor and raised on the record to avoid any future
confusion or deception. Petitioner did not have an opportunity to
accept the plea deal because the trial had begun and her court appointed
lawyers never advised her to do so. In fact, there was no discussion
about this issue. Had Petitioner taken the plea deal, she would have
served approximately 180 days with a maximum of 90 days. By the time
the trial began, Petitioner had served approximately 40 days which would
have been calculated as 80 days. Clearly, Petitioner would have
accepted a plea deal that caused her to serve approximately 45 days
rather than an extensive 18 month sentence, causing Petitioner to serve 8
months at Lynwood County Jail The PD attorney notes state that
Petitioner would have served 10 to 30% of the 180 days. In other words,
Petitioner would have served 18 to 54 days. The sentence, per the
attorney notes and our discussions, was not consecutive unlike the
punitive sentence - involving domestic violence fines - Petitioner
ultimately received. Petitioner has no prior record; was not served the
California registered order; had no knowledge or notice of that order -
and no evidence exists to the contrary; and should have received
probation, if anything at all. Petitioner’s sentence appears to be an
abuse of discretion on the part of the trial court. The public
defenders confirm, in their attorney notes, that they advised the
prosecutor they would not be settling the case. There is nothing on the
record or in writing confirming either the plea deal or rejected
settlement. Petitioner would clearly have accepted the plea deal .
Petitioner’s sentence now involves 5 years of summary probation,
thousands of dollars in fines, and the refusal of the appellate division
to abandon this appeal due to serious and egregious prosecutorial
misconduct, retaliation, and for other good and legitimate purposes.
Defense counsel did not advise the Petitioner as to the favorability of
the recommendation. Petitioner was clearly prejudiced by the
circumstances surrounded this plea deal and has reasonably demonstrated
that she would have accepted the more favorable offer had she been
afforded the effective assistance of counsel. Petitioner believes the
plea deal would have been entered without the prosecution’s cancelling
it due to the fact that the prosecution offered the terms of the plea
deal; 94% of state convictions are the result of guilty pleas (See
Department of Justice, Bureau of Justice Statistics); and, based upon
the Declaration of Susan Schmitter in this matter that states: “The
City attorney’s Office ... is currently short-staffed due to budgetary
constraints ... Attorneys within the Los Angeles City Attorney’s Office
are currently furloughed approximately 1-1/2 days every two weeks due to
the budget crisis within the City of Los Angeles. We are required to
work no more than 69.5 hours every two weeks.”
To
prevail on a claim of ineffective assistance of counsel, appellant must
show deficient representation and resulting prejudice. (In re Alvernaz
(1992) 2 Cal.4th 924, 936-937.) In the context of a plea bargain,
prejudice is shown where there is a reasonable probability that the
defendant would have accepted the proffered plea bargain had he been
properly advised by counsel, and there is a reasonable probability the
trial court would have approved the plea bargain. (Id., at p. 937.) By
withholding all discussion with respect to a plea deal, until
Petitioner raised the issue - after the trial began - and given the fact
that she was offered no favorable or clear advice with respect to the
plea deal offer, Petitioner maintains that counsel’s performance fell
far below an objective standard of reasonableness and there was no
rational tactical reason for counsel’s failure to advise Petitioner of
the plea deal.
Other
areas where ineffective assistance of counsel severely prejudiced
Petitioner are: Lack of authentication of voice mail messages (altered
in terms of sound, speed, and volume); lack of authentication with
respect to email messages that could easily have been altered and which
were not obtained via subpoena; email account ownership not verified
with Gmail; transcripts of voice mail messages are incoherent and wholly
inaccurate (that would include with respect to the February 15, 2011
alleged voice mail where Petitioner stated in a menacing tone “Cohen is
going to be hung” which she refutes; voice mail messages could not be
date or time stamped and were out of sequence when reviewed by Detetive
Viramontes/LAPD; the chain of evidence is sloppy, confused, and there is
conflicting testimony over whether the CDs containing the alleged voice
mail messages and email messages were given directly to LAPD’s
Wilshire Division, the City Attorney’s office, or Detective Viramontes
at LAPD’s Threat Management Unit. Nothing indicates how Detective
Viramontes/LAPD came into possession of the CDs he forwarded to the City
Attorney’s office per his report); no discussion was had with
Petitioner about the sound quality of the CDs or the fact that she is
affiliated with many reputable record producers and sound engineers
(including The Scientist, a world renown producer who lives in the Los
Angeles area and could have testified); defense attorneys did not
require the prosecutor to turn over the tax forms she and prosecution
witnesses falsely informed the jurors Petitioner has in her possession -
nor did they clarify, for the jurors, the issues with the K-1s that are
evidence of criminal conduct on the part of Leonard Cohen (the sole
owner of the issuing entity); defense counsel did not raise the fact
that Cohen testified at the March 23, 2012 hearing that Petitioner only
stole his “peace of mind” or address his public statement that he wasn’t
accusing Petitioner of theft; defense lawyers failed to address the
fact that Leonard Cohen concealed evidence that Petitioner owns 15% of
all his intellectual property dating back to 1967 and fraudulently
asserted in his retaliatory lawsuit that Petitioner received
overpayments with respect to her commissions as Cohen’s personal
manager;. defense lawyers failed to question Cohen over evidence in the
public domain (NY Times and MacLean’s at the time of their interview
with Cohen in 2005; a declaration of Cohen’s in the failed CAK bond
deal, and elsewhere) that proves Lynch was Cohen’s personal manager from
1988 through October 2004 and failed to subpoena witnesses - including
Cohen’s business manager (Rich Feldstein) to impeach this false
testimony; defense lawyers failed to address the extensive false and
perjured testimony that has lead to entirely unreliable and tainted
trial record - and the reviewing court cannot presume that the record
contains evidence to support every finding of fact; defense lawyers
failed to address the egregious prosecutorial misconduct through
objections and in motions with the court; defense lawyers failed to
request definitions for the words “annoy,” “obscene,” “expletive,” “good
faith,” or “legitimate;” defense lawyers did not advise the trial court
to apprise the jurors of the actual elements of the “intent to annoy”
statute; defense lawyers did not challenge the “intent to annoy” statute
as unconstitutionally vague and overly broad; defense lawyers did not
challenge the fact that a business relationship exists between
Petitioner and Cohen due to the fact that he owes her millions of
dollars, has failed to provide her with the IRS required form 1099 for
the year 2004; has failed to rescind K-1s wrongfully issued Petitioner
(and transmitted to the State of Kentucky and IRS) for the years 2003,
2004, and 2005, refuses to provide Petitioner with an actual accounting;
defense lawyers did not appear to address the inadmissibility of a
great deal of the evidence; or use documents in the IRS binder and the
email thread the prosecutor provided the defense with re. Phil Spector
and a version of Cohen’s gun story that differs from his testimony on
this subject. And, to add insult to injury, the Public Defender’s
Office refuses to provide Petitioner with her complete file - including
the evidence on CDs, copy of the motion in limine filed, and other
documentation Petitioner requires for her appeal, this writ, and for
other reasons. Petitioner can see no reasonable tactical justification
for counsel’s failure to act with respect to the aforesaid issues. A
defendant bears the burden of demonstrating he received ineffective
assistance from his attorney; he must first show counsel's performance
was “deficient” because
his “representation fell below an objective standard of reasonableness ... under
prevailing professional norms.” Strickland v. Washington
(1984) 466 U.S. 668, 687-688. Second, he must also show prejudice by
establishing a reasonable probability the outcome would have been
different if his attorney had not committed the claimed unprofessional
error. (Id. at 691-694.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Id. at 694.)
Third, on direct appeal defendant must also convince the court “there
simply could be no satisfactory explanation” for counsel's failure to
act.” People v. Mendoza Tello (1997)
15 Cal.4th 264, 266. The reviewing court might also have difficulty
understanding why one of my trial lawyers apparently contacted a lawyer,
aligned with Leonard Cohen, to discuss my witnesses and what they could
or could not corroborate.
Counsel
also failed to file a motion to exclude the prior bad acts evidence -
much of which was distorted, taken out of context, based on concealed
evidence (ie., Mick Brown and the Phil Spector Grand Jury
statements/testimony issue) and failed to object to highly inflammatory
evidence which the prosecutor exploited in closing argument. See People v. Guizar (1986) 180 Cal.App.3d 487.
“[W]here
the record shows that counsel has failed to research the law or
investigate the facts in the manner of a diligent and conscientious
advocate, the conviction should be reversed since the defendant has been
deprived of adequate assistance of counsel.” People v. Pope (1979) 23 Cal.3d 412, 426.)
The
reality is that many prosecution error claims are lost because trial
counsel did not adequately preserve the record. If the duty of record
preservation were repeatedly pounded into the heads of young trial
counsel, many significant issues would not be lost to the record on
appeal. It seems obvious that Petitioner has been deprived of
adequate assistance of counsel and the harm is irreversible.
There
is no question a prepared, record-attentive trial counsel is a far more
formidable opponent and better trial lawyer than those who eschew
record making. Prosecutors are far less likely to try and take
advantage of a defense attorney who is ready to pounce on misconduct by
objections and calls for sanctions. Petitioner’s trial counsel were not
prepared nor record-attentive.
On
appeal, talking to the trial counsel early in the appeal process about
the issues is important, not only to gain an understanding of the case
and likely issues, but because good trial counsel may invite you to
examine his/her performance in not preserving a particular issue. Trial
counsel refuse to speak with Petitioner and the Public Defender’s
Office has failed to provide Petitioner with a complete copy of her file
which is unconscionable conduct.
Trial
counsel had an obligation to object to the prosecutor’s misconduct at
trial - as well as to her inflammatory and irrelevant statements. The
public defenders had a duty to object at trial and make a record of the
prosecutorial misconduct which was and remains rampant.
“One
of defense counsel's most important roles is to ensure that the
prosecutor does not transgress those bounds [of proper conduct].” Washington v. Hofbauer
(6th Cir. 2000) 228 F.3d 689, 709.) However, it does not seem probable
that an objection or cautionary instruction would counteract fully the
irreversible prejudice to the Petitioner resulted from the prosecutor's
remarks. The prosecutor's statements and conduct “so infected the
trial with unfairness as to ... [be] a denial of due process” under the
14th Amendment to the U.S. Constitution. Donnelly v. DeChristophero (1974) 416 U.S. 637, 643.
Due
to ineffective assistance of counsel and the failure to preserve the
record Petitioner would be further harmed should the court deny her a
review regardless of the failure to object. (E.g., People v. Crittenden
(1994) 9 Cal.4th 83, 146, the court held that defense counsel waived
issues of prosecution misconduct for failure of trial counsel to object,
but then reviewed the issue anyway: “Nonetheless, in view of the
potential claim that counsel's failure to object on the specific grounds
urged on appeal denied him his rights under the state and federal
Constitutions to the effective assistance of counsel, we review these
claims on the merits.”)
Appellant
was denied her constitutional right to a fair trial and defense due to
the egregious ineffective assistance of counsel, failure to properly
address issues on the record and object to - among other things -
prosecutorial misconduct and/or error, and the failure to sit down and
meet with Petitioner as well as to deny her the right to be made aware
of the plea deal discussions, terms, and to be given appropriate legal
advice with respect to that plea deal.
