The Supreme Court has long held that the 6th amendment right to counsel includes the right to effective counsel.
Moreover the Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process.
As quoted "It is clear that when representing a criminal defendant , an attorney has a duty to reasonably INVESTIGATE THE FACTS, REVIEW EVIDENCE AND PREPARE A DEFENSE.' The question is not necessarily whether the previous counsel made reasonable strategic choices that turned out to be unsuccessful, but rather did the attorney FAIL TO INVESTIGATE?
For claims arising in the context of a guilty plea,(as in this case) the prejudice requirement is slightly different and "focuses on whether counsels constitutionally ineffective performance affected the outcome of the plea process.
In other words the defendant must show that there is a reasonable probability that, but for the counsels errors, he would have insisted on going to trial.
After investigating the facts of this particular case it seems the defendants Attorney Fredric Winocur at Ridley Mcgreedy & Winocur completely failed at fulfilling his constitutional duty. His failure to provide even the most basic of investigation and review of the discovery was not a strategic decision. Instead it was a complete and total failure to provide effective counsel. To say the defense attorney in this cases performance fell below the standard of reasonableness is an understatement.
Only after a signed plea deal (2.5 years later) was the "ALLEGED" evidence given to the defendant for review. He immediately noticed factually incorrect statements, accounting opinions and assumptions that just did not make sense. It was clear that the Agent in charge (Kate Funk) just did not understand the business and thought it was a Ponzi scheme.
So with this review of the evidence the defendant, NOT HIS LAWYER Investigated the background of Agent Funk.
He discovered that she lied on her sworn Affidavit. She lied about Receiving an Accounting Degree from the University of Kansas in 1995 (they do not offer an Accounting degree). She lied about graduating in 1995. She lied about becoming a Certified Public Accountant in 1996 thru the State of Kansas. (Facts are Funk has never been licensed to practice in any state). As opined on by numerous lawyers and accountants its obvious Agent Funk committed perjury and defrauded the Judge in this case by lying about her credentials to enhance her credibility to obtain the search warrants.
If not that why lie? Why not be truthful?
At that point the defendant NOT HIS LAWYER called the court to get a certified copy's of the warrant(s) and the affidavits. He was shocked to find out that "THERE ARE NO WARRANTS REGISTERED IN HIS CASE!" Federal rules of evidence clearly state that a search warrant once executed must be brought back to the issuing Magistrate Judge for registration. How else to guarantee the authenticity of what was attested to and what was seized? Why was it not registered as the law requires?
HOW COULD ANY COMPETENT LAWYER ADVISE HIS CLIENT TO ENTER INTO A PLEA DEAL WITHOUT EVER SEEING A CERTIFIED COPY OF THE ALLEGED WARRANT AND AFFADAVIT?
Had Mr. Winocur done the most basic of investigation he would have discovered as his client did:
1. Agent Funk committed perjury in enhancing her credibility to obtain the warrants.
2. Agent Funk violated accounting laws in 2 states by attesting to the affidavit.
3.The alleged warrants and affidavits were never registered with court as required by law.
4. Aside from the OBVIOUS lack of registration numbers on the top of the pages. The supposed affidavit supplied by the Government had 2 different 1st pages along with other differences through the document. The affidavit given to the defendant and his co defendant were different versions of the supposed same affidavit for the same premises for the same day? How could this be? Obviously there was editing after the fact is the only logical explanation. This also may explain why they were never registered in the first place.
All this discovered by the defendant after a plea deal was in place. Once all this was uncovered the defendant brought these facts amongst others to his Mr. Winocurs attention. Mr. Winocur promptly resigned stating "We now have a conflict of interest"
The defendant then secured court appointed counsel and attempted to revoke his plea not once but twice! We believe that this attempt to revoke his plea twice after seeing the purported evidence shows that if it were not for his lawyers errors he would have opted to go to trial.
For some reason unknown, the Judges in this case will not see Justice done. How could this be? Could it be that agent Funk is the Wife of Ex Star Prosecutor T. Markus Funk? Could it be all the other cases that will come under review because of Funks perjury and Fraud? Surely she used these same statements in getting hired by the FBI? Could it be because of the many layers of Government employees that have known about this would now be held accountable?
At the very least the Mr. Winocur should be held accountable for his failure to provide his client with his 6th amendment right to effective counsel. Winocur Failed miserably to do the most basic of work and his clients life was ruined because of it.
Click the link to see the most recent motions filed.