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Motion to dismiss due to ineffective assistance of counsel
Anonymous5 views4 answers
I am a defendant in a criminal case. My defense strategy depends on a key witness' testimony. The case ( an infraction) has been continuing for more than 8 months. During the course, there were 3 changes of public defenders. Finally I got fed up, borrowed some money and hired a private defender. The problem is that neither of those 4 lawyers has ever contacted the key witness to get his statement about what happened . The testimony of this witness is key to get me aquited. Now my current lawyer informed me that the witness disappeared and that he would ask court for continuance. My bench trial is scheduled to take place in 4 days. What if the witness will not reappear? Should I claim ineffective assistance of counsel for failing to depose the witness when he was available?
You have already replaced 3 lawyers because they were ineffective. If the 4th attorney you retained cannot locate the witness, after due diligence, it will not be ineffective assistance of counsel. Due to hearsay rules and Crawford v. Washington, you can't just get a witness' statement and present it as evidence in court during a criminal trial.
Ineffective assistance is never grounds for dismissal. The normal remedy is a new trial. Moreover, it is really not possible to establish ineffective assistance prospectively. I would think that your remedy at this point is to seek a continuance of trial on the grounds that the witness cannot be found. You would probably need to demonstrate diligent effort to find the witness and reason to believe that he will be found if the continuance is granted. The judge would presumably make some inquiry, perhaps even hold a hearing, on your motion. You could, at such a hearing, complain to the judge that your attorney had not attempted to find the witness. That, however, opens the door to the attorney's explanation, which might be very damaging to you. Better discuss this with your attorney or hire another who will be ready to go to trial as scheduled if the continuance is not denied.
Even if the witness was deposed, the person would still have to testify at trial in order to use that evidence in your favor so whether or not an attorney interviewed that person beforehand is really irrelevant to an ineffective assistance of counsel claim.
