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Is it true that a public defender cannot defend in a situation where ineffective counsel was a public appellate counsel?

Saint Louis, MO |

Indigent prisoner utilized appellate defender who was ineffective in arguments. Have been advised that a public defender who counsels during Form 40 (motion to vacate,set aside judgmt or sentce) cannot argue appellate counsels errors as they work for the same govrnm't entity. Indigent prisoner wants to use public defender should form 40 be successful, but worried about this issue and public pretenders ability to "get the job done" effectively. Any lawyers do pro bono anymore?

Attorney Answers 4

Posted

I recommend you not apply to the public defender if you are using the term "public pretender". Public defenders are some of the best attorneys around, and better than most private attorneys. They don't hold your hand like we private attorneys do, but they are excellent generally at what they do in the court room and with the legal process. Public defenders are attorneys.

NEVER describe your facts in an online forum. I have CONFIRMED there is at least ONE county prosecutor that is a member of this site. My statements are my opinion solely based on the information provided, and that opinion can be wrong if your facts are different than what I believed them to be. If you have any further questions, you can contact me at 636-532-1400 or through my website http://mcmichael-logan.com

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Asker

Posted

I realize PD's have a heavy case load and are stretched thin, so how can they devote as much time to a serious criminal case than an "outside" attorney might. There are many people on this site that keep stating they don't want a public defender and I am assuming that is due to the reputation that PD's receive. In point is my fact that the public appellate in my case did not properly argue points or include points that I have found could have been included from reading case law myself. I will retract my objection as not all public defenders are equal. I would however, appreciate if you would answer my original question concerning the ability of a PD to argue ineffective counsel against another PD. Thank you~

Posted

The public defender is the criminal pro bono attorney.

R. Jason de Groot, Esq.,

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Posted

The constitution guarantees a criminal defendant the right to effective counsel. Rules of professional conduct preclude attorneys from representing defendants where there is a conflict of interest. The same office of lawyers would have a conflict of interest in arguing that prior counsel was ineffective. For this reason, in many states, appellate counsel and trial counsel are appointed from different offices. If the same public defender's office that handled the appeal is now arguing ineffective assistance of counsel at the trial level, you should consider getting a different lawyer to consult with to ensure that the ineffective assistance of counsel argument is being pressed as hard as it should.

Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Jeffrey Lewis. If you have a legal question, you should contact an attorney and seek legal advice based on your specific circumstances. Do not take any actions or refrain from acting based on any information contained in this website. Jeffrey Lewis disclaims any liability or responsibility for any actions taken or not taken in reliance on this website.

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4 comments

Robert Edward Caldwell Jr.

Robert Edward Caldwell Jr.

Posted

In Missouri, the public defenders office has a way of representing people on ineffective assistance of counsel claims. They DO represent clients against public defenders for ineffective assistance of counsel. If they think there is a conflict, they appoint a private attorney as a special public defender.

Jeffrey Lewis

Jeffrey Lewis

Posted

Robert. Interesting. Thank you for letting me know. They structure things a little differently in California.

Asker

Posted

Yes thank you Mr. Caldwell

Asker

Posted

and you too Mr. Lewis

Posted

Believe me, you don't want pro bono counsel if by pro bono you mean a volunteer attorney who will try to help you without any compensation. Unless your case gets picked up by the pro bono department of a wealthy and well-funded firm (which is unusual) you may find that your attorney bitterly regrets having taken on a massive and time-consuming case for no return. But you probably won't need that, anyway. In most states in any case where you have a right to appointed counsel on appeal the court will appoint special counsel in the event of a conflict of interest. I cannot tell you whether you have such a conflict or not because the answer might depend on the structure of the appellate defender's office in your state. Across the river In Illinois, for example, your case might be assigned to a different district of the State Appellate Defender's office to resolve any conflict problem. I don't know how this is handled in Missouri.

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Asker

Posted

Thank you for your insight Mr. Sachs

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