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February 24, 2014

Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant

Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:

In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.  Id., at 687–688, 694.  Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance.  We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688.  Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....

The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”  An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690.  We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.  The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.

Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.

February 24, 2014 at 05:47 PM | Permalink


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The case was correctly decided and quite revealing, too.

There are three narratives we often see on this site -- that adverse outcomes are brought about only by prosecutorial cheating; that the South, and Alabama in particular, don't provide sufficient funding for the defense; and (just today) that defense counsel are the tireless defenders of the Constitution.

People can read this case for themselves and decide who's the champion of what.

P.S. Is there any reason that the unimaginably lazy defense lawyer here should not have to pay out of his own pocket for the required work on remand?

Posted by: Bill Otis | Feb 24, 2014 6:15:02 PM

Mr. Bill raises a good point. The next issue should be using Hinton to challenge those jurisdictions that do not provide adequate funds for a meaningful defense.

Posted by: George | Feb 24, 2014 6:48:15 PM

Defense attorneys, like all human beings, make mistakes, even ones of constitutional magnitude.

Posted by: Mashup | Feb 24, 2014 8:33:32 PM

Mashup --

"Defense attorneys, like all human beings, make mistakes, even ones of constitutional magnitude."

1. Should I expect this same generous attitude the next time a prosecutor fails to hand over all the Brady material?

2. Should the defense attorney in this case be required to foot the costs of a retrial and/or re-sentencing, since his laziness alone created the need for these things?

Posted by: Bill Otis | Feb 24, 2014 8:58:23 PM

Interesting. Defense attorney makes a mistake of law, and that directly impacted the defense, and it's remarkable that a court reversed? Hopefully, the Supreme Court of Alabama will take this to heart and figure out why it dropped the ball so badly.

Posted by: federalist | Feb 24, 2014 10:58:11 PM

1. It depends on the facts, if you are directing the question only to me. No, if you are talking about the defense bar and/or the court of public opinion because that would an unreasonable demand by one person from such a large number of people.

2. No, because that is not how the system works. Along the same lines, if the state loses on the prejudice issue, I wouldn't expect counsel for the state to reimburse the state for opposing this claim or filing not filing better briefs as the claim made its way through the courts, nor would I expect the state to reimburse the taxpayers of the state if the state loses on the prejudice issue. Further, I am not sure many states would be inclined to draw unnecessary attention to the likely underfunded condition/operation of its indigent defense system by balking at errors by appointed counsel and demanding reimbursement for their mistakes. The good citizens of Alabama might be satisfied with their system, but maybe they are getting exactly what they are willing to pay for. It would be in poor taste, and would not escape media or public scrutiny, to demand champagne when you have only a beer budget.

Posted by: Mashup | Feb 24, 2014 11:00:56 PM

Mashup --

Me: "Should the defense attorney in this case be required to foot the costs of a retrial and/or re-sentencing, since his laziness alone created the need for these things?

You: "No, because that is not how the system works."

I know that's not how it works. The question is how SHOULD it work.

In my view, when a lawyer's sheer laziness causes the result of the proceedings in the lower court to have to be done over, he should have to foot the bill.

When I grew up, the lesson was, "You break it, you pay for it." Why should any different rule apply to counsel? Shouldn't a mature lawyer be under at least the same obligations we apply to a ten year-old?

The usual excuse I hear for exempting defense lawyers from the rules that apply in everyday life is that they are defending the accused against the awesome power of the state. But that excuse does not apply here. It is precisely defense counsel's FAILURE to defend the client from the power of the state that produced the need to do it all over.

So why shouldn't the lawyer have to pay for the mess he caused?

Posted by: Bill Otis | Feb 24, 2014 11:19:43 PM


You have a point. I also think that there is an issue with the judge. What sane judge in this day and age thinks that a competent ballistics expert can be expected to testify for a measly $1000? If the judge is supposed to be calling balls and strikes that's an easy call. I think this is especially true after the so called expert got to the stand. The judge has an obligation to not let his court turn into a kangaroo court. A one-eyed man who had ever testified in a civilian case before. Really? The judge didn't see problem with that? So yes the defense attorney was out to lunch but the judge was being dense.

Posted by: Daniel | Feb 24, 2014 11:33:51 PM

Shows again that but for a late appeal for justice there has been the potential for a miscarriage of justice. Systems are impossibly charged with finding certainty of guilt, and both error or poor judgement, or again simple poor practice, can lead to decisions for the death penalty which are unwarranted or plain wrong. Read Bloomberg comment via link from my name.

Posted by: peter | Feb 25, 2014 4:53:19 AM

Prosecutors being "human" is factored in various ways and they don't have to "foot the bill" out of their own pocket generally speaking to my knowledge even if they by "sheer laziness" cause a significant error that costs the state or defendant specifically in time, money or even jail time unless the level of wrongdoing is significantly high at least. Some sort of more strict evenhanded punitive rule to protect the system might work though we do put the state to some degree to a higher test since they have more power to deprive people of life and liberty than defense attorneys or the like.

I also am not aware of this "narrative" of their "cheating" (as compared to some error they made, which is suggested from time to time) on this blog as such putting aside it might have been raised from time to time. Concern for inadequate defense counsel is a fairly standard concern, especially in the death penalty area. I am not aware of this "they can't do no wrong" sentiment either. I do note a certain "narrative" the other way to a degree (defense as liars etc.), but given the person's former profession, it really doesn't surprise me.

The Brady material matter doesn't change the above. We understand the errors are made. Doctors also make mistakes, since they are human. One would have to know WHY the material wasn't handed over. But, regardless. Again, human or not, the system sets up certain constitutional safeguards. Usually, somewhat unlike the more distant past, they are not targeted to certain individuals as such. Thus, exclusionary rules are set up that usually don't penalize specific police officers. They can make mistakes but only certain egregious conduct results in them personally getting penalized directly.

Posted by: Joe | Feb 25, 2014 8:26:48 AM


You asked me a yes or no question, and I answered it. I also tried to explain by way of example why your idea would not be feasible, practical, or fair, as we do not expect the same from other lawyers (or judges) involved in the proceedings or the state, in relation to the taxpayers, and I suggested that the state gets exactly what it is willing to pay for (probably error-prone or overworked attys). (As an aside, I wonder if the prosecutors were aware of the change in the law, and, if so, whether or not they spoke up, so as not to jeopardize the possible finality of proceeding. I think you know the answer to that possible scenario, as the ballistic evidence was the linchpin of the case.)

I am not sure what else I am supposed to say in response to your question. Bottom line, I do not like your idea. Sorry if we disagree.

Posted by: Mashup | Feb 25, 2014 8:48:24 AM

I also think Joe hits the nail on the head in all his observations, although I am not sure an evenhanded punitive rule would work either, as we want a system that encourages attys to join it. Demanding perfection or requiring reimbursement for grossly or just negligent errors does not advance that objective in my view. Plus, such a system would be hard-pressed to collect that money from the pockets of individual attys, and getting insurance to cover it on a case by case basis, assuming malpractice carriers would even agree to it, would likely result in collateral costs and civil litigation, so I wonder if there would be any savings in the end.

Posted by: Mashup | Feb 25, 2014 9:28:33 AM

As someone somewhat familiar with Alabama practice, I would never try to defend the standard of criminal defense practice in the state courts there. Generally, it is abysmal. (I wouldn't try to defend prosecution practices in those courts generally, either, but that is a separate matter.)

HOWEVER, I think it is too easy to dump this in the lap of the individual defense lawyer. The larger failure is systemic. At the time of this trial, in a DEATH PENALTY CASE, the relevant Alabama statue capped the defense attorney's compensation for out-of-court time at $1000. The statute did authorize two attorneys (not that $2000 would have been near enough to pay two attorneys to prep for a death-penalty trial), but the judge only appointed one. And this was a case involving allegations of two murders and an attempted murder, all separated by several months' time. And it's not as if the rates of compensation for in-court time were overly generous. According to the cert petition, the lawyer's total reimbursement for the representation was $1600 (although he claimed he spent a good deal of uncompensated time on the case). While none of this excuses the attorney's mistakes, it is essential to recognize that the statutory limits on compensation at that time placed defense counsel in a terrible bind between their ethical obligation to the client and the financial imperative to keep their practice running. (In this case, as in most Alabama cases, we are dealing with an appointed private attorney -- public defender systems are still almost unheard of in Alabama, and certainly were at the time of this trial.)

Moreover, while the lawyer was wrong about the law, it wasn't entirely crazy for him to think the cap on expert compensation was $1000, since that *had in fact been the law* just a few years prior to this case. Of course he had an obligation to be aware of new statutory developments in his area of practice (not to mention the US Constitution, which under Ake v. Oklahoma arguably required the additional expenditure even in the face of the previous statute), but I think it is important to understand that this was all taking place within a legal culture that had thought, just a couple of years earlier, that such a cap was entirely reasonable.

So, yes, this defense attorney was something out of a Kafka-esque nightmare for an innocent accused. But let's not pretend that the situation was unusual. And let's not forget the broader system that abetted this type of handling of a capital case, from the Legislature, to the judges and prosecutors, to the compliant forensics "experts" who apparently are still refusing to cooperate with the defense experts and explain how they reached their conclusions, although their ethical code requires them to do so, etc.

Posted by: anon | Feb 25, 2014 9:39:13 AM

Bill, do you think prosecutors who wrongfully withhold Brady material, resulting in retrials, should be forced to pay for those retrials?

Posted by: HGD | Feb 25, 2014 10:49:25 AM

I hope that the law professors who read this blog and read about this case will drill this case into the skulls of their students. When you take the oath to be a lawyer you have to do all it takes in a criminal case and cannot be bound by some rigid little rule that says that the limit on expert fees is a grand. Hell its public money. It takes a grand to keep the inmate in the prison for an hour.

Newguy is out there at the PD office somewhere and does what he is told like he did when he washed dishes at the restaurant. But a lawyer working for a Public Defender office is not a dishwasher and the office boss and the budget are not the end all. Newguys of the world speak up for what's right!

Posted by: Liberty1st | Feb 25, 2014 10:53:31 AM

The Supreme Court of Alabama will not take this to heart. The Supreme Court of Alabama will continue to protect convictions against all Constitutional challenges, regardless of the facts of the case. If the legislature has its way this session, we won't hear much more about these cases because many of them will be procedurally barred. If an innocent man is executed and nobody hears about it, is he really dead?

Posted by: Ala JD | Feb 25, 2014 11:25:33 AM

HGD --

It was a sure bet that someone was going to ask your question: "Bill, do you think prosecutors who wrongfully withhold Brady material, resulting in retrials, should be forced to pay for those retrials?"

I will answer that, but only after you answer the question already on the floor: Should the defense lawyer in the case at bar, whose laziness alone caused this mess, be required to pay for the retrial?

Posted by: Bill Otis | Feb 25, 2014 2:02:12 PM

Joe --

"I also am not aware of this 'narrative of [prosecutors'] 'cheating' (as compared to some error they made, which is suggested from time to time) on this blog as such putting aside it might have been raised from time to time."

If you're not aware of the narrative, it's only because you haven't been keeping up. Hardly a day passes here without prosecutors getting accused of hiding evidence, manufacturing evidence, overcharging out of sheer malevolence, and using mandatory minimum sentences (or other stiff sentences) to bludgeon defendants into cooperating or terrorize innocent people into pleading guilty to things they haven't done.

Don't tell me you haven't seen this, or that accusations of that sort are anything less than regular fare on this blog.

Posted by: Bill Otis | Feb 25, 2014 2:10:59 PM

Three things are certain in life: Death, taxes, and the refusal of any of the Defense-Lawyers-Are-Holy crew on this blog to opine that one of their number should actually have to pay the costs his laziness brought about.

Posted by: Bill Otis | Feb 25, 2014 2:16:20 PM

AlaJD --

"If an innocent man is executed and nobody hears about it, is he really dead?"

Have no fear, my good man.

Since we hear no end of shrieking when a GUILTY man is executed, we'll certainly hear no end of it if it ever actually comes to pass that an innocent one is.

Of course the main thing we'll hear are foot-stomping claims that the guilty ACTUALLY ARE innocent, a la' the snarling, years-long campaign undertaken to promote the Roger Keith Coleman innocence hoax.

Posted by: Bill Otis | Feb 25, 2014 2:23:04 PM


You clearly cherish playing the histrionic role on this blog. My goodness . . .

Posted by: Mashup | Feb 25, 2014 2:51:59 PM

Mashup --

Don't worry. I have been made well aware that commenters who don't buy the Received Wisdom of the NACDL will be accused of histrionics, or worse, such as fascism, racism and sadism, plus a raft of other insults that your side seems to regard as "argument."

This case is about a defense lawyer who was not merely "imperfect," as you keep saying, but breathtakingly careless and lazy. Yet no one on this thread thinks that he should have to pay one single dime toward the thousands and thousands of dollars in costs his incompetence has created.

THAT is the problem, not "histrionics."

Posted by: Bill Otis | Feb 25, 2014 3:49:48 PM

Bill --

Sure. For purposes of this argument, I am willing to accept a legal rule that, where counsel's fault results in a retrial, counsel should be personally liable for the costs of the retrial.

Now, my question to you is, will you accept the symmetrical application of that legal rule to a prosecutor whose failure to disclose Brady material results in a retrial?

Posted by: HGD | Feb 25, 2014 4:47:58 PM

HGD --

You bet.

People should have to pay up for the damage their serious malfeasance causes. This applies to both prosecutors and defense lawyers.

It also applies to the police, BTW. It has been my view for years that the remedy for police violations of the Fourth Amendment should be a monetary sanction. If individual policemen knew that is was going to cost them personally $1000 or $2000 for conducting an illegal search, I guarantee you fewer would be conducted. In addition, the perversities of the exclusionary rule would be unwound. At present, the rule benefits only the guilty; it affords no compensation at all to innocent people who are illegally searched.

To have a personal fine replace the exclusionary rule would benefit the innocent, while the guilty would not be able any longer to suppress perfectly reliable evidence.

Things ALWAYS go better when the costs of misbehavior are assigned to the person who did it, rather than having them shifted to someone else (usually the taxpaying public).

Posted by: Bill Otis | Feb 25, 2014 5:23:36 PM


Why are you so amazed that people are not climbing all over each other to sign on to your idea? It is not because of come conspiracy among the defense bar---how paranoid for Pete's sake. Perhaps it is because it is not a good idea to punish attys the way you suggest, and the system is not set up to accommodate your rather outlandish idea.

Besides the problems I mentioned earlier today, your idea begs a miliion questions. Who decides if the atty is completely at fault? Does the atty get to put on defenses, like a some sort of mini tort system with contributory or comparative negligence because all the players, from judge to the state to the defense atty failed to catch the mistake? What about due process for the atty. At what stage of the proceeding does someone determine or apportion fault? What happens if the outcomes in the appeals by the defendant are different than a separate determination that the atty has to foot the retrial bill? Would the case be called "State v. Hinton, but proudly sponsored by Hinton's former attorney"? And on and on . . .

Posted by: Mashup | Feb 25, 2014 5:38:18 PM

Bill, thanks for the principled position. It's an interesting idea, but would be very hard to implement. Like others, I am concerned that the possibility of personal liability would chill lawyers (on both sides) from undertaking aggressive advocacy. And, in this case, the trial judge (who also did not bother to give defense counsel a correct statement of the law, or conduct the research necessary to do so) appears to share some blame for the retrial. Could defense counsel seek contribution or indemnification from the trial judge? If so, we are entering pretty choppy waters.

I share your view w/r/t the availability of a damages remedy for Fourth Amendment violations (so did the Founders), but current qualified immunity jurisprudence makes a tort deterrent to police misconduct unrealistic.

Posted by: HGD | Feb 25, 2014 5:51:25 PM

Should the criminal case be stayed while the atty goes to court about the decision to make him pay for a retrial? Where would the authority to require the defense atty to pay come from, state statute? Are we going to have 50 different statutes and differing case law? Would the shitty-lawyer-pays system put courts in an awkward position, when they appoint counsel oftentimes and rule on IAC claims? Would it force courts to decide IAC claims at a different point than they do now? Would it apply to appointed and retained defense attys?

Posted by: Mashup | Feb 25, 2014 5:53:13 PM

Mashup --

"Should the criminal case be stayed while the atty goes to court about the decision to make him pay for a retrial?"

Nope. He should be removed from the case altogether. Probably be suspended from practice, while we're at it.

"Where would the authority to require the defense atty to pay come from, state statute?"

That's one source. Normal discipline from the court for unprofessional conduct would suffice as well. I've seen lawyers fined for just being late to court.

"Are we going to have 50 different statutes and differing case law?"

Why would that be a problem? We already have 50 SETS OF differing statutes and case law.

"Would the shitty-lawyer-pays system put courts in an awkward position, when they appoint counsel oftentimes and rule on IAC claims?"

But they ALREADY have to rule on IAC claims, with potentially severe reputational consequences for the lawyer they appointed.

"Would it force courts to decide IAC claims at a different point than they do now?"


"Would it apply to appointed and retained defense attys?"

To both, sure. Why not?

Mashup, what you're doing here reminds me of a ninth grade debating ploy. The idea is to launch a blizzard of questions to obscure the fundamental truth you despise: That people who cause costs ought to have to pay them.

For most people, that is an uncontroversial idea. But for you -- because I suggest that it should be applied even to The High and Sacrosanct Defense Lawyer -- it's an outrage.

Posted by: Bill Otis | Feb 25, 2014 7:57:37 PM


Thanks for the answers. On another note, I never took debate, and my school did not offer it. Perhaps you are seeing the Socratic methodology in my questions, which would be unintentional on my part. Law school teaches us, through that tortured method, to think things through, so my questions came to mind because the shitty-lawyer-pays system implicates everything, from the defendant, to the criminal and civil courts, to the state, to the prosecutors, to perhaps the US constitutions constitutions to state constitutions---not just con. rights of the defendant but also such issues as legis. auth to enact such a law, sep of power issues, DP for the attys---to the ethical duties of attys, to insurance law, to doctrines of qualified immunity and tort liability, etc. It would spawn endless collateral litigation, such as K disputes between lawyers and carriers and in all the other areas I just mentioned. My observations and questions are valid.

Finally, there is no need or basis for you to conclude that I am pro defense just because I disagree with you. Assumptions are dangerous.

Posted by: Mashup | Feb 25, 2014 9:15:43 PM

Forgot to follow-up about the stay issue. Of course the atty will be removed. My question concerns whether a criminal trial can or should proceed if the issue of who is footing the bill has yet to be determined. Does that matter get litigated on the front end before he retrial? What if the atty appeals an adverse finding? What about speedy trials?

Further, SCOTUS and any other other appellate court do not have the authority to make fact finding decisions on appeal, so it is not like they would enter an order requiring the atty to pay for the trial. Further, I cannot imagine that an atty's liability would be bound up in a criminal appeal by the defendant anyway. So, if we understand that liab would be determined in a trial court, does that happen before the retrial? If so, then what about speedy trials, stays, etc.? Also, It would be a thorny legal proposition to wait until the trial is completed before determining the fin. liab of the atty.

Posted by: Mashup | Feb 25, 2014 9:33:08 PM

Mashup --

Let's just start with the basics.

Do you think adults of sound mind should have to pay to clean up the messes they create?

Do you think defense lawyers are exempt from the moral requirements that apply to the rest of us?

Posted by: Bill Otis | Feb 25, 2014 10:22:24 PM

Bill -

Let's take this issue one step farther: when a trial judge makes what an appellate court later deems to be reversible error, should the trial judge have to personally pay for the costs of the new trial?

Posted by: Anon | Feb 26, 2014 9:14:34 AM


1. As to your first question, that is a loaded question. But, in the simplest terms, no. I do not believe that human beings have to pay directly in terms of money for every mistake made. Nor do I believe that humans should be forced to pay financially for very mistake they make. (For example, filing a civil tort suit is optional, not required.) Further, let's not confuse the issue here. The injustice in this Alabama case was to the defendant, not you or society as a whole. And it wasn't just, as you say, the "laziness" of the atty here. The issue at SCOTUS was limited to the question of the merit or not of his 6th amend. claim, specifically the performance prong, but that does not preclude outsiders from looking at the matter, not withina court of law, of whether the trial court, the system as a whole, and prosecutors are also blameworthy to some degree, especially when you are talking about requiring the defense atty to pay for a possible retrial.

And, I think this atty will pay directly and indirectly for this error, such as taking a hit to his reputation, perhaps a loss of business and perhaps higher rates, etc, not to mention to personal shame or grief he might feel. So, I think he has paid and will pay for this mess, just not for the retrial, which would be far too unworkable and punitive.

2. I truly do not think there are any moral, religious, spiritual, legal, societal, etc. requirements that demand perfection or an error-free existence as a human being, even in a professional capacity.

Posted by: Mashup | Feb 26, 2014 10:04:23 AM

Mashup --

1. If Mr. X does not have to pay to clean up the mess he made, who should have to? Why is it just to have someone who did NOT make the mess pay for its clean-up? Is that what you teach your kids? That if your son makes a mess, your daughter has to clean it up? What do they learn from that version of "justice"?

2. You say, "I truly do not think there are any moral, religious, spiritual, legal, societal, etc. requirements that demand perfection or an error-free existence as a human being, even in a professional capacity."

I fully agree. But of course it's a straw man, and has precious little to do with what I asked, which was: "Do you think defense lawyers are exempt from the moral requirements that apply to the rest of us?"

No one is required to be perfect or error-free (those being the flagrant straw men you use). But adults, at least those without the Holy Status of defense lawyer, are required to be reasonably careful and diligent in important matters.

Defending a capital defendant is an important matter. The lawyer was careless and lazy. When you are careless and lazy, and as a result someone else is damaged, do you have an obligation to rectify the damage, and to pay the costs rectifying it entails?

Yes or no.

Rectifying the damage here means paying for the retrial. The reason you want to let the lawyer off the hook has nothing to do with the fact that none of us can be perfect. The reason is that you don't want to require him to have to fork over even when he has grossly failed to meet a standard vastly less than perfection, i.e., normal, everyday carefulness.

One more question: If people don't have to pay for the damage their carelessness causes, and can shift the costs to others, does that increase or decrease the incentive for them to be more careful in the future?

Posted by: Bill Otis | Feb 26, 2014 1:55:53 PM

Given that the trial was held in 1986 it would not surprise me if the defense attorney is no longer practicing. I wouldn't even be surprised to learn that the defense attorney is now deceased.

Posted by: Soronel Haetir | Feb 26, 2014 4:47:06 PM


Asked and answered already. You keep asking the same question, in different forms, and fuss that I am somehow unresponsive when I answer in a way you find unsatisfactory.

FWIW, you might take a moment to reflect on how reflexively demanding your questions are. For example, in your very first question to me you asked: "Should I expect this same generous attitude the next time a prosecutor fails to hand over all the Brady material?" If you strike the "should" from the question, we are left with quite a telling statement about what you feel. Also, take a moment to look at how wide open your questions really are. In that sense, my answers are not unresponsive in any way. Also, your questions are so laden with your strong opinions and worldview that they frequently compel the responder to "step back" from the strict confines of the question, such as your question as to whether I think defense attys are exempt from the moral requirements that apply to the rest of us. I will take a moment to "unbundle" that question for another reason. As your questions and opinions have developed in this thread, it is apparent your overall "point" is operating on a very tenuous, if not alarming, layering of presuppositions, such as the crazy idea that what "mom" taught you growing up (clean up your own messes) is a universally correct or applicable truth no matter the facts of a situation, that everyone does or should follow what you learned growing up, that it is indeed a "moral requirement" of all people, and that what you learned as a child is such a compelling and moral truth that it should be applied to defense attys, or other attys, who make mistakes or sloppy, if not awful, errors. That is breathtaking.

Regardless, you can ask the same types of "yes or no" questions in a hundred different forms, but I will not be agreeing with you on this one because I do not think (again, because it is unworkable and too punitive) that defense trial or app. attys should have to pay for retrials, resentencing, a new appeal, etc, when the client wins on an IAC claim.

Posted by: Mashup | Feb 26, 2014 5:11:18 PM

Bill, you responded to Mashup, but not to my question. Your choice, of course, but since you're so keen to assign financial ruin to a defense lawyer I'll ask again: if a trial judge makes a ruling, and an appellate court later deems that ruling to be reversible error and orders a new trial, should the trial judge have to pay for the cost of the new trial out of his or her own pocket?

Posted by: Anon | Feb 26, 2014 9:00:40 PM

Mashup --

Your evasions are as breathtaking as they are revealing.

Posted by: Bill Otis | Feb 27, 2014 5:10:57 AM

Anon --

There are, as your question suggests, weighty arguments that an erring judge should indeed have to foot the bill for the retrial his mistakes require. These arguments make the question close, and tempt me, but do not quite bring me over.

Judges are constitutional officers and essentially form the third branch of government. This is not true of defense lawyers (or, to anticipate your criticism, it is not AS true). The difference in constitutional status and function is sufficient -- although by no great margin in my view -- to dictate different answers on the question of immunity: Yes for judges and no for lawyers.

(There is a sufficient case for immunity for lawyers, however, that I would not make them liable except in clear cases, like this one, where the error is so gross that a reasonably careful tenth grader wouldn't have made it).

And yes, I know you can present problematic cases at the margin for both lawyers and judges; and yes, I know you can point to the treatises that have been written on this fascinating question, a question I cannot possibly cover in an answer on a blog. I probably couldn't cover it if I taught a class on it (which I never have). An abbreviated answer is the best you can get in a setting like this, however.

Posted by: Bill Otis | Feb 27, 2014 6:31:53 AM

There are not enough "clear" or indisputable cases to make changing the system (and its existing incentives) we already have worthwhile, especially considering the collateral drain from other private and public reources (ie, litigating through all the possible issues that would come up or could be raised, delay, etc.). It would just be rearranging the deck chairs.

Posted by: Mashup | Feb 27, 2014 9:55:45 AM

Mashup --

"There are not enough 'clear' or indisputable cases to make changing the system (and its existing incentives) we already have worthwhile..."

How do you know that? What are the numbers, and how did you derive them?

P.S. I hope your daughter won't have to spend too much on psychiatrists later in her life, working through with them why her father made her clean up messes her brother created.

Posted by: Bill Otis | Feb 27, 2014 1:00:13 PM

A cheap shot in your "P.S." In any event, I find that unconditional compassion and forgiveness are the most meaningful values I can practice and convey.

Posted by: Mashup | Feb 28, 2014 8:55:10 AM

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