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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

Today, the Appellate Court issued Small v. State [pdf], holding that the trial court did not abuse its discretion in denying appointment of counsel to appeal its decision to deny a petition for new trial. It is interesting for two reasons:

1. It unequivocally holds that a petition for new trial is not a criminal proceeding; rather it is a civil proceeding
2. There is currently an unresolved question as to whether there is right to counsel in another collateral proceeding - a Motion to Correct Illegal Sentence. [P.B. 43-22]

The petitioner also asserts that § 51-293 permits a trial court to appoint a special public defender in appropriate cases. Assuming, without deciding, that those statutes provided the petitioner an avenue for requesting court-appointed counsel, we determine that the court did not abuse its discretion in this case because the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel.

There are statutory exceptions to the rule, however. The biggest being habeas corpus cases. However, as the Court explains,

‘‘[I]ndigent persons accused of a crime must be provided appointed counsel, Gideon [v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)]. But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings . . . .’’ (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555–57, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).

What this means for right to counsel on Motions to Correct remains to be seen. There are several other criminal opinions issued today, but none piqued my interest quite like this one. They can be found here.

Technorati Tags: petition for new trial, right to counsel, connecticut

Michael Skakel’s hearing for a new trial wrapped up day 3 yesterday and the testimony took an interesting turn. His trial counsel, Mickey Sherman, testified yesterday that the state withheld key evidence suggesting that the killer was someone other than Skakel.

The profiles at issue are of former tutor Kenneth Littleton and of Skakel’s older brother, Thomas Skakel, who was 17 at the time of the crime. In the profiles, two lead investigators on the case state it had been established that on the night of the killing, Oct. 30, 1975, then 15-year-old Michael Skakel left Belle Haven with two of his brothers and a cousin to drive the cousin home and stay there to watch a Monty Python comedy on television.

“We had a very definite alibi defense; it was the bulwark of our case,” Sherman testified. “Michael Skakel wasn’t guilty. Michael Skakel wasn’t there.”

Sherman said the reports, co-authored by former lead inspector Jack Solomon and subsequent lead inspector Frank Garr, amounted to “independent corroboration … of the belief that Mr. Skakel was not there.”

A third document, referred to as “the time frame” that Skakel’s attorneys claim was also withheld, documents Littleton’s moves in the years following Martha’s murder and corresponding crimes, including murders, that occurred in his proximity.

However, these claims seem to do little to bolster the claim for a new trial. On the other hand, they might serve to make a future Habeas claim only stronger.

During Skakel’s trial in 2002, Sherman, with Solomon on the witness stand, asked to be given the reports. The trial judge said, “Not now,” and Solomon’s testimony proceeded. Because Sherman never renewed his request for the reports before the trial ended, this prong of the petition for a new trial may be in jeopardy.

Skakel’s current lawyers, Hope Seeley and Hubert Santos, also claim the prosecution’s failure to turn over a police sketch of a man a Belle Haven security guard saw walking in the area of the crime scene warrants a new trial.

The sketch arguably bears a strong resemblance to Littleton, but this is another area where Sherman dropped the ball at trial and Skakel may not be able to benefit.

The state Supreme Court, in unanimously upholding Skakel’s conviction last year, noted that the state should have turned over the sketch. However, because the sketch is referenced in two reports that Sherman clearly had in his possession before trial, the high court deemed it harmless error, because Sherman had notice of the existence of the sketch and didn’t pursue it.

The new trial claim centers around “new evidence” that Skakel was not the killer, based on testimony of one individual who was present in the area, but was not mentioned in any police report. However, these instances of Sherman dropping the ball are more effective in a Habeas trial, seeking to overturn his conviction.

Technorati Tags: michael skakel, petition for new trial, habeas corpus

It’s true. Alabama does not provide indigent death row inmates with representation (that link is to a TimesSelect article, so it’s not free. You could just sign up for a trial membership). It is the only state in the country to (not) do so. In Alabama, there is no statutory right to counsel in petitions for writ of habeas corpus, which, as everyone knows, are the last avenue for a death row inmate seeking to challenge his/her conviction.

Alabama’s attitude? To disregard the landmark provisions of Gideon v. Wainwright and basically shrug. I cannot believe that in 2007, there is still a state that doesn’t think it needs to provide representation to indigent defendants.

Inmates filed a class action lawsuit, which was rejected by the 11th circuit in 2006 [Barbour v. Haley (.pdf)]. Now they are seeking cert. to SCOTUS. Hopefully SCOTUS accepts cert and stomps down hard on this bizarre practice.

Thankfully, in CT, there is a statutory right to counsel for habeas petitioners and death row inmates.

HT: Prof. Berman, who thinks this will (and should) create a blawgosphere storm and CapDefWeekly.

Technorati Tags: right to counsel, alabama, barbour v. haley

More on the Streamlined Procedures Act at the Senate. (Previous commentary here, here, here and here.) The House subcommittee on Crime, Terrorism and Homeland Security has scheduled a second hearing on the bill for this Thursday at 10:00 a.m. If you want to say something about this bill to your Representative, check out the Justice Project’s website for this bill here.

My absence from blogging has been long and mostly because I’ve been busy and haven’t been feeling too well. However, a couple of weeks ago, I noticed that SCOTUS had denied cert in Dretke v. Coleman [pdf], a Fifth Circuit case. The ruling in the Fifth Ciruit was:

The Texas Department of Criminal Justice is authorized by Texas law to
impose reasonable conditions on parole to serve the interests of protecting the
community and rehabilitating the parolee. When those conditions impact a liberty
interest of the parolee, they may be imposed only with justification. The Department
may condition Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual control.
Absent a conviction of a sex offense, the Department must afford him an appropriate
hearing and find that he possesses this offensive characteristic before imposing such
conditions. This court was told at oral argument that evidence of Coleman’s lack of
sexual control exists. None appears in the record, however, and no contention is
made that Coleman has been afforded a hearing meeting the requirements of due
process.

We therefore hold that the sex offender conditions placed on Coleman’s
parole are invalid, and we remand the cause to the district court for disposition
consistent with this opinion. The state is not precluded from further efforts to add
these same conditions to Coleman’s parole upon proper notice and consistent with
this opinion.
Reversed and remanded.

Essentially, that offenders who have not been convicted of a sex offense have a liberty interest created by the Due Process clause in freedom from sex offender classifications and conditions. The state parole department must afford a habeas petitioner an appropriate hearing before it can constitutionally impose sex offender parole conditions upon him. In light of SCOTUS’ refusal to address whether sex offender registration violation substantive due process in CT v. Doe, their denial of cert here is pretty significant.

The other day I received an e-mail from someone at The Justice Project with some information regarding the Streamlined Procedures Act, which I’m passing on to you, my readers (Who despite my lack of recent posting, keep coming to the blawg! Thank you!).

The Justice Project has a website on this bill, which includes frequent updates on the status of the legislation in the House and Senate, a compilation of letters, testimony and editorials from key opponents of the bill and other resources. There’s also this link to contact senators to express your displeasure with the bill.

My previous commentary on this bill is here, here and here.

WaPo has this editorial today [note: registration might be required], criticizing the Streamlined Procedures Act of 2005 [previous commentary here and here]. The editorial mentions a vote by the national Conference of Chief Justices (Chief Justices of all State courts) that overwhelmingly urged Congress to slow down on this bill. [The lone dissenting Chief Justice? - You guessed it. Texas.]

So it is particularly instructive that chief justices of the nation’s state court systems have voted overwhelmingly to urge Congress to slow down. The chief justices would be, after all, the apparent beneficiaries of the bill, which would gut federal review of the convictions they oversee. Yet in a strongly worded resolution by the Conference of Chief Justices — with only the chief justice of death-happy Texas voting no — the heads of state judicial systems said in essence, "Thanks, but no thanks." Cooler heads in Congress ought to listen.

The most drastic versions of the bill, proposed by Sen. Kyl and Rep. Lungren, would all but eliminate Federal Habeas review.

Even where they didn’t do that, they would create onerous procedural roadblocks and prevent federal courts from considering key issues. They would bar federal courts from reviewing most capital sentencing and create arbitrary timetables for federal appeals courts to handle these cases. All of which, you might think, would be music to the ears of state court justices, for whom it is a big blank check.

Unless, of course, those chief justices are interested in, well, justice. The resolution, adopted jointly with the Conference of State Court Administrators, notes that "the changes contemplated in these measures may preclude state defendants in both capital and non-capital matters from seeking habeas corpus relief" with "unknown consequences for the state courts and for the administration of justice." It recommends "delaying further action" pending additional study to evaluate whether change in current law is even necessary. If it is, the justices urge Congress "to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without more supporting evidence."

Kudos to them. The Senate Judiciary Committee is poised to consider less drastic versions of this bill. Let’s keep our fingers crossed.

Sounds like a good name for a legal television show, doesn’t it? But I’m referring to the concept embedded in criminal jurisprudence (and other areas of the law, I’m sure) of the ability, perhaps the right, of a defendant to waive his Constitutional protections. A defendant can waive a jury trial, can waive the right to present witnesses, can waive a challenge to an unconstitutional s & s. Heck, with a guilty plea, a defendant waives all non-jurisdicitional defects! (See Tollett v. Henderson) But can a defendant waive effective assistance of counsel? A few cases from the Appellate Court would lead you to believe so.

Last year, the App Ct decided a few cases in which petitioners pled guilty and then filed a Habeas petition, raising a claim of IAC. The respondent alleged cause and prejudice arising from failure to raise the constitutional claims in the trial court and on appeal.

This is where it gets interesting: Petitioners alleged that the procedural default was a result of ineffective assistance of counsel. The standard for C & P is as follows:

A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).

Case law in CT holds that a claim of IAC is usually best raised in a Habeas petition. The App Ct points to the practice book section which says that a plea of guilty may be withdrawn on several grounds, one of which is IAC.

In essence, what the court was saying in both cases was that Petitioner should have filed a Motion to Withdraw the guily plea as per the practice book. The practice book provides (and I’m paraphrasing) that a defendant may withdraw a guilty plea until it has been accepted. After acceptance, a defendant may withdraw the plea on any one of the enumerated grounds. However, a defendant may not withdraw the plea after the conclusion of the proceeding at which the sentence was imposed. So, according to some cases, if a defendant does not attempt to withdraw in that intervening period, he has waived his right to raise a claim of ineffective assistance, since they would be precluded on appeal.

Does this not in essence mean that a defendant can waive his right to effective assistance? I could just be reading it all wrong. What do you think? Can it be waived?

The Supreme Court yesterday released some pretty important habeas decisions and atleast one high profile crim decision. I’ll go into the Habeas decisions at the same time, as they address basically the same issue.

The Court released Lebron v. Comm’r, McCarthy v. Comm’r, Hickey v. Comm’r and Oliphant v. Comm’r. The basic issue was whether, in all the cases, the Appellate Court had properly dismissed the habeas petitions for lack of jurisdiction, because in each case the petitioner was not "in the custody" of the Department of Corrections. Each petitioner had discharged his sentence.

In Oliphant, the petitioner was incarcerated under two sentences; one imposed in April and the other in September. By the time he filed his Habeas petition, he had discharged the shorter April sentence, but was still held under the longer September sentence. The Habeas court dismissed the petition because he was no longer "in custody" under the April sentence, which had been the basis for his petition (even though he was actually being held in jail).

The Court first considered whether the petition should be broadly construed to include an attack on his September conviction as well, even though it wasn’t explicitly mentioned in the pro-se petition.

The Court writes:

The modern trend . . .is to construe pleadings broadly and realistically, rather than narrowly and technically.’’ (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655–56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their ‘‘lack of legal education and experience . . . .’’ Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). This rule of construction has limits, however. ‘‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.’’ (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

Additionally, the Petitioner had already raised a separate Habeas petition in connection with his September conviction, so the Court denied this claim.

Next, Petitioner raised the following two claims: (1) That Connecticut’s "in custody" statute should be read more expansively than the Federal Statute and (2) the Petition is not moot because collateral consequences flow from his illegal conviction.

The Court addressed these claims in Lebron, so let’s turn there.

In Lebron, the facts were reasonably similar. Petitioner’s 1992 sentence was being used to enhance his 1999 sentence, even though he had discharged the 1992 sentence. The Habeas Court dismissed the petition because Petitioner was not being held "in custody" on his 1992 sentence.

Challenges to expired convictions under Federal law are governed by Maleng v. Cook, 490 U.S. 488 (1989). In Maleng, the Court held

‘‘once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.’’

However,

[t]he majority carved out one exception to this general rule—it concluded that a habeas petitioner could challenge an expired conviction if the petitioner attacked his ‘‘enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the [s]ixth [a]mendment, as set forth in Gideon v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)].’’ Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001).

Applying all of this caselaw, the Court found that the Habeas (and Appellate) Court correctly construed his 1999 petition as an attack on his 1992 conviction.

The Petitioner then alleged that the Appellate Court improperly dismissed his petition for lack of subject matter jurisdiction, because the custody requirement in C.G.S. (stating that a Habeas petition is to be filed by someone in the custody of the DOC) related to venue and not jurisdiction. The Court, after an analysis of the jurisprudence of Habeas Corpus, found that there was no doubt that the custody issue was jurisdictional and denied that claim.

Finally, the Petitioner claimed that the Appellate Court improperly found that the collateral consequences of his 1992 conviction were insufficent to find him "in custody" under Maleng and Lackawanna.

On that matter, the Court held,

We conclude that a petitioner whose conviction has expired fully prior to the filing of a habeas petition is not in ‘‘custody’’ on that conviction within the meaning of § 52-466, despite the alleged existence of collateral consequences flowing from that conviction.

So, in accordance with this decision in Lebron, the Court denied all four Habeas appeals. The Crim decisions to follow. For more, see this Courant article.

Am experiencing a little down time at work, so I figured I’d post quick updates on the latest criminal cases from the appellate court. This post summarizes the habeas decisions and the next one will be about the criminal decisions. The Court released Frank v. Comm’r, Diaz v. Comm’r and Kelley v. Comm’r [all files .pdf]. Both Frank and Diaz were cursory Simms and Lozada dismissals with the following paragraph:

We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.

That takes care of that. The third, Kelley, is actually discussed on the merits. But when the Court describes petitioner’s claims as

(1) not conducting an adequate pretrial investigation and (2) failing to act in a variety of ways during the trial.

you know you’re in trouble. These are two of the vaguest claims you could have. Nothing specific at all here - what is "variety of ways", for instance? Let’s read on. As to the first count - the Petitioner claimed that his trial counsel failed to investigate the existence of one alibi witness. The Habeas court found that trial counsel did indeed try to locate this one person and talk to his mother, who stonewalled. Deferring to the Habeas court, the Appellate Court rejected the first count. In the second count, petitioner claimed

(1) failing to object to and to request rulings on certain aspects of the prosecutor’s cross-examination of alibi witnesses, (2) failing to object to the prosecutor’s reliance in opening and closing arguments on, what the petitioner classifies as, an ‘‘improper inference of recent fabrication of the alibi defense,’’ (3) failing to cross-examine the victim about prior accusations of sexual assault by others against her, (4) failing to request that the court allow an examination of the victim outside the presence of the jury and (5) failing to except to the court’s refusal to allow the petitioner to cross-examine the victim about alleged prior sexual attacks.

The Habeas Court addressed only allegation (3) above, finding that trial counsel had attempted to cross-examine the witness, but was shut down by the trial judge. The Appellate Court affirmed that ruling and declined to address any of the other allegations, writing

we note that none, not even those appearing in the petitioner’s amended petition, is accompanied by supporting facts, law and reasoned analysis. The petitioner addresses those alleged failures in a cursory manner at best. They constitute nothing more than bare assertions unsupported by fact, reason or analysis.

Ouch. The appeal was denied. It seems that either the attorney did a bad job, or more likely, was hamstrung by a client forcing him to raise barely colorable issues.

The Appellate Court released Vivo v. Commissioner [pdf] today, affirming in part and reversing in part. In Vivo, the Habeas Court had denied petitioner’s claims of IAC (both trial and appellate) and that his sentence under CGS 53-202k should be vacated. Habeas counsel had abandoned the claim of IA(T)C in his post-trial brief but continued to raise the claim of IA(A)C: that appellate counsel failed to raise a State Constitutional challenge to the inevitable discovery doctrine. The Appellate Court writes,

The seminal case of Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel.

[H]e must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.

Petitioner claimed that the State Constitution afforded greated protection than the Federal Constitution and therefore it is reasonably probable that his claim would have succeeded, had appellate counsel raised it. The Court relied on one of it’s own decisions in the past, quoting:

‘‘it is clear that Connecticut courts, along with the vast majority of all courts, both state and federal, recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court.’’

Accordingly, the Court denied that claim.

The second claim raised was that petitioner’s conviction under 53-202k (commission of a Class A or B felony with a firearm) was illegal because 53-202k was not a separate crime, merely a sentence enhancement provision. The Appellate Court agreed, citing State v. Dash, 242 Conn. 143 (1997) and reversed with an order to vacate that conviction. Petitioner’s total effective sentence, however, remained unchanged. A small victory is a victory, nonetheless.

SCOTUS today granted Rompilla v. Beard [majority opinion] by a 5-4 vote, holding that that even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available,
defendant’s counsel is still bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial. The Court granted the petition finding both prongs of Strickland had been met. Writing for the majority, Justice Souter explains:

Counsel knew that the Commonwealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator under state law.   

Counsel further knew that the Commonwealth would attempt to establish this history by proving RompillaÂ’s prior conviction for rape and assault, and would emphasize his violent character by introducing
a transcript of the rape victimÂ’s testimony given in that earlier trial. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutorÂ’s plans.

It is also
undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned by the prosecution a second time.

On the performance prong, the Court concludes:

Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing  here owing to the similarity of the violent prior
offense to the crime charged and Rompillas sentencing
strategy stressing residual doubt.  Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was certainly beyond any hope.

The prejudice prong wasn’t seriously contested by the State of PA and the Habeas was granted. SCOTUSblog has detailed analysis and commentary. An AP story here.

SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate’s Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El’s claims and the 5th Circuit had even refused to certify appealability. In 2002, SCOTUS reversed that (Miller-El v. Cockrell) and ordered that the 5th Circuit review the merits. Today, SCOTUS reversed the 5th Circuit (again) and ordered that Habeas relief be granted.

Writing for the majority [pdf], Justice Souter delves into the vast evidence collected by Miller-El regarding racial bias. The opinion itself is a fascinating read, especially because it details the disparate treatment of black and non-black jurors who gave extremely similar responses on their juror questionnaires and in voire-dire questioning. The gist, however, is best summed up by Justice Souter himself, when he writes:

In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.

At least two of the jury shuffles conductedby the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached.  The State has in fact never offered any other explanation.

Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non-blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus ——————explain a strike), and 100% of blacks but only 27%  of non-blacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a
disqualifying answer.   

…

The StateÂ’s pretextual positions confirm Miller-ElÂ’’s claim, and the prosecutors own notes proclaim that the Sparling ManualÂ’s emphasis on race was on their minds when they considered every potential juror.   

The state courtÂ’s conclusion that the prosecutorsÂ’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state courtÂ’s conclusion was unreasonable as well as erroneous.  The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief.

Justice Souter relies mainly on venirepersons Fields and Warren, both of whom had responses similar to white panel members who were accepted by the prosecution, and yet were struck via peremptories. In fact, as the quote above indicates, Fields was quite in favor of the death penalty and was all too willing to impose it.

Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall’s position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a nice post on this concurrence.

I’ll get to the dissent soon.

Justice Souter’s majority opinion here [pdf], Justice Breyer’s concurrence suggesting prohibiting peremptory challenges altogether here [pdf] and Justice Thomas’ dissent here.

No, it’s not my case; I’m still waiting for a decision. This is a case that was decided about a month ago, but I was waiting for LEXIS to put it up, so I could provide a cite.

Langston v. Warden, 2005 Conn. Super LEXIS 871 is a Habeas petition claiming ineffective assistance of counsel. As most of you know, the standard for IAC is established by Strickland - and in plea cases, as modified by Hill. However, Langston is extremely interesting because of the standard applied by the judge. As I’ll explain below, the judge applies Cronic and Florida v. Nixon.

Langston was charged with and convicted of Commission of a Felony with a Firearm, Criminal Possession of a Firearm and Robbery First. The facts were as follows:

The victim, victim’s sister and her boyfriend were driving along in a car. They wanted to score some crack, so they approached two inviduals - one of them Mr. Langston - and tried to make a deal. After the victim was asked to show the money, one of the two individuals (allegedly Mr. Langston) returned with a gun, took the money and shot the victim as he was walking away. All three identified Langston as having possessed a gun and shooting the victim. Via cross-ex, defense counsel elicited that the victim was on drugs at the time of the incident and it ocurred in an alley that wasn’t well lit and that no one actually saw Mr. Langston shoot, just saw him with a gun. The police arrested Mr. Langston at his home and found a potato with electric tape and he allegedly said it was used as a silencer for a gun.

Petitioner raised 4 claims (that does seem to be the magic number):

1. During closing, defense counsel conceded that Mr. Langston participated in the robbery - but did so without his consent.
2. Trial counsel failed to file motions in limine to preclude a photo array and other prejudicial evidence.

The other two weren’t discussed that much and were dismissed, so I won’t go into them here. The court discusses 2 first, so I’ll do that as well.

The Court quite readily dismisses the claim as to the photo array because there was no evidence introduced regarding the photo array, not even the array itself, at the habeas hearing. The Court then addresses the introduction of the potato silencer. The problem wasn’t that a police officer testified about Langston’s statement regarding the potato silencer: that was after being advised of Miranda. The problem was that

[n]o motion in limine had been filed to exclude reference to this evidence and this was coupled with a failure to object to this evidence as it was being presented. It
is also true that there was no evidence presented during this trial
that a potato silencer was used during the robbery, seen by any victim
or witness, or mentioned in any conversation during, immediately before
or after the confrontation.

CT state law is quite clear that evidence as to articles found in the possession of a defendant subsequent to the commission of the crime for which he is being charged is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence. State v. Groos, 110 Conn. 403, 407 (1930). Relying on that principle, the Court decided

It is difficult to see what possible probative value this evidence had
or what tactical strategy could have induced trial counsel not to take
steps to challenge the introduction of this evidence or move to strike
it. Defense counsel must be held to a standard that presupposes a
knowledge of evidentiary rules operative in our state for decades. It
was deficient performance under Strickland not to file a motion in limine regarding the introduction of this evidence or otherwise object to it.

That takes care of prong 1. But what of prong 2 - often the more difficult prong? Citing another case, State v. Acklin, 171 Conn. 105 (1987), the Court decided that it would be very difficult to not find prejudice, even with overwhelming evidence of guilt. "Any improper evidence that may have a tendency to excite the passions,
awaken the sympathy or influence the judgment of the jury, cannot be considered harmless." State v. Ferraro, 160 Conn. 42 (1970). The Court found that both prongs of Strickland were met and was of the opinion that Habeas relief should be granted on this claim alone.

But if he did that, we wouldn’t have the exciting Cronic and Nixon discussion! So, he went on.

In closing argument, defense counsel argued that it came down to the victim and the sister’s boyfriend, both of whom had felony records and were crack users. Counsel argued that the lighting was bad and impaired their ability to see what was in front of them. He also argued that the sister’s boyfriend said he saw Langston shoot the victim, but initially had told the police he only heard the shot. Then he conceded that the victim had been shot. Then he said the following:

"Remember, there were two people here that were involved in this, not
just Mr. Langston, but his unnamed partner who might have been his
partner in a drug deal or who might have taken the gun and decided, I’m
going to start shooting"

Ok. So he admitted Langston was involved in this. He admitted that there was a gun and he admitted that one of the two shot the victim. In the course of this train of thought counsel did say let us assume
there was a robbery and "I’ll concede for a moment a robbery did occur. " He then went on to say given this assumption maybe the second person was the shooter.

The State’s Attorney, bright as she was, picked up on this and in rebuttal argued that defense counsel conceded that Mr. Langston had the gun at some point.

At the Habeas hearing, defense counsel tried to explain that what he meant to do was create doubt in the jury’s mind and didn’t mean to explicitly concede anything. The Court didn’t like that too much:

But it was not what counsel’s intentions were that is controlling, but what he actually said.

But as the review of the closing argument indicated, defense counsel
explicitly said or implied at various points that Langston was involved
in the robbery but not the shooting:

"Remember, there were two people here that were involved in this, not just Mr. Langston . . . but his unnamed
partner . . . who might have taken the gun and decided, I’m going to
start shooting."

This theme of implying guilt of the robbery but not the shooting is woven throughout the remainder of the closing argument.

It was uncontroverted that defense counsel did not inform Mr. Langston that he was going to concede his guilt to the robbery.

Given that factual background, the Court dove right into the legal argument. It goes without saying that a criminal defendant has the right not to plead guilty and has the right to make the state prove it’s case beyond a reasonable doubt. No lawyer’s decision can deprive a defendant of these rights and these rights cannot be waived by defense counsel, Brookhand v. Janis, 384 U.S. 1, 5-8, (1966). Since there was nothing in this record to indicate that the petitioner
contemplated waiving or in fact waived these rights,  a
closing argument by defense counsel that effectively admits the
client’s guilt to a crime to which the client has pleaded innocent
without the client’s waiver or consent is necessarily deficient
performance under the standard set forth in Strickland. Having determined that there was deficient performance, the Court turned to the sticky proposition of determining prejudice under the second prong. What made it sticky was the overwhelming evidence of guilt. The Court admits that under the second prong, it can be reasonably argued that there is no prejudice.

Oddly, the Court then says,

Despite all this the court is constrained to find that the ordinary
prejudice analysis does not warrant the denial of habeas relief,
deficient performance having been found for the reasons stated. The
court relies on U.S. v Cronic and Florida v. Nixon.

Cronic, if you will remember, is the case that dealt with constructive denial of counsel.

The presumption that counsel’s assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at a
critical stage of his trial. Similarly, if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then
there has been a denial of rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been "denied the right of effective cross-examination" which "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., at 318 (citing Smith v. Illinois, 390 U.S. 129 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, (1966)).

Circumstances
of that magnitude may be present on some occasions when although
counsel is available to assist the accused during trial, the likelihood
that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U.S. 45 (1932), was such a case.

However, Cronic is still inadequate because it talks in terms of presumed prejudice and guilt or innocence. That’s where Florida v. Nixon comes in. Florida conducts an analysis based on the recognition that a fundamental right is involved where defense counsel concedes defendant’s guilt. The Florida Supreme Court held

defense counsel’s statements to the jury were the "functional
equivalent of guilty plea" and therefore what was required was the
defendant client’s "affirmative, explicit acceptance of" the lawyer’s
strategy of conceding guilt.

The U.S. Supreme Court reversed based on the facts of Florida - because it was a capital case, the distinction is important - but in non-capital cases it suggested that merely informing a non-responsive client of a strategy to concede guilt
is not enough to insulate such a course of action by defense counsel
from habeas attack. In a non-capital case the Supreme Court suggested
that the Cronic rubric of presumed prejudice is more likely to
be applicable–that is, merely informing the defendant who remains
unresponsive is not enough, an explicit waiver of the right to continue
the not guilty position may have to be made by the client.

The Habeas Court concluded,

In this case there was not only an absence of any explicit and
affirmative waiver by Langston of his right to maintain his innocence
throughout the trial, including closing argument segment, but there is
nothing to indicate that at trial counsel even informed the defendant
that during closing argument he would concede guilt as to one of the
counts.

The Court reversed Mr. Langston’s convictions and remanded for a new trial.