When Ineffective Assistance Becomes Malpractice

Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases.  This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.  After all, for a capital defendant, effective assistance of counsel can be a matter of life and death.  Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel.  On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all.  But what of shoddy or negligent legal work?  Should that be sanctionable too?

Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.

The key facts are these.  Johnson was initially convicted in 1983 and sentenced to death.  A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his trial.  Specifically, Johnson’s initial attorney had failed to investigate Johnson’s background for potential mitigation evidence that could be presented to the jury.  The Ohio Supreme Court agreed, vacated Johnson’s sentence and ordered a new trial.

Johnson’s new attorney — the one who had successfully argued that Johnson’s initial representation was constitutionally inadequate — represented Johnson in the new trial.  Johnson was convicted and, once again, was sentenced to death.  Here is where it gets ugly.  For Johnson’s new attorney made the precise same error as his initial attorney: He made no effort whatsoever to find potential mitigation evidence for the penalty phase of the trial.   Thus, Johnson once again received ineffective assistance of counsel.  Indeed, according to the Sixth Circuit, Johnson’s representation the second time around was “more egregiously deficient” than in most prior cases.

The same attorney who secured that favorable decision from the Ohio Supreme Court, James Willis, also represented Johnson at the retrial. But, after arguing successfully that Johnson’s original attorney had been constitutionally ineffective in failing to present available mitigating evidence at the penalty phase of the proceedings, Willis himself committed the same grievous error. He introduced no mitigating evidence at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn statement to the jury, a statement in which the petitioner chastised the finders-of-fact at length for failing to find a reasonable doubt as to his guilt despite what he alleged were numerous weaknesses in the prosecution’s case.

In a series of affidavits submitted to the Ohio state courts in post-conviction proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted in convictions for aggravated murder and aggravated robbery, as well as a sentence of death – and speaking with Johnson himself. . . .

The petitioner’s counsel at his second trial reviewed the transcript of the first trial, noted the ineffective assistance provided by Johnson’s original attorney, and convinced the Ohio state courts that it violated constitutional standards of representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis admittedly interviewed no new or old witnesses, did not request or hire an investigator for the second trial, “felt there was no need for any new investigation into Gary Johnson’s case,” did not seek any discovery prior to the second trial, and presented no evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the disastrous initial trial a second time. Not surprisingly, the same result followed, and Johnson was once again sentenced to die at the hands of the state for his crimes.

What is particularly striking about this case is that Johnson’s attorney knew that the failure to investigate Johnson’s background constituted ineffective assistance of counsel, and could be grounds for a new trial.  So the only question was whether the attorney’s deficient representation was a product of incompetence or design.  Either way, Johnson should not suffer for his attorney’s malfeasance.  The attorney, on the other hand, should be subject to sanction.

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