This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Demings v. Nationwide Life Insurance, Co., affirming the dismissal of a proposed class action. Of note, the opinion was authored by Associate Justice (Ret.) Sandra Day O’Connor, sitting by designation.
UPDATE: LAst August, Jess Bravin had this piece on Justice O’Connor’s continuing service on the appellate bench.
The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United. The Court released another habeas decision instead. In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition. Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.
All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact. The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.
This is the second reversal of a Sixth Circuit decision granting a habeas petition this term. (The first was Bobby v. Van Hook.) Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith. Of note, all five cases involve the review of pro-defendant appellate decisions.
I previously blogged on the Spisak case here.
[NOTE: As initially posted, I inadvertantly omitted one of the cases.]
On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel. In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial. Judge Clay delivered the opinion of the court, joined by Judge Cole.
Judge Kethledge dissented from the court’s judgment. His dissenting opinion begins:
In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.
The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.
It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law. The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late. (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.
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.
This morning, in United States v. Cain, the U.S. Court of Appeals for the Sixth Circuit split over whether a sex offender convicted prior to the enactment of the federal Sexual Offenders Registration and Notification Act (SORNA) was required to update his sex offender registration before the Attorney General adopted regulations implementing the law’s registration requirement and specifying the applicaiton of the requirment to pre-SORNA offenses. Judge Rogers, joined by Judge Guy, held for the defendant, concluding there was no obligation to register prior to the adoption of the regulations. Judge Griffin dissented.
The law at issue was part of the Adam Walsh Child Protection and Safety Act of 2006. The Supreme Court already has one case this term concerning this law (United States v. Comstock). Could this make for a second?
This morning, at the U.S. Supreme Court, my colleague Michael Benza will argue on behalf of the respondent in Smith v. Spisak. He will argue that the U.S. Court of Appeals for the Sixth Circuit correctly granted a writ of habeas corpus to death row inmate Frank Spisak due to constitutionally defective jury instructions and ineffective assistance of counsel. The case raises a thorny AEDPA issue which has gotten most of the attention, but I think the ineffective assistance claim is more interesting. Basically, the case raises the question whether a closing argument can be so defective and counter-productive that it constitutes ineffective assistance of counsel. Quite a few prominent trial advocacty experts think so. If so, Spisak could be that case.
UPDATE: I have a PDF of the closing argument in the mitigation phase but I’m having trouble posting it. Check back to see if I’ve figured it out. Here is a PDF of the full closing from the mitigation phase of the trial.
Meanwhile, here’s an early report on the oral argument.
UPDATE: Here’s the transcript.
