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Column: Hopeful Signs in U.S. Supreme Court for Poor Criminal Defendants (New York Law Journal)

By Christopher Dunn

In a relatively bright spot for civil rights, the United States Supreme Court last term often ruled in favor of convicted prisoners claiming constitutionally ineffective assistance of counsel.

In nine cases, eight of which involved death-row inmates, the Court confronted disturbing examples of malfeasance, made clear its sympathy for military veterans and its unease with the Eleventh Circuit, wrestled with the appropriate role of professional standards in defining Sixth Amendment rights, and opened up an entirely new area of ineffective-assistance claims. While most of the Court’s rulings were narrow, taken together they suggest a Court open to claims by prisoners asserting violations of their constitutional right to counsel.

Ineptitude and Worse

Four cases before the Supreme Court last term illustrate the range of problems encountered by poor criminal defendants. Perhaps the worst example of lawyer ineptitude came in the capital prosecution of Frank Spisak, Jr., who had been convicted of three murders and two attempted murders of blacks and Jews at Cleveland State University. After a disastrous appearance by Spisak on the stand during the penalty phase, his lawyer offered a closing argument that described Spisak’s gruesome killings in detail, acknowledged that the crimes were inspired by Spisak’s admiration for Adolph Hitler, portrayed Spisak as “sick,” “twisted,” and “demented,” and said that he was “never going to be any different.” And, in a passage that illustrated Justice Stevens’s view that the closing was “so outrageous that it would have rightly subjected a prosecutor to charges of misconduct,” the lawyer told the jury,

[Y]ou can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom, and it is death, and you can smell the death … and you can feel, the loneliness of that railroad platform … and we can all know the terror that [the victim] felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets … And we can see a relatively young man cut down with so many years to live, and we could remember his widow, and we certainly can remember looking at his children … There are too many family albums. There are too many family portraits dated 1982 that have too many empty spaces. And there is too much terror left in the hearts of those that we call lucky.

In Smith v. Spisak, the Court assumed, without deciding, that the closing argument violated Spisak’s Sixth Amendment right to counsel, satisfying the first prong of the two-step analysis for assessing ineffective-assistance claims seeking to vacate convictions. It nonetheless unanimously reversed the Sixth Circuit and affirmed Spisak’s death sentence on the grounds that he could not meet the second prong, which requires the defendant to establish “a reasonable probability” that, but for the ineffective assistance, “the result of the proceeding would have been different.” Spisak could not meet this burden, the Court concluded, because the evidence of the horrific nature of his crimes was so clear that the closing argument could not have made a difference.

More fortunate was Albert Holland, a prisoner who had the all-too-common experience of being completely neglected by his lawyer. After Holland’s Florida conviction and death sentence for first-degree murder became final, a one-year statute of limitations started to run on state and federal post-conviction challenges he might bring. His appointed post-conviction counsel eventually filed a state a court action but effectively abandoned Holland, not responding to many letters and failing to tell him about a Florida Supreme Court ruling that rejected his habeas petition and started the clock on a short period remaining to file a federal habeas action. After Holland learned of the state Supreme Court ruling in his case through the prison library, he immediately filed a federal habeas petition on his own and then wrote his lawyer to express concern that his time had run notwithstanding any potential appeal to the United States Supreme Court. Finally, the lawyer — one Bradley Collins — responded, claiming the time period in fact had run before Collins was even appointed as counsel. As the Supreme Court ultimately would observe, “Holland was right about the law,” and “Collins was wrong about the law.”

In Holland v. Florida, the Supreme Court reversed the Eleventh Circuit’s ruling that Holland’s habeas petition was untimely. According to the Court of Appeals, “[N]o allegation of lawyer negligence or of failure to meet a lawyer’s standard of care — in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment on the lawyer’s part — can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling.” This standard, the Supreme Court ruled, was too rigid and narrow, and it remanded for the District Court to determine whether equitable tolling was warranted under a more permissible standard. Justices Scalia and Thomas dissented.

Next, there was the case of Joseph Jefferson, a death-row inmate wronged not by his lawyer but by the judge who presided over his state-court habeas proceeding. In that proceeding, Jefferson challenged the effectiveness of his trial counsel at the penalty phase because they had failed to have certain tests conducted about a head injury he had suffered as a child. The lawyers claimed a consulting physician had told them that such testing would be pointless, while the physician denied ever having said so. At the conclusion of the habeas evidentiary hearing, the judge contacted the state’s attorneys ex parte, asked them to draft an opinion, and — despite the fact the draft discussed statements by a witness who did not testify or otherwise participate in the proceeding — adopted it verbatim as his own ruling, all without any notice to Jefferson.

The Eleventh Circuit rejected Jefferson’s habeas petition, and the Supreme Court again reversed it in Jefferson v. Upton. Without addressing whether trial counsel’s assistance was constitutionally deficient, the Court in a per curiam opinion held that Jefferson could qualify for habeas relief under the statute in effect at the time, which (among other things) provided relief if “the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing.” Justices Scalia and Thomas again dissented, arguing — with considerable validity — that the Court had reached out to grant relief to the prisoner on a claim that was not presented in his petition for certiorari and that was barely mentioned in the lower court proceedings.

Justices Scalia’s and Thomas’s complaint in Jefferson was particularly resonant given the Court’s earlier disposition of the case of Holly Wood, whose best complaint may be against the major law firm that represented him in the Supreme Court. After he was convicted in Alabama of murdering his ex-girlfriend and sentenced to death, Wood’s post-conviction proceedings focused on trial counsel’s failure to present mitigating evidence about Wood’s mental retardation. In upholding the conviction and sentence in Wood v. Allen, the Supreme Court declined to decide the precise standard of review that applied to the state court factual determination that trial counsel’s action represented a strategic decision rather than a negligent omission, holding instead that Wood’s challenge failed even if one assumed the more deferential standard he urged. More significantly, however, the Court discussed but refused to consider his seemingly meritorious argument that his trial counsel’s failure even to investigate his mental retardation amounted to constitutionally ineffective assistance because his law-firm lawyers had failed to include the issue in the questions they presented to the Court for review.

The Role of Professional Standards

Indigent-defense reform advocates long have pushed for use of professional standards as benchmarks for what constitutes effective assistance under the Sixth Amendment. In three cases last term, the Court sent mixed messages about the role of professional standards.

Early in the term the Court squarely rejected the Sixth Circuit’s reliance on capital-defense standards adopted by the American Bar Association in 2003 to grant habeas relief to a death-row prisoner who alleged his trial counsel’s assistance had been ineffective because their investigation and presentation of mitigating evidence at the penalty phase did not meet the standards. Though it relied in part on the fact the ABA standards were promulgated long after the prisoner’s trial, the Court in a per curiam opinion in Bobby v. Van Hook emphasized the limited role of professional standards in determining the constitutionality of representation:

[T]he Court of Appeals (following Circuit precedent) treated the ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel “must fully comply.” Strickland stressed, however, that“American Bar Association standards and the like” are “only guides” to what reasonableness means, not its definition. We have since regarded them as such. What we have said of state requirements is a fortiori true of standards set by private organizations: “[W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.”

Notwithstanding this, the Court readily invoked professional standards in upholding habeas claims in two subsequent cases, both of which involved military veterans. Just three weeks after handing down Bobby, the Court in Porter v. McCollum reversed the Eleventh Circuit and ruled that defense counsel’s failure to fully investigate a capital defendant’s background violated the Sixth Amendment. After opening its opinion with a discussion of George Porter’s heroic actions during the Korean War and then describing in detail those actions and their mitigating potential, the Court held, “It is unquestioned that under the prevailing professional norms at the time of Porter’s trial, counsel had an obligation to conduct a thorough investigation of the defendant’s background.” And in support of this proposition, the Court cited an earlier case that relied upon and quoted an ABA standard. Similarly, in Padilla v. Kentucky — the lead paragraph of which reports that “Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War” — the Court relied on professional standards in granting habeas relief on an ineffective-assistance claim:

We long have recognized that prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable, Although they are only guides and not inexorable commands, these standards may be valuable measures of the prevailing professional norms of effective representation…

A Major Breakthrough

Beyond relying on professional standards, the Court in Padilla v. Kentucky recognized an entirely new type of ineffective-assistance claim, which marks Padilla as the Court’s most important ineffective-assistance ruling last term. At issue in the case was advice that defense counsel allegedly gave Vietnam-veteran Padilla that he “did not have to worry” about the immigration consequences of pleading guilty to transporting a large quantity of marijuana. The Kentucky Supreme Court had rejected Padilla’s habeas petition on the grounds that the Sixth Amendment did not extend to defense counsel actions concerning the collateral consequences of criminal proceedings, but the Supreme Court reversed.

In an opinion by Justice Stevens, the Court first stated it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required.” While it concluded it did not need to resolve that issue given the “unique nature” of deportation, the Court held that advice regarding deportation “is not categorically removed from the ambit of the Sixth Amendment.” Next, though it could have decided the case on the narrow ground the Constitution is violated when a lawyer gives a client inaccurate information about immigration consequences, it went much further. Thus, after noting the role of professional standards in defining Sixth Amendment obligations, the Court concluded that the “weight of professional norms supports the view that counsel must advise her client of the risk of deportation.” And because, according to the Court, federal law is clear on the specific point that Padilla faced mandatory deportation as a result of his plea, the Court held that, if his lawyer indeed did not inform him of this consequence, that violated Padilla’s Sixth Amendment rights.

Unlike the other cases decided last term, Padilla may have a sweeping effect. As an initial matter, post-conviction appeals around the country will now start focusing on the extent to which defense counsel affirmatively informed defendants about the collateral consequences of plea bargains. More importantly, the decision should prompt significant improvements in the information defendants receive before entering into guilty pleas that may affect important collateral aspects of their lives, including not only immigration status but also such things as employment and housing.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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