New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Habeas Proceedings

It has been said that the defense attorney is frequently the most ignorant person in the room.  The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene.  The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses.  The defendant knows what happened because s/he was presumably present when the relevant events transpired.  Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority.  Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government.  Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction.  The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963).  Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment.  In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”).  The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals.  Their direct appeals were rejected.  In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material.  As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding.  Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome.  To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading

The last United States Supreme Court term ended with some noteworthy criminal decisions.  One of these was Jae Lee v. United States, decided on June 23, 2017.  This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.

The facts are not complicated.  The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute.  During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not.  Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea.  Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance.  His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation.  A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice.  Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.

Fortunately, the Supreme Court reached a different conclusion and reversed.  The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty.  The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal.  The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence.  The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial.  While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant.  Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial.  But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational. Continue reading

Many defendants convicted in State court proceedings will, after exhausting their State level appeals and post-conviction applications, seek habeas relief in Federal court.  Generally speaking, the process focuses upon violations of Federal constitutional law in the underlying State proceedings, and is commenced by filing a habeas petition and supporting papers in the appropriate Federal district court within the applicable limitations period.  Habeas is often the final opportunity to attack a State court conviction.  These applications frequently, but do not always, stem from allegations of ineffective assistance of counsel.  For many years, the US Supreme Court has issued decisions restricting the availability of habeas relief to a State defendant.  The latest case to do so is White v. Wheeler, No. 14-1372, decided on December 14, 2015.

A capital jury convicted defendant Wheeler of killing two individuals.  The habeas petition arose from a claim that a judge improperly struck a prospective juror for cause during the selection process.  The prosecutor moved to strike the juror for cause because his responses during voir dire indicated that he was not absolutely certain he could realistically consider the death penalty.  The defense opposed the motion, arguing that the prospective juror’s responses indicated that he could consider all penalty options, regardless of any reservations he may have had about the death penalty.  The trial judge struck the juror for cause because his inconsistent answers suggested that he could not consider the death penalty as part of the entire range of sentencing options.

The district court dismissed the petition, but the Sixth Circuit reversed and granted habeas relief as to defendant’s sentence.  That Court found that excusing the prospective juror violated the Sixth and Fourteenth Amendments to the Federal Constitution.  The US Supreme Court reversed, and its basis for doing so is clearly, unmistakably and repeatedly stated throughout the opinion. Continue reading