IAC pretrial

I have already posted about IAC prior to trial in connection with GP’s.

Here’s a case, Ostrander v. Green, 46 F.3d 347 (4th Cir. 1995) – from the Fourth no less — that is very interesting because it makes clear there is a different standard of review that Strickland.

In its first opinion, the district court applied the wrong legal standard to Ostrander’s ineffective assistance claim. It used the Strickland v. Washington[, 466 U.S. 668 (1984),] test instead of the more specific Hill v. Lockhart[, 474 U.S. 52 (1985),] standard for guilty pleas induced by ineffective assistance. There is a significant difference between the tests. Under Strickland, the defendant shows prejudice if, but for counsel’s poor performance, there is a reasonable probability that the outcome of the entire proceeding would have been different. Under Hill, the defendant must show merely that there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial.

The Commonwealth’s closing witness was Gary Blankenship, an inmate at the Virginia Beach Jail and also a client of Joynes. His direct testimony was marginally helpful to the Commonwealth, but, on cross-examination, he provided Ostrander with a good sound bite, . . .

Ordinarily, an attorney need not advise his client of the myriad "collateral consequences" of pleading guilty. United States v. McHan, 920 F.2d 244, 247 (4th Cir. 1990). However, where the client asks for advice about a "collateral consequence" and relies upon it in deciding whether to plead guilty, the attorney must not grossly misinform his client about the law. Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979).
Though the misadvice in Strader concerned parole eligibility, it is otherwise indistinguishable from this case. Strader asked his counsel whether imposition of a particular concurrent sentence would delay his parole eligibility date. Counsel said that it would not, and he was flatly wrong, as he would have discovered if he had read the applicable regulation. We held that Strader did not receive effective assistance.
The Strader court was careful to explain that HN7Go to the description of this Headnote.there is a difference between a bad prediction within an accurate description of the law and gross misinformation about the law itself. If  [**23]  the lawyer simply underestimates the sentence, there may not be ineffective assistance. See, e.g., United States v. Lambey , 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc), cert. denied, 130 L. Ed. 2d 605, 63 U.S.L.W. 3460, 115 S. Ct. 672 (1994). But what if he tells his client that the statutory maximum is ten years, and it is actually life? We cannot expect criminal defense lawyers to be seers, but we must demand that they at least apprise themselves of the applicable law and provide their clients with a reasonably accurate description of it.

h/t to VACDL listserve.

Here is some discussion of the subsequent law suit against Joynes, Ostrander v. Joynes, 46 Va. Cir. 518 (1966).  The case was ultimately dismissed because, “Virginia courts have followed the majority rule by requiring a former criminal defendant bringing a legal malpractice action to allege and prove his innocence of the crimes previously charged.”  Here Ostrander claimed a distinction because he had “obtained post-conviction relief.”

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