Wednesday, August 16, 2006

Ferguson is not an unreasonable application of Strickland

I was interested to see Ferguson v. Werholtz, in which Judge Martens finds that the Kansas Supreme Court's decision in Ferguson v. State, holding that failure to file a motion to arrest judgment where there was a defective complaint--and which would then have led to a new trial--was not ineffective. The sort of disconcerting part of these cases is the idea that getting a new trial isn't enough to show prejudice regarding post-trial remedies--you also have to show that the new trial might come out different. I don't really think about that being a part of the analysis of ineffective assistance of appellate counsel claim, for instance. You have to show that the result of the proceeding in which the person is entitled to effective assistance of counsel (the appeal) would be different, but winning a new trial on appeal (or by motion to arrest judgment) is a different result. Bad law, bad law. I wonder if this can get any traction in the Tenth Circuit?

I guess the lesson for practitioners is: err on the side of filing a motion to arrest judgment. I see attorneys file motions for acquittal and motions for new trial in almost every case. When you are writing that motion, take another look at the complaint and make sure there is nothing missing or ambiguious. If there is, file a motion. It can't hurt your client, but it might get a new trial.

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