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“Falling on the sword”. This is a phrase you will hear often if you are a criminal defense lawyer. What it generally refers to is owning up to your mistakes during your representation of a client, at a later habeas corpus proceeding. In other words, take responsibility for any errors you made during trial - big or small.

Unfortunately, the only ones you ever hear use this phrase are the good ones; the ones that hardly make mistakes and if they do, they’re minor and don’t really affect the outcome of a trial. The hacks - the ones that routinely plead clients out without investigating, or give bad advice or are just plain clueless never use this phrase. Perhaps their guilty conscience pricks them.

Skelly seems to be one of the good guys. He writes here at length about the inner turmoil he experienced when called to testify at a former client’s federal habeas.

He wanted to help; he really did. The problem was he didn’t do what the client said he did and like any ethical lawyer, he couldn’t lie.

My former client’s federal petition claimed that back in 2002, prior to his guilty plea, I told him that he did have a particular plea bargain, and that I lied when I told the trial judge that he did not. I testified that I did not tell him that he had a plea bargain. I testified that once he and I rejected the state’s first offer, there was no other plea bargain. Offer, counter-offer, and second counter-offer, sure, but no acceptance from the state, no meeting of the minds, no deal. I testified today just I said in open court that day in 2002, at the moment when my old client’s words turned from “not guilty” to “guilty,” there was no plea bargain. His current counsel referred to that statement as my “perception.” I replied that the state appellate courts also had reached the same perception. And I had tried so to stay pleasant! When the insinuation was that I lied either to my client, to the state trial judge, or to both, well, maybe I bristled just a bit more than I intended to.

Scott points out an obvious mistake here - calling him a “liar”. That certainly is not the way to get a former attorney to help.  Scott also asks: why don’t habeas attorneys try to contact the trial attorney in advance? Talk to them?

It’s a darn good question. In all the habeas cases I’ve handled, I’ve made it a point to try and contact the trial attorney before filing the Amended Petition for Writ of Habeas Corpus, so as to weed out any frivolous claims (or claims that there is just no support for). Unfortunately, not all attorneys do that and on the flip side, not all trial counsel are willing to co-operate. There are some that just won’t return phone calls. Why they don’t get that if they do return the phone calls, there’s a good chance the habeas will go away, I don’t understand.

Anyway, habeas is an extremely uphill battle and in only the right circumstances - in the rarest of rare cases - does a petition get granted. It isn’t the State that the defendant is battling, it is the standard. Strickland sets the standard so high, that in most ineffective cases, it is almost impossible to meet, unless the error is so blatant and glaring that even a judge cannot ignore.

But in those cases, don’t count on help from counsel. They don’t know what “falling on the sword” means.

Intriguing news out of SCOTUS today. The IAC during plea bargaining case, Arave v. Hoffman, reported with much fanfare here, may not go forward after all. Per Scotusblog (via SL&P), attorneys for both sides have asked the Justices to vacate the Ninth Circuit opinion and dismiss the case as moot. Defendant’s motion is here [pdf] and the State’s response is here [pdf]. It really is curious. It seems that the defendant wants the relief imposed by the federal habeas court: vacate the death sentence and impose life.

Hoffman was convicted of first degree murder in 1993 and sentenced to death in an Idaho court. Almost a decade later, a federal habeas court vacated the death sentence for ineffective assistance of counsel during the penalty phase of the trial. The habeas court rejected a separate ineffective assistance claim relating to pre-trial negotiations, when Hoffman’s attorney advised him not to accept the state’s offer of a life sentence on the mistaken theory that Idaho’s death penalty scheme would later be found unconstitutional. A Ninth Circuit panel reversed on the pre-trial claim in mid-2006, requiring the state to release Hoffman unless officials offered him the original plea bargain. Idaho appealed, and the Court granted certiorari on November 5.

In the motion to vacate and dismiss, Hoffman’s lawyers say the inmate wished to withdraw the pre-trial ineffective assistance claim in order to proceed with the resentencing originally ordered by the federal habeas court for the penalty phase ineffective assistance claim. According to the motion, a status conference is set for December 13 before an Idaho state judge. Joan Fisher of the Federal Public Defender’s office in Idaho wrote that Hoffman made his decision “[a]fter extensive consultations with counsel,” and that his “trial and habeas counsel fully concur with his decision.”

I wonder what made him decide to do this. It’s not like the State was arguing that the death penalty should be re-imposed. Anyone have any ideas?

It’s disappointing that this may not be heard. The issue was truly interesting and I would have liked to see what today’s justices had to say about it.

More opinions than you can shake a stick at and yet not a single win. Not one good thing for defendants. Well that’s not true. There’s one nice footnote. Let’s get to that first.

In State v. Carmona, the Court denied an appeal from (stay with me here) the trial court’s denial of a Motion to Correct. A Mtn to Correct is CT’s procedural vehicle for raising certain claims before bringing them via a petition for writ of habeas corpus. Mr. Carmona claimed that the State breached his plea agreement and that the DOC’s application of jail credit violated double jeopardy. The trial court (and the State) both said that the habeas court was the appropriate place to raise those claims.

What brings joy, however, is that apparently the State, in the habeas court, claimed procedural default for not raising these claims in the trial court! The State’s position, essentially, was: Can’t go to the trial court because you should go to the habeas court and you can’t go to habeas court because you should go to the trial court, where you can’t go because you….well, you get it. The Appellate Court dropped this gem:

Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.

Next comes State v. Hannah, in which the defendant claimed that the court erred in not admitting two recorded phone conversations that proved his innocence. The court found that the defendant did not create an adequate record by not transcribing the phone conversations, so it could not review the claim. It is notable because some of the participants have nicknames like “Too Cool” and “Wheatie”.

The next loss is State v. David O, in which the defendant claimed prosecutorial misconduct impropriety. The claim was that the prosecutor talked about the law and appealed to the jury’s emotions. You know how this ends.

In the first of the habeas cases (and the summary dismissals), Bowens v. Comm’r, the court found that the habeas court’s decision to deny cert. to appeal was not an abuse of discretion. That’s when I stopped reading. That’s when you should, too.

In another habeas case, Madagoski v. Comm’r, the petitioner claimed that he was denied his right to Due Process because the state didn’t preserve the evidence, namely a van, indefinitely. The Court couldn’t even find that the habeas court abused its discretion in denying cert. to appeal.

Back to the direct appeals. In State v. Ruben T, the defendant was tried before a three-judge panel. He claimed that the panel incorrectly found that he had not proven EED and also erroneously admitted testimony under the state of mind exception to hearsay. The panel found (and was affirmed) that the defendant’s loss of self-control was not caused by ‘‘an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.’’

Back to habeas. In Wooten v. Comm’r, the petitioner raised ex-post facto, equal protection and separation of powers challenges to the retroactive application of a judicial decision interpreting a jail credit statute. Quite summarily denied. Which is disappointing, because there are about 5600 inmates affected by this retroactive application.

Finally, in State v. Valentin, the claim was that the judge inadequately charged the jury on self-defense and on reasonable doubt. The claim was rejected because it was not preserved and it did not rise to one of Constitutional magnitude.

But that’s only 8, you say! That is correct. The other three were disposed of with Memorandum Decisions. Which basically means an opinion wouldn’t have been worth the paper it was written on. Or that they didn’t want to spend the time it would have taken to print the opinion discussing it.

By the way, if you’re a public defender in CT, you need to check out the revitalized New Case News. The powers that be (you know who I’m talking about) have done a terrific job with it.

After being denied a new trial in State court, Michael Skakel is now going straight to federal court. His attorneys filed a petition for writ of habeas corpus (not petition for new trial as the Courant first reported), raising essentially the same failed claims from his direct appeal to the Connecticut Supreme Court.

I’m not sure if this means that he is forgoing an appeal from the denial of petition for new trial, but it does almost certainly mean that no IAC claim will be raised in federal court. That will surely come in state court, but further down the line.

Again I am a little surprised as to why they chose to go this route, as with the petition for new trial. Perhaps his one year was almost up.

Either way, I think Skakel’s best bet is the IAC claim against “Mickey” Sherman.

In an exciting move, SCOTUS today granted cert. in a capital habeas case [petition here, opposition here] to decide whether someone can receive ineffective assistance during the plea bargaining process. The actual facts are slightly more complicated, but as Scotusblog notes, the basic question (which was added later by the Court) is what is:

the remedy that [is] available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial.

Most of the commentary and discussion in the blawgosphere has centered around whether ineffective assistance during the plea bargaining process is a valid IAC claim, where the defendant then goes on to receive a fair trial. The answers that I have seen thus far have been no. I will respectfully disagree. The answer should be: “yes”.

For example Crime and Consequences says:

The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

There are several problematic things about that paragraph, but today I’ll deal with just the last. Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.

plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.

Blackledge v. Allison, 431 U.S. 63

Then we come to Hill v. Lockhart. In Hill the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”, relying on McCann v. Richardson, 397 U.S. 759, 771 (1970) (all defendants facing felony charges are entitled to the effective assistance of competent counsel). Really, there cannot be another conclusion.

In this case, the attorney misadvised the defendant about taking an offer. Consider a situation where the attorney fails to inform the defendant of an offer that he would have taken. Regardless of whether the ensuing trial was fair or not, the defendant was not informed of the availability of a plea bargain. How can he be said to have provided effective assistance if he failed to inform the defendant of a favorable resolution of the criminal prosecution? How can you say that the trial would have occurred in the first place?

So what then, is the remedy, if it is found that the attorney was ineffective? It has got to be specific performance. But for the ineffective assistance of counsel, the defendant would have taken the offer. He must be put back in the position he was in when the offer was made and given the option to either take the offer or reject it and proceed to trial.

“Poor lawyering” in the pre-trial process cannot be negated by an otherwise fair trial. Maybe I’m just spoiled by CT law. See Copas v. Commissioner of Correction, 234 Conn. 139.

Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.

Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.

Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.

“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”

“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”

He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.

Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:

Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”

Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.

But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.

So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious.  An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.

On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.

I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.

This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.

Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.

All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.

The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.

Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.

No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.

There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!

Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.

I hate when they do that.

On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se - raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.

By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.

Image license info here

A groundbreaking study was released today, examining the impact of AEDPA on Federal Habeas Corpus petitions. The executive summary is here and the full report is here [both are .pdf files]. From the press release:

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.

The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.

Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.

That a Petition for Writ of Habeas Corpus was denied is not news - it is to be expected - but that it made this morning’s Courant is certainly news.

Richard Lapointe, convicted 20 years ago of killing his wife’s grandmother, will not get a new trial.

In a written decision in Rockville Thursday, Superior Court Judge Stanley T. Fuger denied the request for a new trial, which means Lapointe will remain behind bars for life, plus 60 years, without the possibility of parole.

Fuger said the evidence put forward by Lapointe’s attorney was much like his 83-page petition - “exceeding in extraneous detail, yet lacking in key substance.” And more than one-third of the 177 exhibits presented at a hearing July 16-20 for a new trial were completely irrelevant to the case.

Okay, this really irks me. It isn’t a hearing for a new trial. It is a hearing on a Petition for Writ of Habeas Corpus. How hard is it to get the story straight? Yes, that’s the eventual result, in that if the conviction is found to be unconstitutional as a result of a violation of the Sixth Amendment guarantee of effective assistance of counsel, then the remedy is a new trial, but this is not a petition for a new trial. [Jamie Spencer expressed the same frustration with incorrect reporting a few weeks ago.]

To get Lapointe’s case heard, [his lawyer] Casteleiro had to prove that Lapointe’s counsel was ineffective during his original trial and in his bid for a new trial, which meant he had to prove that Lapointe’s counsel’s errors were so serious that he was deprived of a fair trial.

I guess that’s what he had to prove, but this shorthand seems quite inadequate. What he had to prove was that the trial attorney’s performance was below the standard of a reasonably competent criminal defense lawyer and that but for his deficient performance, the outcome would have been different (he would have been acquitted).

See? That wasn’t hard. Sixth Amendment jurisprudence 101.

For those interested, the Yale Law Library has compiled this resource page for CT and Federal Habeas Corpus resources.

Of course, the other big news yesterday was the 4th Circuit’s (!) grant of a habeas corpus petition in Al-Marri v. Wright [pdf]. The basics:

In a sharp rebuke to the Bush administration’s detention policies, a federal appeals court ruled Monday that the government cannot continue to hold a U.S. resident — a suspected Al Qaeda sleeper agent arrested in Peoria in late 2001 — without filing charges against him.

The 2-1 decision by a 4th U.S. Circuit Court of Appeals panel in Richmond, Va., means the government must release Ali Saleh Kahlah al-Marri, a legal U.S. resident, from military custody and either charge him in the criminal justice system, deport him or free him.

The blogosphere has plenty of coverage on this and I will be back later with more, once I’ve had a chance to digest the opinion. From the little I’ve read since yesterday, there are some choice quotes.

Here is Scotusblog’s fantastic analysis.

“The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the Court said.

The Fourth Circuit panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act’s court-stripping provisions. “As an alien captured and detained within the United States,” the Court said, “he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” The Court said, though, that it was avoiding “difficult constitutional questions” about the MCA’s court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri’s detention did not meet that test because of the lack of presidential authority.

Here is Volokh’s coverage.

The Government will seek en banc review by a full panel of the 4th Circuit.

There’s a new blog in the blawgosphere: The AEDPA Law and Policy Blog. Here’s the latest post:

The Sixth Circuit, sitting en banc, reversed an earlier panel decision and held today that the police can make a limited inquiry of a suspect held in custody who has asked for a lawyer when the police are informed by a third party that the suspect has changed his mind and wishes to make a statement. In this case, the third party was the suspect’s mother.

It has been added to the blogroll.

Technorati Tags: habeas corpus, aedpa

The CT Supreme Court issued State v. Casiano yesterday. Casiano was before the Supreme Court on a motion for review filed by the defendant.

Defendant sought to have counsel appointed to represent him in filing a Motion to Correct Illegal Sentence. The trial court denied the request. The defendant appealed (both on the merits of the Motion and the denial of counsel). The Appellate Court remanded to the trial court with an order to appoint counsel to file a motion for review which was transferred to the Supreme Court.

The Supreme Court finds that there is a right to counsel to determine whether meritorious claims exist and if such claims exist, then right to counsel to file the Motion exists. If there are no meritorious claims, then there is no right to counsel in filing the Motion (Shouldn’t this be obvious?)

In doing so, the Court finds that a “Motion to Correct an Illegal Sentence” fits within the statutory requirement of “any criminal action”.

In light of the nature of a motion to correct an illegal sentence, we conclude that, under our expansive interpretation of the term ‘‘any criminal action’’ in Gipson, that language is sufficiently broad in scope to encompass such a motion and any direct appeal from a denial of the motion. A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant’s sentence has begun, the authority of the sentencing court to modify that sentence terminates.

This does clear up an area of law that was causing some confusion; but how this will impact habeas corpus petitions remains to be seen. Another opinion recently issued held that there was no right to counsel when filing a Petition for a New Trial.

In 2006, the right to file the Great Writ was stripped for certain detainees. A week or so ago, Congress almost included a provision that would restore that right, but it was cut at the end. The ACLU has set up this amusing website: FindHabeas and even have an interactive timeline of Habeas Corpus. There is a petition to restore the right to seek redress via the Great Writ here. From that site:

In the fall of 2006, Congress passed a law governing military commissions, which included a provision that stripped certain detainees of their habeas corpus rights. Habeas corpus has been the bedrock of our justice system for centuries. The Supreme Court asserted that it “is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Without habeas corpus rights, detainees are denied a fair hearing in federal court to challenge the lawfulness of their detention. The government is left free to imprison people indefinitely without charge or trial or other fair hearing, no matter how inhumane the conditions of confinement or the treatment of the detainees. Such a policy is not only unconstitutional, it is also un-American and undermines our national character.

As lawyers, law students, law school deans, law school professors, retired judges, retired prosecutors and retired public defenders, we condemn the denial of habeas corpus rights to detainees and call for a restoration of our constitutional values. It is incumbent upon Congress to ensure that our laws reflect who we are as a society, that we are a people committed to accountability and basic fairness. In the face of adversity, adhering to our values does not make us less secure, but rather strengthens us as a nation.

More here and here.

In continuation of a series of posts about client representation in criminal cases, I have this to add:

Tell your clients about any post-conviction proceedings. Tell your client of his/her right to appeal (if there is such a right), right to seek sentence review (if such a right exists) and, equally important, that he/she has one year from when the conviction becomes final [please explain what that means] to seek redress in Federal court via a habeas corpus petition. Also explain that state collateral proceedings will toll that one year statute of limitations period.

The reason for this is that clients don’t know jack. More often than not, if a client receives a lengthy sentence, he will wait a while after the appeal is decided before pursuing state habeas options. That “a while” is usually more than a year. Which means that even if there is a successful habeas claim, it can never be presented in Federal Court.

The other day I was assigned a client who, luckily, has two months left out of that one year period. He didn’t do that intentionally. He had no idea. I barely noticed it. We got lucky. Next time, maybe not.

The more you know…

Technorati Tags: federal habeas corpus, criminal law