Wednesday, July 11, 2007

Ineffective Assistance of Trial Counsel -- which appellate court should hear these claims?

In US v. Milam, No. 06-4076, the Eighth Circuit Court upheld Milam's conviction for aiding and abetting the possession with intent to distribute of methamphetamine. Milam appealed the conviction, claiming insufficient evidence.

For evidence, the government relied on the person who allegedly purchased the drugs from Milam for his own use and also for re-distribution, supported by postal mailings, voice messages, and phone records with numerous calls exchanged with Milam. The evidence was sufficient, on its face, for the appellate judges to uphold the conviction. Indeed, it is compelling evidence.

Milam also claimed ineffective assistance of counsel because of failure to call a key participant as witness on her behalf.

She contends that because so much of the government's case rested on the testimony of Joe Deno, the failure to call Lang to refute that testimony deprived her of a fair trial. We agree with the government that this ineffective assistance of counsel claim must be raised in a collateral proceeding under 28 U.S.C. 2255, "where a better factual record can be developed." . . . Because the district court did not have a chance to develop a record on the ineffectiveness issue, it would be premature to address the claim on this direct appeal.

This demonstrates the inability of the trial record to fully disclose whether trial counsel has been effective in protecting the defendant's Constitutional right to an aggressive defense.

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