Sunday, January 06, 2008

Nebraska Supreme Court clarifies standard it will use to evaluate claims of ineffective counsel when the defendant alleges his attorney failed to inform him of a proposed plea bargain. Supreme Court notes rulings from the Eighth, Seventh and Sixth Circuit Courts of Appeal and settle on the Sixth’s reading of Strickland v Washington to hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, the defendant would have accepted the plea. During the trial the prosecutor noted the murder defendant's refusal to answer questions from jail guards as they processed her into jail. Although the prosecutor's reference to her knowing refusal to talk to jail personnel was an improper comment on her post-arrest silence, defense counsel's failure to object to the State's closing argument would not have changed the result of the trial because of the overwhelming evidence against the defendant. State v. Lopez, S-06-1251, 274 Neb. 756 "In the Eighth Circuit, “[t]o establish prejudice . . . the movant must show that, but for his counsel’s advice, he would have accepted the plea. To command an evidentiary hearing, the movant must present some credible, nonconclusory evidence that he would have pled guilty had he been properly advised."Engelen v. U.S., 68 F.3d 238 (8th Cir. 1995). the Seventh Circuit, citing Strickland, requires a defendant to “establish through objective evidence that there is a reasonable probability that, but for counsel’s advice, he would have accepted the plea.” Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991); We concur with the Sixth Circuit’s reading of Strickland and hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, he or she would have accepted the plea. Magana v. Hofbauer, 263 F.3d 542, (6th Cir. 2001);We conclude, however, that Lopez cannot meet this standard. While the defendant's counsel should have objected to the prosecutor's comments, it was not ineffective counsel. "The prosecutor’s comment in closing was a Doyle violation (Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In this case, Lopez’ silence was not used to impeach her testimony at trial, since she did not testify. It is is fundamentally unfair to implicitly promise a defendant his or her silence will not be used against him or her, then essentially using that silence against the defendant. The State’s comments in closing were a violation of Doyle. However assuming that Lopez’ counsel was deficient in failing to object to the State’s violation of Doyle, Lopez still cannot show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.

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