Tag Archives: duty to investigate

You Pay Your Money and You Take Your Chance – Update for May 2, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


With 97% of federal defendants entering guilty pleas, you’d think that law students aspiring to federal criminal defense work (that is, if any law student actually selects that as a career option) would take classes in plea negotiation even before studying evidence, criminal procedure or appellate advocacy.

pasdedeux170502To be sure, plea agreement negotiation is an art form, sort of akin to detailed choreography that has great implications for defendants, implications often never fully appreciated until much later. The change-of-plea hearing itself is a pas-de-deux for defendant and judge, with almost every question being scripted by Rule 11(b) of the Federal Rules of Criminal Procedure – and almost every answer being a trap for the unwary.

It’s little wonder the Supreme Court has held that the 6th Amendment’s right to effective legal counsel extends to negotiating and signing the plea agreement.

Gilbert Spiller was a man without a lot of choices. He was busted in Chicago for selling 121 grams of crack to a police informant, and then compounding his miscalculation by later selling the same guy a loaded .40 caliber pistol so the buyer – a convicted felon – could use it to protect his own drug trafficking operation. Gil was sort of a poster boy for what’s wrong with the Windy City.

Gil, a man with three prior drug felonies, was pretty much in a corner. The federal drug trafficking statute – 21 USC 841 – is a spaghetti bowl of “if-thens.” If the amount of drugs sold exceed x, then the minimum sentence becomes y. If the defendant has x number of prior drug felonies, then the minimum sentence is y, but if the number of prior felonies is x+1, then the minimum sentence is 2y. If death or serious injury resulted from the drug sales, then the minimum sentence is z. In Gil’s case, the amount of drugs he sold would have given him a mandatory minimum sentence of five years, but his prior felonies bumped it to double that.

pleading170502When the government intends to enhance a 21 USC 841 sentence, it has to provide a notice complying with 21 USC 851. In defendant parlance, someone receiving such an enhanced sentence has been “851’d.” Gil got 851’d right away, even before the government’s plea offer arrived on his lawyer’s email.

The government proposed that Gil would plead to a drug distribution count, and admit that the conduct underlying the remaining counts was relevant for sentencing purposes. He also had to stipulate to the government’s Guidelines calculation, including a Guidelines “career offender” enhancement that would send the sentencing range into the stratosphere.

Gil’s defense attorney was puzzled by the offer. Gil would be giving up his right to appeal or argue Guidelines enhancements at sentencing, and for what? We see this in many plea agreements: the defendant give up rights in exchange for vapor, getting nothing that he could not have gotten simply by pleading guilty without the agreement (called a “blind plea”). After all, a defendant does not have to have an agreement in order to plead guilty, and sometimes, no plea agreement might be a wise idea.

Gil clearly wondered what was in the deal for him, as did his attorney. She wrote back:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

In an uncharacteristic flash of candor, the Assistant U.S. Attorney responded:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility.

forme170502Gil rejected the government’s proposed plea agreement and instead entered a blind plea, pleading guilty to all three counts and reserving his right to argue his sentence and appeal. His sentencing range was 262-327 months. At sentencing, his lawyer pointed to his troubled upbringing, asking for 120 months. The court sentenced Gil to 240 months.

Once ensconced in prison, Gil became afflicted with buyer’s remorse. He filed a 28 USC 2255 motion, arguing his lawyer had been constitutionally ineffective by counseling him to execute a blind plea rather than taking the government’s proposed plea agreement. The district court denied the motion.

Last week, the 7th Circuit upheld the denial. To win, Gil had to show his lawyer’s performance fell below an objective standard of reasonableness, and that there was a reasonable chance that, but for those errors, his sentence would have been different.

The Circuit said that a reasonably competent lawyer would have tried to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing him to plead guilty. That, the Court said, was just what Gil’s lawyer did. She discussed the proposed plea agreement with him and conveyed Gil’s questions (and hers) to the government. She concluded that Gil would be better off rejecting the offer and pleading blindly.

remorse170502In fact, she went one better that most attorneys. She drafted an 11-page plea declaration illustrating the understanding of the relevant facts and law underlying the case that she and Gil had reached, which she had Gil sign. In the document, which was filed with the district court, Gil acknowledged he had read the indictment and the document he was signing, and had gone over the whole thing with his attorney. (This, in our experience, is an unusual but prudent practice: it both ensures the defendant knows what is happening and protects the lawyer from “buyer’s remorse” proceedings such as Gil’s 2255 motion).

Gil admitted in his 2255 motion that his attorney believed it was worth it to reserve his right to challenge the government’s Guidelines calculation — a right he would have sacrificed by signing the plea agreement — and believed she could get him a “better sentence.” The Court said her decision “sounds in strategy rather than in emotion, and a strategic decision, even if clearly wrong in retrospect, cannot sup-port a claim that counsel’s conduct was deficient.”

endof170502The Circuit observed that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re-construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” This is especially true in the plea-bargaining context, the Court said, citing “the many uncertain-ties surrounding the difficult decision of whether to plead guilty.”

The 7th concluded that the district court had “a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.”

Spiller v. United States, Case No. 15-2889 (7th Cir., Apr. 28, 2017)

– Thomas L. Root


Investigation Drives Strategy, Not the Other Way Around – Update for April 27, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


We’re only nine days from the 143rd running of the Kentucky Derby, one of three times in the year when average Americans pretend to be interested in horse racing. Today, we’re remembering Derby great Old Rosebud.

rosebud170427You don’t recall? Old Rosebud won the 40th running of the Derby in 1914 by eight lengths, a tie for the biggest margin of victory in Derby history. We’re reminded of that by today’s case, a habeas corpus appeal of a 28 USC 2254 ruling from California.

If grounds for habeas corpus actions were horses, ineffective assistance of counsel would be Old Rosebud. The 6th Amendment does not entitle criminal defendants to legal counsel at trial, it entitles them to effective legal counsel. A defendant is not entitled to Perry Mason. But then, he or she is not to be saddled with Vinny Gambini, either.

vinnie170427Ineffective assistance of counsel is far and away the most claimed constitutional defect in the world of post-conviction remedies. Despite (or maybe because) the ineffective assistance of counsel claim is so well used, courts look at such claims with a gimlet eye. A successful claimant has to show, first, that his or her lawyer screwed up, that is, did something or failed to do something that a lawyer of average skill would not have done or omitted. And that’s the easier of the standards. The claimant then has to show that except for the screwup, there is a reasonable probability that things would have turned out differently.

That second standard is called “prejudice.” It’s not prejudice in the classic sense, but rather means that the screwup somehow worked to the defendant’s detriment. This necessarily means that how close the case was matters. We see the problem often. The habeas petitioner tells us that her attorney failed to call a witness who would have said she was 20 miles away from the convenience store at the time it was robbed. If the only evidence is a grainy video of someone the same height as the defendant wearing sunglasses and a black hoodie and a clerk who says he thinks the defendant was the robber, a lawyer’s failure to call an alibi witness is pretty significant.

Unfortunately, however, there was a busload of nuns parked outside of the convenience store, and all of the sisters saw the defendant leave the 7-11 with a bag of swag, and then take off the glasses and hoodie to take a selfie in front of the store. All of a sudden, a single alibi witness is pretty unlikely to have changed the outcome.

nuns170427Courts don’t like to second-guess defense attorneys. Over the years, the rule has evolved that if the lawyer investigated the evidence and witnesses, and then chooses a strategy, the courts will seldom question that strategy. In our example, the lawyer read the discovery, talked to a few of the nuns, and quickly concluded that an alibi defense would look phony. He instead decided that since his client was known as “Mushmouth Marianne,” his better defense was to argue the clerk misunderstood her. She was there to pick up the garbage, but when she said, “Give me all your trash,” the clerk thought she said, “Give me all your cash.” And inasmuch as it was a sunny, clod day, a hoodie and sunglasses made perfect sense.

Pretty weak, but the lawyer investigated the evidence and picked a strategy based on what looked the most promising. Courts do not tend to Monday-morning quarterback decisions like that. But occasionally courts need to be reminded that reasonable investigation is what leads to development of strategy. It cannot be the other way around.

Consider what happened to poor, simple teenager Sarah Weeden. She was convicted in California of felony murder and sentenced to 29-to-life for her role in a bungled robbery. It turns out that while 14-year old Sarah was not present at the scene of the crime, she had some involvement in making the robbery happen.

psy170427Weeden’s entire defense at trial consisted four character witnesses, who generally are people least likely to sway a jury. Although there was plenty of evidence that Sarah had heard about the robbery plans and helped lure the marks – some boys she had met earlier – to a park where the robbery occurred (and the robber’s gun discharged accidentally, killing one of the victims), all her attorney presented was the testimony of four character witnesses who said Sarah was not the kind of girl to who would plan a robbery. Sarah’s attorney did not get her evaluated by a psychologist or present expert testimony about the effect of her youthfulness on her mental state.

With a new lawyer, Sarah brought a habeas corpus motion claiming her trial counsel was ineffective for failing to investigate psychological evidence. She submitted a report from a psychologist concluding that “it is extremely unlikely Sarah would intend to commit robbery or knowingly participate in one,” and “she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated.” The report found Sarah to “quite passive and vulnerable to being manipulated by others,” and concluded she had “serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level),” “well below average language skills,” and “a strong tendency to miss important environmental cues.”

Sarah’s lawyer defended his decision, claiming he did not obtain a psych evaluation of his client because “regardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth.” Counsel also speculated the prosecution might have used the results of an examination against her. The state court concluded that defense counsel’s failure to obtain a psychological examination was a “sound tactical decision.” State appellate courts agreed, as did a federal district court.

Last week, the 9th Circuit took a very different view.

PPP170427The Circuit complained that the state courts’ conclusions that Sarah’s attorney made a “reasonable decision” because counsel feared that the results of an expert evaluation might undermine his trial strategy “puts the cart before the horse.” The Court said, “Counsel cannot justify a failure to investigate simply by invoking strategy…. counsel’s investigation must determine trial strategy, not the other way around.” Sarah’s counsel could not have reasonably concluded that a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal. Besides, the Circuit pointed out, defense counsel’s conclusion that the prosecution could have used the results of an examination against Sarah was nonsense: a defendant must disclose expert reports she intends to rely on at trial, but if the evaluation was not helpful, counsel could decide not to use it, and thus not produce it.

“The correct inquiry,” the 9th said, “is not whether psychological evidence would have supported a preconceived trial strategy, but whether Weeden’s counsel had a duty to investigate such evidence in order to form a trial strategy, considering all the circumstances…. The answer is yes.” The State’s felony murder theory required proof that Sarah had specific intent to commit the robbery, so her “mental condition was an essential factor in deciding whether she actually had the required mental states for the crime.”

But did the mistake prejudice Sarah? The appellate panel said it did. Sarah’s psychologist concluded that “it is extremely unlikely she would intend to commit robbery or knowingly participate in one, that she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated, and that she was “quite passive and vulnerable to being manipulated by others.” This testimony from a qualified expert would have added an entirely new dimension to the jury’s assessment” of the critical issue of Sarah’s mens rea.

Weeden v. Johnson, Case No. 14-17366 (9th Cir., Apr. 21, 2017)

– Thomas L. Root