Appendix IV Ideas for Substantive Claims

• Library: Post-Conviction Practice: A Manual for Illinois Attorneys (2012 Ed.)

Appendix IV: Ideas for Substantive Claims

Appendix IV.A: Ineffective Assistance of Counsel Claims

Note: the prejudice element is not included in claims listed below. If order to make a successful claim of AC, you must also show that the conduct listed below prejudiced your client.

1. Conflict of interest because of a co-defendant or a witness. Mickens v. Taylor, 535 U.S. 162 (2002); People v. Echols, 74 Ill.2d 319 (1978).

2. Conflict of interest because he represented a city agency, which prevented him from pursuing a line of defense or taking action to protect a constitutional right. People v. Washington, 461 N.E.2d 393 (1984).

3. Conflict of interest because he worked for the prosecutor's office during the investigation. People v. Lawson, 163 Ill. 2d 187 (1994).

4. Failure to investigate the composition of the grand or petit jury which lead to an exclusion of a cognizable group (e.g., blacks, women). Goodwin v. Balkcom, 684 F.2d 794, 809 (11th Cir. 1982); but see Birt v. Montgomery, 725 F.2d 587, 600-01 (11th Cir. 1984) (en banc).

5. Failure to obtain a transcript of the grand jury testimony which could have been used for impeachment or in your client's behalf. People v. Salgado, 263 Ill. App. 3d 238 (App. Ct. 1994).

6. Failure to challenge defects in the indictment. People v. Spann, 332 Ill. App. 3d 425 (App. Ct. 2002).

7. Failure to object to inadmissible testimony or evidence or to adequately cross-examine witnesses at the preliminary hearing. People v. Royse, 99 Ill.2d 163 (1983).

8. Failure to avail himself of state discovery procedures which would have given him access to witnesses' stories or physical evidence before trial.

9. Failure to seek dismissal of the charges on speedy trial grounds. People v. Boyd, 363 Ill. App. 3d 1027 (App. Ct. 2006).

10. Failure to move for withdrawal of a guilty plea despite a request from your client that he do so. Holtan v. Parratt, 683 F.2d 1163 (8th Cir. 1984).

11. Failure to raise an available defense of double jeopardy.

12. Failure to interview alibi witnesses whose names had been provided to him by the defendant, and the witnesses would have been able to provide your client with an alibi.

13. Failure to obtain a competency evaluation of the defendant even though the defendant was exhibiting behavior that should have led counsel to suspect he was incompetent.

14. Failure to have a blood test of your client done to show that blood on his clothing was his own and not the victim's, or some other failure to pursue a valid alternative explanation for state's blood test evidence.

15. Failure to request a continuance even though he was not prepared. People v. Wallace, 106 Ill. App. 3d 580 (1st Dist. 1982).

16. Failure to request a change of venue, sequestration of the jury, or other measures needed to insure a fair trial by an impartial jury. People v. Chatman, 36 Ill.2d 305 (1967).

17. Failure to object to improper excusals for cause of jurors.

18. Failure to object to the prosecutor's systematic exclusion of members of a cognizable group or failure to make an adequate record of the prosecutor's actions.

19. Failure to investigate or pursue an insanity or guilty but mentally ill defense even though the defendant was exhibiting behavior consistent with that defense. People v. Howard, 74 Ill. App. 3d 138 (3rd Dist. 1978).

20. Failure to request a severance from the trial of a co-defendant if joint-trial prejudiced your client.

21. Failure to object to the shackling of your client, the appearance of your client before the jury dressed in prison garb, or other excessive security measures that impinged on the presumption of innocence.

22. Failure to conduct a voir dire examination that protected the defendant's rights to a fair and impartial jury, such as failing to question on pre-trial publicity, racial prejudice, or other related bias.

23. Failure to request individual, sequestered voir dire.

24. Distanced himself from your client, such as informing the jury that he was representing your client because he had been appointed or measures. King v. Strickland, 714 F.2d 1481, 1490-91 (11th Cir. 1984).

25. Failure to object to prejudicial and improper statements by the prosecutor or judge.

26. Failure to object to evidence that was subject to exclusion under the Fourth Amendment. Kimmelman v. Morrison, 477 U.S. 365 (1986); People v. Odom, 71 Ill. App. 2d 480 (1st Dist. 1966).

27. Failure to object to evidence that was subject to exclusion under a confidential communications privilege.

28. Failure to object to a confession that was obtained in violation of your client's rights or failure to object on the correct ground. People v. Brinson, 80 1ll. App. 3d 388 (2nd Dist. 1980).

29. Failure to object to the prosecutor leading witnesses on crucial issues. People v. Jackson, 96 1ll. App. 2d 99 (1st Dist. 1968).

30. Failure to object to the testimony of a witness who was affected by hypnosis.

31. Failure to object to the playing of an incomprehensible tape recording or to the admission of an inaccurate transcription of a tape recording.

32. Failure to challenge a constitutionally tainted in-court identification of your client. People v. Brinson, 80 1ll. App. 3d 388 (2nd Dist. 1980).

33. Failure to follow state procedures for preserving an issue for future appeals. People v. Lemcke, 80 Ill.App.3d 298 (2nd Dist. 1980).

34. Failure to seek a hearing concerning the competency of an under-aged or mentally incompetent witness to testify.

35. Impaired ability to litigate due to intoxicated from drugs or alcohol during trial. People v. Williams, 93 Ill.2d 190 (1982).

36. Failure to impeach witnesses with prior inconsistent statements, evidence of prior perjuries, or with any other evidence he knew or should have known about that was effectively impeaching. Smith v. Wainwright, 741 F.2d 1248, 1255 (11th Cir. 1984).

37. Failure to object to the lack of evidence to corroborate a confession or an accomplice's testimony.

Appendix IV.B: Fourth Amendment Violations

1. Failure to object to the court's improper exclusion of defense evidence.

2. Failure to have subpoenas served on defense witnesses, resulting in their failure to appear at trial.

3. Failure to request appropriate instructions on guilt or punishment or failure to object to objectionable instructions on guilt or punishment.

4. Failure to investigate and challenge inaccurate and prejudicial information contained in a pre-sentence investigation report.

5. Failure to object to improper evidence admitted in aggravation of sentence.

6. Failure to object to the trial judge's closing of the courtroom during the testimony of a witness.

7. Unduly restriction of client's presentation of the defense by limiting his examination of witnesses, his opening or closing argument, or his presentation of evidence.

8. "Strategic decisions" made in ignorance of applicable state law. People v. Wright, 111 Ill.2d 18 (1986).

9. Failure to insure your client's presence at all crucial stages of the proceedings, or waived your client's right to be present or without obtaining your client's permission. Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982).

10. Absent from the courtroom during the proceedings, either in mind or body (e.g., he fell asleep or left the room), leaving your client unrepresented. House v. Balkcom, 725 F.2d 608 (11th Cir. 1984); Young v. Zant, 677 F.2d 792 (11th Cir. 1982).

11. Failure to raise any issue on...