tag:blogger.com,1999:blog-5945843206427351559.post1715040460510408093..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: Selling Out the Client - Part VIJeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5945843206427351559.post-76145916949142365972015-02-12T20:56:25.769-05:002015-02-12T20:56:25.769-05:00It's not just Idaho. Courts often say that ap...It's not just Idaho. Courts often say that appellate counsel is expected not to pursue every non-frivolous issue but to winnow things down to focus on the winners. That, they tell us, is part of proper appellate advocacy. And it's true that if I have a really good issue, I don't want to surround it with issues that make it look like I don't trust the one so I hurl every bit of nonsense I can think of at the court. <br /><br />But like all those rules, it's not always applicable. In capital cases, for instance, competent advocacy requires raising every even marginally colorable claim. And in other cases, there are times when you raise an issue not because it currently has legs, but because you're building a record or hoping to change the law or . . . . Hell, there are a ton of reasons.<br /><br />Of course, courts don't want to hear that. They want to find that there's no such thing as IAC because if trial counsel (or appellate counsel) was constitutionally deficient, then the client gets some sort of relief (which the courts don't want to give) and the system acknowledges that it failed at some level (which the courts really don't want to admit).Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-53964721160022661432015-02-12T09:55:24.582-05:002015-02-12T09:55:24.582-05:00Shrug. Idaho doesn't allow Anders briefs, so ...Shrug. Idaho doesn't allow Anders briefs, so attorneys will either file an attack on the sentence as "excessive" thinking that can't ever be frivolous, which has lead us to a boilerplate decision denying relief that our court of appeals "un"publishes 10 times a day, or they... no that's about it. Can't say this seems like a great solution. If the client really does have an appealable issue, they still get screwed. <br /><br />The more interesting question is: when is appellate counsel deficient? Idaho case law has just recently determined that it's extremely difficult for appellate counsel to be deficient, as compared to trial counsel. Appellate counsel can choose not to pursue what the Court calls a "non-frivolous argument." That to me is pretty stunning. If there's a way to fix the fact that appellate counsel messed up, you'd think it'd be on post-conviction. At least in Idaho, you'd be wrnidefattnoreply@blogger.com