Today’s we review the accused’s constitutional right to the effective assistance of counsel. This not only encompasses the right to have counsel — but also to have competent legal representation, regardless of whether you hire your lawyer or your lawyer is appointed by the court. The right to effective assistance of counsel applies at trial as well as to the plea bargain process.
The right to effective counsel comes from the Sixth Amendment which specifically states that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
One of the seminal cases is Strickland v. Washington, 466 U.S. 668 (1984). This case affirmed that the right to effective counsel exists and is needed to protect an individual’s fundamental right to a fair trial. In Strickland the Supreme Court was asked to determine whether in the death penalty phase the criminal defendant had received effective assistance of counsel. The Supreme Court established a two part test for an ineffective assistance of counsel claim. To be successful on an ineffective assistance of counsel appeal, the defendant must establish the following:
- That the attorney’s actions and/or inactions fell below an objective standard of reasonableness; and
- That but for the attorney’ ineffective assistance the results would have been different.
In applying this two part test, the Strickland Court explained that an objective standard of reasonableness included undivided loyalty, avoiding conflict of interests, advocating for the defendant, and consulting with and keeping the defendant informed of important developments in the case. However, in reviewing the quality of the representation the attorney is given a high degree of latitude in making tactical decisions and that tactical decisions.
In Strickland, the Court ultimately found that the defense provided did not cause actual prejudice to the defendant. Most ineffective counsel cases are dismissed unless there is a glaring error which caused actual prejudice to the defendant. Therefore, the Strickland case is a cautionary tale in that a criminal defendant must be careful when hiring an attorney. The attorney’s track record needs to be examined very carefully. Also, during litigation it is essential for the criminal defendant to be helpful in constructing and maintaining the defense.
For more information on our firm’s criminal defense practice, click here.
In our experience, local police and law enforcement officers can usually be counted on to act fairly and professionally when interacting with members of the public. Nevertheless, it is still important for you to understand your rights. So today we want to revisit one of the most important constitutional rights that we all share — the right to remain silent.
In the United States, the right to remain silent comes from that part of the Fifth Amendment which says that no person “shall be compelled in any criminal case to be a witness against himself.” This is also known as your right against self-incrimination. These rights are communicated to you with the familiar words used by law enforcement:
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. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?
These five sentences together are known as a Miranda Warning. They are the result of the decision by the United States Supreme Court in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). As a result of the Miranda decision, law enforcement officials must specifically advise anyone taken into custody of the right to remain silent and the right to have an attorney. It is important for you to remember that while you have a right to remain silent, it has to be asserted by you or it will be waived. You affirmatively assert your right to remain silent by saying: “I invoke my right to remain silent” or “I am not going to answer any questions without talking to my lawyer first.” When asserting your right to remain silent, you should not offer any explanation or make any excuses for doing so. Once you invoke your right to remain silent, you must not to subsequently waive your rights by starting a conversation with the police.
In the event that you are actually arrested or detained, we recommend that you decline to answer any questions and immediately ask for a lawyer. When you you have not been detained or arrested, you you have no duty to answer any police questions at all. If you are unsure if you have been detained or arrested, you should politely ask the police if you are free to leave.
Finally, it critical that whatever you do say to the police is true. You should not lie. You should not present false documents such as a fake driver’s license. Any lie you tell or fraud you attempt to perpetrate on the police will only make your situation worse — and often leads to additional criminal charges being made against you.
The 4th Amendment to the United States Constitution gives each of us some of our most valuable rights as U.S. citizens. It specifically gives each of us the right to be secure in our homes. It also protects us from unreasonable searches and seizures. However, because these rights are personal — only you can assert them. And if you don’t assert them, no one will assert them on your behalf. In fact, you actually waive your rights when you fail to personally assert them. Moreover, with very limited exceptions the government does not have to explain your rights to you before asking you to do something that will waive those rights.
Because the 4th Amendment is one of the fundamental underpinnings of individual liberty in our society, a look at its history is informative. The founders of our country generally agreed that all persons had a natural right to be free from government intrusion into their homes. In fact, one of the biggest grievances that led to the American Revolution was the use of “writs of assistance” by the British government. With a “writ of assistance,” the King’s representatives could enter your property with no notice and for no particular reason. In a well known case from that time, Boston lawyer James Otis represented a group of merchants who sued the British government claiming that the use of writs of assistance against was unjust. While Mr. Otis lost the case, his argument condemning writs of assistance and general search warrants was considered by many (including John Adams who was present in the courtroom) to be one of the sparks that started the American Revolution.
Revolutionary war patriots such as Benjamin Franklin were also keenly aware of the importance of protecting your rights by actually understanding them — and then where appropriate actually asserting them. This thinking was succinctly summed up by Mr. Franklin’s with the words: “they who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” While these word are still true today, there are many reasons law abiding citizens are uncomfortable with actually exercising their constitutional rights. There is the natural apprehension at the prospect of appearing uncooperative. “Why wouldn’t that guy let the police search his car if he did not do anything wrong??” Moreover, even routine encounters with the police can be intimidating simply because you know that they have the power to arrest you. So our stress level is likely to go way up at the thought of telling a policeman “no.” These are all reasons that many people often choose to go along with a police officer’s unconstitutional request rather than say no. So even when you know and understand your rights, it still takes courage to actually assert them — which is what ultimately protects all of us.
While we generally advocate cooperating with the police, we are also glad to occasionally see examples of people affirmatively exercising their constitutional rights rather than taking the path of least resistance. The most recent example we came across of someone doing just this is preserved in a YouTube video. Mr. AVel Amarel was in his home when two police officers knocked on his door looking for a suspected felon. In the face of some aggressive law enforcement techniques, Mr. Amarel continued to video the encounter and stood his constitutional ground. We are sure that some who watch the video will view Mr. Amarel as unnecessarily obstructionist, and that others will view the police officer’s behavior as bullying and intimidating. But regardless of how you view the interaction — it is still an excellent example of how to assert your rights. It is also a credit to the two police officers who ultimately respected Mr. Amarel’s constitutional rights and went on their way. To view this video and decide for yourself, click here.
For more information on search warrants and your 4th Amendment rights, click this link to our firm’s Warrantless Search page.
We recently received two unrelated calls from developers concerning a local municipality’s attempts to condition the passing of a rezoning rezoning request on the developer first complying with a number of expensive design modifications. The obvious concern for the developers was whether complying with the request created enforceable rights against the city.
This answer to this question turns on whether Mississippi recognizes “contract zoning.” The phrase “contract zoning” refers to an agreement between the property owner and the local zoning authority where the property owner agrees to certain conditions in return for an enforceable promise that the rezoning will pass. Some states stringently prohibit contract zoning while others recognize that contact zoning is an effective land use planning device in certain situations.
We are not aware of any Mississippi case where contract zoning was specifically prohibited. However, the Mississippi Supreme Court has drawn a distinction between “contract zoning” and “conditional zoning.” As explained by the Mississippi Supreme Court, “conditional zoning” describes the situation where a municipality goes ahead and rezones the property on the condition that the landowner perform certain acts simultaneously with or after the rezoning. see Old Canton Hills Homeowners Ass’n v. Mayor & City Council of City of Jackson, 749 So. 2d 54, 60 (Miss. 1999)(holding that contingent zoning was both legal and beneficial in certain situations). The difference between conditional zoning and contract zoning is that with conditional zoning there is not an enforceable promise. Instead, performance by both sides is simply a matter of trust.
In response to a similar question submitted to the Mississippi Attorney General’s Office involving a conditional subdivision approval, the Attorney General concluded that “while this question has not been addressed by the Supreme Court, it is our opinion that if conditions may be attached to zoning applications, then they can be attached to subdivision approvals.” However, when asked if the governing authority could enforce the covenant if the developer subsequently violates one of the conditions, the Attorney General concluded that there was no authority to enforce the covenant. 2008 WL 2687406, at *2 (Miss. A.G. June 13, 2008).
So at this point it does not appear that a municipality or county can make an enforceable promise that if a developer makes certain changes then the rezoning application will be passed. The reasoning behind this is that doing so preempts the power of the zoning authority to zone the property according to the prescribed procedures. In other words, by making a promise to rezone before the hearing actually occurs, the local government authority is actually undermining the statutory hearing process itself.
For more information on our zoning and land use practice, click here.
The Mississippi Supreme Court, the Court has again looked at a question about claims involving dissolved corporations. This opinion reminds us again of the many issues that surround dissolved corporations.
At common law, one a corporation was dissolved, it was dead in the eyes of the law. To mitigate the harshness of this rule, many states including Mississippi have adopted corporate-survival statutes. These statutes temporarily extend the life of the corporation. Mississippi’s corporate survival statutes are codified as Miss. Code Ann. Sections 79-4-14.05 to 79-4-14.09. Under Mississippi’s corporate survival statutes:
- A dissolved corporation continues its corporate existence but may not carry on any business except what is necessary to wind up and liquidate its business;
- The dissolution does not prevent the commencement of legal action by or against the corporation;
- The dissolution does not abate or suspend a pending proceeding;
- The dissolution does not terminate the authority of the registered agent;
- A dissolved corporation may dispose of known claims by notifying claimants in writing of the dissolution. If proper notice is given, any such claims are barred if the claimant does not make a claim within 120 days. If the claim is rejected by the dissolved corporation, the claimant must commence an enforcement action within 90 days of receiving the rejection notice.
- A dissolved corporation may also publish notice of its dissolution one time in a newspaper of general circulation and request that person with claims present them. After proper publication, claims are barred unless the claimant files suit within three years after the publication date.
There are many takeaways from these statutes. For the corporation, it is important to take the appropriate steps to ultimately cut off liability. For a creditor or tort claimant, it is important to understand the potential time limitations after which your claim may be barred.
One of the many problems that can occur when you simply allow a corporation to be administratively dissolved rather than properly dissolving the corporation is discussed in our previous blog on whether an Administratively Dissolved Corporation can maintain a breach of contract action.