1st Circuit Reverses Felony Convictions - Ineffective Assistance of Counsel

Overview - Important Federal Circuit Decision

On January 9, 2018, the 1st Circuit issued an important decision for the criminal justice system, and for Eber Rivera, who may have been wrongfully convicted of Armed Assault with Intent to Murder and other related violent felony charges. The Court held that his trial lawyer provided ineffective assistance of counsel, and that his lawyer's poor performance led directly to the jury's verdicts of guilty. The Court granted his petition for habeas corpus and freed him from custody. This important decision provides an amazing primer on so many aspects of today's criminal justice system!

The Trial - a Comedy of Errors

Because of the incompetence of Rivera's trial lawyer, the record of this case is literally a comedy of errors. A Massachusetts police officer questioned Rivera at gunpoint, while Rivera was lying on the ground in custody. The officer never read "Miranda" rights to Rivera. Practically everybody in America knows that once you are in custody, the police cannot question a suspect without first advising "Miranda" rights, which come from a famous decision of the United States Supreme Court, Miranda v. Arizona - "You have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney present before any questioning", etc.

Everybody knows that, right? But Rivera's lawyer forgot. She did not file a motion to suppress Rivera's statements. Even after the trial judge expressed the opinion that Rivera was in formal custody when questioned at gunpoint, she still did not move to suppress. And so his incriminating statements came into evidence, which never should have happened.

The trial lawyer also promised in her opening statements that they would hear from a witness named Ruiz - but they never did. She called her own client "Gonzalez" during argument before the jury (the client's name is Rivera). Our justice system is an adversarial system, meaning that it only works if the prosecutor and defense lawyer zealously prosecute and defend their respective positions. But the system fails - as it did in this trial - when the defense lawyer performs poorly and is ill-prepared.

The Writ of Habeas Corpus - Bulwark of our Freedoms

The "Writ of Habeas Corpus" (Latin for, roughly, "Command to Produce the Body") dates back to our Founding Fathers and beyond, as they brought this legal principle to America from English Courts. It is a court order that requires a governmental authority to bring a person who is being detained (jailed or imprisoned) before the court so the court can determine whether the person has been unlawfully imprisoned. It is protected in the United States Constitution. When we hear tyrants talking about "suspending the writ of habeas corpus," they are talking about stripping everybody of their civil liberties and giving the government absolute power.

Generation after generation after lawmakers, claiming to be "tough on crime", have attempted to restrict or practically eliminate the writ of habeas corpus. They have failed to heed Benjamin Franklin's famous warning: "Those who would give up Essential Liberty, in order to purchase a little temporary Safety, deserve neither Liberty nor Safety."

The Critical Importance of Federal Judges

This case is a vivid reminder of the continuing critical importance of federal courts and federal judges to ensure that our system of justice works. In this case, the trial in a Massachusetts state court failed to produce justice. But beyond that: The Massachusetts Court of Appeal ruled against Rivera on appeal and found that Rivera's lawyer's performance was good enough for Massachusetts. The highest Court in Massachusetts, the Supreme Judicial Court, refused to even hear the appeal. This is not unusual. Throughout the history of our country, there have been times when state courts fail to provide justice for their citizens.

Many readers of this post have surely seen a recent viral video of a hearing where a man who the President nominated to be a federal judge, demonstrated during the hearing that he did not know the most basic legal principles that undergird our justice system. Fortunately, after that embarrassing hearing, the nomination was withdrawn. Federal Judges must be appointed on merit and proven commitment to uphold our Constitution and our laws, not as political favors or because the person is perceived to be have the "right ideology". Just as we cannot have incompetent lawyers providing ineffective assistance of counsel to people charged with crimes, we cannot have incompetent lawyers elevated to the federal judiciary to be federal judges. Our system of justice depends upon it. The Rivera decision proves that.

Never Give Up

The final lesson of the Rivera decision is: Never give up. His state court jury trial failed to produce justice, but he didn't give up. The Massachusetts Court of Appeal failed to produce justice, but he didn't give up. The Massachusetts Supreme Judicial Court failed to produce justice, but he didn't give up. He filed a petition for Writ of Habeas Corpus in the United States District Court, but the lower court denied it. It was only upon a final appeal, to the First Circuit Court of Appeals in Boston - just one step away from the United States Supreme Court - it was only then, when Rivera obtained justice.

Ineffective Assistance of Counsel

Attorneys Richard Guerriero and Ted Lothstein handle claims of ineffective assistance of counsel and habeas corpus cases and have done so for decades. We carefully screen these cases and only take on a few such claims each year.

We carefully screen them for several reasons. First, we will only take on ineffective claims where we believe there is potential merit to the claim, and where we believe that the outcome of the jury trial was unjust. We will not take pot shots at another lawyer just to earn a fee. Second, these cases are very, very expensive. We have to obtain and review the entire record of the case, including discovery (all the police reports and witness statements), the transcripts of trial and pre-trial proceedings, and the former lawyer's file. We will not embark upon a project that may be very expensive for client and his or her family unless we think there is a reasonable chance of success.

For these reasons, we will not do a "free consultation" for a potential ineffective assistance of counsel claim. These are always paid consultations, because consultation without review of at least some part of the record is meaningless. That being said, don't hesitate to contact our firm if you believe that your loved one's trial resulted in a tragic injustice and are interested in scheduling a paid consultation.

Read Rivera v. Thompson