The true Hail Mary of legal proceedings is the ineffective assistance of counsel complaint. About 3-4 times per week, I am consulted by frantic family members trying to file a complaint for ineffective assistance of counsel against an attorney who represented a loved one.
The street name for this is called "Habeas Corpus", a Latin phrase meaning produce the body. So what does it mean and what are its implications? Well typically, a criminal defendant who has been convicted and is unsatisfied with his case will appeal his case to the Court of Appeals and to the Supreme Court. If he loses those avenues (or just decides not to appeal) his next step is to file a complaint for ineffective assistance of counsel. The basic allegation being that his trial (or appeals) attorney did not properly represent the defendant at trial and because of that improper representation, the defendant's constitutional rights (mostly the 6th amendment) were grossly violated. I started this article by referring to this as a Hail Mary. It truly is equivalent to being done 7 points in a football game in the 4th quarter on your 20 yard line and having one play left. Throw it hard and deep and hope to God the receiver catches it and runs to a touchdown. However, the problem in football (and in the law) is that the defense always sees that play coming, so they protect the deep end of the field with the strongest players. With the same football analogy that is what happens in the law. The vast majority of criminal defendants are found guilty on pleas of guilty. If a defendant pleads guilty, the Court puts the defendant through a rigorous question session making sure the defendant's guilty plea is knowingly, voluntary and without force threat or intimidation. Most courts also ask the defendant to comment on the level of professional services the attorney has provided in the form of "are you entirely satisfied with the representation your trial attorney has provided you." This must be affirmatively answered before taking a plea. Conversely, in the format of a not-guilty trial, the judge will ask virtually the same questions of the defendant. So the Defendant, under oath and in open court swears that his attorney (up to that point) has been competent. This is virtually the nail in the coffin for any ineffective assistance of counsel complaint. Or in comparison having 4 strong safety's deep field to intercept or stop any deep pass by a quarterback. Then there is the standard of what ineffective assistance actually means. Does it mean you are entitled to the best defense money can buy? Absolutely not. Nor does it mean that if your crappy court-appointed lawyer didn't file every motion that he could have will that have met the appropriate standard. The bar is extremely low for what it means to be "effectively represented." In both federal and state cases, the habeas corpus complaint is filed at the trial court level. Generally it must be filed within 1 year of the termination of the last proceeding in the case. So if you appealed your case to the supreme court, and they denied your case, you have 1 year from that date to file your complaint. In certain circumstances you can have 2 years if you did not appeal any portion of your case. But for 95% of the cases, the habeas corpus must be filed within 1 year of the termination of the last proceeding. If you miss that deadline, your case will not proceed. Most courts consider the day you mail your petition to the clerk the date of filing. Then you have to convince your trial judge (who either tried and convicted you or took your plea) that your trial attorney did something wrong. Again a very high standard. The trial judge issues an opinion order, and then that can be appealed by the defendant or the prosecutor up to the court of appeals and supreme court if necessary. The types of habeas corpus cases that win are ones where there are clear procedural violations. If an attorney fails to note an appeal (after being directed by his client to appeal) in a timely fashion, that is almost a guarantee of a court granting habeas relief. Failing to file a sentencing position paper timely is also a good argument. However, if there is not a procedural violation, the chances of success are very low. I recently read about a case where a trial attorney feel asleep at a defendant's trial and the court refused to find that to be ineffective. If you are interested in proceeding after having read this, what we need is a complete copy of the file plus all transcripts from the proceedings. You can get copies of the file from the attorney or the court. But we must have the entire file. It will cost $2500-$5000 (depending on the volume of the material) to review the file and provide a legal opinion. If the case has merit we can discuss fees to file the action. We will not accept a case if we feel it has no realistic chance of prevailing. If you have further questions please feel free to contact us. 757-301-3636