How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask JD Your Own Question

JD
JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience:  Over 11 years of practice in litigation including 10 years as a state prosecutor
1969057
Type Your Criminal Law Question Here...
JD is online now
A new question is answered every 9 seconds

Can you help me with a case in Florida, which carries a mandatory

Resolved Question:

Can you help me with a case in Florida, which carries a mandatory life sentence?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  JD replied 4 years ago.
I have replied to another of your posts. Let's keep it to this post and you tell me what your question is using the reply button.
Customer: replied 4 years ago.
I did not see your previous reply. My son is currently in court. His attorney based his entire case on the fact that my son found his 11 year old daughter in bed with a 14 year old boy who lived across the street. His attorney failed to get the supoena issued for the boy who admitted to intercourse, because he was on the prosecution's witness list, too. So, now his star witness can not be found. Isn't it required that the state provide counsel equal to the prosecutions, in a case requiring a life sentence?
Expert:  JD replied 4 years ago.

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.

 

________________________

Expert:  JD replied 4 years ago.

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.

 

________________________

JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience: Over 11 years of practice in litigation including 10 years as a state prosecutor
JD and 11 other Criminal Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.