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Racial Antagonism, Sexual Betrayal, Graft, and More: Rethinking and Remedying the Universe of Defense Counsel Failings

Sheri Lynn Johnson

Is a defendant entitled to a new trial when his counsel has repeatedly spouted ugly racial stereotypes and used racial epithets in referring to his clients? Or should a reviewing court require the defendant to show how he was “prejudiced” by that lawyer’s racial antagonism? In June of 2018, Ellis v. Harrison held that unless defense counsel had expressed his racist views to the defendant himself, no conflict will be presumed. The defendant must show both deficient performance and prejudice to establish a Sixth Amendment violation. In January of 2019, the Ninth Circuit granted rehearing en banc.