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17 W. St. U. L. Rev. 257 (1989-1990)
OOPS: An Analysis of Post-Pope Attorney Incompetency Cases for Trial and Appellate Counsel

handle is hein.journals/wsulr17 and id is 263 raw text is: WESTERN STATE UNIVERSITY LAW REVIEW VOLUME 17 SPRING 1990 NUMBER 2 OOPS!: An Analysis of Post-Pope Attorney Incompetency Cases for Trial and Appellate Counsel Franz E. Miller* INTRODUCTION The public in general - and prosecutors and law enforcement of- ficers in particular - are not always thrilled about the role of the defense attorney in the criminal justice system. However, they do share the de- fense attorney's interest in competent' representation for criminal de- fendants.2 The reason: The defendant may go free if the defense attorney blunders.' The legal concept that incompetent representation by defense trial counsel can result in reversal of a conviction goes back at least 45 years.4 * J.D., University of California at Los Angeles; B.A., University of California at Los Angeles. Mr. Miller is currently a Senior Attorney with the Court of Appeal, Fourth District, Division Three in Santa Ana, California. He is a Certified Specialist in Criminal Law, and has been a trial and appellate attorney in private practice and for the Orange County Public Defenders Office, where he served as Training Officer. The author would like to acknowledge the invaluable assistance of Dave Swanson, Jeri Thomp- son, Paul Madruga, and other members of the Law Review. 1. Competent and adequate and their derivatives are used interchangeably in this article, as they are in the case law. Some cases also use the term effective. See Strickland v. Washington, 466 U.S. 668 (1984). As will be seen, the question is always whether trial counsel performed up to the standard set forth in People v. Pope, 23 Cal. 3d 412, 590 P.2d 859, 152 Cal. Rptr. 732 (1979). Competent and its derivatives are preferable since they imply able, a concept compatible with the standard developed by case law. Adequate and effective could connote a satisfactory result at trial. Since, as will be discussed below, competent counsel could make a reasonable tactical choice which leads to conviction, the latter two terms could be misleading. 2. See Van de Kamp, The Right to Counsel: Constitutional Imperatives in Criminal Cases, 19 Loy. L.A.L. REv. 329 (1985). 3. See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 588 (1926) (Cardozo, J.). 4. Diggs v. Welch, 148 F.2d 667 (D.C. Cir. 1945), cert. denied, 325 U.S. 889 (1945).

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