Can this case be appealed due to comment of public defender or is this case not in that category

Asked over 5 years ago - Janesville, WI

My daughter had her probation revoked due to violations. During her revocation hearing her public defender did very little to defend her. Her p.o. recommended 9 months in jail, saying she would not do well in prison system. She is a drug addict, not a hardened criminal.She got prison time instead as prosecuter wanted. After leaving the court room her public defender said "this may be unethical to say, but I think the judge made the right decision." I did not care for that comment at all. It made me feel as if he did not try at all to defend her. Most of the time, judges make a ruling based upon recommendation of p.o. I feel she got blasted by judge, prosecuter and public defender.

Attorney answers (3)

  1. Joseph E. Redding

    Contributor Level 12

    Answered . there is a duty of loyalty that an attorney owes a client. While this was not said on the record, it certainly raises eyebrows about whether the attorney provided effective assistance of counsel. If this was truly his opinion, did he zealously prepare for the sentencing? You daughter has the right to an appeal, which includes allegations that her right to counsel under the State and Federal Constitions were denied. She needs to tell her counsel to file the notice of intent to seek postconviction relief. She then needs to tell her appellate counsel about this.

    Unfortunately, it is difficult to gain some sort of remedy on appeal.

  2. John M. Kaman

    Pro

    Contributor Level 20

    Answered . Not knowing the facts of your case beyond what you've said here, the PD's remark was at least indiscreet, possibly unethical if it caused him to put forward less than his best efforts. Complain to your state bar about his conduct of the defense and this remark in particular.

    Disclaimer: this site is for general educational purposes. My answering your question is based on my knowledge of the common law. Do not assume I know your state’s law or that I am correct. My participation in this forum is not intended to create an attorney client relationship.

  3. Deirdre Lynn O'Connor

    Contributor Level 15

    Answered . Your daughter is entitled to effective assistance of counsel at her probation violation hearing. The first thing you need to do is speak to a local attorney and find out if the only recourse is direct appeal - depending on how much time has passed, some jurisdictions have special sentencing review boards.

    You can contact the state local bar for a referral to court-appointed lawyers outside of the public defender's office - now that you are investigating an ineffective assistance of counsel, the PD's office would have a conflict and cannot represent you. That conflict applies to all lawyers in that PD's office. Many jurisdictions have a panel of lawyers that handle PD conflict cases. The state bar will be able to tell you how to contact the conflict's office.

    The uphill that you will face is showing 1) that the PD was actually ineffective (the comment may give you a glimpse of his bias, but does not necessarily mean he didn't do enough to be deemed effective). The transcript of the hearing will be more important in determining the PD's effectiveness. 2) The new lawyer will need to establish that the PD's ineffectiveness made a difference - i.e., that the sentence would be different had the PD advocated more forcefully/effectively - one way to establish this would be to examine the Judge's sentencing track record and compare your daughter's background to other people he has sentenced. The judge has a great deal of discretion with sentencing and each case will be treated differently.

    At the very least, if the lawyers whom you consult tell you that there is not much that can be done after viewing the transcript, you should then contact the PD's supervisor and get a face-to-face meeting describing all that the PD did wrong, including the comment. Demand that the supervisor take some action and find out exactly what the supervisor depends to do about it.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

30,147 answers this week

3,059 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

30,147 answers this week

3,059 attorneys answering