Criminal Procedure — ineffective assistance

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — ineffective assistance

It was ineffective assistance for an attorney to advise his defendant that, if he maintained evidence was planted on him by the police, then he could not challenge its admissibility.

“Counsel’s belief that the law required Gardner to confess to possession, which the district court echoed, was a misapprehension of law that, as in Johnson, 604 F.3d at 1019-21, prevented counsel from seeking to suppress critical evidence. The only remaining question, which the government does not discuss but which we consider important enough to raise, is whether counsel’s performance is somehow excused because the district court endorsed the error. We think that a blanket rule to this effect—i.e., no matter how egregious the district court’s error, counsel has no independent obligation to perform competently—would be inconsistent with the guarantee of effective assistance of counsel that the Sixth Amendment assures and that Strickland elaborates. Under that regime, counsel, not the court, is responsible for protecting the interests of the accused, and it is counsel’s performance that must be assessed objectively. Moreover, we know from Bowles v. Russell, 551 U.S. 205 (2007), that fundamental mistakes by the district court (in that case, believing that it could extend the time in which to file a civil appeal) do not necessarily excuse counsel’s actions. In Bowles, the error could not be overlooked because it had jurisdictional significance. Here, it does not, but if counsel had understood the law properly and filed the proper motion, the district court might have realized that it needed to revisit the governing cases and the error would have been nipped in the bud. Any error that the district court made with respect to the suppression motion could have been cured on appeal.”

Reversed and Remanded.

10-1576 Gardner v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Wood, J.