Criminal Law Questions? Ask a Criminal Lawyer.
I am very sorry for all that you are going through.
The attorney's failure to secure a necessary defense witness could certainly be considered in the determination of his effectiveness as counsel. In as much, if your son is convicted then he may be able to claim his attorney was ineffective and receive a new trial. This would be done through a post conviction proceeding for ineffective assistance of counsel.
Your son has a constitutional right to effective assistance of counsel. That standard does not mean he is entitled to the same resources as the state, nor is he entitled to attorneys who are as experienced as those representing the state. Again, he is only entitled to effective assistance of counsel. To fall below effective requires a substantial departure from the standards of practice in your area. In 12 year of criminal trial practice (literally thousands of cases and nearly 100 jury trials) I have only seen one successful post conviction. While I am not in Florida, the standards for ineffective assistance of counsel are articulated in Strickland vs. Washington, a United States Supreme Court case.
All is not necessarily lost on this witness issue. If the state had him under subpoena and your son's attorney relied upon that subpoena (very common) then the witness may be deemed unavailable. In the case of an unavailable witness, often a judge will permit a previous statement or deposition to be admitted in the absence of the witness. Since the witness would likely assert his Fifth Amendment right against self incrimination at the trial, your son's attorney may have had to take this step anyway.
It is also a remote possibility that his attorney could move for a brief continuance of the trial while this witness is located. I have seen judges adjourn a jury trial for a week or more in an effort to effectuate service on a missing witness. I do not know if this would be a good strategic move, but it is certainly something to consider.
Please reply if I can help further.
The constitutional guarantees contained in Strickland apply equally to retained attorneys as well as appointed ones. It is a U.S. Constitutional right that is not waived either by poverty (for an appointed attorney) or in attorney selection. I would say that ineffective assistance claims are more commonly won with appointed counsel, but as I said in my prior post I have only seen one successful post conviction in 12 years. We shouldn't be concerned with that at this point anyway. If you are in the middle of a trial, you should focus on winning the trial... we'll deal with appeals when and if they become necessary.
As I said above, the missing witness situation can be handled in a couple of different ways... one is by using his deposition that you mentioned earlier and the other is by asking the court for a recess (adjournment) in order to find this witness. Whichever route you go is a strategic decision that should be discussed with your lawyer.
As for the new development on the retained lawyer with no experience, your son does have one other option available. He may ask the court for permission to relieve his attorney (fire him) and ask for an appointed one. In the alternative, he could ask the court to appoint co-counsel to assist in his attorney's handling of the case. The judge is not going to like this, but if his attorney admits he is in over his head then the judge may very well appoint a member of the public defender's office to assist him in the trial. Again, this is a strategic decision that should be discussed.
Please reply if I can help further... and to prevent confusion please keep your replies to this post.
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