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.

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.