June 22, 2005


Much thanks to "Anonymous Author" for giving me permission to reprint this blawg commentary on my speciality - ineffective representation - and more particularly, Rompilla v. Beard:

In a nutshell, the Court held that a couple of p.d.s were ineffective in their representation of a capital defendant, as they failed to review a case file that the prosecutor had noticed his intent to use at the time of sentencing. Souter wrote the majority opinion, and Kennedy wrote the dissent - 5-4 decision.

I'm not going to completely beat this case to death, because it's going to be done more thoroughly and better elsewhere. But I'm a little annoyed at the unworkable requirements the Court is thrusting on criminal defense attorneys - esp. public defenders (p.d.).

I think the clarifying point (and the point that should have been made) is that *capital* defenders should be held to a different standard with respect to ineffective assistance - that is, with so much at stake, you have to be thorough. Souter, however, uses incredibly broad language that can be read to apply to *all* criminal defense cases.

My first day on my misdemeanor rotation in the p.d.'s office, my boss took me to my office, and on my desk were two stacks of files - he said, "That first stack of 40 are your pre-trial conferences; that second set of 40 is your sentencings. Sentencings are at 9, pre-trials at 1." And that was every week. Now, I can tell you, without revealing any client confidences, that I didn't pull all 40 of my sentencings' 9th grade records that day so I could present mitigating evidence. Do all 40 (actually, for my 6 month rotation, give or take, all 1,000) get thrown out on ineffective assistance grounds because I didn't review every page of every file of all of their prior convictions (including some guys with 3 pages of convictions), AND review all prior mental health records, AND review their education records? It's absurd. The opinion could have only been written by someone who never did p.d. work (or criminal defense work, for that matter).

Now, on the actual facts themselves, yes - the case should be bumped back. The p.d.s should have reviewed the old case transcript, especially with two warnings from the State that they'd be used in the sentencing. But my gripe with Souter beyond that goes to several case-specific points:

1) He calls them "unprofessional" - yet they reviewed 3 mental health experts' reports, interviewed 5 family members, and attempted to get additional information from a very uncooperative client (again, something Souter has never had to deal with) - I can tell you, that's a LOT of work for p.d.'s to do. To do that work, you basically have to neglect the rest of your caseload . . .

2) Souter essentially demands that the p.d.s review the *entire* prior conviction file, when the State actually only gave notice of intent to use a single testimony transcript.

3) Souter assumes, errantly, that files of all prior convictions are down the hall, and that you can just pick them up at lunch. Wrong - prior convictions will be in different cities, different counties, and different states. Let me tell you - even getting a copy of an old criminal file in the county just one over is a NIGHTMARE.

4) Souter sounds shocked at the contents of the one assessment, about being beaten, sleeping in the attic, etc. - well, I can tell you, you're going to get that assessment almost every time you do one - I've read stuff similar to that too many times to count. Judges aren't impressed by it, nor are juries.

5) And, more importantly, the disparaging tone that Souter casts on these attorneys is sickening, esp. given that they're p.d.s. It's pretty clear that they busted their asses trying to fight off the death penalty, and Souter all but equates them to that attorney that slept through his client's trial. Again, it's the hallmark of someone who's never done the biz.

Of course, mind you, I'm not entirely jazzed about Kennedy's dissent, which basically just plays the "this guy is a bad guy" card (duh - he was up for the death penalty), but at least he recognizes, correctly, that: "[t]oday the Court brands two committed criminal defense attorneys as ineffective -- 'outside the wide range of professionally competent counsel,' . . . --because they did not look in an old case file and stumble upon something they had not set out to find."

So, to summarize - yes, the case should have been thrown back (if the guy is, after all, retarded, he's not subject to the death penalty) BUT Souter creates, essentially, a new, unworkable rule for every p.d. in the country, and simultaneously disparages them if they're unable to do the impossible. I'm really disappointed in Souter on this one.

Anonymous Author: doing the legal heavy lifting so I don't have to. We now return you to lightweight stories of lawyer angst and foibles.

My Shingle - Why You Just Can't Take Your Client's Word For It
Mark Graber - Death Trials as Games