Ineffective Assistance of Counsel

Ineffective Assistance of Counsel occurs when a client’s lawyer does not devote full effort to the client, oftentimes due to a conflict of interest(s).  Ineffective assistance of counsel denies a client his Sixth Amendment right to a lawyer.  The Defendant's 14^th Amendment Right to Due Process is also violated.  If the Defendant is subject to a fine or imprisonment due to "Ineffective Assistance Of Counsel," a further violation of his 14^th Amendment Rights occurs ("...nor shall any State deprive any person of life, liberty, or property, without due process of law....").

The Supreme Court defined the standards for constitutionally ineffective assistance of counsel in Strickland v. Washington, which basically states that a counsel's conduct so undermined the functioning of the adversary process, that doubt exists at to whether the trial produced a just result. According to Scheck and Neufeld, in almost one third of the cases they studied, bad lawyering contributed to wrongful convictions.

Ineffective Assistance of Counsel Requires Two Elements:

1). Counsel's performance was not just a matter of quality, but that Counsel's representation of the Defendant was so seriously deficient that Counsel was not acting as a Counsel, and his action(s) or lack thereof, denied the defendant his Sixth Amendment Right (guarantee) to Counsel.

2). Counsel's performance, or lack thereof, prejudiced the defense so as to deprive the defendant(s) of a fair trial, and the verdict and/or result(s) that a fair trial would have rendered.

In Reece v. Georgia, the US Supreme Court held that "effective assistance of counsel is a constitutional requirement of due process" and that "no member of the Union may disregard it."   Powell v. Alabama, notes that a defendant has the right to "the guiding hand of counsel at every step in the proceedings against him."

A Textbook Example Of "Ineffective Assistance Of Counsel," documented by Trial Judge Herbert Moriarity: 

IN 17TH JUDICIAL CIRCUIT CASE 97-13631 CACE (18), JUDGE HERBERT MORIARITY, ACKNOWLEDGED FROM THE BENCH ON BEHALF OF THE COURT, THAT THE DEFENDANT'S COUNSEL WAS INEFFECTIVE, THEN ORDERED THE TRIAL TO CONTINUE, JUDGE HERBERT MORIARITY BECAME A CONSPIRATOR AGAINST THE DEFENDANT'S SIXTH AMENDMENT GUARANTEE TO COUNSEL AND THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

• Judge Herbert Moriarity identified Ineffective Assistance of Counsel during 17TH JUDICIAL CIRCUIT CASE 97-13631 CACE (18).
• Judge Herbert Moriarity acknowledged Ineffective Assistance of Counsel on the record, after the jurors were removed (see transcript above).
• Judge Herbert Moriarity, after identifying and acknowledging Ineffective Assistance of Counsel, withheld this exculpatory information from the jurors, one of whom was an attorney.
• Judge Herbert Moriarity, after identifying and acknowledging Ineffective Assistance of Counsel, ordered the trial to continue, thereby knowingly and willfully violating the defendant's Sixth Amendment Guarantee to Counsel.
• Defendant was never served by plaintiff.  Attorney Lee H. Schillinger, who was NOT retained by Defendant, nor ever had a contract with the Defendant throughout the trial, unlawfully accepted service, then unlawfully solicited the Defendant by telephone. 
• Attorney Lee H. Schillinger withheld the complaint and ALL evidence from the Defendant.
• Attorney Lee H. Schillinger did not hire an expert witness. Attorneys Lee H. Schillinger and John A. Brekka asked the defendant  to provide questions for depositions.  Thus, the defendant who did not have the benefit of competent counsel, served as his own expert witness. The defendant did not know the law, nor legal points that needed to be made, but was asked to "make some questions for depositions." The Defendant received no guidance from counsel in preparing these questions.
  • Failure to Call Expert Witnesses-- People v. Saunders, 54 A.D.2d 938, 939 (2d Dept. 1976).
• Defendant slowly determined that Attorneys LEE H. SCHILLINGER and John A. Brekka were incompetent, unable to handle this case, and knew less than the Defendant  (virtually nothing) about internet law, and applicable basic aplicable statutory state and federal law.
  1. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the "evidence" was a  stored, privileged, communication, between a client and his other attorney, for download by Defendant's other attorney, Ken Hemerly.
  2. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the "evidence" was stored in a hidden subdirectory of the Defendant's  computer, NOT AVAILABLE TO THE GENERAL PUBLIC.
  3. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the Plaintiff's 16 yr old key witness, Robert Thomas Newton Jr., told multiple stories of how he "discovered" the Defendant's Intellectual Property.
      
     * I found it through a link *  >> AFFIDAVIT <<
       
     * I did NOT find it through a link * 
     
     * I found it using a search engine, but I'm not sure *
      
     * I found it by using a forward slash, and trying different addresses (hacking) * 
     
     * I found it through a search engine * 
     
     * I can't remember what I did  
      
  4. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the evidence was NOT AVAILABLE TO THE GENERAL PUBLIC, negating the Plaintiff's COMPLAINT (scheme to defraud the Defendant), by claiming libel because of PUBLICATION to the general public. 
      * click here to view Plaintiffs' COMPLAINT *
  5. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the Plaintiff's 16 yr old key witness, Robert Thomas Newton Jr., admitted that his AFFIDAVIT was PERJURED, and that he did not find the Defendant's documents "through a link" on the Defendent's Business website. This formed the basis for the Plaintiffs claim for LIBEL through PUBLICATION.
     * click here for DEPOSITION transcript *
  6. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the evidence was unlawfully HACKED from a hidden subdirectory, not available to the general public, and that Plaintiffs witness into the subdirectory. 
  7. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the Plaintiff's 16 yr old key witness Robert Thomas Newton Jr. and his parents, Mary Goddard and Jeffry Goddard, PERJURED themselves in their AFFIDAVITS by stating that the Defendant's documentation of facts for his attorney, Ken Hemerly, was available to the general public through a "link" on the Defendant's Business Website. 
  8. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs and their 16 yr old key witness committed the crime of COMPUTER INTRUSION and WIRETAPPING by hacking into the Defendants computer to obtain the "evidence."  click here
  9. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs committed the crime of WIRETAPPING by breaking into Defendants computeer to obtain the "evidence," and that evidence obtained by wiretap is barred from use as evidence by State and Federal Law. 
  10. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs committed a crime by breaking into Defendants computer to obtain the "evidence," which was a stored communication to Defendant's attorney, Ken Hemerely (attorney-client privilege).
  11. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs were stalking the Defendants.  The Defendantds were Confidential Informants against the Plaintiffs and the previous owners of the property, and worked with FBI CID Special Agent Warren Martin.
  12. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs attempted to run the the Defendant over with their car. click here
  13. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that Plaintiffs threatened the Defendants.
  14. Attorneys LEE H. SCHILLINGER and John A. Brekka concealed information that the Plaintiff's 16 yr old key witness was out of state on vacation, and the Plaintiffs PERSONALLY hacked into the Defendant's computer. click here
  • Counsel’s performance was deficient and fell below the objective standard of reasonableness. Strickland, 466 U.S. at 689-91.
  • Prejudice is established if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., quoted in Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
  • "Incompetent" Closing Argument by Defense -- Quartararo v. Fogg, 679 F.Supp. 212, 250-51 (EDNY 1988), aff’d without op., 849 F.2d 1467 (2d Cir. 1988); see also People v. Worthy, 112 A.D.2d 445, 456 (2d Dept. 1985) (failure to review evidence or focus jury on critical identification issue).
• Defendant's attorneys frequently would not return calls or were "in meetings."
• Attorney Lee H. Schilling frequently discussed other cases when he did talk to to the Defendant, especially  one involving a gas station with zoning problems, and complained how my case was taking up so much of his time.

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In 17TH JUDICIAL CIRCUIT CASE 97-13631 CACE (18)  the Defendant attempted to notify Judge Herbert Moriarity of "Ineffective Assistance Of Council" (a matter which requires Mandatory Judicial Notice).  The judge merely replied: "If you are having a problem with your lawyer, call the (Florida) Bar."

AFTER THE JUDGE'S OUTBURST ON THE RECORD (below), RATHER THAN FOLLOWING THE "BEST EVIDENCE RULE," THE JUDGE RELIED ON THE MEMORY OF A HOSTILE WITNESS FROM 2 YEARS BACK, WHO HEADED A DEPARTMENT THAT THE DEFENDANT FILED A PERJURY REPORT AGAINST.

AFTER TRIAL IN 17TH JUDICIAL CIRCUIT CASE 97-13631 CACE (18), JUDGE HERBERT MORIARITY, HAVING STATED ON THE RECORD DURING TRIAL THAT DEFENDANT'S COUNSEL, LEE H. SCHILLINGER, WAS INEFFECTIVE, REWARDED DEFENDANT'S INEFFECTIVE COUNSEL BY ASSESSING A LIEN.  (LEE H. SCHILLINGER unlawfully solicited the Defendant by telephone, and, in addition to neglecting his client and trial preparation, including counseling client, telling client "I THOUGHT YOU WERE A KOOK, UNTIL I MET YOUR NEIGHBORS" (de facto PREJUDICE), Attorney Lee H. Schillinger neglected give client a copy of the complaint,  affidavits, affidavits, evidence until AFTER THE TRIAL, and attorney Lee H. Schillinger and attorney John A. Brekka FORGOT to enter into a contract with the Defendant.)