Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“I DON’T THINK MY CRIMINAL DEFENSE LAWYER IS DOING HIS JOB ON MY BEHALF. AM I STUCK?”

Let’s first look at a recent United States Supreme Court case in point.

On January 18, 2012, the Court rendered its decision in Maples v. Thomas. The case wasa criminal appeal from a gentleman who had been found guilty of murder and sentenced to death in Alabama state court. Later, he sought post conviction relief in state court under Alabama Rule 32, alleging, among other things, that his trial attorneys failed to give him the effective assistance that is guaranteed by the Sixth Amendment.

Part of the problem was that this petitioner had missed the deadline before which such an appeal could be filed. Under the local law, his rights for such an appeal were therefore waived. The question became whether the facts of this particular case were enough “cause” to excuse this procedural default in state court.

Last week, the Court held that he had shown such cause as he had been abandoned by his lawyer and left unrepresented during the time he would have had to file. The Court further found that he lacked any knowledge of such deadlines on his own.

Attorney Sam’s Take On Incompetent Counsel

Being prosecuted for a crime, whether you are guilty or innocent, is hell. Nothing is going to change that. However, it is the belief of this Boston criminal lawyer that one thing that can make the experience more palpable is to have a defense attorney in whom you have faith and feel comfortable with.

“What if my case has been pending for awhile? Isn’t it too late to switch?”


Usually, no. However, the closer a case comes to trial, the more difficult it can be. Obviously, if you fire your attorney, your new attorney will need time to get up to speed in the case. This will cause a delay. Judges do not like such delays and often, if the requested change is on a trial date, will deny such a continuance.

“What if I do not realize that the lawyer did not do his job until during the trial? Can I switch then?”

While one never says “never” to anything in the justice system…I would put the answer to that question under the “no” category. There are various reasons why such a switch at that time would be unfeasible.

“So, then, there is nothing I can do about it? Ever?”

I did not say that.

Incompetent counsel is a basis for two means of attacking a guilty verdict. One is a Motion For A New Trial and the other is an appeal. Cases differ, of course, and it is best to consult an experienced criminal defense attorney to figure out which approach is best.

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