Free MEMORANDUM in Support - District Court of Delaware - Delaware

j . Case 1:04-cv-01424-JJF Document 21-2 Filed 06/27/2005 Page 1 of 3
Eric Witherspoon ‘
Souza Baranowski— C.C.
P.O. Box 8000
Shirley, Ma 01464
Bernard J. 0'Donnell
Assistant Public Defender
Elbert N. Carvel, State Office Building
820 North French St. Third Floor
P.O. Box 8911
Wilmington, Delaware 19809
05-31-00
RE: Witherspoon v. State, NO. 460,1999
Dear Mr. O'Donnell,
I have received the opening brief that you have filed on my
behalf in the Delaware Supreme Court. I truly believe that the argu-
ment you are presenting has merits. But, I am not completly satisfi-
ed with just that one argumemt. And I also know that the constituti-
on guarantees a criminal defendant pursuing a first appeal as of `
right certain minimum safeguards to make that appeal adequate and
effective. I am also entitled to the effective assistance of counsel
on direct appeal as of right. And with all due respect I would like
copies of my grand jury minutes, trial transcripts, police reports
ect.. And then we both can make up a rough draft of possible argume-
nts. so that we can make this appeal effective. So I am asking if
you could please disregard that brief? Because, I know there is
more appealable issues than just that one issuefthat we can add
on that has merits also.
Very truly yours,
` Ericiwitherspoog
Enclosed (1)
Q, —·r"4 . ,2 T . Q. : _
LX- A- r naw 8**0*5

Case 1 :04-cv-01424-JJF Document , .e. -2 Filed 06/27/2005 Page 2 of 3
' ` ‘ l·’·'°
PUBLIC DEFENDER OF THE STATE OF DELAWARE (
ALBERT N. CARAVEL STATE OFFICE BUILDING
820 NORTH FRENCH STREET,THIRD FLOOR (
P.O. BOX 8911 i
WILMINGTON, DELAWARE 19801
LAWRENCE M. SULLIVAN nsrmaan .r.o·nol·e1~u=;r.1.
runuc narsnosn ASSISTANT PUBLIC nsrewnen
ANGEL0 FALASCA TELEPHONE
cmar nsruw (302) sw-si 19
June 22, 2000
‘ Eric Witherspoon
· W63259 ,
Souza-Baranowski Correctional Center (
P.O. Box 8000 l
Shirley, MA 01464 (
Re: , No. 460, 1999 ·
Dear Mr. Witherspoon:
I received your letter of May 31. Afterreceiving your case from Mr. Ramunno, who withdrew-on
` appeal from your case because you did not retain him for the appeal, along with Mr. Ramunno‘s
file, I reviewed the entire record and detemiined that the most persuasive argument to raise on
appeal was the one that was raised in the brief that was filed. In reference to your concem, a
defendant in a criminal appeal often believes that an attorney should raise as many arguments as
possible, including all arguments on appeal that the defendant wants to be raised. To someone
who is not a lawyer, this may seem at first very sensible; however, the attomey must decide what
arguments should be made on appeal and how the arguments are made.] This is different from
the trial situation where the client has the right to make the decision as to four very important
matters: l) whether or not to plead guilty and, if so, to what; 2) whether or not to ask for a jury
trial; 3) whether or not to testify; and, 4) whether or not to appeal if convicted.2 Insofar as your
request to "disregard" the brief that was already filed so that "we both can make up a rough draft
of possible arguments," I am sorry but that is not possible. The next step in the appeal is the
filing of the State's answering brief, which the State has requested an extension for, as the
enclosed extension request indicates.
I Jones v. Barnes, 463 U.S. 745, 751-54 (1983). `
2 Wainwright v. Sykes, 433 U.S. 72, 93 n. I (1977) (Burger, CJ., concurring);

*_ Case 1:04-cv—01424-JJF Document 21-2 Filed 06/27/2005 Page 3 of 3 `
Mr. Eric Witherspoon i
June 22, 2000
Page 2
In addition, you are correct that you are entitled to effective assistance of counsel on direct
appeal. However, if you believe that you have not been provided effective assistance of counsel
on direct appeal, that claim must first be raised in the trial court in a proceeding called post-
conviction reliefg after the direct appeal is completed, like a claim of ineffective assistance of
counsel during trial, and not during the direct appeal itself
Insofar as your request for "grand jury minutes, trial transcripts, police reports etc.," I suspect
that your request may have been adopted from a trial discovery request. However, there are no
"grand jury minutes" in your case that I am aware of; and, in any event, even if there were any, a
criminal defendant is only entitled to discovery of his or her own testimony before the grand
jury, although I gather you did not testify before the grand jury -- and had no right to -- prior to
your indictment. In addition, copies of police reports have no relevance to an appeal, unless they
were introduced as evidence at the trial and became part of the trial record being reviewed on
appeal, and consequently they have no bearing on your appeal. An appeal is not a retrial of a case
where a defendant gets to retry a case a different way before new judges. On direct appeal, we
are limited to a review of legal questions based on what is already the established trial record of
the trial. It is not a retrial as to guilt or innocence. -
In addition, I must retain the trial record materials until the brieiing and appeal is completed.
When it is completed, the trial transcript will be provided to you along with any other materials
that I've reviewed for the appeal. You will, of course, be able to use it for any further legal relief
you decide to pursue if that is necessary. However, all I have, besides the trial transcript, is
basically what Mr. Ramunno provided to me, and you would probably have reviewed any
materials with him before your trial.
If you have any additional concerns, please let me know. I will try to respond to the extent that I
am able to do so at this point.
Very truly yours,
Bernard J. O'Donnell
enclosure
3 Superior Court Criminal Rule 6l n