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Last Week's Divided Habeas Decision in the Sixth Circuit:

Last Friday, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided Morales v. Mitchell, yet another in a long line of divided habeas decisions from my home circuit. As with many of the divided habeas panels, the case concerned the habeas petition of a death row inmate and the panel divided on somewhat predictable ideological lines.

Here is the basic background, as summarized by Judge Karen Nelson Moore in her majority opinion.

Petitioner-Appellee/Cross-Appellant Alfred Morales ("Morales") was convicted of kidnapping and aggravated murder in an Ohio state court and sentenced to death. He petitioned the district court for a writ of habeas corpus, arguing, inter alia, that his trial counsel was constitutionally ineffective and that the trial court erroneously struck a potential juror from the panel. The district court granted the petition, in part, vacating Morales's death sentence on the ground that his trial attorney had rendered ineffective assistance of counsel ("IAC") at the penalty phase of the trial.

Respondent-Appellant/Cross-Appellee Betty Mitchell ("Mitchell" or "the state") now appeals the district court's issuance of the writ. Morales crossappeals the district court's denial, in part, of his petition on the grounds that his counsel was not ineffective at the guilt phase of the trial and that the trial court did not err in striking a juror that it found was not death-qualified and lacked an adequate understanding of the proceedings.

Joined by Judge Clay, Moore affirmed the decision of the district court granting Morales' habeas petition in part.

Judge Suhrheinrich dissented, arguing that Morales could not show that he suffered any prejudice from his defense counsel's failure to present additional mitigating evidence at the penalty phase, in large part because such evidence would have been "cumulative" with evidence already presented at trial. Absent a showing of prejudice, Suhrheinrich concluded, Morales could not show that he suffered from the ineffective assistance of counsel, as a matter of law.

Dave N (mail):
I am shocked, just shocked, that a liberal panel would find error in the penalty phase (keeping a monster from being executed) but not in the guilt phase (ensuring that this same monster remains in prison).

I mean, defense attorneys in capital cases seem to be the second coming of Clarence Darrow when a jury is determining guilt but turn into a reincarnation of the Three Stooges when representing their client during sentencing. You'd think, just maybe, that something besides the law is driving these opinions. But if you did, you would just be accused of being cynical. Because, as we all know, ideology never, ever comes into play in these decisions.
11.6.2007 12:36am
Happyshooter:
Liberals love abortion as much as they hate the death penalty. They believe in both like normal Americans believe in God.

Liberals on the bench will twist any fact pattern or any law to stop a death penalty or cause an abortion.

This opinion is just another in the long line of trash they crank out.
11.6.2007 10:02am
Left shoe:
Thanks for the insightful analysis. Happyshooter, I thought I was a liberal, but I think I love abortion slightly more than I hate the death penalty. Does this mean I'm no longer a liberal?
11.6.2007 10:47am
Ben P (mail):

Thanks for the insightful analysis. Happyshooter, I thought I was a liberal, but I think I love abortion slightly more than I hate the death penalty. Does this mean I'm no longer a liberal?


I don't think so.

You have to remember, there's only two kinds of people in this country, "normal people" and "liberals" who all suffer from mental disorders.

If you don't substantially agree with Happyshooter you automatically fall into the latter camp and even if you "pretend" your views are more moderate than that, we all know you really want to bring about a nation where abortion is mandatory, and mentioning god puts you in prison but child molestation is legal.

(at the risk of ruining by explaining, the previous post is entirely sarcastic in tone)
11.6.2007 11:16am
PLR:
The dissent is well worth reading, which is not to say that I think it's remotely persuasive as a legal matter.
11.6.2007 11:51am
TruePath (aka logicnazi) (mail) (www):
If you believe in the death penalty so strongly how about passing some laws that guarantee public defenders equal resources to the prosecution. That means equal pay for attorneys, equal time to work on death penalty cases, equal funds for experts AND funding to hire investigators that can examine the case as throughly as the police have.

Maybe all these IAC opinions are in the wrong or maybe not but we could solve the whole problem if we were willing to spend enough money on public defenders so no one doubted the defendants were getting as good a defense as the prosecution they were facing.
11.6.2007 12:09pm
Dave N (mail):
TruePath:

In my state, the public defenders are county or state employees, are well funded, and have investigators and access to experts.

At the federal level, my federal counterparts handle fewer habeas cases than I do--since the federal public defender has more resources at his disposal and a smaller case load than I do.

So at least in my state I don't buy the, "They are all incompetent and underpaid" meme. What I do buy is that I live in the Ninth Circuit--and having a death sentence upheld is only slightly more likely than winning the lottery.

I have made the offer before and I will make it again. I live in the same circuit as Judge Stephen Reinhardt--who was appointed to the bench almost 30 years by Jimmy Carter. Point to one capital case in which he sat where he voted with the majority to uphold a death sentence. He doesn't even have to have written the opinion--just have joined it. Try to find ONE in 27 years on the Ninth Circuit bench. Do it and I will publicly eat crow. You would think that there would be at least one. There isn't.
11.6.2007 12:31pm
allwrits (mail):
Dave N:

Imagine Judge Suhrenreich voting to uphold a death sentence. shocking just shocking. Judge Moore &Clay regularly vote to uphold death sentences, with one notable exception Judge Suhrheinrich does not find error in capital cases.

Trial counsel's performance in the penalty phase was horrid.
11.6.2007 1:21pm
hattio1:
Dave N
You say the Public Defenders in your area have investigators. How many? As many as there are police officers? Half as many? As many as there are Detectives on the local police force? Half as many?

I know in my area we have 5 different police agencies, four city police departments and the state troopers (in three different detachments). Each of these police agencies have investigators (which is what we call detectives here). Our Public Defender's office has 1 investigator....

But, I know that we're lucky because some have none.
11.6.2007 2:37pm
NickM (mail) (www):
Tactically, it makes sense for a competent criminal defense attorney to tank the penalty phase on a client who looks to be a fairly likely bet for the death penalty.

Is there a better strategy at the penalty phase than gumming it up with reversible error if the client is a Dahmer/Ted Bundy/Richard Ramirez type? [Yes, I know Dahmer was in a non-death penalty state.]

Nick
11.6.2007 3:11pm
therut:
Do lawyers ever reprimend or make all these defense lawyers who apparently do malpractice in these cases turn in their license to practice law. Maybe that would work. If doctors where to be found incompetent by a Judge something would be done. I bet you don't.
11.6.2007 3:40pm
hattio1:
Doctors aren't usually found incompetent by a judge, but by a jury. It happens all the time, and nothing is done in most states. I know it's popular to assume that lawyers have less checks on their behvior than other professions, but its just not true.
11.6.2007 4:09pm
Dave N (mail):
Hattio1:

There are obviously fewer investigators with the public defender than with the police--but I have not heard my local Public Defender complain about lack of resources--and he has more than one investigator.
11.6.2007 4:24pm
allwrits (mail):
Nick:

Your chances of winning on appeal is worse than your chances at trial. Remember Nichols got life sentences in both Oklahoma &the federal system. Cullen got life. The Green River Killer got life. I could go on ad infinitum. The reality is the lawyers in Morales really did do a substandard job.
11.6.2007 4:26pm
kietharch (mail):
PLR:

Non lawyer (and relative newcomer) here; how do I get the text of Judge Suhrheinrich's dissent? I have clicked on a few links around here but it does not seem to come up.
11.6.2007 4:31pm
PLR:
kietharch, just click on the "Morales v. Mitchell" link in the topic post.
11.6.2007 4:50pm
David M. Nieporent (www):
Doctors aren't usually found incompetent by a judge, but by a jury. It happens all the time, and nothing is done in most states. I know it's popular to assume that lawyers have less checks on their behvior than other professions, but its just not true.
Er, what "is done" in most states when a doctor is found incompetent by a jury is that the doctor has to pay a huge verdict to the other side. (Well, his insurance company, but he pays for those through premiums.)

Which is more than what happens with a lawyer. How many lawyers who are found to have provided ineffective assistance get hit with a malpractice judgment?
11.6.2007 8:34pm
NickM (mail) (www):
The Green River killer got life as part of a plea agreement.
So did Cullen IIRC. Those can't be compared to convictions after trial.

Nichols was only convicted of manslaughter in federal court, so a state death penalty was never a sure bet.

Nick
11.7.2007 2:26am
aizheng (mail):
11.7.2007 3:15am
FormerStateAtty:
allwrits,

Your point about Suhrheinrich is a generally valid one, though he doesn't always go with the state. I can think of two cases off the top of my head where he sided with the capital petitioner. Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006); Thompson v. Bell, 373 F.3d 688 (6th Cir. 2004), reversed, 125 S.Ct. 2825 (2005). A few years ago I did a statistical analysis of the 6th Circuit decisions in capital cases, and Judge Suhrheinrich is at the top of the list of judges who tend to side with the state. But there were other judges who were on the exact opposite side of the spectrum (Merritt, Martin, Moore, Clay . . .). I don't think any of the judges have a perfect record of siding with one side in capital cases (though I am not sure about the newer appointees who have participated in just a few cases). Given the standard of review and the many appeals the conviction and sentence had survived by that point, I think that judges who almost always side with the capital inmate have a tougher time explaining their record, though I will admit my bias due to my representation of the state in these cases.

And to go along with Dave N's point, I broke down the decisions for the inmate into guilt and penalty phase relief, and the vast majority of writ grants were for penalty phase errors (usually IAC).
11.7.2007 10:49am