Effective Assistance of Counsel

Here at this link is an article one kind reader called attention to. Called Effective Assistance of Counsel and Consequences of Guilty Pleas (2002), it represents slow if steady progress in the study of criminal law in general, and one of the pillars thereof, the right to a lawyer for your defense, which often means nothing more than advice to take a plea if you don't want to go to jail for a much longer time, pay out your life savings for legal fees, and/or both.

Texas Justice Redux

Here is some more recent "Texas Justice" from the Fifth Circuit. Read that together with this from UK judges remarking on efforts to install an federal style sentencing "grid" system across the pond. Wow, Professor Berman, good work. If you thought judges should curb excesses of the legislature that have proven to be very, very foolish you'd be wrong respecting the Fifth.

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Deference is Hot

These are interesting because "deferential review" is one hot potato:

A. The petition for cert (pending, earlier post) in Varner v. Thomas (3d Circuit) presented these questions:

1. Where counsel’s action at trial is objectively reasonable, may the conviction nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient?
(Answered in the affirmative by the United States Court of Appeals for the Third Circuit, in conflict with other circuits.)

2. Where a state court has clearly adjudicated the merits of an ineffective assistance of counsel claim, may a federal court avoid AEDPA deference and invoke de novo review as to any aspect of the claim that, in the federal court’s view, has not adequately been addressed in the state court’s legal analysis?

(Answered in the affirmative by the United States Court of Appeals for the Third Circuit.)

REASONS FOR GRANTING THE WRIT (verbatim)

I. The Circuits have split in constructing “objective” and “subjective” elements of the Strickland test. This Court should grant certiorari to make clear that an attorney’s subjective thought processes cannot trump an objectively reasonable rationale for his conduct.

II. This Court’s decisions in Weeks v. Angelone and Wiggins v. Smith have led to confusion concerning the nature of “deference” on habeas review. The Court should grant certiorari to make clear that review under § 2254(d) of the habeas act is of the state court’s ruling, not its reasoning.

The number of cases affected by this circuit conflict is unusually high, because ineffective assistance is perhaps the most frequently litigated issue in the field of criminal law. The impact is especially significant in federal habeas review of state convictions, where the subjective/ objective distinction affects application of all the special rules that have been created to accommodate federalism concerns: deference, evidentiary hearings, procedural default, and exhaustion. Even aside from such procedural matters, the difference between a subjective and an objective analysis of ineffectiveness claims is often outcome-determinative.

B. Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006)
presents the question of what type of deference is owed on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

Affirmed: holding "that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991). "

C. Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007) (9th Cir., 2007)
Ordered that parties brief the following issues:
(1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court? See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (affirming denial of federal habeas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); Williams v. Taylor, 529 U.S. 362, 406 (2000) ("A state-court decision will also be contrary to this Court's clearly established precedent if the state court . . . arrives at a result different from our precedent."); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) ("[T]he intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.").
(b) Or, is our review under the "contrary to" prong of 28 U.S.C. § 2254(d)(1) confined to the reasoning employed by the state court, necessitating a grant of federal habeas relief when the state court utilized reasoning contrary to precedent of the Supreme Court? See Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir. 2003) ("[A] federal court may not avoid granting habeas relief by positing an alternative reason for the state court's decision that might have enabled the state court to reach the same result, where the record reveals that the state court did not base its decision on that alternative reason."); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that a state court need not even be aware of the Supreme Court's cases "so long as neither the reasoning nor the result of the state-court decision contradicts them").
(2) Does petitioner's claim amount to structural error under McKaskle v. Wiggins, 465 U.S. 168 (1984)? END

These also looked interesting:

Brewer v. Quarterman, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC)

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (IAC fail to call witness)

Anderson v. Benik, No. 05-2323 (7th Cir. 12/20/2006)(exhaustion and proc default)

If not mistaken the Fifth Circuit has not been issuing many published decisions recently. I guess Nelson kept them pretty busy.

Playing Catch (up)

One of my picks from the SCOTUSblog list of Petitions to watch: (IAC/Deference)
Varner v. Thomas (3d Circuit) is here (pdf).

Certs Granted list from Friday here, (again, from SCOTUSblog and Lyle Denniston)

January Hearings List is here (guess from where?)

PS. I started a few new blogs that you can easily link to at top right, and will be moving some of the cool links that are more appropriately placed elsewhere to these new places, soon!

Poliblog is for Politics and Politicking.

The Brunswick is for Entertaining Local Stuff and Conservation (and the great American past-time, the big show, a.k.a. that other religion, "ball").

Tax Advisor is ... (your wild guess).

Just in from the Fifth Circuit

Just out is an unusual case, click here, in that TCCA had ordered a review by affidavit after a recommendation (without conducting a hearing) from the trial court to deny relief, following which the district court conducted even more extensive hearing and fact-finding proceedings. Many if not most cases are decided with little or no fact finding below. At least St. Aubins can feel like the courts looked at the evidence in his case. The court also updated its formulation of AEDPA deference, reying on the Neal, Henderson, Collier and Cluck cases from within the circuit, and Williams, Bell, and Rompilla from SCOTUS; and concerning the failure to investigate claim, Miller, 420 F.3d, Wiggins, and Strickland. Because the facts revealed that St. Aubin's lawyer had conducted a pretty thorough investigation and decided not to investigate further or present evidence at issue to a jury the court affirmed the denial of relief.

But it is surprising and highly questionable for the court to rule categorically that it was not unreasonable to investigate mental health history further just because what was discovered was thought to be damaging. That completely discounts the possibility that mitigating evidence might have been uncovered upon further analysis and investigation.

The court also presented some interesting cases and comments on "double edged" evidence.

St. Aubin v. Quarterman, No. 05-40277 (Fifth Circuit, Nov. 21, 2006)

TCCA Business as Usual

Thanks due to my dependable and creditable sources, here is this link to more cruel and [un]usual stuff from the Lone Star State. This is the frontrunner in the race to the bottom of the barrel touching the quality of legal representation due from an [appointed] lawyer--indeed a macaca could have done better--tax payers should be outraged. Then again, perhaps the average citizen of Texas only expects that the accused will be tried in this fashion:

Wilkinson's writ appeared to copy Acker's letters from death row so that, instead of citing legal cases, the writ echoes Acker's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper.

"It's yet another example of the court of criminal appeals turning a blind eye to clearly incompetent representation," Andrea Keilen, with the Texas Defenders Service, said of Wednesday's ruling.

"What they could easily have done was order the trial court to appoint another lawyer." Martin Braddy, the district attorney for Hopkins County, said that while Wilkinson's legal brief could have been better, it raised all the appropriate issues that needed the court's attention.