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In Frye the defense attorney failed to timely convey a plea bargain resulting in the plea being withdrawn and the defendant pleading to a longer sentence after picking up another case.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to show that the defendant would have accepted the offer and that neither the judge or the District Attorney would have withdrawn the plea.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accepted the proposed plea, that it would have been presented to the court, that the district attorney would not have withdrawn the plea, and that the could would have accepted it.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.

Andre Johnson was convicted of possession of a gun by a convicted felon, possession of cocaine and possession of a weapon in connection with a drug offense.

An undercover officer, Jason Bolte, parked his car in a high crime area on the west side of Cincinnati. A car with three people in it pulled up and parked behind him. A passenger wearing a gray hooded sweatshirt got out of the car and made a transaction, trading money for a couple of small piece of a white substance. Bolte called for uniformed officers to make the arrest. Johnson, no longer wearing the sweatshirt, attempted to flee when the officers tried to perform a pat shirt on him. An officer used a taser on him. He fell to the ground revealing a gun in his waistband. He was arrested. The car was searched. The sweatshirt was found. Crack and powder cocaine were found in its pockets.

After he was indicted he moved to suppress the evidence found in the vehicle. The Court ruled that the original detention was a valid Terry stop. In Terry v. Ohio the Supreme Court ruled that an officer could temporarily detain an individual if he/she had “a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” Based upon Bolte’s observation of the crack purchase the officers easily had a reasonable suspicion. Finding the gun gave the officers probable cause to arrest him. ¹ An arrest would provide probable cause to search Johnson. To search the vehicle they would need probable cause to believe that they would find evidence in the car. Since Johnson was in custody and could not obtain a weapon from the car. But they had probable cause to believe that the gray sweatshirt was in the car and the court felt that they had probable cause to look for ammunition.

During the trial Johnson complained to the judge that his lawyer had not properly told him about the possible consequences of a conviction and that if he had known he would have accepted the proffered plea bargain. The judge said “Mr. Johnson, you’re the person in this room with felony convictions and that makes your credibility suspect. I know [your attorney] to be a capable, talented, honest attorney whose intentions are always to represent his client to the best of his ability.” The Sixth Circuit while admitting that the statement might not be appropriate did not find it to violate the Constitution or to mandate a reversal of the conviction. The Court refused to hold a hearing on whether the lawyer was providing incompetent counsel. To provide incompetent counsel the lawyer must not only act in a way that competent counsel would not act but the lawyer’s actions must result in injury to the defendant. Since at the time of the request, the trial was in progress the judge refused to hold a hearing since she did not know the effect of counsel’s actions on the conclusion of the trial. Therefore the appellate court found no error on the part of the trial judge and it pointed out that Johnson could file a writ of habeas corpus challenging the lawyer’s representation.

A defendant has an absolute right to testify or not to testify at his/her trial. When the judge found out that Johnson planned to testify she asked Johnson’s attorney if he had gone over the possible consequences of Johnson testifying with Johnson. (If the lawyer was so great–see above, the judge should have assumed that the lawyer as any decent lawyer would have done had gone over the possible consequences with Johnson.) She then told Johnson that if he testified the U. S. Attorney would be allowed to cross examine him about the details of his prior conviction. She then called a recess so Johnson could talk the matter over with his lawyer. On appeal Johnson claimed that the judge’s lecture scared him into giving up his right to testify. The appellate panel disagreed saying that the judge was merely explaining his rights to him so that he could make an intelligent choice and upheld his conviction.

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.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

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.