Ineffective Assistance

Jae Lee v. United States – Advising Defendants Facing Deportation Continues to be an Issue

September 7, 2017 | By James S. Friedman, LLC

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 ›

Maryland v. Kulbicki – New US Supreme Court Decision Helps Define Ineffective Assistance

December 13, 2015 | By James S. Friedman, LLC

Maryland v. Kulbicki, No. 14-848 (2015), a recent US Supreme Court decision, helps to further define the concept of ineffective assistance of counsel for purposes of Sixth Amendment claims. The case is important for anyone considering a motion for post-conviction relief in State court or a habeas petition in Federal court based upon an argument that their attorney did not perform properly.

In 1993, Kulbicki shot his paramour in the head at close range. His trial commenced in Maryland state court in 1995. The prosecutor called an FBI agent as an expert witness to testify on the subject of Comparative Bullet Lead Analysis (“CBLA”). At the time of trial, CBLA was accepted by the relevant scientific community as valid. The expert testified that the composition of elements in the molten lead of a bullet fragment located in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain, and that one would expect to find such a similarity when examining two pieces of the same bullet. The expert also testified that a bullet taken from Kulbicki’s gun did not exactly match the two fragments, but was sufficiently similar to conclude that the two bullets probably came from the same package. In light of this and other evidence, Kulbicki’s jury convicted him of first-degree murder.

Kulbicki subsequently filed a petition for post-conviction relief, which he amended in 2006 to include a claim that defense counsel was ineffective for failing to question the legitimacy of CBLA. Between the time of the conviction and 2006, CBLA had fallen out of favor, was no longer generally accepted by the scientific community, and was therefore inadmissible.

Defense Counsel’s Failure to Investigate Defendant’s Mental Fitness for Trial Supports Ineffective Assistance Claim

March 2, 2014 | By James S. Friedman, LLC

In Newman v. Harrington, No. 12-3725 (7th Cir. 8/9/13), the Court affirmed a district court ruling on a habeas petition which found that the failure of defense counsel to investigate known deficiencies concerning his client’s mental capacity, and to raise the issue of defendant’s fitness to stand trial with the State trial court, constituted ineffective assistance.

Newman, a homicide defendant, was 16 when he shot and killed the victim. Newman’s mother hired an attorney to defend her son and, at their first meeting, provided counsel with extensive material documenting her son’s long history of mental and cognitive deficits. Further, Newman responded to the trial judge’s questions concerning his right to testify at trial with simple “yes” or “no” answers. During this colloquy, Newman failed to display any meaningful understanding of the proceedings. Thus, both defense counsel and the trial judge had reasons to question Newman’s fitness for trial, but there was no pre-trial fitness hearing. Newman went to trial, was convicted, and received a custodial term of 47 years that was affirmed on appeal.

The following year, Newman sought State-court post-conviction relief. His petition was supported by, among other things, an evaluation by a clinical psychologist which stated that Newman had cognitive deficits, was mildly to moderately retarded, was never fit to stand trial, and that his many mental health issues were obvious to anyone who attempted to speak with him. Further, his IQ was 54, and his intellectual abilities were in the “extremely low” range. His reading and math skills ranged from those of a child of 4 to one of 7. Newman could not tell time, could not deal with abstract concepts, and had a poor memory. Continue reading ›

Hinton v. Alabama – Easily Avoidable Ineffective Assistance of Counsel

February 28, 2014 | By James S. Friedman, LLC

The United States Supreme Court decided Hinton v. Alabama, No. 13-6440 (Per Curiam), on February 24, 2014. This case is a “must read” for all defense attorneys because it highlights the importance of some of the most fundamental requirements of competent representation of criminal defendants. If nothing else, it is a very strong reminder to always remember the basics, including investigating ALL aspects of a case, understanding thoroughly ALL of the relevant statutes, and remaining current with applicable law.

This was a capital case arising from shootings that occurred during a series of robberies. Ballistics evidence was the only physical evidence in the case. The State’s case turned on whether its ballistics expert could convince the jury that six bullets recovered from the crime scenes matched a gun recovered from the defendant’s home. Under the circumstances, it was clear that defense counsel required a highly qualified ballistics expert in order to raise doubt about the only physical evidence in the case.

Not surprisingly, defense counsel required public funds to pay for experts, and such payment was governed by statute. Counsel believed that the relevant statute limited his available funding to a total of $1,000.00 under the circumstances, and sought approval for that amount from the trial court. As to this issue, however, counsel was acting on outdated law. In fact, the applicable statute contained no such limit, but rather provided that counsel could be reimbursed “for any expenses reasonably incurred in such defense to be approved in advance by the trial court.” The trial court was uncertain about the maximum it could allow for defense experts, but invited defense counsel to seek reimbursement beyond the requested $1,000.00. Defense counsel was not aware of the fact that the statute did not limit him to the requested $1,000.00, and did not take the trial court up on its invitation to file subsequent applications seeking additional funding. Continue reading ›