Ineffective assistance of counsel

Hardwick v. Sec'y, Fla. Dep't of Corr., 803 F.3d 541 (11th Cir. 2015)

Failure of defense counsel to present mitigation evidence regarding defendant’s history of mental illness in sentencing phase of murder trial was prejudicial

Background: After affirmance of his state murder conviction and death sentence and denial of state post-conviction relief, John Gary Hardwick, Jr. petitioned for federal habeas relief. Hardwick based his claim of ineffective assistance on his counsel’s failure to conduct a professionally reasonable mitigation investigation regarding his mental health during the penalty phase, and that it was reasonably probable that he would not have been sentenced to death but for this deficient performance. After an initial denial followed by remand and an evidentiary hearing, the United States District Court for the Middle District of Florida determined that Hardwick’s counsel had been ineffective at the penalty phase of his trial and set aside his capital sentence.

Holdings: The Eleventh Circuit Court of Appeals affirmed, holding that Hardwick was entitled to a writ of habeas corpus setting aside his capital sentence and requiring the imposition of a life sentence, unless the State provided him with a new penalty phase. Although trial counsel’s decision not to present mitigating evidence at the penalty phase of a capital trial is not per se ineffective assistance, the strategic choice not to present mitigating evidence must be objectively reasonable. Here, as in Saranchak, there were several “red flags” that should have signaled to counsel the need to conduct a life-history investigation, to interview family members, and provide the information to a mental health expert.

Found in Found in DMHL Volume 34, Issue 4

Mitigation Evidence and Ineffective Assistance of Counsel

Salazar v. State, No. SC13-1233, 2016 WL 636103 (Fla. Feb. 18, 2016)

In a first degree murder case in which the defendant received a death sentence, the failure of defense counsel to investigate and present mitigation, including evidence regarding the defendant’s traumatic childhood and low intellectual functioning, sufficiently “undermined” “confidence in the outcome” so as to warrant remand for new hearing.

Background: After a jury trial, Neil Salazar was convicted of first-degree murder and related crimes and sentenced to death. The Supreme Court of Florida affirmed both the conviction and the death sentence. Salazar appealed and petitioned for a writ of habeas corpus. The basis of the appeal was that Salazar’s trial counsel was deficient and had failed to investigate his background and intellectual functioning and present mitigation evidence at the penalty phase.

Holdings: The Supreme Court of Florida denied Salazar’s habeas petition, but they remanded the case for a new penalty phase, holding that Salazar’s trial counsel had provided ineffective assistance at the penalty phase. The court held that Salazar had demonstrated both deficiency and prejudice in regard to his trial counsel’s performance at the penalty phase. Specifically, the court found that there was a reasonable probability that the result would have been different if trial counsel had presented evidence regarding Salazar’s low IQ, adaptive deficits, head injury, and family history.

Notable Points:

Because the known evidence would lead a reasonable attorney to investigate further, counsel’s failure to do so was objectively unreasonable: Salazar’s trial counsel was deficient—an element of the ineffective assistance claim—in failing at the penalty phase to investigate Salazar’s background and intellectual functioning. Specifically, a psychologist’s report from the defendant’s preliminary evaluation had directly informed trial counsel of defendant’s mental health problems and possible brain damage. Given this information, it was objectively unreasonable for Salazar’s trial counsel not to investigate further.

Counsel’s failure resulted in prejudice at the penalty phase: The Supreme Court of Florida also held that Salazar had been prejudiced by his trial counsel’s failures in the penalty phase. Considering the additional mitigation evidence relating to Salazar’s intellectual functioning, low IQ scores, adaptive deficits, childhood head injuries, and family history, there was a reasonable probability that hearing this additional evidence at the penalty phase would have led to a result other than the imposition of a death sentence.

Found in Found in DMHL Volume 35, Issue 1

Sex Offenders; Post-Sentence Civil Commitment

State v. LeMere, 879 N.W.2d 580 (Wis. 2016)

Wisconsin Supreme Court rejects offender’s post-conviction motion to withdraw his guilty plea to child sexual assault charges, where offender argued his attorney’s failure to advise him that he could be civilly committed as a violent sex offender violated his Sixth Amendment right.

Background: LeMere was charged with one count of first-degree sexual assault of a child under the age of 13, one count of second-degree reckless endangerment, and one count of strangulation and suffocation. A status conference became a plea hearing when counsel for the parties informed the court that they had negotiated a plea agreement. Under the agreement, LeMere agreed to plead guilty to first-degree sexual assault of a child under the age of 13 in exchange for the other two charges against him being dismissed. The court then informed LeMere about the consequences of a guilty plea, including the possibility of continued civil commitment after the completion of his criminal incarceration. LeMere indicated that he understood and the court noted that LeMere appeared capable of understanding the proceedings. At a subsequent sentencing hearing, the court ordered 30 years of initial confinement followed by 15 years of extended supervision. One year later LeMere filed a motion to withdraw his guilty plea and vacate his conviction. He argued ineffective assistance of counsel because he was not informed of the possibility of lifetime civil commitment as a sexually violent person. The circuit court denied the motion and the court of appeals affirmed.

Holding: On appeal, the Wisconsin Supreme Court affirmed, holding that the failure to inform a defendant of the possibility of lifetime civil commitment does not form the basis of a claim of ineffective assistance of counsel and is not a violation of the Sixth Amendment.

Notable Points:

Failure to inform about the possibility of lifetime civil commitment as a sexually violent person distinguished from failure to inform about possibility of deportation: The Wisconsin Supreme Court distinguished this case from the failure to inform a defendant about the possibility of deportation, which the U.S. Supreme Court ruled was a violation of the Sixth Amendment. The Wisconsin Supreme Court emphasized that unlike deportation, civil commitment is not automatic or penal in nature. The court also explained that civil commitment is not meant to be permanent and is rehabilitative in nature.

Found in DMHL Volume 35, Issue 2

Ineffective Assistance of Counsel in Death Penalty Case

Daniel v. Commr., Alabama Dept. of Corrections, 822 F.3d 1248 (11th Cir. 2016)

Failure of defense counsel to adequately investigate and present at penalty hearing the deprivations and traumas of the defendant’s past as mitigation evidence may constitute ineffective assistance of counsel and entitle defendant to a new penalty phase hearing.

Background: Renard Daniel was convicted of murder and sentenced to death. He filed for habeas corpus alleging ineffective assistance of counsel at the guilt and penalty phases of his trial. Daniel claimed that counsel was deficient in investigating and presenting mitigating evidence and rebutting aggravating evidence. Daniel’s childhood included witnessing his mother kill his father when he was three years old, being sexually abused by his stepfather for several years beginning when he was nine years old, and a history of borderline intellectual functioning. Daniel’s petition claimed that the sentencing judge and jury heard none of these details, and that the failure to present this evidence also prejudiced the outcome of the penalty phase of his trial. The District court, for procedural and substantive reasons, denied his claim. Daniel appealed to the Circuit court.

Holding: The Second Circuit looked to the American Bar Association (ABA) guidelines to evaluate the standard for investigations into mitigating evidence. The ABA suggests that investigations “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” The court found that Daniel’s trial counsel made no meaningful contact with Daniel’s mother, siblings, or mental health professionals and actually ignored the family’s request to inform him of Daniel’s extensive history of intellectual disabilities and being sexually abused. The court found that any reasonable and competent attorney would have made a deeper investigation of Daniel’s history, and thus there was enough evidence to bring an ineffective assistance of counsel claim. The court noted that evidence of mental problems, childhood abuse, and non-violent characterizations of past crimes is inherently mitigating and could change the jury’s mindset. It also found that the district court’s conclusion that Daniel failed to plead how he was prejudiced was an unreasonable application of Supreme Court precedent and federal law.

Found in DMHL Volume 35, Issue 2