Thoughts about Mark Means' Tweets
Do the Tweets set up an appeal for ineffective assistance of counsel?
October 24, 2020
Hello Friends.
I’ve seen many comments on social media about Mark Means’ Tweets and lots of questions raised about Ineffective assistance of counsel, so I want to break it down.
The Sixth Amendment of the U.S. Constitution guarantees the right to counsel in criminal cases. In the landmark case of Gideon vs. Wainwright 372 U.S. 335, 1963, the U.S. Supreme Court ruled that the protection extended to indigent defendants and that the government had an obligation to provide counsel for those who could not afford it. The ruling also raised questions of competence. The court ruled that the indigent defendant had a right to effective and competent counsel.
It sounds like if Mark Means continues on the current path, Lori Vallow Daybell could have the basis on an appeal for ineffective assistance of counsel, right? Well, probably not. In the past, courts have ruled that lawyers who either slept through their cases or were so drunk they passed out were not ineffective. Weird, right? The court used the old “no harm, no foul” reasoning in coming to that conclusion.
To prove ineffective assistance of counsel, the defendant has to prove that the outcome would have been different if she had had a more effective advocate. That’s a pretty high bar. Generally, if the state has put on a competent case for conviction, it doesn’t matter how incompetent the defense attorney is. While Mark Means may be doing things that could get him in trouble with the Idaho Bar, they are not things that would get Lori a new trial.
Another comment I see frequently has to do with when a judge can declare a mistrial. The judge can only declare a mistrial after the trial has started, and a jury has been empaneled. Those of you who have expressed concern that Means’ conduct could trigger a mistrial, worry not. Mistrials are uncommon and are reserved for misconduct or prejudicial occurrences during the trial.
I listened to the October 24, 2020 episode of Court TV about Mark Means’ Tweets, and I wanted to comment. There are times the hosts make statements that are true but not complete. For example, anchor Julie Grant points out that the DA must disclose all of the information they have to the defense. She uses that point to counter Means’ statement that the defense lacks the same resources as the state when it comes to investigation. While she’s right, the DA is required to turn over all evidence to the defense, including exculpatory information, she fails to point out that the state is under no obligation to dig for and uncover exculpatory evidence. When the police undertake an investigation, they sometimes find evidence that proves the defendant’s innocence, but it’s not their primary goal. Their primary goal is to find evidence of a crime. If, in the process, they discover information that exonerates the defendant, they can’t bury it.
For a complete analysis of John Prior's Notice of Submission of Authority and the Nava case, see my newsletter titled Does State v. Nava help Chad?
