The disagreements over death penalty litigation continue on the U.S. Court of Appeals for the Sixth Circuit. The latest round comes from the case of Poindexter v. Mitchell, in which a three-judge panel unanimously upheld a capital defendant's claim that he received ineffective assistance of counsel during the sentencing phase, but in the process produced four opinions.
In 1985, Dewaine Poindexter was convicted of two counts of aggravated murder, among other crimes, and sentenced to death. After years of litigation, Poindexter filed a federal habeas claim. Among other things, Poindexter alleged ineffective assistance of counsel during the sentencing phase becase his counsel failed to conduct an adequate investigation of potentially mitigating evidence. On Monday, the Sixth Circuit upheld this claim, vacating Poindexter's death sentence pending a new sentencing proceeding in a unanimous opinion authored by Judge Suhrheinrich.
The disagreement among the judges was not over whether Poindexter should prevail. All three judges on the panel -- Suhrheinrich, Daughtrey, and Boggs -- agreed that existing precedent was clear. They disagreed over whether it was wise -- and how existing precedents might influence strategic choices made by defense attorneys in capital cases.
Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:
To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that "ineffective" counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever. [citations omitted]Boggs further noted that whether "mitigating evidence" will reduce the likelihood that a capital defendant receives the death penalty is wholly speculative. The end result is that defense attorneys face a "moral hazard" in which any "sensible attorney" would be likely to reason as follows:
If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the "troubled childhood" variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.Boggs made clear that he was not accusing the attorneys in this (or any other) case of making such a judgment, "consciously or unconsciously." Nonetheless, he noted, "our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."
Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so she penned one of her own "in order to express my dismay at Judge Boggs's unjustified attack directly on both the cpiatal defense bar and indirectly on the members of this court." Daughtrey continued:
For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.According to Dughtrey, if there are problems with finality in death penalty litigationk it is more likely due to the fact that "those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both."
Not to be left out, Judge Suhrheinrich also wrote his own brief concurrence, though only to agree with Chief Judge Boggs.
I agree with Judge boggs. I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase. I do not share Judge Daughtrey's views of defense counsel in these types of case as my experiences have been different. [citations omitted]This is not certainly not the last episode of Sixth Circuit dissension in death penalty cases, so stay tuned for the next chapter.
Related Posts (on one page):
- Getsy Rehearing:
- Sixth Circuit Habeas Happenings:
- Are Irreconcilable Jury Verdicts Unconstitutional?
- More Death Penalty Dissension on the Sixth Circuit:
- Alley's "Alleged" Assault:
- Sedley Alley's Last-Minute Stay:
I'm sorry, but I've spent a lot of time working closely with death penalty defenders, and his remarks are a slap in the face.
What a display of ignorance and venom...
Can you, or Boggs, or anyone provide a single real-world example of a death penalty attorney who was deliberately ineffective in the hopes that the defendant would win on appeal???
It's ludicrous to think defense attorneys would behave this way.
If the attorney was incompetent during the penalty phase, but the court found that the incompetence was staged as a plan to help his client, then it would probably be ruled effective assistance (albeit unusual means). Of course, that would be nigh impossible to prove, and as Boggs notes, there's no hard proof that mitigation testimony actually reduces the sentence for the average criminal.
Unless I'm missing something, Judge Boggs isn't saying that any defense attorneys are pretending to be incompetent. To quote:
"While I do not asserty that the counsel in this or any other case made such a judgement, either consciously or unconsciously, I do note that our jurispridence has made such a line of reasoning virtually inevitable for any defense attorney."
Basically, it's something to think about. Where's the ignorance or venom?
Actually trial strategy decisions are up to the attorney, and are only incompetent if no reasonable attorney would adopt a similar strategy. Assuming the state could prove that incompetence was staged, I'd imagine the State's first citation would be Judge Bogg's assertion any sentient attorney would think about it. Therefore, not incompetent. But I agree with Steve (no P). The best strategy for a State looking to reduce death penalty incompetence is to provide competent attorneys. Of course, doing away with the death penalty would work too.
To prove a legal malpractice claim, doesn't the defendant have to show that the attorney's incompetent actions did him some sort of injury? In the hypothetical Judge Boggs is proposing, the injury would actually be lessened by ineffective assistance, and so he wouldn't be liable of legal malpractice (at least, at first blush).
That said, sanctions (whether from the state bar or another source) would seem to be the appropriate remedy already in place.
What is one's livelihood compared to the life of a client?
That's an interesting observation, especially since Boggs' concurrence, immediately after the phrase that presumably changed between drafts, invites the reader to compare the separate opinions and decide if Daughtrey's characterization is accurate. (Personally, I think that it is.) It would be interesting to find out, as I'm sure we never shall, where the back-and-forth cut off.
Note that in the game-theoreticals we're looking at, this would of course cause more churn in DP defenders, thus making the lot of them less competent over time.
My former law partner practiced for a time in VA and confirmed Markm's comments. The pay for appointed defenders was so low that incredible. Here the non-PD defenses are handled by contract, ranging from $25,000 to several hundred thousand (the last for attys who take several death penalty cases a year).
With regard Judge Bogg's comments -- I think he was saying, not that this manner of thing is done, but that under the caselaw, the most effective defense might be an ineffective one, and effective defenses might work only to increase odds of the defendant being executed. I have little doubt his math would be correct. Odds of swaying a jury, in the typically nasty death-eligible case, with "he had an abused childhood" don't seem too high.
This is not a civil malpractice claim. It's an ineffective assistance claim, and someone upthread correctly indicated that the governing standard is "no reasonable attorney" as applied to trial strategy.
Boggs' claim is particularly befuddling because, among other things, everyone knows that ineffective assistance claims almost always fail. As several people, Boggs is in space on the incentives facing a rational defense attorney. The likelihood of successfully pressing an ineffective assistance claim is such a tertiary variable in selecting strategy, Boggs' poing is a little like arguing that people don't go to baseball games for fear of getting hit with a foul ball.
But Boggs' himself doesn't really believe his own logic, which is why he retreats from the idea that the "payoff" would take the form of a successful claim, and instead suggests that at least an offender will be spared execution for many years (presumably, while the ineffective assistance claim is litigated). This is, of course, premised on the assumption that sub-optimal trial strategy would lead to longer postconviction litigation than optimal trial strategy. That assertion is utterly without empirical support.
In sum, this is just a disguised complaint against the result of cases like Strickland and Wiggins, and it does not represent a serious knock on ineffective assistance rules.
Assuming that is actually true,
1. in how many cases where appeals courts found that the atty had rendered ineffective assistance and reversed either or both of the original conviction or the death sentence, did the atty actually receive any discipline for it, and what was the discipline, disbarment, private reproval, take the ethics test...
2. what client whose murder conviction and/or death sentence have been reversed some 10-15 years down the road, facing retrial or resentencing or both with witnesses having died, memories faded etc., is going to sue the lawyer who made that reversal possible for malpractice?
The duty, and the incentive, for the anti-death penalty atty is to get the accused perp off, by any means necessary.
I think Judge Boggs is probably wrong in his critique of the substantive law . . . but it sure would have been nice if the response had been an analytical debate, not a judicial hissy fit.
Even if the ineffective assistance rule provides a slight incentive for sub-optimal trial strategy, that incentive is, by orders of magnitude, absolutely dwarfed by every other incentive (on both guilt and sentencing) to provide optimal assistance. And the cost of abandoning an ineffective assistance rule (or ratcheting up the standard) is that innocent people will be executed or guilty ones will nonetheless fail to receive an adequate sixth amendment guarantee. So who cares about the even more peripheral variable of how often sanctions are enforced against deliberately ineffective counsel. It just doesn't matter in the course of trial strategy. This is navel gazing, and it doesn't reflect any understanding of the thought process that defense attorneys go through.
Also, even assuming counterfactually that subsequent enforcement of deliberately ineffective assistance is a meaningful variable, you're incorrectly assuming that such enforcement would take the form of a malpractice lawsuit. That is incorrect. It would probably be a disciplinary action by the state bar.
Whether it was or was not deliberate is a matter of conjecture, but Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn. 1994), aff'd sub. nom 131 F.3d 1150 (6th Cir. 1997), cert. denied 523 U.S. 1133 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998), comes close. The federal courts' opinions demonstrate an egregious example of ineffectiveness in a death case. In affirming the federal district court's granting of habeas corpus relief, the Sixth Circuit opined that trial counsel "went so far as to express personal sympathy for the prosecution and shame for representing Rickman." 131 F.3d at 1160. The Sixth Circuit declined to reach any question of subjective bad faith on the part of trial counsel:
On retrial, Mr. Rickman and his codefendant (who had also been granted habeas corpus relief) were sentenced by the jury to life imprisonment.
That having been said, Judge Boggs' suggestion that able and conscientious defense attorneys in capital cases would risk their clients' lives by engaging in cynical calculation as to the speculative possibility of some reviewing court later granting relief is unfounded and reprehensible.
He may as well have pointed out that defense counsel can gain a strategic advantage by lying, subborning perjury, intimidating witnesses, and destroying evidence. And if he doesn't think anybody would actually do that, then what's the point of his argument?
Second, it is ignorant because it displays a complete lack of knowledge about how competent capital defense attorneys actually think. As Judge Daughtrey points out, nobody plays stupid games with their client's lives like this. Even assuming they were so disingenuous, it would be a patently stupid strategy to pursue.
Think about it: Boggs' math is demonstrably faulty. Why do so many IAC claims win? Because counsel is so often genuinely ineffective -- usually because they don't have the resources and experience to try a death penalty case.
If you wanted to test Boggs' premise with statistics, you'd have to compare the success of IAC claims where counsel actually had the wherewithal to put on a competent defense (but chose not to do so) with those cases where a truly competent defense was put on and IAC claims were denied.
This comparison would be a very different one, because no truly competent and well-funded attorney could fool an appellate court in the manner Boggs seems to think possible.
Then I don't see the point of the example. There's no indication that the attorney made a strategic choice not to provide an effective defense in the hopes his client would win on appeal.
There are many examples or attorneys put on a truly incompetent case, and even hurting the client deliberately. But that doesn't demonstrate any strategic choice to do so -- only that the attorney was ineffective.
That should be "otherwise competent defense attorneys." I have no doubt there are plenty of appointed counsel who are willing to ignore their duties under the law, but these aren't lawyers who would otherwise be effective counsel.
You may have also noticed that federal petition was granted. In other words, all three judges agreed that the ineffective assistance claim was meritorious. So, yes, it was a "rush" to execution in that the execution was not constitutional. Would have executed him in spite of a his meritorious claim?
I would invite you to sit in a felony court room on any given calendar call in an urban county. Look around at the attorneys. Listen to them. Some are remarkably good, some are so god awful bad you wouldn't want them defending a traffic ticket nonetheless defending your life. The bad part is criminal defense attorneys don't come with ratings so consumers know what their getting. Unfortunately, too, in many cases these walking definitions of IAC end-up in dp cases.
Indeed, by way of example, about 5% of those currently under death sentence are without counsel because counsel can not be located to represent these inmates. Recruiting counsel to take a case at trial is no easier. Sometimes the only ones that can be recruited are the walking Sixth Amendment violations.
With that said, most of the people I know doing full time capital work (at this point in my career dozens) gave up the opportunity to work in more lucrative areas of the law for a mere fraction of their earning potential, graduated at the top or near the top of their class, and are obsessed with giving the best defense possible to a client that the entire world hates. If they suspected a trial attorney intentionally rendered IAC they would report the attorney, and/or, more likely, blacklist them so they would never get work again.
- karl
Someone else may be assuming that, but not me. I am saying, and I said, the likelihood of a malpractice suit is nil, and the likelihood of bar discipline is only slightly higher than nil.
Those are assumptions on your part.
You can see that because a lot of these people are simply divorced from reality. They're about as qualified to speak about death penalty jurisprudence as I am to speak about insurance defense...
D = optimal defense
d = sub-optimal defense
say that P = conviction and death sentence.
then the cost of the malign scenario is going to be (D-d)*P, or the demin. that equation, (D-d) = change(P); in other words, changing from D to d increases the P, the likelihood of getting a death penalty on trial.
now assume that for a 50% decrease in d, you increase the likeliehood of IE by 5%. but by decreasing d by 50%, you increase the likelihood of a death sentence imposed at trial by 50%. but if a 50%d only translates to a 5% I.E., what rational lawyer would do that. what rational lawyer would accept a 50 percent drop in the likelihood of winning his case in order to secure a 5% likelihoo that he could create an ineffective assistance claim.
this does not happen. much of the material i've ssen on this thread involves testimony of lawyers that subsequently testify to their ineffectiveness in order to help their client, but that is a an attempt to do anything to help the client; it does not reflect what some think to be an admission that earlier tactics were deliberately ineffective.
He might be wrong -- I've tended to agree with him for a long time, given what passes for findings of ineffective assistance (see, for instance, last term's beyond-ludicrous Rompilla case), and given the fact that the items generally cited as potentially "mitigating" in these cases generally seem aggravating to me -- but demonstrating that requires, you know, demonstrating that. With evidence. Not feigning outrage about claims that were never made. ("Slap in the face"? Puh-lease. If your sensibilities are that easily offended, I would suggest less law, and more Sesame Street.)
Well, the obvious answer would be because anti-capital punishment judges are desperate to find any excuse, no matter how ridiculous, to overturn a death sentence, even when there's not the slightest shred of doubt as to guilt. See, for instance, this month's DiFrisco decision by the NJ Supreme Court, in which the court found that a 4-3 vote to uphold the death sentence in one hearing, plus a 5-2 vote to uphold the death sentence in another hearing, added up to a 4-3 vote against a death sentence. (I am not saying this is an IAC case; I am just illustrating what lengths anti-DP judges will go to.)
Even assuming a death row inmate made a sympathetic complainant, state bars do not sanction attorneys for mere errors; sanctions are only forthcoming for willful misconduct. (And severe sanctions come only for theft of client funds.) And as for malpractice, good luck finding an attorney to take that one. Among other problems, what are the damages?
I read what he wrote, and it's disingenuous. If he doesn't think anbody will actually act this way, then what difference does it make? Why bother to mention it? How does it imply there's something wrong with the jurisprudence?
"He might be wrong [...] but demonstrating that requires, you know, demonstrating that. With evidence. "
Seems to me he's the one who ought to demonstrate it with evidence. It's his assertion, written into his opinion. Why would you assume he's right and shift the burden to me to prove him wrong?
No matter what the ill, sooner or later, someone will always blame it on activist judges.
Kovarsky, your argument is flawed because you don't understand that a conviction and death sentence come in two separate phases. You can give a fully optimal defense in the guilt phase (thereby keeping the risk of a conviction as low as possible) while giving a sub-optimal defense in the penalty phase (thereby increasing the chance of winning on IE grounds).
I'm not going to get trapped in this "aha - but this is my job" gotcha stuff, but rest assured that I understand the difference between guilt and sentencing phases of a capital proceeding. And IE claims can go to either one. An my math would apply with equal force even if your incorrect assumption - that this dynamic is stronger in the punishment phase - were true. In fact, one of the more frequent IE claims is failure to investigate ballistics or forensics properly on the guilt/innocence phase.
boggs' opinion is infuriating because it is so obviously disingenuous.
Ditto for qualified immunity. It may be wise or unwise, but it doesn't create an incentive for government officials to misbehave. It merely potentially fails to provide a disincentive.
Not in the least. Your math was based upon the (probably correct) assumption that the potential gain is outweighed by the huge risk, because (as you state) "the fact is that the single best predictor for an execution is a conviction." The risk isn't the same at the sentencing phase.