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.