Wednesday, November 22, 2017

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:

Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Transcript: Reasonably Suspicious Podcast, November 2017, featuring Just Liberty policy director Scott Henson and Mandy Marzullo, executive director of the Texas Defender Service.

Ineffective Assistance of Counsel: Front and Back-End Solutions

Scott Henson: Up next the House Criminal Jurisprudence Committee has an interim charge to examine instances of prosecutorial misconduct and ineffective assistance of defense counsel.

When this came out, the media focused mostly on the notion of the legislature confronting prosecutorial misconduct. But for defendants, the ineffective assistance piece is just as important. There are some structural barriers for defendants to receive relief in those cases. Mandy, why won't you deal out a few tarot cards for us and see if you can predict what structural problems the committee might confront when it comes to ineffective assistance.

Mandy Marzullo: Oh, God. I think on the front end, the committee unfortunately is going to have to confront just the underfunding of indigent defense in Texas. By and large, attorneys that represent indigent defendants in Texas are handling extraordinary caseloads; like several times the number of cases that they should be taking according to caseload studies that have been performed for decades, at this point. That does have real repercussions. If you aren't able to properly investigate your case, your client is more likely to plead to an offense when there isn't factual predicate for it, and you're less likely to present a case that adequately represents your client if and when you do go to trial. This deficit in spending is extraordinary. It's upwards of $240 million a year.

There's that piece, for which I think will be difficult for the committee to come up with a solution that's cost neutral that would be able to be remedied in a year where I think everyone is anticipating that funds are going to be tight.

Scott Henson: There is no cost neutral solution to this. That's not what's going on. Whatever you do on ineffective assistance, because we have underfunded indigent defense for so long, it's simply going to cost money. That's one of the reasons I was interested in them having put that in with prosecutorial misconduct. Are you really willing to address that? Because we know what will be involved to really address it. It's mostly more general revenue money.

There's also a situation where, once ineffective assistance of counsel has occurred in your case, it's very difficult for defendants to actually ever get any relief on that. That's in part because almost impossible to bring this up on direct appeal. Typically, the lawyer doing your direct appeal is the same lawyer who did your trial. If there's ineffective assistance there, they're very unlikely to bring up their own shortcomings.

Similarly in direct appeal, they really can't get into extraneous factors outside the record; and so they're sort of hamstrung. Yet, direct appeal is the only time when you have an attorney. Just like Mr. Ayestas in the capital case that we're going to talk about here coming up, his trial attorneys were ineffective and didn't investigate, at the sentencing phase, the mitigating evidence in this capital case that might have kept him off death row. There was no lawyer available to investigate that until the habeas corpus post-conviction aspect of his case, and even then he was struggling to get his investigation paid for. Talk to me a little about the structural situation where you don't get an attorney during the period when you might be able to challenge ineffective assistance.

Mandy Marzullo: It's not just ineffective assistance, I want to say that by and large prosecutorial misconduct is not an issue that you're going to be able to raise on direct appeal either. Defendants in Texas and throughout the country, by and large, only have access to counsel on what they called the direct proceedings. That's trial and then a first appeal that is limited to review of the trial record. It's just creating errors of law that you can look at or identify from looking at the pleadings in the case, and then the transcripts of the pre-trial hearings and the trial itself. That is the scope of the inquiry. It's very limited.

When it comes to prosecutorial misconduct and ineffective assistance of counsel, in both cases that really requires examination of facts outside the record. In order to figure out what an attorney should have put on, you're going to have to consider the scope of the investigation, the greater investigation. In determining whether a prosecutor should have disclosed certain evidence, that's going to require an examination of what that evidence was in the context of all of the information that was disclosed in the case. In both cases, you're going to need a habeas lawyer because that habeas is the review where you got to have external fact-finding. As you pointed out, you don't have a right to counsel in habeas cases unless you're on death row. That excludes most inmates in Texas.

Scott Henson: It's worth here giving a shout-out to Judge Elsa Alcala on the Texas Court of Criminal Appeals who raised all these issues in a dissent last year. And actually, her suggestions since the legislature is going to be looking for suggestions, she thought that the legislature should extend the right to counsel to habeas only to take care of this ineffective assistance category of cases because, frankly, this is such a broad category that it's really the area where they most frequently give habeas relief is ineffective assistance.

Mandy Marzullo: Yes.

Scott Henson: In the area where you're most likely to receive relief, you're the least likely to have a lawyer and be able to pursue relief. She suggested that the legislature actually pay for lawyers just like you do on direct appeal for that; and that seems like a pretty reasonable suggestion given that structural barrier.

Ayestas v. Davis

Last month, the US Supreme Court heard oral arguments in a Texas case called Ayestas v. Davis related to whether or not the defendant was entitled to funding to investigate an ineffective assistance claim as part of a habeas corpus writ in a death penalty case. Mandy, tell us what are the implications of this case?

Mandy Marzullo: This case is fundamentally about whether we're serious in guaranteeing access to justice for everyone regardless of their income level. The implications here have to do with access to funding within the Fifth Circuit so that death row inmates in Texas, Louisiana, and Mississippi. With Mr. Ayestas' case, there is a federal statute entitles indigent persons facing the death penalty to investigative expert or other services that are reasonably necessary to the representation.

However, the Fifth Circuit sort of deviates from the statutory task in determining whether to allocate resources; and it requires a demonstration of substantial need. That's really where his case went awry because you have to ... As Lee Kovarsky said in his oral argument, this test essentially requires that you establish at the front end that the outcome of the case would have been different if you had these resources.

Scott Henson: In order to get the resources.

Mandy Marzullo: In order to get the resources. It's a circular test if you really think about it.

Scott Henson: This goes back to what we're talking about earlier on this ineffective assistance claims, where these aren't really something you can raise on direct appeal for all intents and purposes. The first time you really have access to relief in these cases will be on habeas. Yet, you don't necessarily in non-capital cases even have an attorney on habeas, in this case you do. The habeas lawyers were unable to get resources to investigate the claims. It goes back to the same situation where what do you do when you aren't even able to get to that issue until habeas, and then you're not allowed to get to it then.

Mandy Marzullo: Here, we're talking about ineffectiveness layered on top of ineffectiveness. In Mr. Ayestas' trial, he was sentenced to death after a penalty phase that lasted less than half a day. His defense attorney has put on no witnesses, and essentially made no case for mercy. However, there's evidence that one, Mr. Ayestas suffered from a severe mental illness, that he had multiple head injuries, and also suffered from substance abuse. These are all things that probably mitigate his culpability but have not been investigated by his trial attorney and then it wasn't investigated by his state habeas lawyers either. Really, the first opportunity to have this looked at was on federal post-conviction, and the courts have denied him access to an investigator to talk to witnesses, but also an expert to evaluate his mental health.

Scott Henson: When will Supreme Court rule on this?

Mandy Marzullo: I don't know. Probably sometime in the spring.


Steven Michael Seys said...

I can attest to the perils of ineffective assistance of defense council. In my case, my appointed attorney failed to investigate my alibi or the blatant perjury of the state's primary witnesses. He simply assumed the state was right and tried to convince me to take a plea bargain. When we went to trial and three of the witnesses testified that the state's primary witness was not at the scene, he finally realized what he did to me, but it was too late. When the appointed defense attorney doesn't even talk to the client until after the investigation is complete he has no clue what to look for and is merely marking time to look good in post conviction proceedings.
Thanks to both ineffective assistance of defense council and prosecutorial misconduct, I spent thirty-two and a half years incarcerated and am on parole until 2083, all for a crime that I am a co-victim of. I can't see any justice in the Texas criminal justice system.

Anonymous said...

Nobody forced them to commit the crime did they?

Anonymous said...

We're talking about suspects who were accused of committing crimes that were given insufficient help in properly navigating a complex and counterintuitive legal system.

The only credential it takes to write a law is to win a popular vote.

But to legally help someone interact with those laws takes 8 years of higher education and approval by people who are already doing it.

See the dilemma? If you're accused of a crime, do you think you'd be able to spot the holes in your attorneys education, or do half as well all by yourself?

We don't send people to court to dispose of them, they go to court to be properly weighed, measured, and if found offending to be punished in accordance with our laws to the letter. Just like no one should accept a decade in prison for a traffic ticket, no murder should be sanctioned with a fine, and thankfully with years of practice the system has pretty well reduced it's tolerance to much finer, more exacting levels of variance. The error, as with all systems comes from the humans administering it.

So the problem we want to resolve is what obligation does the state have to error check it's processes, not "criminal bad, me good."

Anonymous said...

I've come to think that one of the many causes of ineffective assistance of counsel is that law school teaches law. It doesn't teach you how to investigate and develop facts. The handful of students who do "clinical" programs in law school may get a little training in investigation, but the vast majority graduate without any idea how to investigate a case, or how to work with investigators or experts. And then they emerge into a world of similarly-untrained attorneys and judges. And those judges treat the idea of investigation or expert involvement in a case as unnecessary and frivolous expenses, when investigation, at least, is needed 99.9% of the time. I'm not sure how this situation can be changed, but training in investigative techniques, and how to approach unfamiliar areas of science, technology and other disciplines, would probably benefit lawyers of all types. In the meantime, many criminal defense attorneys - of which I am one - will continue to suck, and their clients will continue to suffer.

Veryoldlawyer said...

The problem with raising IAC on a direct appeal is: The appellate lawyer cannot get the trial record within the 30 days allowed for a motion for new trial (the only way to raise IAC on direct appeal is by a motion for new trial) and without the trial record, there is no way to determine if trial counsel was ineffective or not. It would be nice if there was some way to get the record before the MNT deadline, then IAC could be raised on direct appeal.

Anonymous said...

But VeryOldLawyer the CCA almost always dings the direct appeal IAC cases on the basis that the (poor, oppressed ...) trial lawyers have not had the opportunity to make up lies ... I mean, explain the strategic reasons for their (in)actions. Better to raise IAC in habeas where the record can be fleshed out and astute habeas counsel may catch trial counsel in their ... er, failure to accurately remember what they did and did not do, and why.

Old and jaded habeas lawyer.

Wolf said...

If every person currently in Texas prisons had been able to afford a highly qualified team of lawyers during their trial, there would not be 145,000 individuals locked up....costing us more than 3 billion every year. The number would be far less, and in keeping with the conservative idea of prisons being "for people we're afraid of, not the ones we're mad at."

drewwilley said...

Group actively stepping in for inadequate counsel to prevent people from suffering the backlash effects of ineffective counsel...

Anonymous said...

It has been my personal experience that IAC, either on direct appeal, or habeas, is worthless. Especially when all the attorneys as well as the judge are in cahoots with one-another. It is simply easier for your attorney to cop a plea than have to investigate your innocence.

Anonymous said...

My appellate lawyer "hand delivered" my motion for new trial; yet was denied because the motion was not "PRESENTED" correctly. The motion set in his office 75 days then he suddenly discovered it (much too late to be of any help). When I asked my habeas lawyer about this She said that the only way for that to work was to "kiss the judges ass"

Anonymous said...

Wolf, there is no Constitutional requirement to prevent everyone charged with a crime a "highly qualified team of lawyers" any more than the state is required to have a "highly qualified team" of police, ADA's, judges, and others in the field. Gideon and Miranda both happened in my lifetime so for the bulk of this country's existence, related protections were spotty at best. Conversely, in my experience at least, I have rarely had trouble with an assistant district attorney being overly qualified given the amount of turnover most offices have, but your own mileage may vary significantly.

Forget for a moment that virtually all cases end in a plea deal, too many lawyers convincing their clients to give in without a fight, the fact of the matter is that most jurors are dumb as dirt and easily swayed by those prepared in court. But that preparation takes time and experience, experience few are willing to obtain the right way, so many seek an easier solution because they believe the state holds all the cards. That is poor reasoning of course but how many want to look in the mirror and blame themselves for their own failings? And at some point you have to come to grips that a large number of clients are very guilty, were sloppy in their criminal endeavors, and expect you to bail them out by some Perry Mason/Matlock sleight of hand when you're really only there to make sure they get the fairest deal you can.

But lets solve the issue of ineffective counsel once and for all by demanding such counsel lose their licenses, there are plenty that will step up their game accordingly or find easier lines of work and a good weeding out of the chaff would benefit everyone else involved. Over time, that will also limit the completely unqualified candidates for judicial spots, balancing the scales of justice.

Anonymous said...

My son was accused of Murder in 1996, his pro bono told him he would die if he didn't plea, that his confinement would be shorter. After the hearing was over, we asked about all the evidence, that dumb a-- couldn't tell us what the evidence was. He was charged with Capital Murder without seeing any proof. This is crooked as a river, we tried and have filed many appeals, all have been denied. So now, my son sits in prison and rots away for 40 years or whenever they decide to release him. Their is no rehab, just plenty of harrassment from the guards. They won't let him go to school because of his term, they discard his belongings, and much more that I care to write. THERE IS NO JUSTICE IN TEXAS