Wednesday, in Lafler v. Cooper and Missouri v. Frye The Supreme Court set the rules for granting writs of habeas corpus for incompetence of counsel in cases involving plea bargaining. First it held that plea negotiations were a ‘critical’ stages of the criminal proceedings.” and therefore were covered by the3 Sixth Amendment’s right to effective counsel. With 97 per cent of all Federal criminal cases and 94 per ce4nt of all state criminal cases being resolved by pleas, plea negotiations become a very vital part of our criminal justice system. Without them the system would collapse under its own weight. There is no way we would have enough judges or attorneys to try all of the criminal cases. The cost of bringing every case to trial would easily force every court in the country into bankruptcy.

In Frye the defense attorney failed to timely convey a plea bargain resulting in the plea being withdrawn and the defendant pleading to a longer sentence after picking up another case. The Supreme Court held that the failure to convey a proposed plea violates the first prong of Strickland in that the attorney acts below the level expected of competent counsel. ¹The fact that the defendant got a longer sentence than he could have gotten shows prejudice and meets the second Strickland prong. The Court held that in such cases it is necessary to show that the defendant would have accepted the offer and that neither the judge or the District Attorney would have withdrawn the plea. In this case it is clear that Frye would have accepted the plea since he eventually plead to a more stringent offer. But is not clear that the district attorney and the judge would have accepted the plea. Therefore the Supreme Court remanded the case for further hearings.

In Cooper the defendant rejected a plea after receiving faulty advice from his attorney that under the facts of the case he could not be convicted. As a result Cooper went to trial and got a heavier sentence than if he had accepted the plea. Under these circumstances the court ruled that it was necessary to show that the defendant would have accepted the proposed plea, that it would have been presented to the court, that the district attorney would not have withdrawn the plea, and that the could would have accepted it. The Supreme Court ruled that the proper remedy in such cases is to order the district attorney to reoffer the plea and see what happens.

Luis Mariano’s attorney filed a brief with the Arizona courts saying that there was no cause to file a writ in post conviction collateral proceedings. Under Arizona law allegations of incompetence of counsel can only be brought up in collateral proceedings. Later, with a new lawyer, Mariano attempted to file a second collateral appeal. The court rejected the collateral appeal since under Arizona law an issue can not be brought up in a collateral appeal if it could have been brought up in an earlier appeal and the incompetence of counsel issue could have been brought up in the first collateral appeal.

Mariano attempted to bring up the incompetence of counsel issue in a habeas in Federal Court. The Federal Court rejected the habeas under the doctrine of procedural default since the state court had not ruled on the merits of the issue due to Mariano’s attorney’s default. Furthermore generally there is no right to competent counsel on collateral appeal.

His attorney appealed the decision to the Supreme Court. The Supreme Court ruled, in a rare victory extending the right of habeas corpus,this week that there is a right to counsel in “initial-review collateral proceedings.” That is in those proceedings that state law requires that they be raised for the first time on collateral review. If there is a right to counsel there is a right to competent counsel and Mariano can raise the issue that he did not have competent counsel on his initial collateral appeal in that she failed to raise the issue of competence of trial counsel.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

Jerome Bass was convicted of cocaine related charges in the Federal District Court for the State of Nebraska. He appealed and lost. He then filed a writ of habeas corpus alleging incompetence of counsel. He claimed that his trial counsel failed to make an in limine motion objecting the testimony of one witness, failed to object to the testimony of a second witness, and failed to object to the U. S. attorney’s vouching for a witness during closing.

A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government.

Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted an upward departure. But the judge did not discuss the possibility of a variance.

Under the Guidelines a three-part framework exists. First the court

(1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole

A variance is a sentence outside the guideline structure. It is based on 18 U.S.C. § 3553(a). which sets forth a number of characteristics that a court should take into consideration in sentencing. Subdivision 3553(a)(1) states “the nature and circumstances of the offense and the history and characteristics of the defendant;” At sentencing the judge pointed out Jacobs’ significant criminal history. Section 3553(a)(2)(B) lists “to afford adequate deterrence to criminal conduct;” and at sentencing the court pointed out the failures of shorter sentences in the past to deter criminal behavior.

Variances and departures are treated differently. Departures require the court to give prior notice of its intention to depart. Variances do not require notice. ¹

I am willing to bet that prior to signing the plea agreement Jacobs’ attorney discussed with him the nature of an upward departure but did not discuss the possibility of a variance. It would surprize me if Jacobs understood prior to entering into the plea agreement that the judge may vary from the guidelines. In this case the final sentence was 260 per cent of the upper guideline. Assuming, I am correct, the waiver cannot be considered “knowing and voluntary.” In this case a habeas for incompetence of counsel will probably follow.

This Guidelines are very complicated. A lawyer representing a defendant in a Federal case must go over any plea agreement with a fine toothed comb and make sure that the defendant understands every detail of the agreement. In this case the lawyer should have insisted that the agreement preserve the right to appeal if the sentence exceeded the guidelines instead of limiting the right to appeal to cases in which an upward departure was granted.

Yesterday we looked at a Supreme Court case reversing a grant of habeas corpus by the Ninth Circuit. Today we look at a sister case, Harrington v. Richter,, reversing another Ninth Circuit grant of habeas corpus for a violation of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Joshua Richter and Christian Branscombe were convicted of murdering Patrick Klein and shooting Joshua Johnson in Johnson’s house during a robbery. Johnson was shot in his bed and Klein was found on the living room couch.

A major issue at trial was Richter’s claim that Branscombe fired on Johnson in self defense and that Klein was killed in the doorway to Johnson’s room in the crossfire.

The prosecution argued, in line with Johnson’s testimony that Johnson woke up to find Branscombe and Richter in his room. Branscombe shot him. Later he heard noise in the living room. When he went out to investigate he found Klein, seriously bleeding and he called 911.

A limited number of blood samples were taken by the crime scene investigators and neither party planned on calling expert witnesses to testify about the blood. But after Richter’s attorney outlined his case in his opening statement, the prosecution had the samples tested and a police officer testified as a blood pattern expert. Blood spatter or blood pattern evidence evidence involves examination of the location of blood drops at the crime scene by an expert. It can be used to tell the location of the victim and the murderer at the time of the shooting. It is frequently used by the police and due to its technical nature it is not unusual for both sides to call an expert to explain crime scene blood distributions.

On habeas Richter argued that his counsel was incompetent for not consulting with various experts including a blood spatter expert.

The test for incompetence of counsel is found in the Supreme Court case, Strickland v. Washington ¹ Under Strickland in order to reverse a conviction for incompetence of counsel one must show that counsel acted at a level below what competent counsel would be expected to do and that counsel’s incompetence resulted in prejudice to the defendant. However under the AEDPA when a state court has considered a matter on its merits a Federal Court can only grant a writ of habeas corpus when the state court’s decision either

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

The Supreme Court ruled that under the facts of the case it could neither find that the failure to consult with a blood spatter expert was an unreasonable application of, clearly established Federal law or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence . Defense counsel may not have wanted to draw attention to the blood spatter by consulting an expert. Instead he/she may have argued that the prosecution did not do a thorough investigation and therefore failed to prove its case beyond a reasonable doubt. As a result under the AEDPA the Supreme Court decided that the decision of the California Supreme Court was not unreasonable and therefore it reversed the Ninth Circuit’s decision granting the habeas.

December 7, 1941 may have been a day that lived infamy when Japan bombed Pearl Harbor but for Randy Joseph Moore December 7,1995 is the day. For on that day Moore, together with two friends, attacked Kenneth Rogers. After they bloodied him they tied him with duct tape and threw him into the trunk of a car. Then they drove him into the countryside and Moore shot and killed him.

That was just the first of his mistakes. He then told two people about the incident and gave a confession to the police. ¹

Prior to trial, at his attorney’s urging, he entered into a plea bargain. He plead to felony murder for the minimum sentence of 300 months.

He then filed a writ of habeas corpus alleging incompetence of counsel for failure to file a motion suppressing the confession prior to entering the plea. The state courts in Oregon denied the writ but the Ninth Circuit granted it. The United States Supreme Court, yesterday, reversed the Ninth Circuit’s granting of the writ and reinstated the conviction. ²

The Ninth Circuit ruled that trial counsel acted below the standard expected of counsel when he/she did not run the motion before urging Moore to accept the plea. But the Supreme Court pointed out that the key case of Strickland v. Washington required that prior to reversing a conviction for incompetence of counsel, trial counsel must not only be incompetent but the defendant must be prejudiced. In this case the Supreme Court said that Moore was not prejudiced. Moore admitted committing the murder to two people who could testify. Even if the confession to the police was excluded at trial there would still be the testimony of these two people.

Trial counsel was reasonable in urging Moore to take the plea. His lawyer was afraid that if the plea was not accepted the prosecutor may find additional evidence and Moore may end up facing life in prison or the death penalty. Any time a defendant pleads guilty before trial he/she as well as the district attorney is taking a risk. No one knows whether more evidence will be found or whether the government’s case would fold. By taking a plea bargain a defendant gets a sure thing and the district attorney gets a conviction, though perhaps for less time than he/she might get after trial. Under these conditions counsel’s advice was reasonable and on a writ of habeas corpus reasonableness is all that is necessary. The state court’s ruling was not an “unreasonable application of clearly established Federal law.” Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot reverse a state court’s denial of habeas corpus unless the state court’s decision was an “unreasonable application of clearly established Federal law.” Since that could not be said in this case the Supreme Court upheld the decision of the Oregon Supreme Court denying the writ.

Jimmy Walden was convicted of drug-related offenses in Federal Court in Tennessee. He raised two issues on appeal. First he objected to the failure of the trial court to grant his counsel additional time to file motions. Counsel failed to timely file a motion to suppress evidence and the Sixth Circuit Court of Appeals agreed with the trial court that he did not have good cause to get an extension of time.

The second issue is whether there was sufficient evidence to support the conviction? But the appellate court ruled that Walden waived the issue when his attorney failed to move for a judgment of acquittal at trial.

Well the appeal appears to be just step one. Walden has plenty of issues to bring up in a writ of habeas corpus. No doubt he will claim incompetence of counsel for missing the deadline on the motion to suppress evidence, failure to show good cause for an extension of time, and the failure to make a motion for judgment of acquittal.

The Sixth Circuit Court of Appeals reversed the conviction of Paul Hodgson for attempted murder due to the incompetence of his counsel for not obtaining the testimony of a woman who may have been able to exonerate him.

On August 12, 1998 Alicia Hernandez and Scott Anderson were shot while they were standing in front of a Detroit residence. At the trial Hernandez and Anderson testified that Hodgson and a group of his friends approached Hernandez and started an argument when Hernandez refused to disclose the whereabouts of her brother. Hernandez and Anderson thestified that they did not see Hodgson shoot a gun but from the position they were in they thought he shot the gun which injured them.

Several other witnesses for the prosecution also testified leading the jury to find Hodgson guilty. After several witnesses testified the prosecutor offered to stipulate to call off the other witnesses. The defense agreed with the exception of Virginia Smith who was expected to testify that she was standing near Hodgson at the time of the shooting and she did not see him with a gun. Smith was in the courtroom on the first day of the trial pursuant to the district attorney’s subpoena but she did not appear on the second day. A bench warrant was issued but she could not be found. Hodgson’s counsel did not move for a continuance to find her and the trial continued. Hodgson was found guilty and sentenced to imprisonment for a term of between 18 and 42 years.

On appeal his new counsel argued that trial counsel had been incompetent inter alia for failure to call Smith and other witnesses at the trial. The appellate court treated the matter as a writ of habeas corpus and ordered an evidentiary hearing. A number of witnesses, including Smith, testified. The evidence at the hearing indicated that Hodgson was not the shooter. Just the same the motion was denied. The court claimed that there was insufficient evidence that Hodgson’s trial counsel knew of the exonerating witnesses, with the exception of Smith, or that they could have been found with reasonable efforts. Some of them were in jail and others had left the state. Furthermore Smith absented herself from the court and therefore was unavailable.

To show incompetence of counsel one must show that counsel performed at a standard below what is expected of counsel and that the defendant was prejudiced as a result of counsel substandard perfomance. The Sixth Circuit found that trial counsel was incompetent in not doing more to call Smith as a witness. At a minimum she should have asked for a continuance. While there was considerable testimony indicating that Hodgson shot the gun, neither Hernandez or Anderson saw him shoot the gun and Smith’s testimony could have influenced the jury into finding Hodgson not guilty. At the same time the failure of counsel to find the other witnesses who testified at the post-trial hearing was not incompetence because there was no evidence that she could have found the other witnesses prior to trial.