ADVISING CLIENT
GUILTY PLEA AFTER INADEQUATE INVESTIGATION
U.S. Court of Appeals
Cases
2006:
Dando v. Yukinsl,
461 F.3d 791 (6th Cir. 2006).
Counsel ineffective in robbery crime spree case with related charges for advising the
petitioner to plead no-contest without first investigating through an expert the possibility
of a duress defense based on the Battered Women's Syndrome. While the petitioner
confessed to participating in the robberies, she informed counsel of a long history of
violent sexual and physical abuse by her boyfriend, who threatened to kill her
immediately before she participated in the robberies with him, and asked counsel to seek
a mental health expert before she entered a no contest plea. Counsel's conduct was
deficient because counsel did not seek a mental health expert and simply informed the
petitioner that it would be too costly rather than seeking appointment of an expert under
Ake v. Oklahoma, 470 U.S. 68 (1985), even though the defendant was entitled to have the
state pay for the expert. Because counsel's conduct "reflected a misunderstanding of the
law regarding the availability of a mental health expert," under AEDPA, the state court's
holding misapplied clearly established Supreme Court precedent. Prejudice established
because if counsel had performed adequately, he would have discovered that the
petitioner's mother was a drug addict who would "lend out" the petitioner to drug dealers
from the ages of 6 to 12 to perform sexual acts. She was also horribly abused physically
and sexually by her parents and her first husband. Her boyfriend also repeatedly abused
her and threatened and hit her on the morning of the crimes, possibly giving her a
concussion and requiring her to seek medical attention. His violence was also clear in the
repeated robbery attempts and eventual armed confrontation with the police in which he
was killed. Prejudice established because, if counsel had performed adequately, the
petitioner likely would have rejected the guilty plea and gone to trial and would have had
a chance to be acquitted altogether or at least acquitted of some of the charges in the
crime spree.
2005:
Maples v. Stegall,
427 F.3d 1020 (6th Cir. 2005).
Counsel ineffective in distributing cocaine case in which the defendant pled guilty following jury selection based on counsel’s incorrect advice that he could retain his speedy trial claim for appeal. The defendant was prejudiced because he would not have pled guilty absent this incorrect advice. Although the case was reviewed under AEDPA, the court reviewed the merits de novo because the state court had not adjudicated the merits.
1997:
United States v. Kauffman,
109 F.3d 186 (3rd Cir. 1997)
Counsel ineffective in advising client
to plead guilty to being a felon in possession of a firearm where the
defendant had been institutionalized numerous times for bipolar
disorder, had been released only a few days prior to the offense against
the doctor's advice, and a psychiatrist wrote the attorney a letter
stating that the defendant was clearly psychotic at the time of the
offense. Nonetheless, the attorney never investigated or talked to the
psychiatrist and advised the defendant to plead guilty because he did
not think there was a good chance of succeeding on an insanity defense.
"Only if [counsel] had investigated [petitioner's] long history of
serious mental illness, and conducted some legal research regarding the
insanity defense could his counseling be characterized as 'strategy.'"
109 F.3d at 190.
1995: Esslinger v. Davis
44 F.3d 1515 (11th Cir. 1995)
Trial counsel ineffective for recommending that
defendant enter a guilty plea without having first investigated
defendant’s prior criminal history. Defendant plead guilty to a felony
subject to enhanced penalty under state habitual offender law. He would
not have entered guilty plea if he had known of enhanced
punishment.
1994: *Agan v. Singletary
12 F.3d 1012 (11th Cir. 1994)
Counsel ineffective for failing to
investigate prior to guilty plea and death sentence. If counsel had
investigated he would have discovered that defendant had a long history
of psychosis (schizophrenia) and was taking psychotropic drugs at the
time of the plea and the sentence. Court found that defendant may have
been incompetent at time of plea and sentencing.
1990: Bouchillon v. Collins
907 F.2d 589 (5th
Cir. 1990)
Trial counsel ineffective for failing
to investigate defendant's competency to stand trial and or viability of
insanity defense prior to entry of guilty plea when attorney was aware
that defendant had been in mental institutions, but did not request a
mental health evaluation. Investigation would have revealed that
defendant had a long history of mental problems and substance abuse and
was repeatedly diagnosed as suffering from PTSD.
State Cases
2006:
State v. Hunter
143 P.3d 168 (N.M. 2006).
Counsel ineffective in custodial interference case for failing to adequately advise the
defendant prior to his no contest plea. Custody of the defendant's children had been
granted to him in Missouri in 1992. He moved to New Mexico in 1994. His ex-wife,
who had lived in Texas since prior to 1992, sought a change in custody in Missouri in
1997. Because the defendant objected to jurisdiction in Missouri and did not appear, the
Missouri court granted custody to the ex-wife. She did not attempt enforcement through
the New Mexico courts, but sought the help of the local police in taking physical custody.
They declined. In 2001, she again sought the help of the local police and the defendant
was charged with custodial interference. He plead no contest because counsel advised
him incorrectly that he had no viable argument for a motion to dismiss due to the
Missouri court's lack of jurisdiction and counsel's failure to discuss a conditional plea
with the defendant that would have preserved that issue for appeal. This was deficient
conduct because it was clear under Missouri law that the court lacked proper jurisdiction
with neither of the parties or the children living outside that state for years. This would
have been a viable basis for the motion to dismiss because the criminal custodial
interference statute applies only to custody orders issued by a court of competent
jurisdiction. The defendant was prejudiced because he would likely have refused the no
contest plea and accepted a conditional plea if counsel had performed adequately.
State v. Allen
708 N.E.2d 361 (Iowa 2006)
Counsel ineffective in plea case for failing to contest the plea on the charge of introducing a controlled substance into a detention facility. The defendant had taken drugs into a prison, which did not qualify as a “detention facility” under the applicable statute. “[C]ounsel’s failure to contest the plea in this circumstance results in prejudice per se” that invalidated the entire plea agreement, which included other charges.
2005: Julien v. State
917 So. 2d 213 (Fla. App. 2005)
Counsel ineffective in grand theft plea case for failing to inform the defendant of his option to apply for the pretrial intervention (PTI) program. The defendant was a first-time offender charged with shoplifting a pair of shoes. He pled guilty and was given probation, but then the government commenced removal proceedings to rescind his permanent residence status and remove him to Haiti. Counsel’s conduct was deficient because the state rules of criminal procedure required counsel to advise the defendant of “any possible alternatives that may be open to the defendant” and the defendant was eligible for PTI, which would have resulted in dismissal of the charges if the program was successfully completed. Prejudice found because, if he had been adequately advised, the defendant would not have pled guilty but would have applied for the PTI program instead.
Ex parte Briggs
___ S.W.3d ___, 2005 WL 3440433 (Tex. Crim. App. Dec. 16, 2005)
Counsel ineffective in felony injury to child case for failing to adequately investigate prior to the seventeen year old defendant’s guilty plea. The defendant was charged in the death of her two month old son, who had been very sick from the time of his birth. The defendant took his to doctors and hospitals five different times in two months. Ultimately on the day of his death, the defendant called 911 and attempted mouth-to-mouth when she found him blue and limp. The admitting diagnosis at the hospital was hypoxia (lack of oxygen to the brain). Emergency room personnel tried to intubate and placed the tube in the babies esophagus instead of his trachea, which was not discovered for 30 minutes. By the time it was discovered, the baby was brain dead. He died seven days later. The original autopsy report concluded that the death was a homicide. After the defendant was charged, she retained counsel, but could only pay $10,400 of the $15,000 fee. He threatened to withdraw and stated that he could not retain experts without an additional $2500-$7500 for experts. He did not withdraw, did not obtain experts or adequately investigate, and advised the defendant to plead guilty. Counsel was aware of the child’s medical history. His conduct was deficient in failing to consult with experts and “[t]his was not a ‘strategic’ decision, it was an economic one.”
Counsel is most assuredly not required to pay expert witness fees or the costs of investigation out of his own pocket, but a reasonably competent attorney–regardless of whether he is retained or appointed–must seek to advance his client’s best defense in a reasonably competent manner.
Here, counsel had several options that could have been pursued: (1) subpoena the doctors that had previously treated the child and offer their records and opinions into evidence; (2) counsel could have withdrawn and requested appointment of counsel for the indigent defendant; or (3) remained as counsel, but requested investigatory and expert witness fees from the trial court due to the defendant’s indigency. “If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held no lower standard.” If counsel had adequately investigated, substantial testimony from a number of doctors would have revealed that there was no medical evidence of child abuse and that the child died from an undiagnosed birth defect, which led to a urinary infection, sepsis and severe pneumonia, which was made worse by the faulty intubation which led to brain death. Prejudice found because, absent counsel’s deficient conduct, there is a reasonable probability that the defendant would not have pled guilty.
Petty v. Smith
612 S.E.2d 276 (Ga. 2005)
Counsel ineffective in felony murder and aggravated assault case for inadequate advice to the defendant that resulted in a guilty plea. The defendant was charged with (1) malice murder; (2) felony murder; and (3) aggravated assault. All three indictments were based on the defendant shooting the victim with a shotgun after a codefendant beat him. Counsel believed, however, that the assault charge was based on the codefendant beating the victim. Counsel believed that, if convicted, the defendant would be sentenced to life and 20 years consecutively. Based on counsel’s advice, the defendant plead guilty to felony murder and aggravated assault and received life and a concurrent 20 year sentence. Counsel’s conduct was deficient because the indictment clearly revealed that the alleged assault was shooting the victim. Thus, the aggravated assault count merged into the murder count and the accused could not be separately convicted of this offense. Counsel’s conduct was deficient because “[a]ny reasonably competent attorney” would have realized this fact and that the defendant did not benefit from the plea agreement. The defendant was prejudiced because he would not have plead guilty and would not have received a harsher sentence than could legally be imposed on him if had been gone to trial and been convicted on all counts.
2004: Gerisch
v. Meadows
604 S.E.2d 462 (Ga. 2004)
Counsel was ineffective in
aggravated battery case for failing to recognize and adequately advise
the defendant concerning a valid double jeopardy claim prior the defendant’s
guilty plea on the charge. The defendant was involved in a fight. He was
initially charged in municipal court and plead guilty to disorderly conduct
by fighting and public drunk. He was sentenced to probation. He was subsequently
indicted for aggravated battery, arising from the same fight, and additional
charges. The defendant accepted the prosecution’s plea agreement to plead
guilty in exchange for a sentence of 20 years (10 in prison and 10 on probation)
for aggravated battery and concurrent sentences for the remaining offenses.
On the day of the plea, the defendant, who was functionally illiterate,
told counsel that he had been convicted in municipal court and asked why
he was charged with the same offenses. Counsel discussed the issue with
the prosecutor, who asserted that a double jeopardy claim would have no
merit. Counsel also verified the city court convictions, but assumed there
was no double jeopardy because the prior prosecution was under a municipal
ordinance rather than state law. Counsel thus advised the defendant that
a double jeopardy claim would be fruitless and would cause the state to
withdraw the plea recommendation and to seek greater punishment. Counsel’s
conduct was deficient because counsel did not adequately research or evaluate
the issue and instead relied on the advice of the prosecutor and her own
misunderstanding of the law when the defendant did have a viable double
jeopardy claim. Prejudice was found because, but for counsel’s error, the
defendant would not have pled guilty to the charge of aggravated battery.
Heath
v. State
601 S.E.2d 758 (Ga. Ct. App. 2004)
Counsel
ineffective in injury by vehicle case for wholly failing to prepare or
investigate prior to advising the defendant to plead guilty. The defendant
had no memory of the collision, but he and his niece advised counsel
that a co-worker may have been driving. Counsel did not investigate,
conduct any research, or even consult with the defendant in person during
the 13 months between arraignment and plea. Prejudice found because the
defendant would not have plead guilty if counsel had performed adequately.
State v. Henderson
93 P.3d 1231 (Mont. 2004).
Counsel ineffective in drug case for failing to adequately consult
with client, investigate, or conduct any research prior to advising
defendant to plead guilty. Counsel "did nothing more than request a plea
agreement and facilitate the conviction of his client without a trial."
Prejudice found because there was at least a colorable argument and the
defendant maintained his innocence in Alford plea. Had counsel
performed adequately, the defendant would not have entered a guilty
plea.
Heyward v.
Humphrey
592 S.E.2d 660 (Ga. 2004).
Counsel was ineffective in aggravated assault case for failing to
adequately investigate prior to advising the defendant to plead guilty
and failing to advise the defendant to withdraw from the plea agreement
once it became apparent in the plea hearing that the state’s case was
unraveling. The defendant was charged with shooting a lounge owner. The
state’s case depended on the victim and four eyewitnesses. At the plea
hearing, the prosecutor disclosed that one of these witnesses had given
a written statement asserting that the alleged victim drew his weapon on
the defendant before the defendant fired. The state also disclosed that
one of the witness’ could not be located even though he had a probation
violation charge pending. Another witness was reluctant to testify and
failed to appear the last time the case had been scheduled. Another
witness had recanted her initial version of events. Even the alleged
victim was reluctant to testify. Despite this information, counsel did
not advise the defendant to withdraw from the plea agreement. Counsel’s
conduct was deficient in failing to investigate and to pursue the
defense of justification prior to the plea hearing. Even during the
hearing, counsel did not attempt to subpoena the witness that had stated
the victim pulled his weapon first. There could be no valid strategy for
counsel’s action because counsel’s action "was based on a lack of vital
information." Counsel’s conduct was also deficient in failing to
reassess the plea agreement and advise the client to withdraw from the
agreement when it was apparent that the state would have grave
difficulties if the defendant went to trial. Prejudice found because, if
counsel had adequately investigated and adequately advised the
defendant, the defendant would have insisted on going to
trial.
2003: State v. Ligtenberg
2003
WL 22410334 (Wis. Ct. App. Oct. 23, 2003) (unpublished)
Counsel was ineffective in fifth offense
operating while intoxicated case for failing to investigate and
challenge the use of one of the defendant’s prior convictions for OWI
because the Defendant had not validly waived his right to counsel during
that proceeding. The defendant was prejudiced because he could have
successfully challenged the use of that conviction as a penalty
enhancer. Even though the Defendant requested solely a remand for
resentencing on a misdemeanor fourth OWI offense, the court rejected
this and set aside the defendant’s guilty plea.
Cordes v. State
842
So. 2d 874 (Fla. App. 2003
)
Counsel was ineffective in felony driving-related charges case for
advising the defendant to enter a plea of no contest to five felony
charges. The charges ranged in date from 1990 to 1998 with one charge
being a misdemeanor and five being felony charges. The defendant,
relying on counsel’s advice, entered an open plea of no contest to all
of the charges. If counsel had adequately investigated or pursued a
defense of statute of limitations, two of the felony charges would have
been prohibited by the statute of limitations. One of the felony charges
was wrongly charged as a felony and this count was voluntarily dismissed
by the state in post-conviction. With respect to the remaining two
felony charges, the record was insufficient to establish whether these
charges were prohibited by the statute of limitations, but these charges
also arguably were prohibited. Counsel’s conduct was deficient because
the face of the information revealed the statute of limitations
problems. The defendant was prejudiced because he would not have entered
a plea of no contest to the felony charges had counsel investigated and
adequately advised him.
2002:Melton v. State,
987 S.W.2d 72 (Tex. Ct. App. 1998)
Counsel ineffective in plea to armed
robbery case for failing to adequately investigate prior to advising the
defendant to plead guilty. Defendant was arrested and told counsel he
wanted to plead not guilty because he was innocent. Based on state
representation that there "might" be a videotape, counsel informed
defendant either that there was a videotape or, at a minimum, might be a
videotape with the defendant on it committing the robbery. Because the
defendant was an alcoholic with an extensive history of black outs, he
took the defense counsel at his word and assumed that he must be guilty,
so he pled guilty. If counsel had investigated, however, he would have
discovered that there was no videotape at all and no indication that
there ever had been. Prejudice found because defendant would not have
plead guilty, as is evidenced by his insistence on not guilty plea until
counsel told him of alleged videotape.
1996: State ex rel. Strogen v. Trent,
469 S.E.2d 7 (W. Va. 1996)
Counsel ineffective in murder case
failing to adequately investigate the circumstances surrounding the
defendant's confession and failing to move to suppress the statement
prior to advising the defendant to plead guilty.
1995: Copas v. Commissioner of Correction,
662 A.2d 718 (Conn. 1995) (affirming 621 A.2d
1378 (Conn. App. Ct. 1993))
Counsel ineffective in murder case for
advising defendant to plead guilty without an agreement. Counsel was a
self-described tax and corporate law specialist who did not understand
(and thus did not advise defendant) that a mental status defense could
be presented which did not rise to the level of insanity. Counsel knew
of defendant's long history of mental, emotional, and substance abuse
problems but did not request an independent evaluation which would have
revealed that defendant suffered from alcohol and cannabis abuse,
atypical impulse control and a mixed personality disorder which caused a
severely diminished capacity to control his behavior at the time of the
offense. The lower court had also found counsel ineffective in
sentencing for failing to point out inconsistencies in two mental health
evaluations conducted at different times in the proceedings and failing
to present mitigation evidence or family member testimony on behalf of
defendant.
State v. Carr,
665 So. 2d 1234 (La. Ct. App. 1995)
Counsel ineffective in unauthorized
use of vehicle case for advising client already on probation to plead
guilty without conducting an investigation which would have revealed
that there was no evidence against the defendant other than the fact
that he was a passenger in the vehicle which was insufficient to sustain
a conviction.
Diaz v. State,
905 S.W.2d 302 (Tex. Ct. App. 1995)
Counsel ineffective in drug case for
not interviewing witnesses and arresting officer; accepting the
approximate weight and contraband nature of substance without an
independent examination; advising the defendant to plead guilty without
a deal after the state rejected plea offer; telling defendant he would
get probation (got 54 years); and not personally explaining various
waivers and documents to non-English speaking defendant despite telling
court that he had.
1993: People v. Andretich,
614 N.E.2d 489 (Ill. App. Ct. 1993)
Counsel ineffective for failing to
investigate prior to advising defendant to plead guilty to theft when
investigation would have revealed that defendant's actions did not
amount to a criminal offense.
1991: Williams v. State,
596 So. 2d 620 (Ala. Crim. App. 1991)
Trial counsel ineffective where he did
not meet with client until day before scheduled trial, never discussed
case with client, and did not prepare to try but did not request
continuance until morning of trial. When continuance was denied, counsel
told defendant to sign forms to enter plea agreement without explaining
forms and told defendant that if he did not sign forms counsel would not
represent him.
Smith v. State,
565 N.E.2d 1114 (Ind. Ct. App. 1991)
Counsel ineffective in two thefts case
for failing to investigate the availability of the two alleged victims
and inform the defendant prior to his guilty plea that one victim was
dead and the other could not be located.
Haynes v. State,
790 S.W.2d 824 (Tex. Ct. App. 1990)
Trial counsel ineffective in evading
arrest case for failing to investigate prior to defendant's nolo
contendere plea when defendant wanted to go to trial and investigation
would have revealed witnesses who would have cast doubt on whether
police had probable cause to stop the defendant's
vehicle.
1989: State v. Taylor,
535 N.E.2d 161 (Ind. Ct. App. 1989)
Counsel ineffective in murder case for
advising defendant that possible sentences were only 50 years or life
which induced defendant to plead guilty under 50 year deal. Actual
minimum sentence was 30 years. Counsel also failed to interview key
state witness when he would have discovered that state witness had
recanted and said he lied in statement because cops threatened to charge
with murder.
1988: Sherrill v. State,
772 S.W.2d 60 (Tenn. Crim. App. 1988)
Counsel ineffective when counsel did
not meet with the defendant until 15 minutes prior to trial and then
advising defendant to plead guilty without ever consulting with
defendant or investigating the
case.