In Re Lower

In this case we wrestle unsuccessfully with the growing problem of the dual attack on adequacy of counsel by both direct appeal and writ of habeas corpus. The present practice presents this issue via both vehicles. This is creating an undue burden on the courts without any resulting benefit to defendants or to the administration of justice.

In this case the contention of inadequacy of counsel was made in the direct appeal. Additionally, the State Public Defender filed a writ of habeas corpus presenting the same issue. Since he made factual allegations which demanded a hearing, we referred the matter to the trial court to conduct such a hearing and make findings. At the same time, we reviewed the record on appeal. The first, part of this opinion is based on the record on appeal.

I

The Direct Appeal

Defendant waived a jury and was found guilty by the court of second degree murder.

A meticulous recounting of all of the evidence produced in this extensive record is unnecessary. For our purposes it may be capsulized.

Defendant and Bobbi lived together. Bobbi had a nine-month-old child. The evidence produced by the prosecution was that the defendant systematically beat…