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A prominent Arkansas business woman hires her friend to represent her in a business dispute with an investor. 16 months later she is murdered. Her judge assigns her attorney friend to represent her murderer. Neither the attorney or judge tell the court record or the murderer of the continuing dual representation. Her case is not settled until 3 months after her murderer is sentenced to life plus 196 years. Is this legal? This is a real life case from 1988. What options are available to a defendant who discovers this huge error and conspiracy?

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    Really? Can an Arkansas judge 'assign' an attorney, like that or in any other circumstances? Feb 22 at 22:19
  • In criminal cases, people that can't afford a lawyer are provided one from the public defenders office. Judges don't generally pick/assign those lawyers. We would need a link to the actual case to see what the details w.r.t. the case. Sounds a bit strange, as lawyers are specialized. Commercial lawyers are not usually criminal defense lawyers. Without knowing the details of the case, I'd expect the judge and lawyer were in it together (the lawyer volunteered to be a PD, and the judge worked to get that volunteer).
    – Walter
    Feb 23 at 18:58

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This would have been a basis to disqualify the attorney when this was happening. Ineffective assistance of counsel is a ground for setting aside a case post-conviction in a collateral attack on the conviction, in some circumstances, and this would at least suggest that an ineffective assistance of counsel basis to set aside the conviction might be credible.

The pertinent question is whether the claim could be raised 35+ years later when there was a guilty plea made pursuant to a plea bargain. This could be quite challenging.

The normal rule is that the challenge to a guilty plea based conviction must be filed within 90 days, pursuant to Arkansas Rule of Criminal Procedure 37.2(c)(1), but an exception (perhaps unwritten and only described in case law) might apply if the challenge is based upon newly discovered evidence.

This depends upon the procedural history of the case, Arkansas state law and Arkansas court rules concerning post-conviction review, and federal habeas corpus law, including the Antiterrorism and Effective Death Penalty Act of 1996 which imposes strict limitations on federal post-conviction review. Federal law requires, among other things, that state law options for post-conviction review have been exhausted before a federal habeas corpus petition can be filed.

There are also strict time limits on when newly discovered evidence can be raised to set aside a prior conviction. So, the time that this was discovered matters. It could be a matter of months rather than years. And, this argument is much harder to make in the case of an agreed plea bargain than in the case of a case litigated to trial and fought at every step of the way.

In particular, I don't know if the conviction could be set aside successfully without a credible claim that a non-conflicted counsel could have secured a non-guilty verdict for the criminal defendant in the case.

A law review article from the year 2000 discusses when post-conviction relief is available based upon newly discovered evidence of innocence. It notes, for example, that:

In Arkansas, the means to obtain post-trial relief after a criminal conviction include a motion for new trial, direct appeal, a petition for state habeas corpus relief, a petition for relief from an illegal sentence, a petition for relief under Rule 37 of the Arkansas Rules of Criminal Procedure, a petition for writ of error coram nobis, a petition for federal habeas corpus relief, and clemency petitions to the executive branch.

This article evaluates the extent to which this is possible, stating:

Arkansas's post-trial procedures allow prisoners to present to circuit courts newly discovered evidence of actual innocence and obtain relief from a death sentence or a sentence of imprisonment. This article concludes that either because the nature of the relief provided by these procedures is limited, or because of the brief time frame within which one must petition for relief, all post-trial procedures provide little opportunity for a prisoner to establish his or her actual innocence through newly discovered evidence. This article also suggests possible reforms to enable prisoners to prove that newly discovered evidence establishes their actual innocence.

Later on the article notes:

According to the Arkansas Supreme Court, the writ of error coram nobis is a "legal procedure to fill a gap in the legal system-to provide relief that was not available at trial because a fact exists which was not known at that time and relief is not available on appeal because it is not in the record. ' The court has further stated that "[t]he writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.'"

Yet, despite this assertion, the court has limited the scope of the writ of error coram nobis. Newly discovered evidence is not in itself a basis for issuance of a writ. The writ is available to address errors in four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime made between conviction and direct appeal. The court justified the limitation of the writ regarding newly discovered evidence in the form of a third-party confession as follows: "[T]he questions of fact which invariably accompany an allegation of a third-party confession demand prompt scrutiny. The mere fact that another person has confessed to a crime cannot, alone, be grounds for relief for such confessions are not uncommon and must be approached with some skepticism. The trial court must carefully scrutinize the corn plete circumstances surrounding the confession and all the available evidence. Assessing the merits of the third-party confession requires that all of the evidence be available and unimpaired by the passage of time so that the trial court's examination can be exhaustive and decisive. Our requirement that such a claim be raised before affirmance serves to limit such claims to the time frame in which it is most likely that the trial court can determine with certainty whether the writ should issue. Assertions of a third-party confession after a judgment is affirmed may be addressed to the executive branch in a clemency proceeding." The court also discussed the limits of the writ of error coram nobis in a capital murder case where the petitioner sought leave to proceed in circuit court because DNA analysis, which was unavailable at his trial in 1979, was now available to test a hair sample the State introduced into evidence. The petitioner contended that the results of the DNA test would refute the State's expert witness testimony that hair found on the victim was like his hair. The court stated: Where there was no fundamental error at the time of trial, newly discovered evidence is not a cause to issue a writ of error coran nobis. The mere fact that over time a scientific test may have been developed which did not exist at the time of a petitioner's trial is not in itself cause to issue the writ because the development in scientific testing cannot establish a fundamental error made at trial. A petitioner who contends that newly developed scientific testing can exonerate him should submit the allegation to the executive branch in a clemency proceeding.

This reasoning is suspect. Even though advances in scientific testing cannot establish a fundamental error, the results of a new scientific test can do so. The court's reasoning makes sense only if the imprisonment of innocent persons is not a "fundamental error." Nevertheless, the writ of error coram nobis provides a narrow window of relief for petitioners who claim that newly discovered evidence in the form of a third-party confession has established their actual innocence.' The writ can also serve as a powerful tool in the area of prosecutorial misconduct.

The Innocence Project is one organization among others that helps people with post-conviction cases like this one, because the right to counsel at state expense does not extend to post-conviction review of criminal convictions.

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  • WOW! That was breath taking information. Thank you. I did not specifically mention it - but this was not a plea bargain, but a jury trial.
    – King James
    Feb 22 at 15:16
  • @KingJames I misunderstood the statement: "Her case is not settled until 3 months after her murderer is sentenced to life plus 196 years." to mean it was a plea bargain. The deadlines in litigated cases are a little different, but also long gone, but the room for an ineffective assistance of counsel argument is stronger if the case was litigated.
    – ohwilleke
    Feb 22 at 15:18
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    this might explain why the attorney did absolutely no investigation of or offered any of the available mitigation evidence or mention during the sentencing phase of trial: 1- the undisputed State Hospital diagnosis he was in a dissociative mental state when committing the crime. 2- His father was convicted of sodimizing him at age 3, and the court continued giving him back to his father till age thirteen. 3-No family character witness allowed. 4- Overseas twice in Army.
    – King James
    Feb 22 at 15:40
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    @KingJames Just to make things blatantly explicit, anything said here (or any place online) should be taken as generalized information only, not as a substitute for specific legal advice. While talking in generalities and discussing things from a casual interest perspective are fine, it's across the line of what answerers here are qualified for to provide assistance with the details of a case you have a personal stake in. Once you start getting into nitty-gritty case specifics, that's when you need to turn to a qualified lawyer licensed to practice in the relevant jurisdiction.
    – R.M.
    Feb 22 at 16:38
  • @R.M. Indeed. The success rate for lawyers in post-conviction review cases is something 40-80 times greater than the success rate of self-represented parties (in part due to greater skill and in part because they don't take on weak cases).
    – ohwilleke
    Feb 22 at 17:52

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