Splits Noted in the State High Courts - 2/20-2/22

As with the post below, these decisions from state high courts note splits of authority. In any post on this blog that is entitled 'splits noted', the point at issue in these divisions will not be dispositive to the case. The pincite provided to state court decisions will be to the Westlaw document.

• Is a Faretta canvass required for a valid waiver of the right to counsel? Hooks v. State, 2008 WL 451230, *4 n. 16 (Nev. Feb. 21, 2008).

The Nevada Supreme Court overturns Jerry Hook's conviction for sale of a controlled substance because the trial court did not inquire, on the record, into the adequacy of his waiver of his right to counsel and the record as a whole did not demonstrate that he did so knowingly and voluntarily. In the process, the panel noted that the Third Circuit requires that the trial court conduct an on the record colloquy with the defendant, whereas CA 4,7,9,10 look to the record of the case as a whole for evidence of knowledge. A fun random fact is that Nevada is one of the few states that does not have an intermediate appellate court. However the code provision establishing the number of Supreme Court Justices (7) states that when such a body is created, the number of justices will be reduced to 5 -- Nev. Rev. Stat. § 2.010.

• Can a Strickland claim be raised against standby counsel? State v. Fischer, 2008 WL 451754, *4, ¶ 18 (N.D. Feb. 21, 2008)

In what appears to be a trend for the day, Paul Fischer is a criminal defendant who chose to represent himself. Perhaps proving the old saw that a [defendant] who represents himself has a fool for a client, he then sought to bring an ineffective assistance of counsel claim..... against his standby attorney. The North Dakota Supreme Court notes a split of authority of whether such a claim is even possible -- citing a Seventh Circuit case for the negative, and a California state case for the affirmative. The Court denies the claim, holding that Fischer only asserted subjective displeasure, rather than objective malpractice, with the attorney's performance. Nonetheless, the Court did not suggest what objective norms should be used to judge the prevailing professional skill of standby attorneys.