Ineffective assistance of counsel: actual conflict of interest

Jay Leiderman
By: Jay Leiderman
October 29 2016

“In certain Sixth Amendment contexts, prejudice is presumed….

. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests…., it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so,….Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.'”

Strickland v. Washington (1984) 466 U.S. 668, 692

“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel’s loyalty to his or her client. (See Glasser v. United States (1942) 315 U.S. 60, 69–70, other citations omitted) It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.”

People v. Doolin (2009) 45 Cal.4th 390, 417.


“The right to counsel is the right -to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “When a jurisdiction provides an appeal of right, due process also guarantees the assistance of counsel on appeal.” Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985). This right does not extend to “discretionary appeals,” Wainright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982), “petitions for certiorari,” Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), or “post-conviction proceedings,” Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991); Pennsylvannia v. Finley, 481 U.S. 551, 95 L.Ed.2d 539, 107 Sect. 1990 (1987).

The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance.

conflict of interest
A conflict of interest is one area where a defendant can allege he or she received ineffective assistance of counsel

Ineffectiveness is presumed when an actual conflict of interest is shown or an irreconcilable conflict between counsel and the defendant.

Examples of grounds for claim of ineffective assistance of counsel are as follows:

  • Counsel was ineffective in investigation, preparation or for another substantial reason
  • Counsel’s performance was deficient and prejudiced defendant
  • Counsel’s serious errors deprived defendant of fair trial
  • Counsel provided bad advice
  • Counsel had conflict of interest
  • Counsel and defendant had irreconcilable differences
  • Counsel was not prepared within requisite range of competence
  • Counsel’s performance fell below an objective standard of reasonableness
  • Counsel’s failure to investigate mitigating evidence
  • Counsel’s failure to investigate mitigating circumstances for sentencing
  • Counsel’s failure to object to factual errors in PSR and adequately prepare defendant for sentencing
  • Counsel’s failure to subject prosecution’s case to meaningful adversarial testing
  • Counsel’s failure to file timely motions
  • Counsel’s failure to advocate the defendant’s theory of the case
  • Counsel’s failure to negotiate results favorable to the defendant in plea negotiations
  • Counsel’s failure to be competent, prompt and diligent
  • Counsel’s failure to maintain adequate communications with defendant
  • Counsel’s absence through critical stages of the prosecution
  • Court’s failure to provide substitute counsel
  • Court’s failure to hold inquiry into claim of ineffective assistance of counsel
  • Representation so inadequate and deficient that it denies Sixth Amendment right
  • Representation fails to move to suppress evidence, conduct an adequate investigation, raise legal issues at trial, negotiate a plea agreement, introduce exculpatory evidence or file timely notice of appeal

In any case presenting a claim counsel’s assistance was constitutionally ineffective, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances and prevailing norms of practice as reflected in American Bar Association standards. Strickland, at 677.



20 thoughts on “Ineffective assistance of counsel: actual conflict of interest

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  2. 10 Oct 2013: update.

    I’m seeing a lot of people coming here to read this. For some reason that I can’t determine, this article has become more popular.

    If you want to learn more about Sue Basko, “Lawyer for Music and Film”, you can do so from these websites:
    Sue Basko claims that parents of Autistic kids are riding the “gravy train”. – Liz Ditz, “I Speak of Dreams” blog.
    Autism Story triggers a shitstorm – “Def Sheppard” blog
    How not to make a fool of yourself on the Internet – “Harpocrates Speaks” blog
    Update – “Def Sheppard” blog
    And just in case you ARE Sue Basko, I have a couple of websites you should also be concerned about.
    How a famous singer and movie star removed unwanted information from the Internet.
    How a CEO got customers to remove unwanted comments from the Internet.
    What bloggers are NOT ALLOWED to say about you.

  3. Partnerships Against Violence – PAVNET – currently offline
    Partnerships Against Violence (PAVNET) is a “virtual library” with information about violence and youth-at-risk, representing data from seven different federal agencies. Violence prevention professionals can communicate and share resources through the Pavnet mail group.

  4. All that is gold does not glitter,
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  6. Susan Marie Basko✡ (also known as Batshit Baskocase Sue, Solange Soleil and Suehappy Basketcase for short) is a known belligerent attorney at lol who has been involved in and lost over 9,000 cases in Internet Court. She is also an IRL lawyer with a license to practice law in California and Illinois (note: NOT in New York). She claims to be Catholic but her actions are closer aligned with Scientology than Catholicism. Sue Basko is roughly equivalent (but superior to) what might happen if Mike Sandy and Daniel Brandt mated.
    Whether you’re a potential target of swatting and need to be reminded to never allow the police inside, need someone to harass the family members of those internet terrorists known as the Rustle League, or are just being bullied by The Man, Sue Basko is the only Internet Lawyer you will ever want to call.

    Well, Basko was this completely spaztic fucktard who we were all lol’oing at when this aaronsocio scrub got arrested. I came up with the idea to email her saying that we are aaronsocio’s lawyer and that her services are no longer needed. She flipped out and eventualy ginger brooks told her that it was us so she made like 50 blog posts about us one in particular saying that a transgendering man was trying to steal her jewgold which spiraled into epic fucking lulz. After that she came after f0rsaken got got her dawks dropped including ssn and continued to make blogposts as we harassed her and I made sock accounts to trick her and get into her timeline by making her believe that I was someone working against the Rustle League. As of now, she just subtweets us saying how antisemitic we are and how we are going to hell for masturbating and being criminals online
    Yeah, and now she’s going on about some shit about making a video with this fucking autist who sounds like the guy who sucks dicks for cheeseburgers in cartoons.„

    —Shm00p’s take on the Rustle League/Basko saga.

    Basko invokes Godwin’s Law, because making fun of Sue Basko is totally the equivalent of killing 6 million Jews.

    During the Occupy Wall Street protest, our favorite undisputed queen of the legal realm spent a lot of time weeding out FBI plants among the people who were actually there to protest, even though, according to her, her own brother Gabriel is an FBI agent. It’s really too intricate to lay out in this article without making the more ADHD-addled readers get bored and search for the Offended page, so all of Sue’s deathless prose concerning her anti-COINTELPRO work.

    IRL Harrassment Service

    For those with especially persistent cyberbully problems, Sue will go the extra mile and turn to extrajudicial means, as any good lawyer would. However, what separates Sue from the rest of the pack, is that in addition to e-mailing the cyberbully’s parents, she has been known to sub-contract out to IRL witches and have hexes placed on specific targets. In the cases that have gone public, the hexes have been performed by no less a figure than The Second Coming of Jennifer Emick herself, Kamonra. To provide an analogy that veteran EDiots may understand, Sue plays Daniel Brandt to Kamonra’s Amorrow in this dynamic duo of Internet justice.

    Work with convicted felons

    Another of Basko’s henchmen is a relative nobody and convicted felon named Joseph A Camp. In 2009, Joseph and a classmate decided to RAT boxes on their University of Central Missouri’s network so that they could add funds to their college accounts, change grades, and steal/sell databases. Naturally, since they were skiddie fucktards who had only been on HackForums for 3 weeks, and thus didn’t know the first thing about hiding behind 7 proxies, they were immediately fucked in the ass in the back of the partyvan, then shipped off to prison for more nonconsensual buttsex.

    Occupy Peace

    Bright side of life
    Occupy Peace is a crappy blog where Sue Basko offers advice on how to organize a peaceful protest or occupation in the United States. She frequently derails her own blog with unfunny off-topic posts because she lacks self-control and doesn’t respect her readers who don’t care about personal drama. She desperately hints to journalists that she wants media coverage, not so she can help others exercise their freedom of speech, but instead to cry about people saying mean things to her.

    “If any journalists wish to cover this story, I have vast amounts of evidence of all I am writing about, including thousands of screen shots, pictures, recordings, videos, and more. I can also provide the names and other info on many of the perpetrators.„

    —Sue Basko, a desperate plea for attention.

    Sue Basko has issues with self-confidence and writes delightful walls of text detailing what a wonderful “bright side of life” type of person she is, making it clear that violence and pornography are immoral. The amount of effort she puts into making herself look good only proves that she is extremely self-centered and very insecure about her image. Susan should seek the assistance of a trained professional and become a survivor of her shortcomings.

    Professional victim
    After Sue Basko manages to talk about something other than herself, she begins communicating with her claws and fangs, revealing a deep hatred for Encyclopedia Dramatica, Rustle League and Doxbin. At this point her writings read like a liberal’s wet dream of white middle-class Americans. That’s correct, those who contribute to Encyclopedia Dramatica don’t understand satire and are definitely racist.
    Susan insists that she’s been attacked over the last couple years despite no prior dealings with these sites or trolls. What she will never acknowledge is that she goes out of her way to draw attention to herself by writing off-topic rants on her blog and tweeting like a crybaby on a daily basis. The only way Sue Basko maintains what little sanity she has left is to convince herself that she is a victim, because without that crutch, she would be admitted to the nearest psychiatric ward.

    “They hold a type of malicious racism and antisemitism that I thought had long ago disappeared from society. I am continually shocked to see their displays of the most vicious, repugnant forms of racial hate, of the sort I associate with the KKK or with the days of Nazi Germany.„

    —Sue Basko, oh that’s original.

    Expert advice
    Susan worries that nobody takes her seriously and to compensate for that she repeatedly mentions that in two states she is a licensed attorney. After doing extensive research, our e-lawyer has reached the conclusion that subjects of articles on Encyclopedia Dramatica tend of the “smart, nice, good people.” Susan also warns that contributing to Encyclopedia Dramatica or linking to an article is a crime.
    Being a computer expert, Sue Basko has determined that people who visit Encyclopedia Dramatica will immediately have malware installed onto their computer. She goes on to speculate that said malware may be used to take control of webcams, log key presses or install a botnet.
    Enemies of the Lulz can finally rejoice, Sue Basko discovered Encyclopedia Dramatica’s offended page and offers EDiots some free legal advice. The images there are not only shocking and horrific, but also illegal! She is probably referring to the picture of Limecat.
    The purpose of Encyclopedia Dramatica isn’t to document internet drama, but to harass, coerce and extort its victims. According to Sue Basko anyways, and she isn’t going to stand by and watch as people’s lives, especially hers, are destroyed by the hate wiki. She’s made it clear she knows the identities of various contributors, but is withholding this information pending a DOJ and FBI investigation. Hopefully justice will indeed be served, because Susan has informed us that the harm done to her by Encyclopedia Dramatica can never be undone. Sue Basko is also a medical expert and has determined her health has also been damaged beyond repair, all because some jackass on the internet said something mean about her.

    Sue Basko paints a very polarizing picture of herself as a humanitarian. While she crafts the image of herself as a hero for anyone who feels they’re a victim of stalking, copyright violation, or harassment, she takes a very questionable stance toward supportive parents of children with serious mental diseases.

    Many parents today want a diagnosis of autism spectrum for their child, not only because there is a great deal of funding allocated for services for those children, as the news article explains, but also because this qualifies the child or family to collect a good SSI payment each month.

    Basically, Sue believes that parents are actually going out to get autism diagnosis for their kids just so they can reap the government SSI benefits that are paid to these mentally disabled children. Are all these kids pretending to be aspies just so their parents can make an easy living, Sue?
    Once she was called out for her atrocious insensitivity and hypocrisy, she proceeded to delete her comment, use her personal Twitter account to defame the woman who called her out on the comment, and insist that the entire thing was made up. Unfortunately for Sue, the woman had taken a screenshot of the disgusting comment before she could remove it.

    Sue was also called out for this by another person on her Facebook page, and she decided she would attempt to defame the person (who was legitimate and had a genuine concern) by calling them a bully with a fake name attempting to troll her. Sue ended up deleting this comment as well, but not before it was also saved in a screenshot.

    So aside from losing her image as a good person with compassion for fellow humans, she is now exposing herself as a paranoid drama queen who thinks anyone who opposes her diluted views on life are bullies, fakes, or trolls, and need to be promptly reported to the FBI.

    Copyright thief

    Sue specializes in copyright claims, and has extensive first hand experience in stealing the intellectual property of others. Basko Law™ will work hard to prevent others from stealing your hard work, utilizing the knowledge she has gained from countless years of making minor edits to other people’s work and claiming it as her own. The cover photo of her former Twitter account is a perfect example of her work in action.

    Sue Basko: Tree Whisperer

    Did you know that Sue is an accomplished artist herself? She’s the mastermind behind the chart-topping smash hit “You Know The Trees.” The song is an epic tale of meeting a well-traveled man who talks to trees and shares their glorious insight with the listener. It would be a shame if we spoiled this masterpiece for you any further, so prepare yourself to experience the greatest song ever made, sang by Basko herself.

    If you’re like most people and can’t understand what the hell Sue is saying in this psychedelic drug-inspired song, FEAR NOT. The lyrics have been transcribed so you too can swallow a bag of magic mushrooms and sing along. Don’t forget to have a chat with some trees afterward!
    Sex Life

    It has also long been suspected that Sue is a serial masochist and only acts out online in an attempt to gain sexual gratification from being demeaned by thousands of random, anonymous strangers. As a result, experts theorize that Sue has developed a myriad of sexual fetishes and fantasies that would gain her immediate social ostracization if she were to ever allow these to be made known to the general public. Some of these theories include:
    Since the estimated age of 14, Sue has had continuous fantasies of being sexually assaulted. This is most likely a result of Sue’s need to develop an interest in human sexual relations while at the same time coping with the crippling depression associated with her low self-esteem.
    Sue Basko often does a poor job of cleaning her anus after defecation as the constant potential of being anally raped encourages her to maintain a dirty anal cavity with the intent of giving “shitdick” to whomever may find themselves inside of her.
    Sue has been known to hang around various “glory holes” located in the Chicago area.
    Sue has lost countless marbles, wooden pencil erasers, and other such objects in her body during masturbation.
    Sue Basko often sneaks into public men’s rooms so that she may rub her body against the unwashed toilet seats to gain sexual gratification.
    Sue has created and distributed several recordings of her engaging in bestiality. These revolving films are too immoral to be linked here, but know that they have been forwarded to American authorities.
    Sue Basko has volunteered at homeless shelters where she mixed her own pubic hair into the meals served to unknowing homeless men.
    Sue Basko has been known to use “bath salts” as an aphrodisiac.
    Unfortunately for Sue, even the most vile of perverts find her too repugnant to even consider fornicating with.

    What the fuck did you just fucking say about me, you little bitch? I’ll have you know I graduated Magna cum Laude and earned my Juris Doctor at Southern Illinois University School of Law, and I’ve been involved in numerous COINTELPRO operations on Occupy and Anonymous, and I have written over 300 cease and desist letters. I am trained in internet lawfare and I’m the top lawyer of the entire Internet. You are nothing to me but just another FBI informant. I will sue your balls to the wall with fabricated evidence the likes of which has never been seen before on Twitter, mark my fucking words. You think you can get away with saying my name over the Internet? Think again, fucker. As we speak I am contacting my secret network of autistic script kiddies across the USA and your chat logs are being reported to the FBI right now so you better prepare for the defamation lawsuit, troll. The defamation lawsuit that wipes out the pathetic little website you call Encyclopedia Dramatica. You’re fucking sued, kid. I can be anywhere, anytime, and I can sue you in over seven hundred ways, and that’s just with this Twitter handle. Not only am I extensively trained in media law, but I have access to the entire archive of Twitter and I will use it to its full extent to wipe your miserable ass off the face of the Internet, you little shit. If only you could have known what unholy retribution your little “clever” comment was about to bring down upon you, maybe you would have locked your Twitter account. But you couldn’t, you didn’t, and now you’re paying the price, you goddamn idiot. I will shit fury all over you and you will drown in it. You’re fucking Basko’d, kiddo.

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  8. “If you doing 25 to life, stay up homie / I got your money on ice so, stay up homie / If you locked in the box keep makin’ it through / Do your time, don’t let your time do you”
    Ludacris’ output has always been a mixed bag – he is capable of dopeness, but also of poppy wackness. This is a dope track however, on which guests Beanie Sigel, C-Murder, and Pimp C explain what they went through during recent prison stints.
    Rights of Inmates – FindLaw

  9. ~My True Story 16 Years Of War~ !6 years of living in fear every minute, 16 years living with barely any electricity,water, food,hurt from humiliation standing in line for hours to maybe obtain a loaf of bread for my children, some days due to lack of water, we would shower from the pouring rain on the roof,and for us that was a good day. The fear of being stopped at a barrier from the militia, and if they decide to kill at the time, we would have been a good target, agonizing each day not knowing when a lost bomb would penetrate our roof tops,or bedrooms,running down for shelter at our neighbors first floor home,sometimes days in the same clothes no food,not even a drop of water,as we could not move from the hilarious shelling,bullets aimed at us the innocent who had nothing to do with politics and war. We lived without once hearing a siren so we can run to the shelter,nothing indicated where the shells will land,we had sometimes to cross the street to hide in our church,or other gatherings to escape the guerillas. The only way to know if I can go to work and kids to university,was listen to the radio just to guess which way was safer to drive,many times over the years, bombs landed not far from my car,had to leave and run underneath it as a protection,my eldest son was once kidnapped for 3 days, once the banging on our door so loud, they came to take my children to fight with them, because they lacked men on the field. Days I would arrive late to work due to the bombs. My fear progressed as I was doomed and sensed disaster. In summer we had no air condition due to no electricity, in winter we had no heating,days we slept with our winter coats if we were not already in the shelter,16 years of war we slept awake. My strength out of love to both my children,they graduated my eldest became an architect,and the youngest became a lawyer. Had to send them away at a very early age,left alone with my husband at the time. My duty was fulfilled when they both left. A happening that happened during that war,was my secret for years and years,I hid it,I kept it alive inside of me,not to allow anyone discover how I died and lived only because of my love towards my children,I was hiding for years,now only something stirred deep in me,a voice,begging me to come at peace within myself,is the only way to write it down,as enough is enough,no details,I will write,none to ask what, why,when,who,only the rape happened,my spirit and soul agonized,now I am a free woman.No more tears, no more fears. Today in a new country of freedom accepted me 25 years ago as a political refugee, I am very happy, my children are safe, As we did survive 16 years of a major war in our country. Freedom is so beautiful,feeling safe having showers,eating, variety of food,getting a heater to remain warm,air condition during summer,driving with no fear,walking with a sense of freedom,it took us a while to return to normal, the truth became beautiful due to the transformation of our inner spirits,living in the depth of darkness for years took sometime to regroup our inner souls to run far from darkness and live into the light again. Free At Last.

    Immigrant Legal Resource Center | ILRC |

  10. “Emergency does not create power.
    Emergency does not increase granted power or remove or diminish
    the restrictions imposed upon power granted or reserved.
    The Constitution was adopted in a period of grave emergency.
    Its grants of power to the federal government and
    its limitations of the power of the States
    were determined in the light of emergency,
    and they are not altered by emergency.”
    Justice Charles Evans Hughes
    (1862-1948) Chief Justice of the U.S. Supreme Court
    Source: Home Building & Loan Assn v. Blairsdell, 1934

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  12. software criticized in Robert Gates

    Policy in Afghanistan and that vice chairman Joe Biden has been wrong on nearly every foreign policy and national security issue. He also accuses members of Congress of inquisition like treatment of organization officials.

    Obama approved the strategy of putting 30,000 many other troops into Afghanistan and placing Gen. David Petraeus the boss, however some top advisers opposed the so called surge he announced in December 2009.

    “I never doubted Obama’s boost for the troops, Only his support with regards to their mission, Gates writes in the publication, accountability: Memoirs of a assistant at War, that was set for release next week by Knopf.

    RelatedGary Gambill: so what’s worse than an Iranian bomb? An Iranian almost bombCatholic nuns stall Obama’s birth control mandate that forces employers to provide contraceptive coverageFidel Castro reveals brother Raul’s words to Barack Obama, Spoken in the english language: ‘Mr. PulloutGates shows no passion for NATO

    In recalling a meeting in the way it is room in March 2011, Gates is currently writing: “As I sat several, i thought: The chief executive doesn’t trust his commander, dislike us president Hamid] Karzai, Doesn’t believe in his own strategy and doesn’t the actual war to be his. For him / her, is going on getting out,

    Gates also writes that Biden has “Wrong on nearly every major foreign policy and national security issue during the last four decades, planned he also says Biden is “A man of condition” And applies the same assessment to Obama even though he is critical at times of the president’s own leadership.

    In a reaction to reports of Gates’ disdain for Biden, The White House National Security Council issued an argument Tuesday asserting that Obama relies on Biden’s “Good recommend” regularly and considers him “one of the leading statesmen of his time, endure, The White House said Obama’s weekly private luncheon with Biden would be open briefly to professional photographers on Wednesday, A highly unusual invitation for the press and another sign that the president was not putting any distance between himself and Biden as Gates’ scathing critique drew attention.

    the right Republicanyn, Gates served 4 1/2 years as defence admin, The last a lot the George W. Bush obama administration and the first years of Obama’s.

    During his tenure as pentagon chief, Gates often found himself tempted to quit because the adversarial treatment he received from members of Congress. He says that in private the lawmakers could be economical. “But quickly as they went into an open hearing, And the tiny red light went on atop a television camera, It had the effect of a full moon on a werewolf, He says in an excerpt in the paper.

    Gates recalls Obama and his secretary of state when, Hillary Rodham Clinton, Discussing their competitors to Bush’s 2007 surge of troops in Iraq, while using Post. “Hillary told the president that her enemy to the surge in Iraq had been political because she was facing him in the Iowa primary. The president conceded vaguely that enemy to the Iraq surge had been political. To hear the pair of them making these admissions, And in front of me, Was as surprising as it was dismaying,

    criticizing what he calls the “curbing nature” with Obama White House, Gates says the president’s national refuge team “Took micromanagement and in business meddling to a new level, the periods reports. He is most essential of the growth and size of the National Security Council staff, according to the Times.

    Gates at times criticizes the Bush governing administration as well as its successor. He holds the Bush administration responsible for what he considered misguided policy that squandered the early victories in Afghanistan and Iraq, using the Times.

    In admir ations of Obama, Gates calls the president’s decision to order Navy SEALs to raid a house in Pakistan considered to be the hiding place of Osama bin Laden “One of the most courageous decisions I had ever witnessed in the White House,

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  13. Brandon Sua was sure ineffective in the War Machine / Jon Koppenhaver trial. You did the best you could on short notice.

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