Thursday, March 16, 2017

Court overturns life sentence on murder conviction due to counsel's lack of advocacy



"Ladies and gentlemen given the dispatch with which you resolved all the holes in the government’s case that I spent two days pointing out, it’s apparent to me that I’m some how not communicated with you during the first part of the trial. So I don’t intend to take anymore of your time in this part."

That argument was apparently the sum of defense set forth in a death penalty penalty phase proceeding.  Defense counsel, in addition to making the above bare bones argument, refused to make an opening statement, did not present any evidence in mitigation, and did not object or make any suggested additions or changes to the jury instructions.  The jury suggested a sentence of life, which the court imposed.

The Sixth Circuit, reviewing the matter for habeas relief, found that counsel's conduct (or lack thereof) amounted to ineffective representation warranting habeas relief.  Phillips v. White, 15-5629   "[C]ourts are generally reluctant to accept something as stark as not investigating or presenting mitigating evidence at capital sentencing as a reasonable tactic. Failing to argue against the death penalty and advocate for a lesser sentence is even less reasonable. For these reasons, Charles’s sentencing performance was clearly deficient."  In fact, the Court found that counsel did so little in defense that prejudice would be presumed.

As a side note, the State had tried to argue that Phillips 2254 petition should be dismissed for failing to exhaust his state remedies.  But the Court noted that the state court had simply never ruled on Phillips claims, despite having them since 2008 (it didn't help that the state sentencing judge, while holding on to the claim, himself got indicted and convicted of a criminal charge.)  Under the circumstances, the "inordinate delay" allowed the claims to be adjudicated by the federal courts.

Wednesday, March 08, 2017

Court clarifies that restitution still makes no sense

Criminal law and money don't play well together, especially with indigent clients. Restitution is perhaps the  most head-scratching part of this crime/money nexus. To a civil lawyer, the thought that a court could enter a $2 million judgment (that is not dischargeable in bankruptcy) against someone without the parties ever conducting a single deposition or hiring a damages expert is patently absurd. But in criminal law it is routine. Defense lawyers are usually so occupied trying to keep their clients out of jail that they spend little time worrying about outlandish restitution requests. Despite mild push-back from the Supreme Court in the most outrageous cases like Paroline v. United States, it is likely that courts will rubber-stamp restitution orders anyway. Today's published opinion in  Sizemore offers an example.

Sizemore addresses a rare federal vehicular manslaughter case. The defendant pleaded guilty and agreed to pay restitution to the victims. While there was no doubt that the victim and his family suffered compensable losses, the court's ultimate order of approximately $230,000 raised several questions. First, was the district court allowed---or even required---to take into account the defendant's ability to pay when entering a restitution award? And second, should the court have reduced the award by amounts that the victims had already received from the defendant's insurance company in compensation for their injuries?

Regarding the first question, the law creates a bizarre contradiction: on the one hand, 18 U.S.C. § 3663 requires a court to consider the "financial resources of the defendant" in determining whether to order restitution; on the other hand, 18 U.S.C. § 3664 prohibits courts from considering the "economic circumstances of the defendant" in determining how much restitution to order. The Sizemore court found no contradiction at all. The law means what it says. But this creates a sort of "restitution gap": if the victim has $1 million in losses, and the defendant cannot possibly pay $1 million, the court could would have the discretion to order (1) no restitution, or (2) $1 million in restitution, but under no circumstances could it order, say, $100,000 in restitution, or some other amount that the indigent defendant might one day have a hope of repaying. 

Regarding the second question, the law specifically states that restitution should be reduced by "any amount later recovered as compensatory damages for the same loss by the victim" in other court proceedings. 18 U.S.C. § 3664(j)(2). The obvious point of this is to avoid double recovery, given that restitution is supposed to make a victim whole, not punish the defendant. But Sizemore rejects this rationale, suggesting that a private settlement "does not preclude a district court from imposing a restitution order for the same underlying wrong." The court even agreed with the district court that an amount paid out to the victim by the defendant's insurance company was not "later recovered" because the insurance company paid before that restitution award was entered. That is, the defendant is punished because his insurance company acted quickly. Huh.

Monday, March 06, 2017

The Beckles disappointment

The Beckles decision issued today, and it did not go well. If you were not in the trenches after Johnson, if you did not file hundreds of 2255 petitions raising claims based on Beckles, it will be difficult to understand the scale of this disappointment. Worse, if you are one of the tens of thousands of federal prisoners sentenced under the career offender guideline and awaiting the outcome of this case, the decision is devastating.

In short, Beckles holds that the advisory sentencing guidelines are not susceptible to a due process vagueness challenge. They are discretionary, you see, so the vagueness doctrine's twin emphasis on providing notice and preventing arbitrary enforcement do not apply. If a judge can sentence anyone to any sentence within the statutory range, then why would someone need notice of the guidelines? This holding will create some cognitive dissonance for federal defenders everywhere, for whom the question of whether a client is a career offender determines the entire course of any given representation, especially the plea process. But that is behind us for now.

So what is left? First, it is important to note that this opinion is limited to the discretionary guidelines, not the pre-Booker mandatory guidelines. Any mandatory guidelines cases should still be alive. Second, the decision states that even though a vagueness challenge under the due process clause must fail, the Court has nevertheless recognized that, under the Eighth Amendment, "a district court’s reliance on a vague sentencing factor in a capital case, even indirectly, can taint the sentence." Should Beckles petitioners raise Eighth Amendment claims? Are there other appeal issues remaining?

The phone calls from disappointed clients will begin today, but the process of digesting this decision will continue for some time.

Wednesday, March 01, 2017

Copy/paste for cert petition

Judges Merritt, Batchelder, and Rogers do NOT like Sixth Circuit precedent on an issue and, boy howdy, they tell counsel just what needs to be done to get the Supreme Court's attention. John Turner v. United States, No. 15-6060 concerns at what point the Sixth Amendment right to counsel (and thus effective assistance of counsel) begins. Sixth Circuit precedent says it does not attach until after formal charges are filed. As detailed in Turner, there is a Circuit split on the issue, and it is an important issue because of just how often defendants run up against this sort of state/federal prosecution.

Quick facts: Mr. Turner was charged with robbery in state court. Counsel was appointed to represent him in the state court prosecution. While the state charges were pending, the U.S. Attorney's office reached out to his attorney to discuss a plea in federal court to as-yet-unindicted charges arising from the same conduct. If Mr. Turner accepted the offer pre-indicment, he would get 15 years in prison. After indictment, he faced a mandatory minimum sentence of 82 years. Mr. Turner rejected that offer. He was charged federally. He accepted a less-favorable plea deal. He brings a 2255 based on ineffective assistance of counsel during the initial pre-charge negotiations. If Mr. Turner has the right to counsel pre-charge, he has the right to effective assistance of counsel. If he does not have the right to counsel pre-charge, the courts cannot even contemplate an IAC claim.

While the Supreme Court has recognized the right to effective assistance of counsel during plea negotiations, it has yet to consider the right to counsel in preindictment plea negotiations. The Sixth Circuit has strongly adhered to the notion that the right to counsel attaches once formal charges are filed. Turner notes that five other circuits have a similar bright-line test, while four "allow a rebuttable presumption to the argument that the right to counsel attaches only after formal charges are filed." Turner even gives links to articles on the subject.

It's an interesting opinion given its frankness about the federal process and the need to have effective counsel at every critical stage. Hopefully, Mr. Turner will take the Sixth up on their very thinly veiled suggestion for pursuing Supreme Court review.