United States Supreme Court Cases

 

MISCELLANEOUS

 

U.S. Court of Appeals Cases

 

2005: United States v. Scott, 
394 F.3d 111 (2nd Cir. 2005)

The indictment in illegal reentry case was dismissed because counsel was ineffective in the underlying deportation case for failing to apply for a waiver of deportation even though the immigration judge stated that he believed the defendant was eligible for a waiver and instructed counsel to file an application. Prejudice was found because the defendant could have made a strong showing that he was eligible for a waiver and his subsequent criminal charges were irrelevant because they would not have been considered at the time.

1989: Harding v. Davis, 
878 F.2d 1341 (11th Cir. 1989)

Defense counsel rendered IAC by failing to object when the trial court directed a verdict against his client. Prejudicial error per se.

 

U.S. District Court Cases

 

2006: Ferensic v. Birkett, 
___ F. Supp. 2d ___, 2006 WL 2473469 (E.D. Mich. Aug. 25, 2006).

Counsel ineffective in armed robbery and home invasion case for failing to secure the presence of two defense witnesses to support the defense of mistaken identity. The trial court had ordered that defense expert reports be provided to the state two months prior to trial but the defense provided an expert's report late, which resulted in the court excluding his testimony on the unreliability of eyewitness identifications. A second witness, who had been near the crime scene and gave a description consistent with the victims' initial description (which they denied at trial) and inconsistent with the defendant, did not testify because counsel did not subpoena him and had misjudged the time he would be needed, but the court refused to adjourn the proceedings to obtain his presence. Counsel's conduct was deficient and not a matter of trial strategy because he failed to subpoena the witnesses despite arguing in favor of them months before trial. Counsel also had four months to comply with the trial court's disclosure order but did not secure a timely report from the expert. "It was defense counsel's ‘responsibility to chase up the expert to ensure compliance with the [trial court's] order.'" At a minimum, counsel should have requested an extension from the trial court to obtain the report. Prejudice found because the excluded testimony would have provided substantial defense evidence. The prejudice was exacerbated because counsel had informed the jury during the opening that they would testify and the trial court refused to instruct the jury that they were not permitted to testify due to the court's actions. The jury thus might have concluded that the witnesses were unable or unwilling to testify as expected. The state court used the wrong standard in analyzing prejudice "by focusing on the sufficiency of the evidence" to convict rather than the reasonable probability of a different result. This was an unreasonable application of Strickland.

 

2005: Higgins v. Renico, 
362 F. Supp. 2d 904 (E.D. Mich. 2005)

Counsel was ineffective in murder case for failing to cross-examine the key prosecution witness because of lack of preparation. The defendant and the state’s witness were the only people present when the victim was shot. The defendant made a statement, which was admitted in evidence, that the state’s witness shot the victim. The witness, who said that the defendant was the shooter, did not show up for his scheduled testimony during trial and his preliminary hearing testimony was read into the record. Two days later, the witness showed up and testified. Counsel informed the court that he had been provided with the witness’ two prior statements several days before but had not reviewed the statements or prepared for cross-examination. The court recessed for 30 minutes, but counsel informed the court that he still was not prepared. The court would not delay longer and counsel asked no questions on cross-examination. The state court made a conclusory finding that there was no prejudice but did not address the issue of deficient conduct so the District Court reviewed this issue de novo. Counsel’s conduct in failing to adequately prepare for cross-examination was deficient and not justified by strategy. Prejudice was found because the witness at issue was the only witness that directly implicated the defendant as the shooter. There was no cross even though the witness (1) had a strong interest in the jury’s finding since he was the only other person present at the time of the shooting; (2) had made two prior statements with inconsistencies; and (3) had gunshot residue on his hands after the shooting. In addition, the failure to challenge the testimony left the impression that the defense accepted the testimony. Likewise, the witness testified that he had not shown up earlier in the trial because he had been threatened by “people” and the failure to cross-examine left the impression that the threats came from the defendant when there was no evidence to support that inference. Finally, the preliminary cross-examination testimony was inadequate because counsel had been conducting only non-confrontational discovery at that time. In its AEDPA analysis, citing Strickland, the court held that the state court’s finding of no prejudice was an unreasonable application of Supreme Court precedent.

 

Military Cases

 

 

2006: United States v. Edmond, 
63 M.J. 343 (C.A.A.F. 2006).

Counsel ineffective in conspiracy, larceny, and other offenses case for failing to secure the testimony of a subpoenaed defense witness. The alleged conspiracy and larceny concerned two cellular telephones. The subpoenaed witness had also been charged but had been discharged from the military in lieu of a court-martial. He would have testified that there was no conspiracy and that he and the accused, who had both worked in the supply room, believed that they were authorized to obtain the cell phones and that they had intended to return them to the unit but kept the phones after the unit said they no longer wanted the cell phones. When the witness arrived for court, the prosecutor warned him of the possibility of a perjury charge if he testified falsely. When the prosecutor told defense counsel that the witness did not want to testify, counsel did not speak to the witness before he was allowed to leave but instead entered into a stipulation that the witness was invoking his Fifth Amendment rights. Counsel's conduct was deficient and prejudicial because the witness not only did not testify but the implication of the stipulation to the panel members was that the accused's coconspirator could not testify without incriminating himself. The case was remanded either for dismissal of the larceny and conspiracy charges and reassessment of the sentence or for a rehearing.

2000: United States v. Paaluhi, 
54 M.J. 181 (C.A.A.F. 2000)

Counsel ineffective in rape, sodomy with a child, and indecent acts with child case where defense counsel effectively advised accused to confess to government psychologist that he committed charged offenses, in hopes of obtaining favorable sentencing testimony from psychologist. This occurred when communications made by a member of the military to a psychotherapist were not privileged on the basis of the federal civilian psychotherapist-patient privilege. [Military law began recognizing the privilege on November 1, 1999.] Counsel also failed to protect the accused's statements from disclosure by having psychologist assigned to defense team as required by military attorney-client-privilege law. Prejudice found because defendant's confession to psychologist was admitted during the trial. Without the confession, the government's case "was not overwhelming," since it was based only on victim's videotaped interview and out of court statement's presented through testimony of social worker.

1996: United States v. Sorbera, 
43 M.J. 818 (A.F. Ct. Crim. App. 1996)

Counsel ineffective in indecent act with daughter case for advising client pretrial to call ex-wife and offer her child custody and support and explain the ramifications if their daughter continued to lie and testify against him. The phone call resulted in an additional charge of obstruction of justice and that defense counsel fired. At trial, defendant acquitted of indecent acts but convicted of obstruction of justice for call made on advice of counsel.

1989: United States v. Ankeny, 
28 M.J. 780 (N.M.C.M.R. 1989), aff'd on other grounds, 30 M.J. 10 (C.M.A. 1990)

Trial counsel ineffective where the accused came up positive on a urinalysis test and during a pretrial meeting with the assistant staff judge advocate (prosecutor), trial counsel revealed that prior to the urinalysis, the accused had solicited another officer to falsely substitute his urine for that of the accused. The accused was subsequently charged and convicted of using cocaine and soliciting a fellow officer to be derelict in his duties when the Government had no prior knowledge of the solicitation charge and probably never would have but for counsel's disclosure.

 

 

 State Cases

 

2006: In re Jasso
48 Cal. Rptr. 3d 684 (Cal. App. 2006).

Counsel ineffective in conspiracy to transport drugs into prison case for failing to object to the defendant's shackling and prison uniform before the jury. Counsel did not object because he said it was routine in prison cases for the defendant to be shackled and in prison clothes and because the jury learn that he was a prisoner at the time of the alleged offenses. These responses were not tactical reasons and the failure to object was unreasonable because "[p]rison garb is inherently prejudicial."

[A]lthough the jury inevitably would learn that defendant was a prison inmate, that fact does not erase the visual, psychological, and emotional impact of seeing a defendant shackled, wearing a prison jumpsuit, day after day or negate the natural tendency to wonder and perhaps worry about why shackles are necessary and whether defendant is a violent and dangerous criminal.

The shackles were also embarrassing and uncomfortable for the defendant and, therefore, affected the defense. The court's instructions at the conclusion of the trial did not cure the prejudice especially since the evidence against the defendant on some of the charges "was especially weak."

In re R.K.S.
905 A.2d 201 (D.C. 2006).

Juvenile adjudicated for unauthorized use of motor vehicle and receiving stolen property was completely denied counsel and prejudice was presumed under Cronic due to counsel's refusal to participate in the first day of trial after being denied a continuance. While counsel refused to participate, the juvenile's statement to police and an officer's testimony that the juvenile was a passenger in the car were admitted without objection or even cross-examination.

Smith v. State
394 A.2d 184 (Md. 2006).

Counsel ineffective in criminal contempt case. The witness, an inmate, was called to testify as a prosecution witness in another case. When the witness sought to invoke his Fifth Amendment right against self-incrimination, the court appointed counsel for him. Counsel informed the court, after discussions with the witness and the prosecutor, that he had advised the witness that he could find no legitimate basis for assertion of the Fifth Amendment privileges. The witness continued refusing to answer questions, although not on the asserted basis of the Fifth Amendment. The court found him in contempt and subsequently imposed a sentence of five months. Counsel's conduct was deficient because counsel, in violation of the attorney-client privilege, disclosed the nature of his advice to the witness and advised the trial judge as to his opinion regarding the application of the Fifth Amendment. In essence, counsel had a conflict due to his attempt to advise the witness and be a friend of the court. He could not do both here. Prejudice found because the trial court relied on counsel's statement in finding that the witness did not have a Fifth Amendment privilege.

Commonwealth v. Downey
842 N.E.2d 955 (Mass. App. 2006)

Counsel had an actual conflict of interest and was ineffective due to counsels’ agreements with a television company to record with concealed microphones without the defendants’ consent during the defendants’ trial for second degree murder. Under state law, prejudice was presumed due to counsels’ divided loyalties. Counsel was also ineffective and prejudice was found because the defendants discovered the existence of the microphones during the course of the trial. After that point, the defendants were intimidated and “were not as forthcoming with their attorneys as the otherwise might have been.”

2005: Jackson v. Washington
619 S.E.2d 92 (Va. 2005).

Counsel was ineffective in burglary and grand larceny case for failing to object to the defendant being triad before a jury while wearing a jail-issued “jumpsuit” after the jail misplaced the defendant’s civilian clothes and failed to replace them or allow him an adequate opportunity to obtain new clothing. There was no valid strategy where counsel did not object simply because he believed the defendant wanted to go to trial quickly because counsel new that the defendant also objected to being tried in jail clothing and that his credibility would be a critical issue during the trial. Prejudice found because “[r]eason and common human experience dictate, at a minimum, that the accused’s appearance in jail clothes is such a badge of guilt that it would render an accused’s assertion of innocence less than fully credible to the jury.”

2004: State v. Guerard
682 N.W.2d 12 (Wis. 2004)

Counsel ineffective in armed robbery and burglary case for failing to adequately seek admission of the defendant’s brother’s statements against penal interest. The state relied on the victim and an eyewitness, who identified the defendant as the perpetrator. The defendant’s brother confessed to his sister and a defense investigator though that he was the perpetrator. During trial, the brother invoked his right to silence. Counsel initially sought to admit the brother’s confession to his sister, but did not pursue this or inform the court about the brother’s additional confession to the defense investigator. Counsel’s conduct was deficient because the brother’s statements against penal interest were sufficiently corroborated (by their repetition to several people) to be admissible. Prejudice found because the defense sought to establish that the brother and not the defendant committed the crimes. If the jury had heard the brother’s confessions, there was a reasonable probability of a different result.

State v. Lamb
804 N.E.2d 1027 (Ohio Ct. App. 2004).

Counsel ineffective in sexual imposition plea for failing to object to the trial court's failure to inform the defendant, at the time of his guilty pleas, that he was subject to a mandatory five-year post-release control period, due to a prior felony sex offense and the determination that he was a sexually oriented offender. Prior to accepting a guilty plea, state law requires the trial court to inform the defendant of the maximum penalty involved. Post-release control is part of an offender's sentence. Thus, the trial court's failure to provide any explanation of the mandatory period of post-release control at the time of the plea was error. Without the proper instruction, the defendant here could not have fully understood the implications of the plea. Counsel=s conduct was deficient and prejudicial in failing to object to the trial court=s error.

2003: Schnelle v. State
103 S.W.3d 165 (Mo. Ct. App. 2003 )

Counsel was ineffective in assault case for failing to object to the trial court’s striking of the defendant’s entire testimony because the defendant refused to answer a question on cross examination concerning one of his prior criminal convictions. The defendant’s theory at trial was one of self-defense and that he believed that the alleged victims were trying to rob him. The defendant testified in his own defense, but his counsel did not ask any questions on direct examination about his prior convictions. During cross examination the defendant admitted that he had approximately twenty prior convictions, including a conviction in Kansas, but the defendant refused to answer the question of what his prior conviction in Kansas was for. The court informed the defendant that if he refused to answer the question, the prosecutor’s motion to strike all of his testimony would be granted. Trial counsel did not object and did not argue that the trial court could fashion a more appropriate sanction and, in fact, counsel actually stated that striking the entire testimony was the only available remedy. Counsel’s conduct was deficient because the case law was not clear and because the defendant’s sole defense depended on his own testimony. Counsel’s conduct was also deficient because the existing case law supported an argument that the defendant testimony should not be stricken in its entirety because the question he refused to answer was "of such a collateral nature that striking his entire testimony would not be the proper remedy." Prejudice was found because the defendant’s testimony was crucial to his theory of self-defense. The fact that a police officer testified about the defendant’s statements to him did not negate the reasonable probability that striking the defendant’s entire testimony affected the outcome of the case. Likewise, the fact that the defendant’s theory was presented in trial counsel’s opening statement did not negate the prejudice because opening statements are not evidence.

2002: Wertz v. State
349 S.C. 291, 562 S.E.2d 654 (2002).

Counsel ineffective in second degree burglary case for failing to request clarification of jury’s verdict with respect to the degree of the burglary conviction where the jury acquitted the defendant of possession of a firearm during the commission of a violent offense but convicted on second degree burglary, which required a finding that the defendant was armed. Prejudice found because the jury was not instructed to specify the degree of burglary found or that a general verdict had the effect of finding petitioner guilty of the offense charged in the indictment.

Patrick v. State
562 S.E.2d 609 (S.C. 2002)

Counsel ineffective in burglary case for failing to request mercy from jury. Under state law at the time, jury in burglary case could find guilty (which meant, at the time, a mandatory life sentence) or guilty with a recommendation of mercy (which allowed judge to give a lesser sentence of as little as five years). Per se prejudicial. [Note: South Carolina abolished the "recommendation of mercy" verdict and the mandatory life sentence in 1997.]

2001: Owens v. State, 
750 N.E.2d 403 (Ind. Ct. App. June 14, 2001)

Trial and appellate counsel ineffective in burglary, robbery, and criminal confinement case for failing to object to the trial judge's failure to maintain the role of neutral and passive arbitrator. After both parties rested in a bench trial, the trial court questioned witnesses and requested that the parties conduct additional discovery. Two weeks later when they returned to court, the trial judge heard inadmissible hearsay from both a police officer, who was recalled, and the prosecutor, who was not even a witness, and heard evidence impeaching the defendant's alibi testimony. Prejudice found because when the parties rested, the judge was not convinced of guilt beyond a reasonable doubt and, thus, requested the additional evidence. Instead of ordering dismissal of the charges, however, the court only remanded for a new trial.

State v. Lopez
27 P.3d 237 (Wash. Ct. App. 2001), aff’d on other grounds, 55 P.3d 609 (Wash. 2002).

Counsel ineffective in assault and possession of a firearm case for failing to move for dismissal of the firearm charge where one element of the offense was a constitutionally valid predicate conviction and the state had not proven this element. Defense counsel later elicited testimony about a prior conviction for burglary from the defendant, which allowed the jury to convict.

State v. Aho, 
975 P.2d 512 (Wash. 1999)

Counsel ineffective in indecent liberties case because counsel failed to investigate effective date of child molestation statute and proposed instructions that permitted a conviction under the statute that was not in effect at the beginning of the charging period and, thus, not in effect at the time the crimes were committed.

1994: People v. Bailey, 
639 N.E.2d 1313 (Ill. App. Ct. 1994), appeal denied, 647 N.E.2d 1012 (Ill. 1995)

Trial counsel ineffective in prosecution under Sexually Dangerous Persons Act for successfully opposing state's motion to have court's psychiatrists conduct a reexamination of defendant. Ineffective because it had been two and a half years since evaluation, pertinent inquiry of dangerousness refers to time of court's decision, and the record was replete with defendant's good behavior during period while free on bond, thus counsel should have known that reevaluation could be favorable to defendant.

People v. Taylor, 
637 N.E.2d 756 (Ill. App. Ct. 1994), appeal denied, 655 N.E.2d 914 (Ill. 1995)

Ineffective for failing to correct trial court's mistake of fact during post-trial motion hearing which led the judge to rule erroneously.

State v. Edwards, 
507 N.W.2d 506 (Neb. Ct. App. 1993)

Counsel ineffective in joint trial for possession with intent to distribute crack for failing to object when co-defendant's counsel asked defendant about prior felony drug conviction and offered a certified copy of the prior conviction.

Banshee v. State, 
308 S.C. 369, 418 S.E.2d 313 (1992)

Trial counsel ineffective for successfully moving for dismissal of nonviolent charge of receiving stolen goods thereby leaving the jury with the extreme alternatives of convicting defendant of violent offenses (armed robbery, kidnapping, conspiracy, and possession of sawed-off shotgun) or acquitting him.

In re J.B.,
618 A.2d 1329 (Vt. 1992)

Counsel in juvenile sexual assault case ineffective for advising defendant and parents to cooperate with the police in interrogation, not accompanying them during interrogation, and not explaining right to silence and consequences of confession. Counsel did not consider whether the state might be willing to settle without litigation in light of the fact that the state's evidence, without the confession, was questionable.

1990: State v. Iowa Dist. Court for Polk County, 
464 N.W.2d 244 (Iowa 1990)

Counsel ineffective for consenting to sequestration of sex abuse defendant during the testimony of the alleged victim who was not a "child" within the meaning of the state statute authorizing separation of defendant and child victim.

1989: Nunn v. State, 
778 S.W.2d 707 (Mo. Ct. App. 1989)

Counsel ineffective where counsel called himself as a witness to testify concerning a prior inconsistent statement by state's witness which was surreptitiously recorded by counsel and when propriety of counsel's conduct was made an issue, counsel failed to move for a mistrial or request to withdraw.