¶1(Specially Concurring).
¶2I concur.
¶3To remand this case to the district court under the present standards fixed for “ineffective assistance of counsel,” will be a useless gesture.
¶4In 1976, the Supreme Court adopted a rule that improvident strategy, bad tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel, unless, taken as a whole, the trial was a mockery of justice; that counsel is presumed competent; that a defendant is denied his right to effective assistance of counsel only when his trial becomes a sham or a farce. State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967). This standard encompasses a “mockery,” “sham” or “farce.” It has continued to this day.
¶5Defendant should petition the Supreme Court to determine whether the “mockery of justice” rule should be clarified or overruled. In my opinion, it should be discarded. If the Supreme Court grants certiorari, this opinion will not be published. So be it.
¶6This rule arose out of an early concept. If a defendant selected an incompetent lawyer, the acts of the lawyer were imputed to the defendant. Every poor defendant had a duty to select a successful, experienced competent attorney to defend him or seek the assistance of the public defender with the assurance that the lawyer appointed was experienced, active in trial practice, familiar with the practice and procedure, competent and dedicated.
¶7Criticism of the “mockery of justice” concept has been so intense, that courts have adopted a modern view. State v. Hester, 45 Ohio St.2d 71, 45 Ohio Ops. 156, 341 N.E.2d 304 (1976); People v. Gonzales, 37 Colo.App. 8, 543 P.2d 72 (1975); Baxter v. Rose, Tenn., 523 S.W.2d 930 (1975); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Modern Status Of Rule As To Test In Federal Court Of Effective Representation By Counsel, 26 ALR Fed. 218 (1976). American Bar Association Standards relating to defense function would be enlightening. Justice Erickson of the Supreme Court of Colorado, a foremost proponent of American Bar Association Standards, said:
Justice cannot be the product of our courts under an adversary system if defense counsel fails to serve as an advocate who is competent and well prepared to represent his client. American Bar Association Standards for Criminal Justice Relating to The Defense Function §§ 1.1(a) and 1.1(b). In reviewing the record in this case, we can only conclude that defense counsel fell far short of the minimum requirements of competency and thereby denied the defendant his right to the effective assistance of counsel. [Emphasis added.] People v. White, 182 Colo. 417, 514 P.2d 69, 72 (1973).
¶8The test to be adopted is whether an accused under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done. Hester, supra. Justice demands that an accused shall have an attorney who renders reasonably effective assistance from the time of retention or appointment through the trial of the case.
¶9It is also my opinion that a convicted person is entitled to the effective assistance of counsel on appeal. An appellate court can chastise an attorney who fails in his duties, but it should not allow carelessness, mistakes, or inexperience, or traditional technical omissions to deny this person a fair appeal or substantial justice.
¶10In any event, the trial court can determine under the “mockery of justice” rule, whether defendant’s counsel fell short of the minimum requirements of competency in preparation for and during the trial of the case.