Ineffective assistance of counsel

United States v. Laureys, 866 F.3d 432 (D.C. Cir. 2017)

D.C. Circuit reverses defendant’s conviction for attempted sex crime involving a minor due to defense counsel’s failure to properly consider mental health expert findings regarding defendant’s mental condition, with the result that defense counsel wrongly pursued his own unsupported theory and neglected expert evidence regarding defendant’s capacity to form the requisite criminal intent.

Found in DMHL Volume 36, Issue 3

Competency to be executed

Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017)

Fifth Circuit finds petitioner who was convicted of murder and sentenced to death has a due process right to a hearing and funds for counsel and mental health experts to pursue a claim that he is not competent to be executed due to his serious mental illness.

Found in DMHL Volume 36, Issue 3

Sexually Violent Predators and Ineffective Assistance of Counsel

In re Chapman, No. 27705, 2017 S.C. LEXIS 29 (Feb. 15, 2017)

The South Carolina Supreme Court rules that a person has a due process right to effective assistance of counsel during civil commitment proceedings for sexually violent predators, but that a claim contesting such commitment due to ineffective assistance of counsel must be raised in a habeas corpus petition as South Carolina statutory law does not provide for making such a claim on direct appeal.

Found in DMHL Volume 36, Issue 1

Civil Commitment, Rights Waiver

Matter of S.M., 403 P.3d 324 (Mont. 2017)

The Supreme Court of Montana upheld a statute preventing defendants from being able to waive their right to counsel in civil commitment proceedings, finding it does not violate the Sixth or Fourteenth Amendments to the Constitution.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

State v. Morrison, 236 So.3d 204 (Fla. 2017)

The Supreme Court of Florida denied a new evidentiary hearing for intellectual disability, granted a new penalty phase where counsel was ineffective in its penalty phase investigation, and withheld a new guilt phase because counsel was not ineffective in its guilt phase investigation.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance

Ellerbee v. State, 232 So.3d 909 (Fla. 2017)

The Supreme Court of Florida vacated a death sentence and granted a new penalty phase to the defendant because his counsel did not provide effective assistance at trial and the non-unanimous jury verdict regarding the sentence may have violated the Sixth Amendment.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

Reeves v. Alabama, 138 S. Ct. 22 (2017)

The Supreme Court of the United States denied certiorari to hear a case involving ineffective assistance of counsel based on not obtaining psychological evaluation for intellectual disability. Of relevance here is the opinion of the dissenting Justices, who found that the Alabama Court of Criminal Appeals incorrectly imposed a rule requiring trial counsel to testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim.

Found in DMHL Volume 37, Issue 1

Virginia Capital Defendant Not Provided Ineffective Assistance of Counsel Just Because Defendant's Mental Health Expert Misdiagnosed Defendant

Bailey v. True, No. CR02-511 (E.D. Va. Apr. 15, 2003); 17(51) Virginia Lawyers Weekly 1288 (May 26, 2003)

The U.S. District Court for the Eastern District of Virginia refused to overturn the capital conviction of a defendant because of the purported ineffective assistance of counsel in presenting mental health evidence as a mitigating factor in the penalty phase of the trial.  The defendant's claim was characterized as being that his mental health expert had misdiagnosed him as having a personality disorder when he should have been diagnosed as having a bipolar disorder...

Found in DMHL Volume 23 Issue 1

Fourth Circuit Rejects Argument Capital Defendant Received Ineffective Assistance of Counsel on Voluntary Intoxication and Insanity Defenses and Alford Plea

Reid v. True, 349 F.3d 788 (4th Cir., 2003)

The Fourth Circuit rejected a Virginia capital defendant's argument he received ineffective assistance of counsel because counsel allegedly failed to adequately investigate and advise the defendant on a voluntary intoxication defense, an insanity defense, and entering an Alford plea. The defendant, who claimed to have no memory of the crime, was convicted pursuant to his Alford plea of murdering an 80-year-old woman. Under an Alford plea, a defendant pleads guilty even though he is unwilling or unable to admit his participation in the crime....

Found in DMHL Volume 23 Issue 1

Reversal of Death Sentence: Counsel Failed to Adequately Investigate Defendant's Social History/Mental Health, Even Though Defendant Not Forthcoming and Opposed Investigation, Not Disturbed

Woodford v. Douglas, 316 F.3d 1079 (3d Cir. 2003), cert. denied, 124 S. Ct. 49 (2003)

Perhaps reflecting its decision in Wiggins (described above), the Supreme Court declined to review a Ninth Circuit ruling that a capital defendant received ineffective assistance of counsel in violation of his Sixth Amendment rights when counsel failed to adequately investigate defendant's social history and mental health for information that could have been used as mitigating evidence at sentencing.  The defendant thus was entitled to have his death sentence vacated even though he had not been forthcoming with information about his social history and was opposed to an investigation of his mental health.  The Ninth Circuit ruled trial counsel had a duty to investigate a defendant's mental state if there was evidence to suggest, as was the case here, that the defendant was impaired and this duty was not absolved by the defendant's refusal to cooperate when there was a significant and readily discoverable alternative source of information available....

Found in DMHL Volume 23 Issue 1

Reversal of Death Sentence Because Counsel Failed to Investigate and Present Defendant's Childhood Abuse as Mitigating Evidence Not Disturbed

Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002), cert. denied, Woodford v. Karis, 123 S. Ct. 2637 (2003); 71(50) U.S. Law Week 3795 (July 1, 2003)

Perhaps reflecting its decision in Wiggins (described above), the Supreme Court declined to review the ruling of the Ninth Circuit that overturned the imposition of the death penalty for ineffective assistance of counsel in violation of the Sixth Amendment because defendant's attorney failed to thoroughly investigate and present during the sentencing phase substantial mitigating evidence concerning the defendant's childhood history.  This evidence included abuse inflicted upon the defendant and his mother by his father and stepfather. Notwithstanding the family's denial of and reluctance to discuss this abuse, the Ninth Circuit said counsel should have investigated and presented this evidence in view of the extremely probative and wrenching nature of the evidence, the sparseness of the mitigating evidence actually offered, the prosecution's focus on the defense's failure to provide substantial mitigating evidence, and the fact the jury took three days to reach a verdict in favor of death.  The court stressed such evidence was vital for informing the jury about the background and character of the defendant in a capital case so that the defendant is treated as a uniquely individual human being and a reliable determination is made that death is the appropriate sentence...

Found in DMHL Volume 23 Issue 1

Reversal of Capital Conviction and Death Sentence Because Counsel Failed to Investigate Defendant's Mental Health and Drug Abuse Problems Not Disturbed

Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002), cert. denied, Woodford v. Jennings, 123 S. Ct. 2638 (2003); 71(50) U.S. Law Week 3795 (July 1, 2003)

Perhaps reflecting its decision in Wiggins (described above), the Supreme Court declined to review a Ninth Circuit ruling that overturned a capital conviction and imposition of the death penalty for ineffective assistance of counsel because defendant's attorney failed to discover and present easily available evidence of the defendant's mental health and drug abuse problems despite knowing that the defendant had such problems.  The defendant was a habitual, heavy methamphetamine user, had attempted suicide, was described by a psychiatrist as schizophrenic, had a long history of injuring himself and pouring liquids in the resulting wounds causing gangrene, and had been involuntarily committed for psychiatric evaluation because he appeared catatonic. In addition, a number of individuals told the attorney they thought something was "seriously wrong" with the defendant...

Found in DMHL Volume 23 Issue 1

Reversal of Capital Conviction Because Counsel Failed to Request Diminished Capacity Jury Instruction to Reflect Defendant's "Explosive Dyscontrol" from Chronic Drug Use Not Disturbed

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002), cert. denied, Morgan v. Pirtle, 123 S. Ct. 2286 (2003); 71(47) U.S. Law Week 3756 (June 10, 2003)

Perhaps presaging its decision in Wiggins (described above), the Supreme Court declined to review a ruling of the Ninth Circuit that overturned a first-degree murder convic­tion for ineffective assistance of counsel in violation of the Sixth Amendment because defendant's attorney failed to request a dimin­ished capacity jury instruction. At trial, the defendant testified he ingested methamphet­amines, cocaine, and marijuana the night before the murder but was "coming down" three hours before the murder. Despite this evidence the drugs he used were wearing off three hours before the murder, defense counsel requested an intoxication instruction...

Found in DMHL Volume 23 Issue 1

Death Penalty Reversed Because Counsel Did Not Conduct "Reasonable" Investigation of Defendant's Childhood History

Wiggins v. Smith, 123 S. Ct. 2527 (2003); 71(50) U.S. Law Week 1798-99 (July 1, 2003)

Under the Sixth Amendment, a criminal defendant is entitled to the "effective assistance" of an attorney.  In a Maryland case, the Supreme Court ruled a capital defendant received ineffective assistance of counsel when his lawyers failed to conduct a "reasonable" investigation of the defendant's childhood history before deciding not to present related mitigation evidence at sentencing.  According to the Court, the attorneys should have pursued childhood privation and abuse leads brought to their attention by the records they reviewed...

Found in DMHL Volume 23 Issue 1

Capital Defendant Not Entitled To New Trial When His Attorney Failed to Investigate a Psychological Report Suggesting a Possible Organic Brain Disorder

Walker v. True, 401 F.3d 574 (4th Cir. 2005), petition for reh'g en bane denied, 411 F.3d 467 (4th Cir. 2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the issuance of the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates the defendant's diminished capacity and reduced responsibility for the crime.  The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment constitutional right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase, and the Court indicated in Wiggins v. Smith, 539 U.S. 510 (2003), that this right required the defendant's attorney to diligently explore potentially relevant mental health evidence...

Found in DMHL Volume 25 Issue 1

Death Sentence Overturned Because Defendant's Lawyers Did Not Examine Case File from an Earlier Conviction That Would Have Indicated Defendant's Diminished Mental Capacity

Rompilla v. Beard, 125 S. Ct. 2456 (2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates  the defendant's diminished capacity and reduced criminal responsibility. The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase.  In Wiggins v. Smith, 539 U.S. 51O (2003), the Court indicated that this right required the defendant's attorney to diligently explore potentially mitigating mental health evidence...

Found in DMHL Volume 25 Issue 1

US Supreme Court Declines to Hear Missouri Supreme Court Finding of Ineffective Counsel for Failure to Call Mental Health Expert

Missouri v. Vaca, 314 SW3d 331, (Mo. 2010), pet. for cert. denied February 22, 2011

The United States Supreme has refused to hear the State of Missouri’s request for review of the Missouri Supreme Court’s determination that defense counsel was ineffective at the penalty phase of the trial for failure to present mental health evidence for no strategic reason. The defendant had been charged with a series of armed robberies. Defense counsel had obtained a mental health evaluation that revealed the defendant was schizophrenic and evidence indicated he had suffered from this condition most of his life. The prosecutor was successful in excluding the defendant’s mental health evidence during the guilt phase of the trial. During deliberations, the jury sent questions back to the judge asking among other things whether there had been any evaluation of the defendant’s mental condition. Knowing the defendant suffered from mental illness and that the jury had questions regarding his mental state, defense counsel failed to call a mental health expert as a witness during the penalty phase of the trial. The Court held that while a defense attorney has flexibility to make strategic decisions about whether to introduce mental health evidence, the evidence revealed that the defense counsel did not even think about it. Missouri had just changed its law to provide for bifurcated guilt and penalty phase trials in noncapital cases and this was defense counsel’s first such trial. The Court thus held that a new sentencing hearing was required.

Found in DMHL Volume 30 Issue 4

US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder

Cullen, Acting Warden v. Pinholster, ( Docket No. 09-1088), slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1088.pdf

On April 4, 2011, the United States Supreme Court reversed the en banc decision of the Ninth Circuit Court of Appeals that granted habeas corpus relief to a petitioner convicted on two counts of first degree murder, and reinstated the death penalty recommended by the jury and imposed by the California trial court.

The petitioner alleged that his trial counsel was ineffectual for failing to adequately investigate and present mitigating evidence during the penalty phase of the trial to support his mental health claim that school, medical and legal records, and declarations from family members and another psychiatrist had diagnosed him with a bipolar mood disorder and a seizure disorder. The prosecution presented eight witnesses testifying to the defendant’s threatening and violent behavior. The petitioner’s trial counsel unsuccessfully sought to exclude the aggravating evidence on the grounds that the prosecution had not given the petitioner proper notice under California law. The petitioner therefore only called his mother as a witness in mitigation. The petitioner’s counsel had consulted a psychiatrist who had diagnosed him with antisocial personality disorder, but did not call him as a witness.

The California Supreme Court twice reviewed the defendant’s claim, unanimously denying and dismissing the allegations each time. The United States District Court, however, heard evidence on the petitioner’s claim and granted habeas relief. The Ninth Circuit reviewing the federal district court’s decision en banc, considered the new evidence from the federal district court hearing and upheld the decision on the grounds that the State court had violated clearly established federal law.

Justice Thomas writing for the Court, held that review of habeas cases under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the claim on the merits. Under the Antiterrorism and Effective Death Penalty Act of 1996, a claim adjudicated on the merits in state court cannot be granted unless 1) the decision was contrary to or involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of facts in light of the evidence presented in state court. The Supreme Court held that the record under review is therefore limited to the record in existence at that time. The Court determined that the state court record supported the idea that the petitioner’s counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice. The Court noted that the petitioner was also an unsympathetic client who boasted about his criminal history during the guilt phase, leaving trial counsel with limited mitigation strategies. The Court held that there was no reasonable probability that the additional evidence would have changed the verdict. Justices Sotomayor, Ginsburg and Kagan dissented. The other justices joined in the decision of the Court, but wrote multiple concurring opinions.

Found in DMHL Volume 30 Issue 4

Ninth Circuit Declines to Find Ineffective Assistance of Counsel for Attorney’s Strategic Decision Not to Seek Third Neurological Exam in Capital Case Even Though Exam Recommended

Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir. May 17, 2011)

The Ninth Circuit Court of Appeals reversed the decision of the Idaho federal district court that had granted a new sentencing hearing to a defendant sentenced to death on the grounds of ineffective assistance of counsel in this habeas corpus case. The Court found that the defendant’s attorney made a reasonable strategic decision at the sentencing phase not to seek another neurological examination. The defendant was convicted of a gruesome stabbing murder in which he removed the victim’s sex organs. The expert who examined the defendant diagnosed him with antisocial personality disorder and intermittent explosive disorder, but recommended a follow-up MRI following an inconclusive neurologic examination to rule out an organic disorder. The trial judge who was deciding the sentence demonstrated hostility toward hearing any further psychiatric evidence, stating that such evidence tended to hurt more than help the defendant. The judge intimated that the evidence indicated an inclination on the part of the defendant to commit further violent acts. The Court held that the defendant’s counsel made the strategic decision to try to convince the judge that his client was a “good guy” even though he was aware of the possibility of brain damage as mitigating evidence. He was therefore not ineffective, as the district court had found, for failure to thoroughly investigate the defendant’s mental health condition.

Found in DMHL Volume 30 Issue 6

Ninth Circuit Finds Constitutional Right to Testify at Competency Hearing; Right Can Only Be Waived by Defendant, Not Counsel

United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013)

The Ninth Circuit Court of Appeals held on June 17, 2013 that a defendant has a constitutional and statutory right to testify at his pretrial competency hearing and only the defendant, not his counsel, can waive that right. The Court also held that the district court must first warn the defendant that his disruptive conduct may result in his removal from the courtroom and thus the loss of his right to testify. The Court further found that denial of the defendant’s right to testify in this case was not harmless error, resulting in reversal of the district court’s decision and remanding the case for a new pre-trial competency hearing.

The defendant Charles Lee Gillenwater, II, was charged in August 2011 in the Eastern District of Washington with two counts of transmission of threatening communications and a third count of transmission of threatening communications by United States mail. Gillenwater had previously worked on a construction project at Caesar’s Palace in Las Vegas, observed what he believed to be asbestos, and began taking increasingly drastic steps to report the situation to the Occupational Safety and Health Administration (“OSHA”). Following his indictment, the district court appointed the federal defender to represent Gillenwater. After the federal defender moved to withdraw as counsel, the court appointed a private attorney to represent him. Then after receiving several letters from Gillenwater concerning the public defender and hearing from the private attorney and Gillenwater in court, the court appointed additional counsel to meet with the defendant and report whether there was a need for a competency hearing. Upon receipt of this report, the court ordered a psychological evaluation and competency hearing.

Gillenwater was transferred to a federal detention center for evaluation but was uncooperative in the evaluation process. Although unable to fully interview Gillenwater or perform psychiatric tests, the examining psychologist submitted a report based upon her clinical interviews, observations of his behavior, and a review of his legal and medical records. The psychologist diagnosed Gillenwater as suffering from a delusional disorder, persecutory type that could substantially impair his ability to assist counsel in his defense. The psychologist reported and testified at the hearing that Gillenwater described his case as a government conspiracy to silence him from reporting OSHA violations and that he believed he was the victim of “tens of thousands” of computer attacks, that he was under constant surveillance, that people from OSHA and the casino were after him, and that newspapers had been bought off from reporting his allegations. Gillenwater had also accused his attorneys of committing crimes. According to law enforcement records, Gillenwater had contacted numerous State and federal officials including a US Senator from Washington state, saying powerful people were trying to kill his staff and frame him, and that the FBI would not protect him. Gillenwater also asked his attorney to subpoena 50-plus witnesses, including Obama Administration cabinet members, so that he could take his conspiracy theory to trial.

At the competency hearing held on January 12, 2012, the government only submitted the psychologist’s report and called her as a witness. It then recommended that Gillenwater receive competency-based restoration treatment. After the government finished introducing its evidence, Gillenwater’s attorney informed the court that Gillenwater wanted to testify but that he had advised him against it, and then stated the defendant had no further evidence. During this process, Gillenwater was whispering loudly to his attorney and then interrupted his counsel calling him a criminal. When admonished by the court for interrupting the proceedings, Gillenwater continued his expletive-filled remarks, and asked to be taken out of the courtroom, stating the evidence would clear him of the diagnosis, that the judge would not be a judge much longer, and that he would wait for the Republicans to be back in charge again. The court ordered him removed from the courtroom. It then found Gillenwater did not appear to understand the charges or the court process or to be able to assist counsel in his defense and ordered him remanded to the custody of the Attorney General for 60 days.

On appeal, the Ninth Circuit reviewed Gillenwater’s contention that he had been denied his right to testify at his pre-trial competency hearing and had not waived that right as a result of his disruptive behavior. The Ninth Circuit first determined that under federal law, 18 U.S.C. § 4247(d), a defendant has the right to testify at a pretrial competency hearing. The Ninth Circuit further found that the right to testify is contained in the Fourteenth Amendment due process guarantee of the right to be heard and to offer testimony. Moreover, the Ninth Circuit found that the right to testify is also embodied in the Compulsory Process Clause of the Sixth Amendment which grants a defendant the right to call witnesses in his favor. Logically included in that right, the Court noted, is the right to testify on one’s own behalf. This right is further found in the corollary to the Fifth Amendment right against self-incrimination. If a defendant cannot be compelled to testify against himself, he must also have the right to testify. Reviewing prior Supreme Court decisions holding that an individual has the right to testify in extrajudicial proceedings, such as probation revocation hearings and hearings involving termination of welfare benefits, the Ninth Circuit went on to hold that a defendant must have an equivalent right to testify in his pre-trial competency hearing.

The Ninth Circuit then held that because a defendant’s right to testify is a personal right, it can be relinquished only by the defendant himself, and the waiver must be knowing and intentional. The Court recognized that obtaining a knowing and intentional waiver may be difficult when the defendant’s competency is in question, but it noted that defense counsel plays an important role in ensuring that the defendant understands his right to testify, that it can be waived, and the consequences of either decision. Here, the Court found that Gillenwater clearly demonstrated that he wanted to testify despite his counsel’s advice to the contrary.

The Ninth Circuit also determined that a court has no affirmative duty to inform a defendant of his right to testify, but stated it does have a duty to warn the defendant of the consequences of his disruptive behavior before it removes him from the courtroom. In this case, the court never advised Gillenwater that his behavior could lead to the loss of his right to testify. Although Gillenwater asked to be removed from the courtroom, he never expressed any desire to waive his right to testify. The court did not expressly warn Gillenwater that his removal would result in the loss of his ability to testify and therefore he never effectively waived that right.

The Ninth Circuit went on to find that where a defendant is denied a constitutional right, the court on appeal must determine whether the denial was harmless error beyond a reasonable doubt. Here, the Court found that the district court only considered a single, incomplete psychological report and Gillenwater’s conduct in the courtroom. The Ninth Circuit found other ample evidence in the psychological report that Gillenwater was very intelligent, had no criminal history, and although he was hesitant to be interviewed, was pleasant, polite, cooperative, and articulate. Based on its review of the record, the Ninth Circuit found that the denial of the right to testify was harmless error and remanded the case for a new competency hearing. The Ninth Circuit then stated that if another competency hearing is held at which Gillenwater testifies, the district court must enter an order barring the use of his testimony at his trial. Such testimony may only be used to impeach Gillenwater if he testifies at trial, but not to prove his guilt.

Found in DMHL Volume 32 Issue 3