SUPREME COURT FINDS FAILURE TO PURSUE ONLY POSSIBLE DEFENSE NOT INCOMPETENCE OF COUNSEL

The Supreme Court reversed a finding of incompetence of counsel (IOC) made by the Ninth Circuit in Knowles, Warden v. Mirzayance. Mirzayance was convicted of first degree murder of his 19 year old cousin. Under California law the trial was bifurcated. During the first part of the trial the jury found Mirzayance guilty of murder. At the beginning of the second phase Mirzayance, on the advice of counsel, waived his right to a trial on whether he was not guilty by reason of insanity (NGI). The issue on habeas was whether his trial attorney was incompetent when he advised Mirzayance to waive the NGI defense.

Counsel’s plan at trial was to convince the jury that due to his mental condition, Mirzayance could not form the intent to murder his cousin and therefore he was guilty of only second degree murder. When the jury rejected the mental health evidence and found Mirzayance guilty of first degree murder, his lawyer felt that any NGI defense was futile and urged him to waive his right to a trial on the NGI defense.

The lead Supreme Court decision on incompetence of counsel is Strickland. Under Strickland, in order to reverse a conviction the court must find on habeas that the attorney did not perform as reasonably competent counsel would act and that the defendant was prejudiced as a result. The Ninth Circuit instead of applying Strickland found that counsel was incompetent in that there was no strategic reason for surrendering the only possible defense which could help Mirzayance. After all, he had already been convicted of first degree murder and there was no downside to going ahead with the NGI phase of the trial. The chances of winning might not have been great but there was nothing to lose.

On habeas the Federal courts will not intervene unless the state court decision was contrary to or involved an unreasonable interpretation of Supreme Court precedent. Here it was not the state court but rather the Ninth Circuit that misinterpreted Supreme Court precedent.

Assuming that the Supreme Court is correct and that the trial counsel’s performance failed to meet the Strickland standard in that it did not show that counsel either failed to perform as a reasonably competent attorney would perform or that Mirzayance was prejudiced since the jury rejected the mental health evidence the first time around.

Regardless of whether or not counsel met the Strickland
standard, counsel acted poorly. When you have only one defense and you have nothing to lose, particularly in a first degree murder case, you must go with it. Besides surrendering the only chance your client has to prevent a life sentence, the failure to use the defense, can only result in a habeas, a civil trial for IOC and considerable bad will. Any reasonable attorney would use the Ninth Circuit’s “nothing to lose” standard. But the Supreme Court, at least in this case is not willing to accept it.