If I understand TFA right, it was the defense that made the mistake, which is why the appeal failed. You don't get a do-over when the mistake is on your side.

If I understand TFA then the defendant is arguing that his message about owning a gun was made less glib by the verbatim inclusion of a tears-of-joy emoji plus a smiling-devil-horns emoji at the end.

That is... an unusual argument to make.

I thought you would if you prove your lawyer was incompetent and sue them?

Ineffective assistance of counsel is a thing (and does not require suing the lawyer).

However, failing to properly object to how some emojis were entered into evidence is no where near the standard of being ineffective.

IANAL, but I can imagine the prosecutor's pushback on that: "at what point did you attempt to straighten out your own lawyer about their misinterpretation of your evidence? Can you point us to the line in the transcript where you tried to explain the correct interpretation in court?"

Like, if my life was on the line, and my lawyer was screwing up my evidence, I think I'd try to point that out to someone.

Thank god that isn't the bar for ineffective assistance of counsel.

A vast majority of defendants don't know all the ins and outs of law... that's why we have a profession to deal in this domain. Asking the average defendant to check their counsel's work is ridiculous.

I disagree. Clients shouldn't be expected to know the ins and outs of legal procedure and rules of evidence and a million other things like that. I think they should be reasonable expected to say something when their attorney is making factual mistakes, like "when my client wrote this, they meant...", when the client knows that's not at all what they meant.

To give an example that might resonate to HN folks, suppose your attorney says "I know my client had a bunch of hacking tools on his computer, and that looks bad". Now suppose the laptop in question is your work-issues computer, and you work in pen testing, so you possess all of those for legitimate work-related reasons. I think it'd be hard to appeal on those grounds. "My attorney should have said something?" "You just sat there and went along with it, though." Appeals aren't meant to be an infinite series of do-overs were you get to relitigate every single thing you wish you'd said differently.

If your attorney messes up on legal issues, that's on them. When they mess up on the basic facts, and you don't say anything about it, I think that's kind of on you.

For starters, most attorneys won't allow their clients to utter a single word to law enforcement or on the court record.

Your proposal is that the client has to have enough of a grasp on the legal strategy related to self-incrimination that they could challenge and disregard their attorneys advice, in order to save themselves from something the attorney misinterpreted.

I personally think that's way too much to ask of a defendant. You even see the accused who are lawyers themselves just hire other lawyers and promptly stfu. Counsel always decides and implements the strategy.

No one would expect the defendant to address the court, but if you’re on trial and your counsel is screwing something up, you need to let them know. “Psst, hey, that’s not what I said.” So is the defendant claiming that their lawyer overrode their correction, to their disadvantage? Because, if not, they should have said something.

And how did you come to find out that the defendant didn't do that? That would explicitly be not included in the record.

The defendant could raise an "ineffective assistance of counsel" argument, asserting his counsel was incompetent and it prejudiced him. You can make that claim in your direct appeal, but for procedural reasons, defendants usually make them in separate petitions for writs of habeas corpus. That's not a lawsuit against the lawyer, though. Instead, it's a lawsuit seeking your freedom from the state.