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consequences of his failure to testify. [3] Ineffective assistance of counsel: prejudice standard. One claiming ineffective assistance of counsel must prove by a preponderance of the evidence that there is a reasonable probability that the result of trial would have been different but for counsel's errors. "Result" refers to the decision rendered. Inquiry into the "fundamental fairness of the proceedings" is not the governing inquiry but is used in unique situations where a defendant "attempts to demonstrate prejudice by urging considerations that do not deprive the defendant of substantive or procedural rights recognized under the law." [4] Ineffective assistance of interpreter. "When an intermediary, such as an interpreter, is the only means of communication for a defendant and his attorney, any deficient conduct on the part of the intermediary can be imputed to the attorney as ineffective assistance." Interpreters who abuse their powers as officers of the court by acting outside the scope of duties (falsely holding oneself out to be a licensed private investigator, accepting money to investigate a case in which he was serving as an interpreter, interfering with the attorney-client relationship and providing extensive legal advice) "may, in essence, deprive defendants of their constitutional right to an interpreter" without which defendants will be unable to adequately confront witnesses or present a defense. [5] Vienna convention: effect of failing to inform a foreign national of his right to consular access. While not deciding whether counsel's failure to inform an arrested foreign national of the right to consular access constitutes ineffective assistance, the court instructs that "all criminal defense attorneys representing foreign nationals should be apprised of Article 36, and should advise their clients of this right".
CONSPIRACY: INSUFFICIENT EVIDENCE OF "AGREEMENT"
State v. Speicher, ___ N.W.2d ___ (Sup. Ct. No. 99-1931) (Iowa 4/25/2001) Conspiracy to manufacture methamphetamine: insufficient evidence. Insufficient evidence existed regarding an "agreement" between defendant and another man whose garage served as a methamphetamine lab, where both were seen at the garage and fled upon spotting the police. The other man, who owned the garage serving as the meth lab, gave his consent to search and told police "I was manufacturing the meth for my own use." Only one air filtration mask and one pair of gloves were found. The only indication of defendant's involvement, being present and fleeing police, did not provide substantial evidence of defendant's agreement to participate in the manufacturing process.
Correction to February 14, 2001 case
State v. DeCamp, ___ N.W.2d ___ (Sup. Ct. No. 00-0101) (Iowa 2/14/2001). [1] Drug sentencing enhancements: what is meant by prior violations of "this section". Defendant's prior possession of controlled substance convictions under former Iowa statutes not bearing the same section numbers as the present one were valid predicate offenses notwithstanding the enhancing statute's reference to prior violations of "this subsection". [2] Prospectivity of enhancement statutes. Recidivism laws do not define a new offense or add elements to existing crimes, nor do they punish for an old offense. They merely enhance the punishment
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