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June 20, 2012

Notable start to notable Eleventh Circuit rejection of capital habeas IAC petition

This first paragraph of the panel opinion in the Eleventh Circuit decision today in Morton v. Florida DOC, No. 11-11199 (11th Cir. June, 20, 2012) (available here), struck me as blogworthy:

This appeal illustrates the truism that, regardless of the mitigation strategy that capital defense lawyers choose, they are often “damned if they do, and damned if they don’t” when their clients later assert claims of ineffective assistance of counsel during collateral review.  After he confessed to butchering an elderly woman with a survival knife and shooting her defenseless son at pointblank range with a sawed-off shotgun during a random home invasion, Alvin Morton was convicted and sentenced to death.  During the two penalty phases that occurred after Morton was convicted, Morton’s counsel presented expert testimony that Morton’s troubled childhood caused him to develop an antisocial personality disorder, which led him to commit the murders.  Defense counsel argued that this disorder mitigated Morton’s moral culpability for the murder, but the jury rejected this argument and sentenced Morton to death.  Although habeas petitioners routinely argue to this Court that their lawyers rendered ineffective assistance by not presenting evidence of an antisocial personality disorder, see, e.g., Reed v. Sec’y, Fla. Dep’t for Corr., 593 F.3d 1217, 1245–49 (11th Cir. 2010); Cummings v. Sec’y for the Dep’t of Corr., 588 F.3d 1331, 1365–68 (11th Cir. 2009); Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 781–90 (11th Cir. 2003); Thompson v. Nagle, 118 F.3d 1442, 1451–52 (11th Cir. 1997), Morton argues that his trial lawyers rendered ineffective assistance because they presented evidence that Morton had an antisocial personality disorder.  This argument fails.  The Supreme Court of Florida reasonably applied Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), when it rejected Morton’s claim.  We affirm the denial of Morton’s petition for a writ of habeas corpus.

As a caveat to the first sentence above, I think it might be even more accurate to say that a capital defense attorney will just about always be damned (at least by his client an in a subsequent habeas appeal) if and whenever a death sentence is returned no matter how well or how poorly that capital defense attorney performed.  The practical reality of the modern death penalty is that it is always accurate and easy to assert, after a defendant is sentenced to death, that defense counsel could not possibly have done worse and could have very possibly done better.  Consequently, it will rarely be frivolous, and almost never be pointless, for a death row defendant to claim he received ineffective assistance of counsel not matter what the true quality of that assistance may have been.

June 20, 2012 at 04:44 PM | Permalink

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"The practical reality of the modern death penalty is that it is always accurate and easy to assert, after a defendant is sentenced to death, that defense counsel could not possibly have done worse and could have very possibly done better. Consequently, it will rarely be frivolous, and almost never be pointless, for a death row defendant to claim he received ineffective assistance of counsel not matter what the true quality of that assistance may have been."

And whose fault is that? Liberal judges and their annually revised capital sentencing "jurisprudence." This case neatly points up how utterly bankrupt the metastasization of Strickland has become. Most people can agree that, notwithstanding the weakness of Gideon and Strickland themselves, that lawyering has to meet some mininum standard. But Strickland, particularly in the capital sentencing context, is much beyond that--it's a license to flyspeck any and every decision made by the lawyer. Strickland was to protect against a lawyer who effectively was no counsel at all--that's how you tie it to Gideon, yet it applies, on a non-frivolous basis, to claims that the psychological defense just wasn't good? That's ridiculous. Utterly ridiculous. And that people call it law (vice fiat) shows how far we as a society have tolerated judicial activism.

Posted by: federalist | Jun 20, 2012 5:30:11 PM

"Consequently, it will rarely be frivolous, and almost never be pointless, for a death row defendant to claim he received ineffective assistance of counsel not matter what the true quality of that assistance may have been."

Might I suggest the ancient idea that a person should allege ineffective assistance where he has in fact received ineffective assistance, and not otherwise?

Oh, wait, I forgot that asking people to just stick with the truth is verbotten in criminal defense.

Posted by: Bill Otis | Jun 20, 2012 6:21:09 PM

"Most people can agree that, notwithstanding the weakness of Gideon and Strickland themselves, that lawyering has to meet some mininum standard."

Federal habeas lawyers don't have a minimum standard.The lawyers not the defendants are protected by statute.
Most state post conviction counsel don't have a minimum standard.

In my experience, the procedural default engendered by post conviction counsel and habeas counsel is almost as prevalent as ineffective assistance of trial counsel and counsel on direct appeal.

Posted by: ? | Jun 20, 2012 8:54:48 PM

If I were a capital defense lawyer, I would always insert an act of lawyer malpractice, perhaps with the written consent of the defendant, to avoid a malpractice claim. This would be a poison pill in every capital defense advocacy. Examples include, missing a deadline, failure to present evidence, falling asleep in court, and loudly snoring, with the defendant sharply poking me, loudly proclaiming, "Wake up, you asshole."

Posted by: Supremacy Claus | Jun 21, 2012 12:32:45 AM

lol was thinking about the same thing SC. All this would seem to say to me is NEVER touch a DP case. PERIOD!

if they have no lawyers willing to do them as long as this "Beat up the first lawyer" stupidty continues.

Of course i would also have no problem ripping a followup lawyer to shrids when i showed up and DEMANDED actual proof and details of just WHERE the fault was!

Posted by: rodsmith | Jun 21, 2012 1:15:26 AM

The insertion of defense error has become almost a duty. To not commit an act of lawyer malpractice may be lawyer malpractice in capital defense cases, given the coddling of vicious, heartless predators by the lawyers on the appellate bench. Why does the lawyer find the slightest excuse to coddle such people? They generate massive lawyer jobs and fees. So killer coddling is in bad faith. The real purpose is to make money. "To defend the constitution," is a lawyer lie. The dead victims generate nothing and may rot in their wooded shallow graves, picked over by animals and insects.

Posted by: Supremacy Claus | Jun 21, 2012 9:03:43 AM

Would disagree with the professor. Many ineffective assistance of counsel claims, even in capitol cases, are legally frivolous under the Strickland standard. Capitol trial counsel has three or four potential mitigation strands which are not entirely compatible and makes a strategic decision to present the strongest mitigation evidence. A claim of incompetence under that circumstance should and will fail (unless the state courts or a Circuit Court divisible by 3 ignores Strickland) but the claim is raised anyhow in state courts and by appointed counsel on federal habeas.

Actually, there is a minimum level of competence required in state post-conviction and federal habeas because most state codes of professional conduct require competent representation. In my experience, most of the post-conviction attorneys in my state's public defender system meet that requirement.

Posted by: TMM | Jun 21, 2012 10:54:28 AM

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