Tag Archives: habeas

Sizzle turns to fizzle (Supreme Court ARO 11/9/07)

Leave a reply

gavel.jpg

When I got to work this morning and followed my daily routine of checking the judicial branch website to see if there were any opinions being issued today, I was excited. Giddy, even. (Get it? Giddy…)

The Supreme Court had decided to release opinions in three very, very interesting cases. As luck would have it, the opinions were extremely anti-climactic. Nothing in any of these opinions was of substantive value. *grumble* *grumble*

The first, State v. Khadijah, was the appeal from the reversal by the appellate court of the defendant’s conviction. The defendant was convicted of failure to appear, because, after returning from work at 8am, she had fallen asleep on the couch and her boyfriend had forgotten to wake her up in time. The appellate court found that the evidence was insufficient to sustain the conviction on the “willful” element of the charge. The Supreme Court dismissed the State’s appeal on the grounds that cert had been improvidently granted.

Next up, Porter v. Commissioner, was also dismissed on the grounds that cert had been improvidently granted. Porter appealed from the Appellate Court’s denial of his appeal. The appellate court had concluded that the habeas court did not abuse its discretion in denying certification to appeal. Mr. Porter claimed that his appellate counsel was ineffective for not raising the issue of instructional error (which issue was not reached on his direct appeal because it was not adequately briefed – as found by the same appellate court). Nope, no good.

Finally we come to Taylor v. Commissioner. The petitioner claimed that his plea was involuntary. The habeas court denied the petition and denied certification to appeal. On appeal, the appellate court remanded to the habeas court with an order to make findings on whether petitioner had proven cause and prejudice which excused his procedural default. The State appealed, saying that the appellate court improperly found that the habeas court had abused its discretion in denying certification. It was an interesting issue because the appellate court had ruled that if there is no evidence on the record of cause and prejudice, then it can find so, but if there is evidence of cause and prejudice and there is no finding, then it must remand for the habeas court to make that finding. Unfortunately, we got no guidance, because the Supreme Court agreed with the State that the appellate court incorrectly found that the habeas court had abused its discretion in denying certification to appeal. So boo.

Skakel files federal habeas

2 Replies

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.

IAC during plea bargaining

16 Replies

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.

Crack is not pot, dammit (Appellate Court ARO 10/31/07).

5 Replies

91914005_1eaa3d7e0b_o.jpg

You’d think that this would be an easy one. However, 50% of the judges that looked at this case disagreed. Luckily one of those was the trial judge, so the 3-judge panel of the Appellate Court overturned the conviction.

In State v. Browne [pdf], the defendant argued that his conviction should be overturned because the search warrant was not valid. In the specificity portion of the warrant, the items sought were listed as “cocaine, crack cocaine”, but the cops seized marijuana and Browne was convicted of possession of marijuana.

The cop that prepared the warrant testified that the reason he entered cocaine instead of marijuana (which was the focus of the investigation all along) was that he cut and pasted from another warrant and left it in. Apparently, only the mouse was working on his computer.

The Court doesn’t buy this and says particularity means particularity:

This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’)

Obviously, since this is a reversal of a conviction, there has to be a dissent [pdf].

There’s also a pretty summary disposal of a habeas appeal, some constancy claims from a child sex assault conviction that are handily dismissed and this last one that holds that evidence of unemployment is admissible as motive for robbery (and then the usual: even if it was prejudicial, it was harmless. I really hate harmless error. Hate.)

Image license info here.

Thoughts on the Genarlow Wilson decision

1 Reply

In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.

Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.

What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.

The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.

It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.

Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :

Skakel petition denied; should he have gone straight to habeas?

5 Replies

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.

Appellate Court ARO 10/24/07

Leave a reply

gavel.jpg

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