The United States Supreme Court ruled yesterday in Padilla v. Kentucky that defense counsel in a criminal case is incompetent if he/she does not inform a defendant prior to entering into a plea agreement of the immigration consequences facing the defendant.

Jose Padilla, a citizen of Honduras who lived in this country for forty years was told by his counsel prior to his entering a guilty plea to trafficking in narcotics that he would not be deported. The advice was clearly wrong. The law mandate deportation for anyone convicted of trafficking.

The Court, using the Stickland standard, required that an attorney’s performance fall within the expected range of attorneys in similar cases and that the defendant not be prejudiced by the attorney’s performance.

But some courts, including the Supreme Court of Kentucky, have held that attorneys have no duty to inform the client of collateral effects of the plea. But the Supreme Court in this case, without directly deciding what collateral affects defense counsel must inform their clients of decided that in this case the odds on deportation were so great that not informing the defendant of the correct immigration consequences in effect left the client not knowing a direct effect of the plea.

While admitting that in some cases the immigration effects of a guilty plea may not be clear enough for a non-expert in immigration law to give competent advice the court said that in this case the defense counsel gave incompetent assistance by not accurately advising Padilla of the immigration consequences.

As Justice Alito pointed out in a concurring opinion the decision will lead to further litigation as to what cases will the immigration effects be too complicated to assume that a criminal defense attorney will be able to competently advise his/her client on the consequence. What about other collateral consequences, such as licensing issues, civil suits, tax issues, civil commitments, etc.

But there is no question that the better informed a defendant is about all of the consequences of a plea bargain, the better she/he can decide whether to accept the bargain. All too often clients are presented with a proposed bargain and given only a few minutes or less to decide whether or not to accept it. In these cases they do not have time to consider all of the possible ramifications of the agreement and often regret their decision with no ability to retract the plea.

The Third Circuit refused to find incompetence of counsel where trial counsel failed to make a Batson claim. In Batson v. Kentucky the Supreme Court ruled that the Fourteenth Amendment’s guarantee of equal protection mandates that jurors not be selected by race.

James Douglas Clausell was convicted of murder in New Jersey state courts. His trial counsel failed to raise a Batson motion despite the prosecutor’s use of peremptory challenges on five of the eight African American and Hispanic jurors in the venire.

In Clausell v. Sherrer he appeals the denial of his writ of habeas corpus to
the Third Circuit Court of Appeals on the Batson issue as well as on incompetence of counsel grounds for his attorney’s failure to raise the Batson issue in the trial court.

There are three steps to a Batson challenge. First, the defense must raise the issue and make a prima facie case. Second the prosecutor must show that he/she had legitimate not-racial reasons for the use of the peremptory challenge. Finally, the court must decide whether or not there was purposeful discrimination.

The Third Circuit denied the Batson claim. The Court ruled that since Clausell did not make a Batson claim in the trial court he waived the issue on appeal. Therefore he has to rely on his incompetence of counsel claim.

At the time of his trial, New Jersey followed a rule that to show a prima facie case you had to show that there was a “substantial likelihood” that the peremptory was based on race. Later the United States Supreme Court made it clear that Batson mandated that the initial showing only had to be enough to allow the trial judge to draw an inference of discrimination. Yet the majority opinion in Clausell found that there was insufficient evidence to meet the “substantial likelihood” test. Therefore, Clausell’s trial counsel was not incompetent in failing to raise the Batson issue. The concurring opinion by Judge Ambro points out that the majority uses the wrong standard by using the substantial likelihood test instead of the inference test but it claims that Clausell cannot even meet the inference test.

Thus Clausell’s incompetence of counsel claim is denied even though he may have had a legitimate Batson claim. His counsel, not only, did not make the claim but did not preserve a record upon which the appellate court could determine if there was sufficient information for the Batson claim. But it was his attorney’s job to preserve a record allowing for a Batson claim. Is it not incompetence not to investigate the claim?

Well if anyone thought that Justice Sonia Sotomayor was a bleeding heart liberal they were wrong. Nor is she a Justice Thurgood Marshall or a Justice William J. Brennan who thought that the death penalty was cruel and unusual. Yesterday she wrote on behalf of a 7-2 majority (Justices Stevens and Kennedy in the minority) upholding the death penalty for Holly Wood against claims of incompetence of counsel.

The primary question on appeal was whether counsel’s decision not to investigate was a stategic decision or negligence. The Supreme Court will not reverse a trial court decision in a competence of counsel case if the attorney’s decision is made for strategic reasons and if the decision is reasonable even if the Supreme Court disagrees with the decision. Prior to trial counsel obtained a psychiatric report which showed borderline intelligence. But counsel did not call the psychiatrist to testify nor did the defendant’s lawyers further investigate the report or introduce it into evidence.

The court found that there was enough damaging information in the report that it was a reasonable decision not to place it into evidence or to call the psychiatrist to testify. A second report or investigation of the allegations done in the first report was not done. Justice Stevens’ dissent points out that even if it was not used in the case in chief there was no stategic reason not to use it in the penalty phase of the trial. But Sotomayor claims that since at least two of Wood’s three lawyers thoroughly read and considered the report the rejection of the report had to be for strategic reasons. Therefore according to the majority decision counsel’s actions were not below that which would be expected by competent counsel and therefore they upheld the conviction.

An Ohio jury recommended the death sentence for Frank G. Spisak and the judge imposed the sentence for the murder of three people and the attempted murder of two people at Cleveland State University in 1982. After s a series of appeals and petitions for a writ of habeas corpus the matter came before the Supreme Court on a petition for habeas corpus.

Spisak made two claims in his petition. First he claimed that the jury instructions unconstitutionally required the juror to consider only those mitigating factors that they unanimously agreed were mitigating and second that his attorney performed below the expected standard in his closing address.

The Supreme Court ruled that since the parties agreed that the Ohio courts considered the claim and “rejected it ‘on the merits,’ the law permits a federal court to reach a contrary decision only if the state-court decision ‘was contrary to, or involved an un-reasonable application of, clearly established Federal law,as determined by the Supreme Court of the United States.’”

The law requires that in order to recommend the death sentence the jury must unanimously find that each aggravating circumstance outweighs all of the mitigating circumstance in the penalty phase of the the murder trial. But the Supreme Court found, contrary to the claim of the defendant that the jury was not asked to find the existence of each mitigating circumstance unanimously. Rather it is possible for each juror to find a different mitigating circumstance. But if each juror believed that mitigating circumstances outweighed the aggravating circumstances it was to vote against the death penalty.

The defendant’s second claim was that his counsel’s comments denigrating him during closing argument amounted to ineffective assistance of counsel. But the court pointed out that in order to reverse a conviction for ineffective assistance of counsel the court must find that counsel’s was below that expected of counsel and that the defendant was prejudiced as a result. The Supreme Court ruled that there was so much evidence against the defendant that regardless of counsel’s actions the jury would have convicted him anyway and therefore he was not prejudiced. There was considerable aggravating evidence including statements made by the defendant such as that he shot the people because he was a follower of Adolf Hitler “[a]nd he had hoped to “create terror” at Cleveland State University, because it was “one of the prime targets ‘where the “Jews and the system . . . are brainwashing the youth.’” Statements such as these plus admissions that he killed the people lead to be the finding that he would have been convicted despite counsel’s possible incompetence.

The United States Supreme Court granted the writ of habeas corpus of George Porter, Jr. in so far as it reversed a finding of the Florida Supreme Court that he be sentenced to death.

Porter was convicted of the murder of his ex-girlfriend and her boyfriend. In the penalty phase of the trial the only evidence admitted on his behalf was the testimony of his ex-wife and the reading of sections of a disposition regarding his relationship with his son and evidence about his behavior when intoxicated. After the trial he filed a writ of habeas corpus charging incompetence of counsel during the penalty phase of the trial.

At the hearing on the writ considerable evidence came out that could have been used at the penalty phase. He was a decorated Korean War hero. He had fought valiantly during some of the most horrendous battles. As a result he probably suffered from post traumatic stress syndrome. His childhood was extremely abusive. His father attacked him frequently. His father often attacked his mother in his presence. He was considered a slow learner and he had to go to special classes.He quit school at age 12 or 13. A psychiatrist testified that he suffered from brain damage.

Yet the trial attorney did no investigation and none of this evidence was admitted at the penalty phase. The trial court and the Florida Supreme Court did not make findings on whether the trial attorney was incompetent. But they ruled that even if the evidence had been admitted it would not have made a difference. They pointed out that he had gone AWOL while in the military and in their opinion this would have discounted the military evidence. They pointed to the government psychiatrist who without seeing Porter testified that he did not have post traumatic stress syndrome.

Based on this evidence the Supreme Court found that there is “a probability sufficient to undermine confidence in [that] outcome” and granted the writ in so far that it reversed the death penalty.

In Wong v. Belmontes the Supreme Court reinforced the Strickland standard for competence of counsel. Citing Stickland it stated:

To show deficient performance, Belmontes must establish that “counsel’s representation fell below an objective standard of reasonableness.” Id., at 688. In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel’s assistance was reasonable considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of counsel’s performance must be highly deferential. . . To establish prejudice, Belmontes must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been differentl

Fernando Belmontes was convicted of murder and sentenced to death after he bludgeoned Steacy McConnell to death by hitting her fifteen to twenty times in the head with a steel dumbbell bar during the course of a burglary. He took a stereo which he sold for a hundred dollars, using the money for an evening’s beer and drugs.

On habeas the Ninth Circuit found that counsel was ineffective in failing to present sufficient evidence at the penalty phase of the trial. The Supreme Court reversed. While it did not challenge the finding of incompetence it found that if the attorney was incompetent it was not prejudicial to Belmontes in that no amount of evidence would have convinced the jury to save Belmontes’ life.

During the penalty phase defense counsel called nine witnesses that testified about Belmontes difficult upbringing and his religious experiences in prison. But he was very careful not to raise any issue which would allow the prosecution to rebut his evidence with available evidence that Belmontes killed another person. If this evidence had come in his counsel was rightly afraid that the jury would have immediately sentenced Belmontes to death.

The additional evidence that could have been presented would have given details about his family situation and may have included expert testimony but if this evidence had come in to excuse his violence the prosecution would have been able to rebut the evidence with the prior killing. In that case, the Supreme Court felt the jury would probably have recommended death in any case and he was not prejudiced.

If you ask me anyone who would kill a person to get a stereo worth $100 which he used on booze and drugs for a wild night is too stupid to put to death.

Thomas A. Davis was convicted in the Western District of Michigan of possession of a weapon by a convicted felon. He appealed to the Sixth Circuit Court of Appeals on two grounds. First he argued that hearsay was admitted at trial and second he argued that there was insufficient evidence to convict him.

The evidence at trial showed that Davis and a friend spent several days joyriding in a rented Chevrolet Cobalt. On July 10, 2007 Ronica McIntyre saw Davis, who she recognized, in the vehicle with a gun. She called 911 because she was afraid of Davis who rumor had it had been involved in a murder.

She told the 911 operator that the car was a Ford Focus and that she saw two guns instead of the one she actually saw. She gave the operator the license tag number of the vehicle. Furthermore she told the operator that she had seen Davis five minutes before calling when the actual time lapse was one and a half minutes.

The following day an anonymous woman flagged down a Grand Rapids Police officer and told him that she saw the Cobalt, with the same tag number. She also saw Davis with a gun in the vehicle. Officer LaFave transmitted the information over the police radio, available to anyone who had a scanner.

Davis and his friends stopped the vehicle at a residence. Davis got out of the car and went inside. While in the residence, apparently, he learned that the police had been notified. They drove around some more and then traded the car for a PT Cruiser at Enterprise. The FBI notified Enterprise that if was looking for the Cobalt. The FBI followed the PT Cruiser and stopped the vehicle shortly after it left Enterprise. Davis was seen maneuvering something under the seat. The FBI search the vehicle and found a gun under Davis’ seat.

On appeal Davis claimed that the court erred when it allowed McIntyre’s 911 call and the anonymous woman’s report to Officer LaFave to be entered into evidence. He claimed that both statement were inadmissible hearsay. Hearsay is:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

The Court found that the statements were not hearsay. It ruled that the anonymous woman’s statement was not offered “for the truth of the matter asserted.” Instead it was offered to explain Officer LaFave’s actions. The statement led to his placing the information on the police radio waves and therefore it could have been picked up by a scanner leading to the change in rental vehicles.

My question is whether the statement should have been excluded under Federal Evidence Code Section 403. Under Section 403 “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” If the statement was not being used for the truth of the matter asserted its probative value is minimal and by placing the gun in the hand of the Davis its prejudicial value is considerable. Therefore it should be excluded.

Upon request the trial court should have given the jury an instruction that the statement was not to be used for the truth of the matter asserted. There was no evidence before the appellate court that the request was made or that the instruction was given. If the request wasn’t made I would expect a habeas on incompetence of counsel grounds to be filed soon.

As to McIntyre’s statement, the court found it admissible under an exception to the hearsay rule for “excited utterances.” An “excited utterance” requires three elements:

First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.

The court found that there was no question as to the first and third issue. As to the second issue McIntosh clearly had time to develop false information since she lied about the number of guns and how long it had been since she saw vehicle. But the court found that due to the short period of time between seeing the vehicle and the 911 call the statement was admissible as a excited utterance.

Likewise the court had little trouble finding that there was sufficient evidence for a conviction. It is very difficult to overturn a conviction on appeal on sufficiency of the evidence grounds. The test on appeal is whether looking at the evidence in the light most favorable to the government any rational juror could find Davis guilty beyond a reasonable doubt.

The court found that there was sufficient evidence. There is the evidence that McIntyre gave on the stand that she saw Davis with the gun and the evidence that the officer saw him maneuver items under his seat where the gun was found. The court found that a rational juror could use this information to find Davis guilty beyond a reasonable doubt.

Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.

The Supreme Court ruled yesterday that the failure of an attorney to object to the government’s disavowal of a plea bargain is subject to the plain error rule.

Normally the failure of a side to object to an error before the trial court forfeits the right to raise the issue on appeal. Under the Plain Error Rule (Section 51(b) of the Federal Rules of Criminal Procedure) an issue may be raised on appeal even if it was not raised in the trial court under limited conditions. To obtain relief under rule 52(b) one must comply with four prongs. They are 1) there has been an error or defect that has not been waived by the defendant, 2) the error must be clear and obvious, 3) the error must have affected the defendant’s substantial rights, and 4) it can be granted only if the appellate court, using its discretion, finds that it seriously affected the fairness, integrity or public reputation of the court.

In Puckett v. United States, at the time the plea was taken, the U. S Attorney agreed that in exchange for a guilty plea in a bank robbery case the government would agree to a three level reduction in the sentencing guidelines for acceptance of responsibility and that Puckett would be sentenced at the bottom of the guideline. But due to the defendant’s health problems three years passed before sentencing. During that time Puckett admitted to further criminal activity. As a result at sentencing, the government refused to agree to the three level reduction and the Court said it would not give the reduction, in any case, because of the intervening criminal behavior.

At sentencing Puckett’s lawyer failed to mention the plea agreement and failed to request that Puckett be allowed to withdraw his plea.

On appeal the Supreme Court found that Puckett met prongs one,two and four of Rule 52(b). But he did not meet prong three: that a substantial right be affected because the the judge was not going to grant the three level reduction regardless of what the U. S. Attorney did.

Well now comes the habeas for incompetence (IOC) of counsel. But see yesterday’s post on IOC. The seven justices in the majority here (Scalia, Roberts, Ginsberg, Breyer, Alito, Thomas, and Kennedy) seem to have decided that Puckett was not prejudiced by the government’s turn around and that means trouble under Strickland.

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.