What Wade v. Brockamp says about adequate representation
by: Ryan • January 8, 2015 • no comments
In yesterday's significant PCR opinion, Wade v Brockamp, the Court of Appeals affirmed the reversal of petitioner's conviction for Measure 11 robbery. I've read a couple of summaries of the opinion that I don't think quite hit the mark, so I wanted to post briefly on what I think it means for our practice.
As you've noticed if you've read it, it quotes me. And the opinion seems to do so approvingly. But I wouldn't read too much into what I said. The Court of Appeals definitely did not adopt my testimony -- made via affidavit -- wholesale.
Rather, here is the most important part of the decision:
- The post-conviction court found that a comparison of the applicable statute with the
uniform jury instruction would reasonably lead counsel to research accomplice liability, which, in turn, would result in discovery of the Anlauf decision. Moreover, the record indicates that criminal defense attorneys generally were aware of Anlauf and had questioned the continued viability of the instruction in light of that decision.
Summarizing the opinion as a whole, I would say that the COA believes a lawyer is inadequate when:
(1) There is an open question of law (the opinion doesn't help if there is an adverse appellate ruling that some people think is ripe for reversal);
(2) The issue is one that a lawyer would be expected to discover without too much work and in the normal course of researching the charge;
(3) Other criminal defense lawyers "generally" were aware of the issue and believed it should be raised.
(4) The attorney does not raise the issue when there was no tactical reason not to.
I'm not quoting the opinion exactly. This is my interpretation of what it means. Not as broad as some would like or fear, but still pretty good. There are, of course, significant questions regarding what "generally aware" means, as well as how easy the issue is to identify in the first place.
