Friday, June 7, 2013

Strategy or Tactic? New York Attorney Malpractice Blog

Legal Malpractice Attorney & Lawyer : New York Attorney Malpractice Blog : New York City, Bronx, Brooklyn, Manhattan, Staten Island, Bronx, NYC, Queens:
By Andrew Lavoott Bluestone
Judgment calls are exempt from legal malpractice consideration. Put another way, an attorney may not be held for legal malpractice on the basis of a reasonable trial strategy even when unsuccessful. But, what is a trial strategy and what is a departure from good standards? Often the difference is in the eye of the beholder, or in a slightly more objective sense, when it is reasonable. Today, we use a criminal case, in a different setting. Here, the question is whether there was ineffective assistance of counsel.

In People v Oliveras [June 6, 2013 Court of Appeals - Rivera, J.] the question of trial strategy v. ineffective assistance concerned the mental status of the defendant and whether the attorney reasonably refused to seek his psychiatric records.

"After several requests to review the evidence and for a clarification on Miranda, the jury found defendant guilty of murder in the second degree. The court sentenced him to 25 years to life.

Defendant moved to vacate the conviction

"This is not simply a case of a failed trial strategy(see Baldi, 54 NY2d at 146 ["trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness"]). Rather, this is a case of a lawyer's failure to pursue the minimal investigation required under the circumstances. Given that the People's case rested almost entirely on defendant's inculpatory statements, trial counsel's ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant's mental capacity and susceptibility to police interrogation could only be fully developed after counsel's investigation of the facts and law, which required review of records that would reveal and explain defendant's mental illness history, and defendant's diagnosis supporting his receipt of federal SSI benefits."
'via Blog this'

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