On the improper use by criminal prosecutors of sealed juvenile adjudications in criminal proceedings in New York

New York State Family Court Act § 381.2, entitled "Use of records in other courts," provides:

"1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.

"2. Notwithstanding the provisions of subdivision one, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1."

Here is how a New York appellate court applied this statutory prohibition to use juvenile delinquency adjudications IN ANY OTHER COURT:

" Family Court Act § 381.2 is clear on its face and provides that neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to the Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court (see Family Ct Act § 381.2 [1]). 

AND

"Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (McKinney's Cons Laws of NY, Book 1, Statutes § 76). The above-cited language of the Family Court Act is unambiguous and makes clear "that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction".

AND

As noted above, the sole statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of records and information relating to a juvenile delinquency adjudication by a court in imposing sentence upon an adult (see Family Ct Act § 381.2 [2]). 

However, a SORA proceeding is civil in nature (see People v Mingo, 12 NY3d 563, 572 [2009]), and a risk level determination is not a sentence (see CPL 1.20 [14]). 

Thus, the statutory exception is inapplicable. Consequently, we hold that the Board, which is merely an advisory panel, exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender's criminal history".

So - THE ONLY time when a criminal court may consider juvenile delinquency adjudications is when an adult criminal defendant HAS BEEN ALREADY CONVICTED OF A CRIME and the COURT IS CONSIDERING HOW TO SENTENCE/PUNISH HIM AS A RESULT OF THAT CONVICTION, and even then, when such a sentencing concerns a sex offender, the risk level of the offender may not be determined with the help of such a juvenile adjudication.

The law makes it clear that juvenile adjudications may not, under any circumstances, be used in a CRIMINAL TRIAL against the defendant.

Any attempt by the prosecution to even hint to the public in a public record that the criminal defendant HAD juvenile adjudications before trial and for use in trial is prosecutorial misconduct meant to irreversibly contaminate the jury pool and obtain a wrongful conviction based on sealed inadmissible records.

If any such attempt is made in a criminal proceeding, a motion to disqualify prosecution for misconduct should be immediately made, as well as a motion to recuse a judge if the judge allows introduction of such records.

On the necessity of motions in limine (to exclude) re testimony of experts on the ultimate issue of criminal proceedings - whether the defendant killed the alleged victim

The US Supreme Court has stated a long time ago that for the law to be constitutional, it must be

1. statutory (done by legislature and not by judges or executive/administrative agencies);
2. be clear to an ordinary person (not university educated, no law degree); and
3. contain a clear guide for application of the law for the police, prosecutors and judges.

What happens in court is usually the opposite.  Lawyers and judges bamboozle the public with terms and "rules" that even judges and lawyers squabble over as to WTH they mean.

So, when I say "motion in limine", that is lawyerspeak for a good old request to the court not to allow introduction of certain proof at trial.

Now, I receive a lot of mail from readers of this blog who report that various prosecution-hired experts in CPS ("civil") and in criminal proceedings routinely testify in court on the so-called "ultimate issue" - was the defendant responsible for the injuries of the alleged victim or not.

Sometimes forensic proof (DNA evidence etc.) points clearly at the defendant, and then such testimony by the expert is warranted.

Oftentimes, though, a forensic expert LACKS proof (a person has been raped, but there is no DNA evidence pointing at the defendant as the perpetrator, or the alleged victim obviously died from a certain weapon - knife, gunshot wound etc.), and the expert fills in the gaps by testifying that IN HIS SCIENTIFIC OPINION it was the defendant who raped-stabbed-shot the alleged victim.

It is apparent that expert opinions are allowed in court only when an expert knows more than an ordinary person and can explain to the jury facts that the jury may not understand without an explanation from a person with specialized knowledge in a particular field.

Yet, once the expert testified that in his opinion the victim did have sex on the day of the supposed crime, or that the alleged victim did die from a stab wound or from a gunshot wound, if the expert does not have ADDITIONAL evidence pointing at the defendant as perpetrator of the crime, the expert no longer has specialized knowledge to inform the jury WHO DID IT - and his "opinion" on the matter should not be allowed.

In federal cases, while an opinion on the ultimate issue is not in itself objectionable, an opinion about the mental state of the defendant as to the ultimate issue (whether the defendant possessed the necessary criminal intent in committing the crime charged) is not allowed.

In New York State, the Court of Appeals (the top state court) has ruled that:

"In a sense, opinion testimony of an expert witness necessarily enters upon the jury's province, since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts "depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence." (Dougherty v Milliken, 163 N.Y. 527, 533; De Long v County of Erie, 60 N.Y.2d 296.)"

So, expert opinion on any issue of fact, and especially on the ultimate issue of defendant's guilt or innocence IS NOT ADMISSIBLE in court - and thus may and should be eliminated by a defense's motion before the trial  - when an expert has made a prior claim (in any kind of a pretrial hearing) not based on evidence, but based on personal opinion of the expert that has nothing to do with any specialized skill or knowledge, that the defendant is guilty of committing the crime charged.

Defense attorneys often neglect making motions to specifically exclude testimony of prosecution's expert on the ultimate issue of criminal proceedings - whether the defendant committed the crime charged if the expert has no evidence of it other than the manner of death of the victim.

It must become a good defense practice to make such motions in limine/to exclude improper expert opinions.

The tricks of New York prosecutors to financially drain the family of criminal defendants on unnecessary pre-trial appearances and reviews to leave them without funds for lawyer to do the trial and get an easy plea

I have been working for a criminal defense attorney as a paralegal for a number of years, and then myself was a criminal defense attorney in New York for several years, so I know as a practical matter the tricks of prosecutors and judges who are in bed with prosecutors aimed at coercing plea bargain by draining family resources on private criminal defense attorney before trial.

Trick # 2.  Pre-trial "conferences"

There is no such beast at all in the Criminal Procedure Law governing criminal proceedings in the State of New York.

Yet, in all criminal cases the attorney I worked for and then in my own cases at felony level judges (who usually are former prosecutor from the same office as the current prosecutor of the case) mandate a "pre-trial conference" - even though you tell the judge and the prosecutor loud and clear that your client wants a trial and does not want any plea discussions.

I have described previously how pre-trial conferences are conducted and for what purpose, in civil and in criminal cases.

Appearance to each of such conference is mandatory, so the attorney (before the pandemic, at least), had to come to court, so it is travel to and from court, waiting time in court and time at the useless conference - all necessarily billed to the client.  The attorney has no power to cancel the conference other than arguing against it in writing to the judge - most likely, to no avail, the judge will just ignore it and order the conference anyway.

Several such conferences - and the family budget is several thousand dollars lighter for the criminal defense attorney, so by the time of the trial the family may end up with no funds paying the attorney for the labor-intensive trial (several days of morning-to-night work in court plus preparation prior to trial).

The judge knows what he is doing.

The prosecutor knows what the judge is doing when the prosecutor asks the judge (his former colleague) for such a conference.

It is a tool to drain the family's resources for private counsel.

When the money is so drained, and the defendant faces the option of either reverting back to the mostly useless public defender or going to trial without an attorney, the defendant is more likely to enter a guilty plea, even if he/she is not guilty.

Trick #2 (used on my client by the current Chief Judge of the State of New York Janet DiFiore when she was a Westchester County DA) - "the prosecution is not yet ready"

There is such a thing as "professional courtesy" - which is often pushed upon defense attorneys to waive on their client's behalf their client's statutory or constitutional rights (to a felony hearing, to speedy trial etc.).  

Such "professional courtesy" rules do not, apparently, apply to prosecution who habitually hides evidence that is mandated for disclosure to the defense (exculpatory or mitigating guilt of the defendant).

I had an A felony case of a client, prosecuted by then-DA Janet DiFiore of Westchester County where DiFiore had me every single week dragging my feet from Delhi, NY to Westchester County by 9 00 AM (a 4-hour drive) for a certain hearing on the evidence I requested, so I would arrive there (an 8 hour turnaround trip billed to the client at an hourly rate), sit there for 3 hours (I had to come by 9 am, but the judge deliberately would call my case, without fail, only by noon, so 3 hours more of useless waiting in court billed to my client each time) - and each time when the case was called the prosecution would tell the judge that "they are not yet ready to produce the evidence" and the judge would say - ok, adjourned until next week, no reprimand to the prosecution that they could not tell the judge and the defense counsel, out of professional courtesy, that they are not ready, so that the defense counsel could decided what to do at this time - save the client's money for a yet another appearance.

Ended up with me making a motion to recuse the Harrison Town Court judge (year 2014) for being so deeply in DiFiore's pocket that he was not able to adjourn WIHOUT DRAGGING ME THERE, since the prosecutor knew ahead of time that "they are not yet ready", but never notified me of that, necessitating the trip.

The judge, in open court, threatened to put me in jail for contempt of court for making that motion to recuse.

Nevertheless, DiFiore's office finally acknowledged that they have NO EVIDENCE to have charged my client with an A felony (the judge often yelled at me in open court trying to impress upon me, a woman with a foreign accent which for many means that I must be stupid and not understand the English language, much less the New York state law - "DO YOU UNDERSTNAD, MRS NERONI, WHAT AN A FELONY IS?)

I understood it pretty well - that is why I demanded a felony hearing and had my client released without bail when the prosecution refused to conduct it, that is why the prosecution eventually reduced the charges to a misdemeanor - and I have made demands to produce supporting evidence which the prosecution did not have, and that's why the case was finally knocked down further to a violation.

The prosecution also understood that I understood pretty well what a felony charge is - that is why my client was pressured in jail (with hints that otherwise he will be raped) into waiving a grand jury indictment and proceed by "Superior Court Information" (his assigned counsel participated in the pressure), and the jail blocked the client's father from delivering to the client the form for consent to change counsel I have drafted, to prevent me from stepping into the case faster.

This is the reality of criminal proceedings in New York.

Trick # 3 - prosecution provides to defense light years of pages of unnecessary discovery for review 

A defense attorney must, in due diligence, review all discovery materials provided by the prosecution to prepare effective defense of his client.

Well, the prosecution often uses it by (while withholding exculpatory evidence) showering the defense with tons of useless documents, thousands upon thousands of pages, review of which takes time and effort of the defense attorney - and is necessarily billed to the defendant's family.

The result often is the same - the family is drained of funds before trial, and then the private counsel either says - oops, I need more funds for trial or can't proceed, or "advises" that it is "better" for the defendant to agree to a guilty plea - and the private counsel then keeps the money without doing the work at trial.

These tricks exist, are well-known by defense attorneys, but rarely would a defense attorney ask to recuse a judge or disqualify a prosecutor for engaging in such misconduct.

Just know that such tricks exist. 

Knowledge is power.

Nothing that a motion to recuse the judge and disqualify the prosecutor for misconduct would not cure.

On the underused way to get money for experts from the state for indigent criminal defendants in New York

I hear it from my readers, again and again, how retained private attorneys screw them out of the money for experts and investigators which defendants could have obtained FOR FREE as indigents/poor persons.

It is invariably done out of greed combined with laziness - often when a private attorney charges a huge "lump sum" for "everything" including the criminal trial, pressures the indigent defendant's family to pay for hiring the supposedly necessary forensic experts - and then does not hire the experts and pressures the defendant into a plea bargain, keeping the money for the experts and for the trial.

Yet, the law very clearly says in New York that a criminal defendant does not stop being an indigent just because a 3rd party (the adult defendant's extended family) hires a private counsel for him.

And, there is a statute, County Law 722-c allowing an indigent criminal defendant to hire experts and investigators for the trial at taxpayer's expense;

"722-c. Services other than counsel. Upon a finding in an ex parte

 proceeding that investigative, expert or other  services  are  necessary
  and  that the defendant or other person described in section two hundred
  forty-nine or section two hundred sixty-two of  the  family  court  act,
  article six-C of the correction law or section four hundred seven of the
  surrogate's  court  procedure act, is financially unable to obtain them,
  the court shall authorize counsel, whether or not assigned in accordance
  with a plan, to obtain the services on behalf of the defendant  or  such
  other  person.  The  court  upon  a  finding  that timely procurement of
  necessary services could not await prior authorization may authorize the
  services  nunc  pro  tunc.  The   court   shall   determine   reasonable
  compensation  for  the  services  and  direct  payment to the person who
  rendered them or to  the  person  entitled  to  reimbursement.  Only  in
  extraordinary  circumstances  may  the court provide for compensation in
  excess of one  thousand  dollars  per  investigative,  expert  or  other
  service provider.
Each  claim  for  compensation shall be supported by a sworn statement
  specifying the time expended, services rendered, expenses  incurred  and
  reimbursement  or  compensation applied for or received in the same case
  from any other source.

Moreover, a motion for expert fees under County Law 722-c is allowed to be made, argued and granted on an EX PARTE (without notice to prosecutors) basis.  When such a motion is made, the judge has absolutely no right to disclose to the prosecution that an expert is being sought at taxpayers' expense by the defense, and if he does, it is judicial misconduct entitling the defendant to make a motion to remove the judge from the case (recuse).

Even though the law restricts the amount to $1000 in the absence of "extraordinary circumstances", the statute does not restrict the defense counsel from claiming that the prosecution's use of an expert whose fee far exceeds $1000 does constitute extraordinary circumstances entitling the criminal defendant to an expert of the same quality (and with the same level of fees), as a matter of equal protection of laws guaranteed by the 14th Amendment of the U.S. Constitution.

Of course, such a motion may irritate the judge and the prosecution and certainly will not allow the defense attorney to sock away fees paid by the anxious family for experts, but retained for attorney's private use.

But - such a tool does exist in New York state law.

On "letter applications" by prosecutors in criminal cases instead of motions on notice according to the CPLR (New York)

 I have noticed from many submissions of different readers from across the State of New York that often prosecutors "enjoy" a cozy relationship with the court, to the point of not even taking an effort to comply with proper procedure in asking the court for major relief - such as in motions.

A prosecutor simply files a "letter request" to the court - without the required formalities of a notice of motion, supporting affirmation under oath, supporting evidence and memorandum of law, supporting affidavit of service upon parties.

Well, I can bet all that is dear to me on the fact that if a pro se (not represented by an attorney) party files a "letter request" with the court, despite the rule requiring courts to give a "liberal review" to filings of pro se parties, such a "letter request" will be rejected by the court as not a proper motion.

Yet, from a criminal prosecution "letter requests" without following formalities of motions appear to be hunky-dory for some judges.

If a defense attorney does not object against "letter applications" - you know what the defense attorney is doing to his client?  

Depriving him of his right to appeal "as of right" any ruling of the court on such a "letter application" immediately - specifically because the "letter application" was not a formal motion made "on notice":

                "Another consideration for careful 
                practitioners is the availability of appellate 
                review. A request for relief made in the absence 
                of a notice of cross motion is not a "motion ... 
                made upon notice" (CPLR 5701 [a] [2]), 
                so an order granting or denying the request 
                is not appealable as of right, and permission 
                to appeal is necessary (see CPLR 5701 [c]; 
                Blam v Netcher, 17 AD3d 495, 496 [2005]). 
                By contrast, generally, a party may appeal as 
                of right to challenge the disposition of a motion 
                or cross motion made on notice (see 
                CPLR 5701 [a]).

While the client is allowed to appeal immediately and as of right any ruling of the court on a motion made on notice.

So, if your attorney wants to exercise "professional courtesy" to a prosecutor by allowing him/her to make "letter applications" for major breaks at trial (prosecutors do not file motions other than for major breaks at trial), that courtesy (for your money) is, in fact, screwing you as the client - royally - because you will not be even able to appeal the ruling on that "letter application", no matter how badly it affected you.

And this, ladies and gentlemen, I believe, is a major illustration of ineffective representation of counsel.

On "extraordinary" writs of prohibition in criminal cases

Recently I got news that one of my former clients did an extraorinary thing - won a very rare "extraordinary" "writ of prohibition" against a New York State Family Court judge.

A VERY rare thing - and a very procedurally complex thing - done ENTIRELY pro se.  VERY PROUD of that person.

Proves that a person unrepresented by an attorney can effectively defend his/her own rights in court - even in very complex cases, and especially in complex cases which attorneys are afraid to touch.

That said, there is a special place in hell for ATTORNEYS who, knowing that a judge is proceeding - especially in a criminal case - without jurisdiction - and when an attorney has been handsomely paid for effective representation of their client, to not even TRY to bring this "extraordinary" writ of prohibition in the Appellate Court to try to STOP the criminal trial since it proceeds without jurisdiction.

For example, recently a reader has sent me some materials (motion papers) in a certain New York criminal case where the defense attorney quite coherently pleads in motion papers that the court had no jurisdiction in that criminal case because of a jurisdictionally deficient indictment.

And yet, when a certain cowardly judge denied that motion, instead of trying to proceed to the Appellate Division with a writ of prohibition before the pending trial, that attorney is trying to pressure the client to accept a plea bargain (with a lot of years in prison) on that same jurisdictionally defective indictment.  Figure.

I guess, the attorney wants to keep the handsome amount paid without the tedious necessity to prepare and try the case - and to hell with what happens to the client.

And, I also guess, sometimes it is better to represent yourself than to have such attorneys.

On felony hearings and speedy trial in NY felony cases

It was always a giant test in restraint for me to be present as an attorney (waiting my clients' turn) at arraignments of criminal defendants in lower-level courts with assigned counsel.

Usually it worked this way: defendants (usually 60%+ percent non-white in a 4% non-white area) were already arrested and delivered to court from jail, in jail robes, handcuffs and leg manacles.

They are sitting on a side bench in the courtroom, and their assigned counsel - very rarely - approach them for a couple of words, and then sneak into the judge's study generously let for the use of the prosecutor, to negotiate plea bargains.

Then, the case is called by the judge, the plea of not guilty is entered and, usually the assigned attorney tells the judge that either a plea is ALREADY agreed upon with the prosecution, or that the attorney will continue to negotiate for the plea.

The case is adjourned, and the defendant is returned to jail.

What is wrong about this picture?  Everything is wrong about this picture.

First of all, one needs to know that in New York, felony cases can start from 2 different levels - from a justice court and from a County court level.

On the one hand, according to the U.S. Constitution, 5th Amendment, a felony may not be prosecuted without a charge by the grand jury.

New York easily skips this requirement and allows a felony case to start based on a charge not from the grand jury, but simply from the police, to be filed in the court which may neither conduct discovery or pretrial hearings, nor conduct the required jury trial on the case.

Very rarely the charge is filed directly by a "sealed" indictment with the County Court - where it may and is tried.

From the point of view of constitutional law, starting a felony case in the justice court violates the Federal Constitution - and should not be allowed.

In real life, it is "the law" in the State of New York (Criminal Procedure Law) and is happening all the time.

So, the judge who may not have jurisdiction of the case FOR ANY REASON based on the U.S. Constitution without the indictment of the grand jury, conducts the arraignment of the defendant, accepts his plea of not guilty and decides on whether to ROR (release on own recognizance) the defendant, to keep him in jail or to set bond.

What is momentously wrong with the arraignment situation I described in the very beginning is that the defendants are poor and have assigned counsel who the taxpayers pay to provide effective representation to his client.

An effective representation at the time of arraignment in the justice court on a felony charge involves TWO major elements - neither of them assigned counsel usually do:

1/ Demand a felony hearing within 144 hours in custody;

2/ Do not agree to any adjournments of that hearing and of any other proceedings.

Why?

Very easy.

When the defendant is charged (and usually overcharged) at the justice court level with a felony case that cannot be tried in that same court, the arrest and charge trigger the 6-month period of the statutory speedy trial.

It means that the prosecution has to not only declare that he/she is ready for trial within 6 months from filing the charges, but to actually be ready for trial and conduct trial within those 6 months.

If within 6 months from initially filing the charges the prosecution did not come around to getting a grand jury indictment and trying the case, the charges against the defendant can be dismissed, on a motion, WITH PREJUDICE - meaning, they can NEVER be brought back again.

As the preliminary/felony hearing, at the time of arrest (144 hours from arrest) the prosecution's case is usually very raw and unprepared, and the prosecution usually did not yet coach the witnesses how to "testily" (not my term).  This is the ideal time to obtain testimony from the still-unprepared prosecution's witnesses.

The law allows the prosecution to either 

1. conduct the hearing, present its witnesses and evidence and prove to the judge that there is "reasonable cause" to believe that a felony has been committed (still unconstitutional since no proceedings can be held, according to the 5th Amendment, in a felony charge without a grand jury indictment), or

TADA

2. the court must RELEASE the defendant WITHOUT BAIL - unless the prosecution (a new clause introduced by the NY legislature) proves to the judge that there is a reason for their delay .

When the assigned (or retained) counsel waives (allows the court not to hold the prosecution strictly to the law) the felony hearing, it allows the prosecution to have more time to coach their witnesses how to lie - and foregoes creating a very important set of data for impeachment at trial.

If you have a felony hearing, and if you have motion hearings where prosecution witnesses testify (later on, in County Court), and, during the jury trial, you are entitled to see grand jury minutes with the same testimony (even though the prosecution is allowed to give it to you at the last minute) - you have an opportunity to compare testimony in all these testimonies and impeach the prosecution witnesses with any inconsistencies.

As to inconsistencies, the felony hearing transcript is the most valuable since - again - the prosecution witnesses are not yet coached by the prosecutor how to lie, and they testify long before the grand jury proceedings where all the witnesses are already well coached.

Therefore, no matter how you turn around, whether the prosecution allows the felony hearing to proceed - and the defense attorney gets to cross-examine the witnesses when they are not yet coached how to lie, and gets to have a transcript of that testimony for a very long time before trial, allowing him to prepare well for trial - OR

whether the prosecution decides to duck the hearing and then the defendant is RELEASED WITHOUT BAIL - the defendant wins from a felony hearing.

So, in my view, to forgo a felony hearing is GROSS NEGLIGENCE and MISCONDUCT by the defense attorney, whose client could be RELEASED WITHOUT BAIL OR CONDITIONS simply if the defense attorney demands a felony hearing.

Assigned counsel, instead, usually agree to delay or completely forgo (not even ask for) a felony hearing, letting their indigent/poor clients languish in jail for months (or years - heard about such cases, too) when they court be released for the asking.

As to the speedy trial statute - as I said above, there is a big difference between facing a possibility of conviction at trial after months or years in jail pre-trial, or facing "less", but still prison time on a plea bargain and having the case dismissed "on a technicality", they say, simply because the prosecution did not bring the case to trial within 6 months from the initial charges.

Now about "professional courtesy of attorneys".

When I was practicing criminal law in New York, I was often told that it is a matter of "professional courtesy amongst attorneys" (between prosecution and defense) for the defense to agree to all kinds of adjournments and to delay or forgo felony hearings, speedy trial constraints etc.

Prosecutors were very upset when facing motions to dismiss on speedy trial grounds (which judges - sometimes with indignation - had no way around, but to grant), because they forgot about the ticking 6-months clock (less so in misdemeanors).

My point here - it is not about courtesy to keep a person in jail, his/her life upset, fired from a job etc. and charged with a crime when that person may be free and with charges dismissed with prejudice.  It is not the defense attorney's job to work for the prosecution and to baby the prosecutor.

It is the defense attorney's job to work for his client and to get for his client EVERY  POSSIBLE benefit the law allows.

If the attorney does not do it, he/she did not do his/her job.

BUT - additionally I would like to let you know, my dear readers, that the beautiful State of New York has made an exception regarding attorney negligence and malpractice.

While you may sue your attorney for malpractice if, as a result of his/her negligence/misconduct in representing you you have lost custody of your child, money or real property, it is not the same with a criminal case.

If you got convicted for a crime because you attorney - as a matter of "professional courtesy" to the prosecution, no doubt, has waived (let go) any and all benefits you could have had as a defendant, you cannot sue your attorney for negligence and malpractice unless - TADA - you have won a reversal of your conviction on appeal, which is - due to the same negligence of the same attorney - often is impossible.

So.  Be very careful when choosing your criminal defense attorneys, learn the law on your own and make sure your attorney is doing right by you and delivers to you the time-sensitive benefits that the criminal law allows.

Otherwise you will be double-screwed - convicted when you could have had your charges dismissed, and not being able to sue your attorney for malpractice - because he obtains the shield from malpractice lawsuit through his own negligence/misconduct in your case.

Figure.