Ledezma v. State, 626 N.W.2d 134 (Iowa 2001) (4/25/2001)  [1] Ineffective assistance:  failure to investigate.  Counsel was ineffective in failing to investigate "the only reasonable and realistic defense" available to defendant.  Urging that the victim consented to sexual intercourse with defendant, counsel failed to interview potential witnesses regarding why the alleged victim left a bar with the three men who were later charged with sexual abuse, and failed to interview a store clerk who might have been able to testify as to the absence of unusual activity between the alleged victim and defendant while the car was parked outside the store.   [2]  Ineffective assistance:  advising defendant not to testify.  Counsel was ineffective in advising defendant not to testify based on last-minute information that he believed (but on which he did not gather all the necessary facts) inculpated defendant; and in giving this advice without informing the defendant of the 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.   Although not deciding the case on this point, the Court recognizes the possibility of ineffective assistance of counsel by virtue of an interpreter's improper actions.  "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".

NOTE:  HERE IS THE LANGUAGE FROM LEDEZMA QUOTING ARTICLE 36:

The Vienna Convention on Consular Relations is a multilateral treaty enacted for the purpose of “provid[ing] the right of consular notification and access when a national of a member state is arrested or otherwise detained in another member state.”  Howard S. Schiffman, Breard and Beyond:  The Status of Consular Notification and Access under the Vienna Convention, 8 Cardozo J. Int’l & Comp. L. 27, 28 (2000) [hereinafter Schiffman]; see Linda Jane Springrose, Note, Strangers in a Strange Land:  The Rights of Non-Citizens under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L.J. 185, 187 (1999) [hereinafter Springrose].  Article 36 of the Vienna Convention is the provision which specifically addresses communication with the foreign national.  It provides, in pertinent part:

1.  With a view to facilitating the exercise of consular functions relating to nationals of the sending State:. . . . 

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any matter.  Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.

The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101 (emphasis added). 

NOTE:  For a current list of mandatory notification countries, suggested statements to detained foreign nationals, suggested notification forms, translations, and detailed instructions, refer to the U.S. Dep't of State's web site: