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November 16, 2009

SCOTUS corrects another circuit capital case error through summary reversal

As detailed in this SCOTUSblog post, following up a similar summary reversal last week in a capital case from the Sixth Circuit (discussed here), the Supreme Court started another week today with another summary reversal in another capital case.  Here is the SCOTUSblog summary of the ruling:

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder.   The unsigned ruling in Wong v. Belmontes(08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night.  The “Per Curiam” ruling — decided with formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Belmontes ruling, which is available here, is so fact-specific that it is hard to find even a broader principle in what is plainly an error-correction ruling from SCOTUS.  Perhaps the only line that might be quoted in later cases is this description of what Strickland's ineffective assistance prejudice standard  means in capital cases: "Strickland does not require th eState to “rule out” a sentence of life in prison to prevail. Rather, Stricklandplaces the burden on the defendant, not the State, to show a 'reasonable probability' that the result would have been different."

November 16, 2009 at 11:21 AM | Permalink


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Writ of Reinhardt.

Posted by: anonymous | Nov 16, 2009 12:08:29 PM

How about the re-affirmation that when considering such strategic choices the entire set of evidence must be considered, not just the favorable material the defendant hopes to introduce?

Also, I see this case as yet another great example of the stupidity of our current death penalty jurisprudence. No one is arguing that he didn't commit the murder. There isn't even a strong argument that he didn't commit the other murder. And it doesn't appear that anyone is making the case that he is not in fact worthy of a death sentence. The only arguments are over whether enough i's got their dot and t's their crosses.

Habeas relief should not be available from such a sentence, only the conviction itself and the elements thereof should be subject to such attack.

Posted by: Soronel Haetir | Nov 16, 2009 12:50:41 PM

Amen, SH, amen.

Posted by: federalist | Nov 16, 2009 12:56:54 PM

So the Constitution of the United States can now be dismissed as "crossed i's and dotted t's?" At least give it the respect of being referred to as a "technicality."

Posted by: Mark # 1 | Nov 16, 2009 1:15:26 PM

Mark #1

Even I agree and I am not a Reinhardt basher. There are technicalities and then there are points of fancy. I think It's an embarrassment that this opinion was written let alone two judges signed off on it.

Do you know who got the worst of this deal? The poor defense attorney. He did a smashing job and now because the court didn't decide the case on that aspect there will always be this public cloud over his head. Did he mess it up? The court never said no he didn't even though I think they wanted to say that too. I wish they hadn't taken the easy way out here, for his sake.

Posted by: Daniel | Nov 16, 2009 2:38:12 PM

This is a summary from the Legal Strategy Network:

Belmontes was convicted of murder during a burglary and sentenced to death in state court. The federal district court denied habeas relief. The Ninth Circuit reversed on instructional error but was overturned by the Court. On remand, the Ninth Circuit again ruled for Belmontes, but this time for ineffective assistance of counsel during the sentencing phase. In a per curiam opinion, the Court reversed again, holding that Belmontes could not establish prejudice under STRICKLAND v. WASHINGTON (1984). The Court pointed out that the Ninth Circuit had found the mitigation case presented by Belmontes’ defense attorney “substantial” in their first opinion, yet then characterized it as “cursory” in their second opinion. The Court also could not “comprehend the assertion by the [Ninth Circuit] that this case did not involve ‘needless suffering’” given the extreme circumstances of the murder, which involved the victim’s head being mangled and crushed by 15 to 20 blows from a steel dumbbell and numerous defensive wounds indicating a “desperate struggle for life.”

Posted by: Bill Otis | Nov 16, 2009 2:50:40 PM

Any trial lawyer who accepts a capital case in the Far West must do so knowing that in the event his client is sentenced to death and the sentence is upheld by the state courts, he *will* be branded ineffective by the Ninth Circuit. It is close to a certainty.

Posted by: Kent Scheidegger | Nov 16, 2009 2:51:26 PM

Given that something like 99% of those arrested for an offense for which the death penalty is available in the Far West (as to be distinguished, presumably, from the Near East), are not ultimately executed, it isn't implausible that incompetence of counsel is frequently involved.

Also, there is nothing particularly unusual about raising ineffective assistance of counsel in death penalty cases. It is pretty routine nationally, not just in the "Far West," except (of course) in rare death penalty volunteer cases who insist on representing themselves. In those cases, the lawyer/client is almost always ineffective, but for autonomy reasons the court system thinks hard about whether or not it cares.

Ineffective assistance habeas claims are ubiquitous mostly because ineffective assistance has not been well defined by the U.S. Supreme Court, and has instead been dealt with on an "I know it if I see it" basis, like this case. Better defined rights tend to be raised only in cases where there is some remotely plausible reason to believe that a right was breached. For all that certain members of SCOTUS have decried the ABA standards, the ABA is pretty much the only body that has made a meaningful attempt to distinguish between effective and ineffective assistance of counsel on the merits in an ex ante way.

Also, the law of habeas encourages filing every conceivable claim on day one, because claims not made are forfeited, and evidence or the evolution of the law often makes some claim that looks like a long shot at the time (e.g., a right to have a death penalty determination made by a jury), a winner in hindsight. This is a case of a proposed "solution" to excess habeas litigation making the situation no "better" from the proponent's propsective (to the extent that there has been any measurable effect).

It is also hard to deny that some of the assigned counsel in death penalty cases in the U.S. South have had pretty dubious performances. Far too many assigned counsel in the South have been soon to be disbarred drunks with de minimus experience defending serious criminal cases. This legacy of incompetence in death penalty representation casts doubt on the desirability of an ineffective assistance standard that makes a conclusive presumption that someone licensed to practice law has rendered effective assistance of counsel (although the case law, in fact, comes very close to such a presumption statistically). Often, the State will claim "harmless error" in such cases; but a system that uses "harmless error" as a cure for procedural problems at some point makes a mockery of due process itself.

Sooner or later, somebody is going to wake up to the notion that Gideon is fundamentally inconsistent with a fully adversary system. If Gideon means anything, it should mean that any mistake with a material result, which goes exclusively to bad lawyering, should not be attributed to the defendant. Those mistakes are inherently ineffective assistance of counsel. For example, missing a deadline, without a timely request for an extension of time, is almost always the lawyer's rather than the client's mistake, and thus flows from ineffective assistance of counsel. So, should it ever be constitutional for a missed deadline to lead to a negative result on a material merits issue for a criminal defendant (as almost all criminal procedure deadlines contemplate)?

The current system, which usually allows ineffective assistance to be raised on collateral attack only, effectively kills such claims not on the merits, but through attrition (through mootness before the issue gets considered) and pro se convicted defendant incompetence. It isn't obvious that a system that really believes in Gideon should be organized in that way.

Posted by: ohwilleke | Nov 16, 2009 7:33:15 PM

ohwilleke's long and meandering comment does nothing to refute my point. When a court finds virtually every attorney whose case reaches it to be ineffective, in states that spend far more on indigent defense than the ones ohwilleke blasts, there is clearly something wrong with that court's decision-making process.

As Daniel notes, Reinhardt's opinion needlessly sullied the reputation of the defense attorney.

Posted by: Kent Scheidegger | Nov 16, 2009 8:08:32 PM

Defense attorneys are used to being sullied by prosecutors, courts, friends, family members, victims, and clients; it goes with the terrain. As someone famous once said, "criminal defense is not for the meek, the timid, the faint of heart." We are duby-bound to represent the client with all the courage and zeal we can muster; with fearless advocacy for our client's cause. In so doing we help protect the liberties of all the people and safeguard the Constitition of this wonderful country. LONG LIVE STEPHEN REINHARDT!!!

Posted by: Michael R. Levine | Nov 16, 2009 8:58:10 PM

Mark #1,

More to the point I believe the courts have piled a huge amount of baggage and claimed that it is mandated by the constitution. If these problems were evidenced in the guilt phase I would be far more likely to agree with you. I just don't particularly care whether a felon is executed or not.

I'm not even certain that I agree with forcing states to provide counsel. There was another choice not taken, that of forcing legal procedure back to a simpler form that does not require counsel to navigate.

Posted by: Soronel Haetir | Nov 17, 2009 12:27:34 AM

Mark R. Levine --

"Defense attorneys are used to being sullied by prosecutors, courts, friends, family members, victims, and clients; it goes with the terrain."

They're also used to holding banquets and receptions at ABA conferences, and elswhere, to celebrate how morally superior it is to champion the "downtrodden" -- as if the parade of thieves, muggers, cheats and strongarms who circulate through our courts were actually the downtrodden instead of the downtrodders. And I won't even go into the case that started this thread, that being Mr. Belmontes' conviction for an appallingly brutal and violent murder.

But for however that may be, and assuming arguendo that you're right about the hardships that come with the terrain of defense lawyering, one might consider the possibility of selecting a different terrain, as the overwhelming majority of the legal profession does.

And please bear in mind that Reinhardt is a JUDGE, and not (or at least he's not supposed to be) a member of the defense bar or a partisan thereof.

Posted by: Bill Otis | Nov 17, 2009 12:21:52 PM

Let's not forget that Richard Paez joined this decision. He was a very controversial nominee, and it appears, from this case as well as others, that the GOP's doubts were quite well-founded.

Posted by: federalist | Nov 17, 2009 1:06:54 PM


Ineffective assistance, while almost always raised, very rarely wins. The number of executions reversed on that ground alone is very small. The number of non-capital cases reversed for ineffective assistance is even smaller.

Posted by: ohwilleke | Nov 17, 2009 5:40:28 PM

"Ineffective assistance, while almost always raised, very rarely wins."

Not in Ninth Circuit capital cases.

Posted by: Kent Scheidegger | Nov 23, 2009 6:58:28 PM

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