Incompetent Defense Counsel? You Decide… by Tony Viola
Please note that Exhibit I of my appellate brief is a 15 page report by an expert on an attorney’s professional responsibility, it slams Jay Milano for his actions …
— Jay Milano showed up at a criminal trial without one piece of paper, he never paid his investigator and never obtained any investigative materials or witness interview summaries.
— Jay Milano demanded a $25,000 “short term loan” during the trial; he also demanded a new ”contingency fee agreement” be signed or I would face “changing circumstances” because his ”law firm can no longer sustain the effort… without an immediate infusion of cash.” Counsel then sent unsolicited emails to family members seeking a loan.
— When I filed a motion for new trial and filed Jay Milano’s e mails, the federal judge ruled that my attorney-client privilege had been waived. Then, Jay Milano and his investigator became government witnesses against me. Investigator Lois Colley then provided her investigative materials to the U.S. Attorney’s Office but not to me. Thus, the government had my investigative materials but I didn’t.
— After the jury verdict but before sentencing , attorney Kevin Spellacy was assigned to my case. He did nothing… never deposed Jay Milano, never obtained the investigative materials, never interviewed any witnesses and never affirmatively proved my innocence at a hearing held in December, 2011.
— I hired an attorney named Mike Hennenberg, he blew through a $20,000 retainer within 2 weeks. Other attorneys in Jay Milano’s office were retained at his request, James Pasch and Joe Medici, they also did nothing.
— The most obvious thing a defense attorney could do would be to interview Jonathan Rich, who sold “indicted” properties and who prepared contract addemdums the prosecutors claimed were fraudulent. I subpoened Mr. Rich to state court, where he told jurors I was innocent. Failing to even pick up the phone and interview a witness who could prove my innocence constituted constitutionally deficient performance.
— LASTLY, attorney Jay Milano agreed — in writing and without my permission to a ”non-antagonistic” joint defense. Mr. Milano subordinated my legal interests to his financial interests and permitted lawyers for the co defendants to select defense strategies and witnesses. Prosecutors objected to conflicts of interest and a hearing on conflicts was held, but I was excluded and unaware of these issues until I was in jail and until I started sifting through the record in this case.
To prove an actual conflict of interest, a defendant must show how the conflict affected representation. In state court, most of my witnesses told jurors I was innocent, but they were also aware of the property condition issues with the my co-defendant’s properties… in federal court, those witnesses were labeled “antagonistic” to the co-defendant and could not appear.
Even Jonathan Rich was “adverse” to the co-defendant because I had an “advice of counsel” defense but the co-defendant didn’t. Jonathan also told jurors that SELLERS and not REAL ESTATE AGENTS are responsible for the representations about properties to buyers.