I really like Justice Johnson's concurrence in this case. You don't read many of them -- from any judge or justice -- that begin like this, either in style or in substance:
"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s
failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."
I like it. A lot.
Both the majority opinion (by Justice Perluss) and the concurrence are well, well worth the read.
