Defence Counsel’s Obligation; A New Legal Paradigm

26 November 2013 05:15 am - 0     - {{hitsCtrl.values.hits}}

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US judge’s order “Shocking Development in Law” and “Recourse to Judgment” if you are ill-represented. US Court of Appeal orders fresh trial, as the Judge felt the defence counsel did not represent his client adequately in this case.



Facts of the Case
A high-profile murder case involving one of America's most well-known political families took a dramatic turn on October 23rd this year, when a Connecticut Court of Appeal judge ordered a new trial for Skakel, the nephew of Robert and Ethel Kennedy. Skakel, who has spent more than a decade behind bars, is accused of killing 15-year-old neighbour Martha Moxley with a golf club in 1975. Twenty-seven years after her death, in 2002, he was convicted and sentenced to 20 years to life in prison. For years, Skakel fought unsuccessfully for his conviction to be overturned. But the judge gave Skakel, 53 years old, a chance for a fresh start on October 23rd, ruling that the defence during his 2002 trial had been inadequate. Robert F. Kennedy Jr., Skakel's cousin, described the judge's order as a "blessed event."

In a lengthy opinion  on October 23, Connecticut Appellate Judge Thomas Bishop ruled that defence attorney Michael Sherman's representation of Skakel was "constitutionally deficient."The judge's ruling raises a number of questions: What's next in the high-profile case? Will Skakel be released on bail? And will prosecutors push forward with a new trial, nearly four decades after the alleged slaying? In his decision, The Court of Appeal Judge Bishop wrote that Skakel's conviction would be set aside, ruling that a new trial should be the next step in the case. "A defendant's constitutional right to adequate representation cannot be overshadowed by the inconvenience and financial and emotional cost of a new trial," he said. But so many years after Moxley's death, that may be easier said than done.

"The defence of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense (capably) executed," Judge Bishop wrote in his decision. "Trial counsel's failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense." Skakel's new attorneys had argued that Sherman failed to adequately represent him in court.




" Sri Lanka there is only one case that the defendant and the prosecution both appealed at once (Normally if the defendant is guilty prosecution will not appeal) but in the Royal Park murder case the defendant appealed to set aside the judgment and the prosecution appealed for the maximum punishment "




After Conviction Defence Rights
After a court has convicted and sentenced a criminal defendant, the defendant may file an appeal to a higher court, asking it to review the lower court's decision for legal or factual errors that may have affected the outcome of the case. If the appellate court grants the appeal, it may reverse the lower court's decision in whole or in part. If the appellate court denies the appeal, the lower court's decision stands. In most jurisdictions, an appeal will be heard only if the defendant is granted permission to proceed by the appellate court. Criminal defendants who were convicted by a judge or jury at trial, however, have an absolute right to appeal their convictions. Additionally, a country which enforces the death penalty allows an automatic appeal of cases involving a death sentence.






Grounds for Appeal
Potential grounds for appeal in a criminal case include legal error, juror misconduct and ineffective assistance of counsel. Legal errors may result from improperly admitted evidence, incorrect jury instructions, or lack of sufficient evidence to support a guilty verdict. To grant the appeal, the appellate court must find that these errors affected the outcome of the case. If the errors would not have changed the verdict, they are considered harmless. A conviction may also be appealed if the defendant reasonably believes that the jury conducted itself improperly during deliberations or the trial itself. Jury misconduct includes the use of experiments, drug or alcohol abuse during deliberations or trial, and improper communications between jurors and witnesses or counsel. Finally, criminal defendants often appeal their cases when they feel that they were not provided with adequate representation. To succeed in an ineffective assistance of counsel claim, a defendant must typically prove that but for their counsel's actions, the outcome of the case would have been different.




" A legal practitioner has a duty to provide legal services with reasonable care and skill. A legal practitioner who fails to do this may be in breach of their duty of care to the client "




An appeal is not a retrial of the case
An appeal is not a retrial of the case. Rather, the appellate court reviews the record of the lower court's proceedings to determine if there are adequate grounds to grant the appeal. The record includes all pre-trial and post-trial motions, all evidence admitted to the court and a word-for-word transcript of the trial. In addition to analysing the record, appellate courts also review written briefs submitted by each party. Appellate briefs frame the legal issues raised on appeal and set forth persuasive legal arguments to support their position. The court may also hear oral argument from counsel in order to clarify any points raised in the written briefs.





Grounds for Appeal in Sri Lanka
Any person who is convicted on a trial held before the Supreme Court under Chapter XX or section 440A of the Criminal Procedure Code, or in pursuance of an order made by the Chief Justice under section 29 of the Courts Ordinance, may appeal under this Ordinance to the Court of Criminal Appeal

(a) Against his conviction on any ground of appeal which involves a question of law alone; and
(b) With the leave of the Court of Criminal Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be sufficient ground of appeal; and
(c) With the leave of the Court of Criminal Appeal, against the sentence passed on his conviction, unless the sentence is one fixed by law.
Future Trends


Analysing the past and recent judgments in Sri Lanka the Court of Appeal has only granted its approval for an appeal under a question of law, a question of fact or a question of mixed law and fact and other than these three grounds court has applied the fourth ground that is “any other ground which appears to the court to be sufficient ground for appeal” applied in very rare cases such as miscarriage of justice and conviction was so bad. In Sri Lanka still the law permits for any other grounds other than mentioned above had not applied for any criminal appeal case. Therefore, up to date no appeal has been granted like in USA and other Jurisdictions in the case of that the defence counsel did not represented his client adequately. Many countries like in Sri Lanka a defence has the right to representation and a fair trial is a defendant constitutional Right.

 This new development of law could easily but carefully apply to our country where court can do more Justice for the litigant parties of the case in many other ways. When retained a counsel for a case he must look into the best interest of his client and if not court can do the justice for the defendant by not presenting well for a client. Sri Lanka there is only one case that the defendant and the prosecution both appealed at once (Normally if the defendant is guilty prosecution will not appeal) but in the Royal Park murder case the defendant appealed to set aside the judgment and the prosecution appealed for the maximum punishment.  In future, like Skakel case a judge may apply the fourth ground very carefully for an appeal where the defence counsel inadequately represented his client. Even not in criminal appeal cases there are several examples where the Supreme Court of Sri Lanka interpreted and expanded the scope of Fundamental Rights Chapter in the case of Right to Life even not guaranteed in our Constitution but as result of arbitrary arrest and torture where the suspect died in police custody   his right to life is assured and in another fundamental rights application  case of violation of freedom of speech and expression extended to receive information by the listener in a radio program. As well as in 1990/91 period where the post cards sent by detainees in the Boossa detention camp was accepted as a fundamental Rights petition under Supreme Court Rules 49(1).

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