On September 27, 2024, Ted Lothstein will be part of a distinguished faculty presenting a day-long seminar presented by the New Hampshire Bar Association on the topic of Post-Conviction Issues. Ted and co-presenter Emily C. Garod, prosecuting attorney of the Strafford County Attorney's Office will present on the topic of claims of Ineffective Assistance of Counsel.

What are "post-conviction" issues?

The term "post-conviction" generally refers to challenges to a conviction that happen after a trial or after a guilty plea and sentencing hearing, other than an appeal. An appeal is a direct "vertical" challenge from a trial level court to a higher court. In New Hampshire, there are three levels of Courts: some cases can be appealed from the District Court to the Superior Court, but in generally, most cases are appealed from either one of those courts directly to the New Hampshire Supreme Court.

Does Lothstein Guerriero, PLLC handle post-conviction challenges?

Lawyers at our firm handle ineffective assistance of counsel claims only when there is obvious merit to the claim. It's very difficult to get a conviction overturned based on ineffective assistance of counsel. Under both the NH and Federal Constitutions, the constitutional right to an effective attorney does not mean you have the right to a good lawyer, a diligent lawyer, a compassionate lawyer. It means only that the lawyer exhibits minimal competence in the handling of the case.

Claims of Ineffective Assistance of Counsel must meet a very high bar

Here are some standards from the Strickland v. Washington decision (US Supreme Court) that illustrate how high the bar is to get a conviction overturned for ineffective assistance of counsel:

• "the defendant must show that counsel made such egregious errors that he failed to function as the counsel the State Constitution guarantees. "
• Courts "afford a high degree of deference to the strategic decisions of trial counsel, bearing in mind the limitless variety of strategic and tactical decisions that counsel must make."
• “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”

- Ted