In the case of State v. Russell, a New Jersey Appellate Division panel, in a per curiam decision, reversed and remanded the decision of the PCR (post conviction relief) judge to dismiss, without a hearing, the defendant's motion for post conviction relief based on the defendant's allegations of ineffectiveness of counsel. The defendant had raised three distinct objections to the representation he received from his trial counsel, which will now be afforded a hearing.
First, defendant claims his lawyer's failure to seek severance of his trial from that of his co-defendant prejudiced his interests. Severance is a request the trial judge can grant or not, so seeking it is not the same as securing it; but it is sometimes the case that a lawyer's failure to seek severance can constitute legally cognizable ineffectiveness. Generally speaking, issues like whether or not to seek severance are within the ambit of the defense attorney's discretion. That is to say, if, in the lawyer's professional and considered judgment, severance is likely to be helpful (or hurtful) to the client, then the attorney, after counseling the client on the matter, should proceed accordingly. Yet there are instances that can be imagined where the failure to seek severance could constitute legally cognizable ineffectiveness. For example, where the co-defendant's planned defense strategy, demeanor, and testimony are highly likely to prejudice a client's interests.
Second, defendant claims his lawyer failed to consult or present an expert concerning the lethal capacity of a quantity of mercury which figured in the case against him.
Third, defendant claims his lawyer, without the defendant's consent, conceded defendant's guilt with respect to some lesser charges that were filed against him. Again, while lawyers have broad discretion to defend their clients in a way that seems to them, in their professional judgment, best- and sometimes that will mean conceding ancillary guilt- conceding guilt on a client's behalf without that client's informed consent is not within that discretion.
Of course, raising such accusations is not the same thing as substantiating them. The defendant now has a hearing in which to convince a judge of the merit of his claims.
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