Tag Archives: ineffective assistance

Counsel Should Be Smart Enough to Know the Court is Wrong – Update for January 8, 2018

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


It has happened often enough before: A Circuit decision was plainly against a sentencing position the defendant wanted to take, and so counsel did not fight the issue. Then, after the defendant’s conviction is final, the law changes. Was counsel ineffective for not raising the issue?

violence151213Jolol Carthorne was sentenced as a Guidelines career offender in part because he had a Virginia prior for assaulting a police officer. Circuit precedent at the time held the crime to be a crime of violence, and his lawyer did not fight it, despite the fact that Virginia law held that the slightest touching was enough for conviction.

On appeal, Jolol argued that the assault should not count for career offender status. The problem, of course, was that Jolol did not raise the issue at sentencing, so he could only win the issue if the district court committed plain error. The Circuit agreed that his assault on the cop was not a crime of violence, but said that because its prior decisions (all of which had since discredited by Johnson and Mathis and other Supreme Court cases) were binding on the district court when Jolol was sentenced, the sentencing error was not FRCrimP 52(b) “plain error.” Jolol had noting coming.

assault180108Jolol then filed a 2255 motion complaining that his lawyer should have argued that a Virginia conviction for assaulting a cop was no longer a crime of violence. His lawyer admitted he was not even aware of the analysis required by the recent Supreme Court cases application offenses, such as Johnson v. United States, Mathis v. United States, and  Descamps v. United States, for purposes of the career offender enhancement. But the district court said that since there was no plain error in sentencing Jolol as a career offender, there was no ineffective assistance of counsel standard in not raising it.

On the Thursday before Christmas, the 4th Circuit ruled for Jolol. It said that the plain error standard and ineffective assistance of counsel are not the same thing. “The ineffective assistance inquiry focuses on a factor that is not considered in a plain error analysis, namely, the objective reasonableness of counsel’s performance. In addition, plain error review requires that there be settled precedent before a defendant may be granted relief, while the ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent… Claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance. But the plain error inquiry applies precedential authority existing at the time of appellate review.”

dumblawyer180108Defense counsel must demonstrate a basic level of competence regarding the proper legal analysis governing each stage of a case. Therefore, he or she may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper. The Circuit said that was the case here, where newer cases made clear that Virginia assault and battery did not categorically present serious risks of physical injury. Defense counsel should have known to make the argument, even though the district court probably would have rejected it because of circuit precedent.

United States v. Carthorne, Case No. 16-5613 (4th Cir., Dec. 21, 2017)

– Thomas L. Root


Court Doesn’t Care About What Might Have Been – Update for January 3, 2018

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


addiction180103Barely an adult, Frank Hernandez committed a couple of horrific murders. The jury heard about how he was drunk during the crimes, but never heard about his severe mental illness with “psychiatric illness of psychotic proportions,” including schizophrenia, bipolar disorder, seizure disorder, and depression, in addition to an “extraordinary degree of chemical dependency.” What’s more, they never heard about his childhood with a succession of depraved parents and foster parents, which one expert later described as “a daily hell.”

Frank brought a state habeas corpus claim, claiming his lawyer was ineffective for not arguing “diminished capacity,” which was a valid state defense to murder. Usually when lawyers are accused of being ineffective, they try to justify their sloth as being some kind of strategy. To his credit, Frank’s lawyer did not. Instead, he admitted that he would have investigated and advanced the diminished capacity defense based on mental impairment had he realized that he could have done so.

game180103Game, set, match, right? Wrong. The state argued that the lawyer’s “subjective state of mind is irrelevant” as long as the state can conjure up some hypothetical reason why a reasonable defense attorney might have not raised the diminished capacity issue. After Frank brought a federal court action under 28 USC § 2254 and lost, he appealed to the 9th Circuit.

Last week, the Circuit slapped down the prosecutor, saying what might have been did not matter as long as the record showed what really was.

lawyerguilty160901“Where counsel has provided the reason for his conduct, and we have no reason to doubt the validity of that explanation, the relevant inquiry is whether the stated reason was objectively unreasonable,” the Circuit said. “Courts are not to indulge ‘post hoc rationalization’ for counsel’s decision-making that contradicts the available evidence of counsel’s actions.” Only where the defense counsel’s conduct is not explained in the record or the explanation contradicts the record, should a district court “entertain the range of possible reasons counsel may have had for proceeding as he did.”

Because “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,” the Court said, defense counsel’s omission was ineffective assistance.

Hernandez v. Chappell, Case No. 11-99013 (9th Cir., Dec. 29, 2017)

– Thomas L. Root


Clueless Defense Counsel Gets Defendant a Hearing – Update for September 29, 2017

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


yacht170928We would give writing this blog and soak up tropical rays aboard our 300-foot long yacht if we had a nickel for every time a defendant has told us that his attorney didn’t listen to what had really happened. Occasionally, an opinion comes along to remind us that this is often the case.

Jim Griffith was a science guy. Unfortunately for him, he used his chemistry knowhow to manufacture methamphetamine from pseudoephedrine. There are a lot of things you probably do not need to know about meth homebrew, but one thing you ought to know: the amount of meth you end up with will never weigh more than the pseudoephedrine you start with. In fact, even high-yield processes yield a lot less, something like 3 units of meth for every 4 units of “suzy.”

science170928Jim’s lawyer was no science guy. That was too bad. As every student of the drug war knows, Section 2D1.1 of the Sentencing Guidelines is driven by drug weight. The more a defendant’s drugs weighed, the higher the sentence.

At Jim’s trial, a forensic chemist explained that all of the liquids the cops seized when Jim’s lab was raided either contained meth or pseudoephedrine. All of the various liquids containing meth was 150.2 grams, and the combined weight of liquids containing the pseudoephedrine was 124.9 grams. The jury found Jim responsible for 150.2 grams of meth.

During the trial, Jim repeatedly explained to his lawyer that no one was looking at the meth issue correctly. He said most of the liquids counted against him were mostly “toxic waste materials” that were “unusable.” He complained he started with only 2.4 grams of pseudoephedrine and said that “it is impossible to turn 2.4 grams of pseudoephedrine into more than 2.4 grams of methamphetamine.” He told counsel “on numerous occasions that the liquids seized by the police were unusable in their current form and were mostly nothing more than the waste materials from the one multi-step process that I was conducting to make a small amount of methamphetamine for my own personal use.”

His lawyer didn’t get it. He thoughstupidoil170928t that “unusable” liquids were just meth mixtures too weak to get users high. Something like ditch weed is to pot. He told Jim it didn’t matter, because all of the weight of the liquid mixtures had to be included in the sentence calculation.

Jim got 20 years.

He then filed a post-conviction motion under 28 USC 2255, complaining that his attorney was ineffective for failing to conduct an adequate investigation, to hire an expert witness to testify as to the amount of usable methamphetamine that could be produced from the liquids; to object to jury instructions addressing whether he manufactured a “mixture or substance” containing methamphetamine; and to challenge the jury instructions and presentence report. Jim fully explained the three-step process he used to manufacture methamphetamine, and that starting with 2.4 grams of pseudoephedrine, it is impossible to end up with more than 2.4 grams of meth. He asserted that he repeatedly told counsel those facts “from the very beginning,” but counsel failed to argue that the liquids were not a usable “mixture or substance.”

lab170928Jim’s lawyer admitted that he did not know what Jim had meant by “usable.” As to whether the substances amounted to “mixtures,” he explained that, after he had talked “with both probation and the Government on that issue,” he concluded that the substances were “mixtures” so he was “satisfied that the calculations were correct.”

The district court concluded Jim was not entitled to a hearing on his 2255 motion. But earlier this week, the 11th Circuit agreed with Jim, and ordered that the district court give him the evidentiary hearing he sought. The Circuit pointed out that precedent clearly held that waste product, even if trace amounts of the drug were present, “which is unusable and not ready for retail or wholesale distribution” should not be counted in the weight of the drugs attributed to a defendant. The Circuit said that “if a petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim… A petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief. If the allegations are not affirmatively contradicted by the record and the claims are not patently frivolous, the district court is required to hold an evidentiary hearing.”

atty170928The Circuit observed that If Jim “proves the factual allegations he has made, he will have shown that counsel’s failure to render reasonably effective assistance not only resulted in an erroneously higher guidelines range but it also caused the sentencing court to apply an inapplicable statutory mandatory minimum for Count 1. There is nothing in the record to indicate that the combined force of those two errors did not affect his sentence. To the contrary, the fact that the district court sentenced Griffith to the bottom of the guidelines range on the grouped counts, even though the government argued for a sentence above the guidelines range, is evidence of a reasonable probability of a different result.”

United States v. Griffith, Case No. 15-11877 (11th Cir., Sept. 26, 2017)

Thomas L. Root


EDNY Judge Blasts Veteran Defense Attorney for ‘Inexcusably’ Abandoning Client – Update for August 15, 2017

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


hats170816Federal criminal cases generally move along at a brisk clip (“brisk” here being a relative term in the judicial system). For instance, the Speedy Trial Act requires that trials begin 70 days after indictment (although the statute has more holes than a Swiss cheese factory). Courts are usually parsimonious with continuances. Federal criminal subpoenas are sufficient to haul in witnesses from anywhere Old Glory flies, and motion deadlines are abbreviated.

When final judgment is rendered and the sentence imposed, a criminal defendant has a mere 14 days to file a notice of appeal, if he wants to challenge the conviction or sentence in the court of appeals. In the more casual federal civil world, parties wishing to appeal have 30 days, and if the party is part of the government (where nothing is done quickly), it has 60 days.

Adding to the tight appeal deadline is the fact that the defendant is often otherwise occupied, being in jail awaiting the bus ride to his or her final prison destination. It really falls to the defendant’s lawyer to get the notice of appeal – which, after all, is all of a paragraph long – on file.

deadline170816If a defendant misses the 14-day deadline, he or she has one final shot, a 30-day period after that during which the district court may extend the filing deadline for “excusable neglect or good cause.” An Eastern District of New York defendant successfully made that showing the other day – a rare occurrence – and in so doing drawing an unusual scorching for his lawyer from the court.

David Gotterup, who was convicted of mail, wire and bank fraud, was sentenced to 135 months on June 1 of this year. Although he had two lawyers representing him, he had to get his brother – who was not an attorney – to drop off his notice of appeal at the court. His brother, being a busy guy, got it there one day late, on June 16 instead of June 15. Dave promptly filed for permission to file one day late.

Eastern District of New York Judge Nicholas Garaufis held a hearing on Dave’s motion just a week ago. It found that Dave had told Joseph Conway, one of his lawyers, right after sentencing that he wanted to appeal. Dave said so. Lawyer Conway said so, but he also explained that Dave’s plea agreement contained an appeal waiver.

Dave pointed that even under the waiver, he was allowed to appeal on ineffective assistance of counsel grounds. Lawyer Conway said he told Dave that “he could file an appeal and ask for new counsel” if he wanted to. Conway even helped Dave’s brother complete the notice of appeal form and gave him filing instructions.

Dave, on the other hand, claimed he “was always under the impression that Mr. Conway was filing the appeal and that the appeal was in motion.” He thought the “only delay” was the filing fee that his brother “went and paid.” In fact, right up to the August 1 hearing, Dave “didn’t actually know that [he] was filing a motion… to be completely honest, I thought I was being represented by Mr. Conway in my appeal.”

ignore170816The District Court found excusable neglect justifying Dave’s late filing “due to the fact that Defendant reasonably believed that Trial Counsel was handling the filing of his notice of appeal.” Dave had promptly told his Conway he wanted to appeal, and because he was locked up, he had to rely on Conway to get the job done.

Judge Garaufis found that Conway’s later attempts to shift responsibility for the filing to Dave “understandably confused Defendant,” and clearly was skeptical about the lawyer’s story:

Mr. Conway represents that after the Amended Judgment was docketed, he told Defendant that he would need to file his notice of appeal pro se. Defendant avers that Mr. Conway ‘never said anything about a pro se representation.’ Even assuming that Mr. Conway’s version of the facts is true, Mr. Conway’s actions thereafter proved to be inconsistent with his directive that Defendant should proceed pro se. First, by Mr. Conway’s own account, Mr. Conway invited Defendant’s brother to his law office to help him fill out the notice of appeal form. It is not as though Mr. Conway extricated himself from the filing entirely. As such, Defendant’s belief that his brother ‘wasn’t filing a notice of appeal’ and was merely ‘picking up paperwork from Mr. Conway to drop off at the court,’ was entirely reasonable.

conway170816Second, after the Amended Judgment was entered, Mr. Conway continued to represent Defendant with respect to the restitution portion of his case. At the Hearing, Mr. Conway appeared to argue that his representation ended when the Amended Judgment was docketed on June 1, 2017; however, the Government represents that, as late as June 23, 2017, Mr. Conway was still acting as counsel for Defendant.

Judge Garaufis felt lied to, and made that clear, saying that “Conway misled the court by stating that once the Amended Judgment was filed, his ‘services to [Defendant] were over’… This splitting of hairs understandably confused Defendant. It is entirely reasonable for a defendant to think that an attorney handling one aspect of the case is handling the case in its entirety.

Conway argued that his retainer agreement did not contemplate appellate work, and that Dave’s plan to claim lawyer ineffectiveness precluded Conway – the presumed target of that claim – from filing the notice of appeal. The District Court noted that Conway was not just an experienced defense attorney but a former Assistant U.S. Attorney for 15 years who headed E.D.N.Y.’s criminal division. “As such,” the Court said, “he is quite obviously aware of trial counsel’s obligation to protect the appellate rights of a criminal defendant by timely filing a notice of appeal.”

interrupt1700816Judge Garaufis wrote that Conway “abandoned his client and left the task of filing a notice of appeal to his incarcerated client and Defendant’s brother who, importantly, is not an attorney… Based on Mr. Conway’s conduct, Defendant has a plausible claim of malpractice against his attorney. The court said Conway’s refusal to file the notice of appeal was “inexcusable as a matter of ethics and professionalism. As such, the court intends to refer this matter to the Committee on Grievances…”

Conway told New York Law Journal last Friday “I wholeheartedly disagree with the decision and look forward to an opportunity to present my case.” He apparently overlooked that he had a chance to present his case in front of U.S. District Judge Nicholas Garaufis a couple weeks ago. And that did not turn out so well.

United States v. Gotterup, Case No. 15-CR -498 (E.D.N.Y., August 14, 2017)

– Thomas L. Root


You Can Love Your Lawyer Too Much – Update for August 9, 2017

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


defiance170811There’s an old legal joke about the difference between an attorney and a rooster. The punch line goes something like “A rooster clucks defiance.

Putting some meat on those bones is New York attorney Harvey Slovis. Harv represented Oksana Romalis, a school teacher caught up in a multi-defendant scam to rip off the Conference on Jewish Material Claims Against Germany. The Conference is a not-for-profit organization that supervises and administers several funds that make reparation payments to victims of Nazi Germany, distributing hundreds of millions of dollars annually in direct payments to tens of thousands of victims in 80 countries and territories. The government alleged that Oksana and others recruited people who lived at about the right time to be victims, and engineered phony applications for compensation. The head of one of the Conference funds would then approve the bogus claims in exchange for a cut of the payment. The decade-long fraud stung the Conference for over $57 million.

Only three of the 31 defendants went to trial. Oksana was one of them. In a post-conviction petition she filed under 28 USC 2255, Oksana claimed that her lawyer was ineffective for not telling her that she could get the 46-month sentence she ended up with, which was her reason for rejecting a government offer of a 21-27 month sentencing range.

Last week, the district court rejected Oksana’s ineffective assistance claim, holding that a lawyer’s failure to accurately predict that her sentencing range might start 10 months above the sentencing range offered by the government was not a big enough difference to show that she was prejudiced by counsel’s overly-rosy predictions that she could win at trial.

lovelawyerB170811But the more interesting allegation Oksana made, rejected by the court, was that she and “and Slovis were involved in a relationship, ‘frequently went on dates together, and became intimate’.” The court noted that “in text messages between the two, Slovis and Romalis expressed affection for each other and often used terms of endearment. Romalis says that her decision to reject the Government’s plea offer was based on her intimate relationship with Slovis. Romalis also speculates that “Slovis was motivated by romance and money,” and “was stringing her along in order to prolong their relationship.”

The district court was unimpressed. To be sure, a defendant’s 6th Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel. But conflict-free counsel does not necessarily mean that the 6th Amendment enforces the canons of legal ethics. The court said, “the existence of an intimate relationship between a defendant and counsel may not always amount to a conflict of interest, even if it violates the code of professional ethics.”

lawyerlove170811Here, Oksana was obligated to prove that her affair with Harvey either adversely affected his performance or otherwise prejudiced her interests. Oksana speculates that Harvey improperly advised her in conjunction with the plea offers because he wanted to continue their relationship as long as possible. However, the district court held, Oksana had to “provide more than that to demonstrate that Slovis’s performance was adversely affected by his relationship with her.” At sentencing, Oksana tried to convince the court she had only gone to trial instead of pleading guilty because she knew that if she was convicted, she would lose her teaching license. That assertion came back to bite her. The court didn’t buy her 2255 claims that Harv had advised her wrong on plea offers because she was his “squeeze.” Instead, the court held Oksana to her prior claim she had rejected the offers because she hoped to win at trial and keep her teaching certificate.

Sec. 2255 directs a district court judge to consider a defendant’s claims in light of the entire record of the trial and post-conviction proceeding. That’s what the judge did here, much to Oksana’s chagrin.

Harv is probably not out of the woods. Most jurisdictions have rules of professional conduct that prohibit a lawyer sleeping with a client, which is enshrined in American Bar Association Model Rule of Professional Conduct 1.8(j). We at least hope that Harvey didn’t bill Oksana for the time they spent horizontally. It’s happened before.

Romalis v. United States, Case No. 1:11-cr-00120 (S.D.N.Y. Aug. 4, 2017)

– Thomas L. Root


Defendant Who Could Not Win at Trial Can Still Argue Bad Plea Advice – Second Update for June 23, 2017

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


If a post-conviction petitioner argues in a 28 USC 2255 motion that he or she would never have taken a plea deal if defense counsel had done a competent job of explaining it, the courts have held that the prisoner must show (1) the advice was deficient (either bad or missing altogether); and (2) but for the bad representation, he or she would have rejected the plea and gone to trial. This is the Hill v. Lockhart test, from a 1985 Supreme Court decision.

pleading170502A prisoner might have a lot of reasons for going to trial that have nothing to do with whether he or she can win. But over the years, the government has convinced courts that if the petitioner had no reasonable chance of winning at trial, he or she cannot prove that but for the lousy advice, he or she would have rolled the dice with a jury.

Korean-American restaurant owner Jae Lee was in that boat. Jae had moved to the United States from South Korea with his parents when he was 13. In the 35 years he spent in this country, Jae has never returned to South Korea, but neither had he become a U. S. citizen, living instead as a lawful permanent resident.

In 2008, federal law enforcement found drugs, cash, and a loaded rifle in Jae Lee’s house. Jae admitted that the drugs were his, and a grand jury indicted him. His attorney talked pleas with the Government. During the plea process, Jae repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison.

plea161116The attorney was dead wrong. Jae was subject to mandatory deportation as a result of the plea. When Jae learned of this consequence, he filed a 2255 motion, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Jae and his lawyer testified that “deportation was the determinative issue” to Jae in deciding whether to accept a plea. The attorney acknowledged that although Jae’s defense to the drug charge was really weak, if he had known Jae would be deported upon pleading guilty, he would have advised him to go to trial anyway.

The district court denied the 2255, holding that while Jae Lee’s counsel had performed deficiently, Jae could not show that he was prejudiced by his attorney’s erroneous advice. The 6th Circuit agreed.

Today, the Supreme Court reversed, 6-2, in a substantial victory for Jae. The Supremes noted that the basic rule since Hill v. Lockhart has been that when a defendant claims his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

The problem with Government’s per se rule that a defendant without a viable defense cannot show prejudice from the denial of his right to trial, Chief Justice Roberts wrote, is that “categorical rules are ill suited to an inquiry that demands a case-by-case examination of the totality of the evidence.” What’s more, the Government overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

hailmary170613The Court said the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Jae, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.

The Government argued that “a defendant has no entitlement to the luck of a lawless decisionmaker,” quoting Strickland v. Washington. The Court said that the “lawless” quote was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent.

The Supreme Court said that district courts should not upset a plea solely because of after-the-fact assertions by a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. Here, Jae has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.

The Government argued that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances, since deportation would almost certainly result from a trial. But the Chief Justice was not willing to let courts decide that “that it would be irrational for some-one in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

We think this decision will have a significant effect on 2255 petitioners seeking to set aside an incompetently-advised plea.

Lee v. United States, Case No. 16-327

– Thomas L. Root



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


The Price of Magical Thinking – Update for April 17, 2017

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



magic170417Defendants facing trial often engage in magical thinking about their cases: they believe jurors will find reasonable doubt in the most convoluted explanations, that judges will suppress evidence for the most tenuous of justifications, that they will be bailed out by the admissions of co-defendants who are being rewarded for testifying for the government.

None of this happens often. In fact, it happens so seldom – TV shows notwithstanding – that it’s newsworthy when it arises. With a conviction rate approaching 99%, the government enjoys many hits and very few misses.

But the same kind of magical thinking that convinces problem gamblers that they’re going to beat the odds afflicts defendants. What their lawyers tell them enters their ears but does not reach their brain except through a filter that strips out the cold, hard truth. And later, when the defendants have become inmates, they recall what they want to recall of it.

takedeal170417Take Glen Allen, for example. The lawyer defending him from drug trafficking charges filed a motion to suppress evidence obtained in a search, but told Glen the motion was not likely to succeed, and he should take a plea deal of 91-121 months. Glen refused the deal, and told his lawyer not to negotiate any more deals. He said the proposed sentence “was too much time for me to do according to my involvement.”

Glen figured he knew better than his attorney, so he tried to file his own motion to suppress. When that didn’t work, he asked to hire a new lawyer, which was granted.

When he hired new counsel Clay Janske – whom Glen selected because he “would not be scared” to try the case before a jury – Glen explained to him that he was not interested in a plea deal and told him not even to discuss a new plea offer. Clay litigated the motion to suppress, which was denied. A few days prior to trial, a co-defendant agreed to testify against Glen. The government told Clay that if Glen went to trial, it would seek an enhanced sentence under 21 USC 851 based on Glen’s prior drug felonies. The enhancement would give Glen a mandatory life sentence.

Glen came to his senses, and took the latest plea deal, a mandatory minimum of 10 years. The court figured his guidelines at 121-151 months, and gave him the bottom.

mistake170417Glen filed a petition under 28 USC 2255, claiming his attorney was ineffective in explaining the first plea agreement to him. Gary said Clay told him he would only get “a couple of more years” if he went to trial instead of pleading guilty. Clay said he had told him that, but it was based on inaccurate information Glen gave his lawyer about his criminal history. Glen said that if Clay had properly advised him about the potential of a mandatory life sentence, he would have pleaded guilty before the suppression hearing. Instead, he pleaded guilty right before trial and faced a 10-year mandatory minimum instead of a 5-year one.

What Glen didn’t get – and many defendants don’t get – is that it is not enough just to show a lawyer gave lousy advice about a plea deal. After all, lawyers do that all the time, either because they’re not focused, not very bright, or not working the right information. In order to win a claim of ineffective assistance for bad advice on a plea, a defendant has to be able to show that but for the bum advice, he or she would have probably taken the deal. Last Friday, the 8th Circuit showed just how inflexible a standard that can be.

oops170417The appeals court held Glen had nothing coming, because being ignorant of the risk he might get a life sentence was not all that drove Glen’s decision. True, the Court said, Glen pointed to the fact that once he learned he might get a life sentence, he quickly pleaded guilty. Glen argued that fact showed a “substantial, not just conceivable, likelihood” that he would have accepted the initial plea offer had Clay only advised him he could get life. The Circuit held, however, that it was clear that Glen’s decision “was motivated by his belief that the plea offer was not favorable enough and his hope that he would succeed on the suppression motion.”

guilty170417The district court found that two factors — the decision of Glen’s co-defendant to testify and the possibility of a life sentence — influenced Glen’s decision to plead guilty. In other words, Glen failed to prove that “but for his counsel’s advice, he would have accepted the plea.”

“Under similar circumstances,” the Circuit said, “we concluded a habeas claimant failed to show prejudice in part because he was unwilling to consider pleading guilty, had always expressed a desire to proceed to trial, and none of counsel’s discussions about the possibility of a guilty plea seemed to sway him.” Thus, the Court held, Glen “failed to prove, by a substantial likelihood, that he would have accepted the offer to plead pursuant to the earlier proposed terms.”

Allen v. United States, Case No 15-3607 (8th Cir. 2017)

– Thomas L. Root


Cosmic Justice in the 5th Circuit – Update for March 17, 2017

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


irish170317Defendants who hired Abe (call me “Anthony”) Fisch for their criminal defense hardly enjoyed the luck of the Irish. Anthony and his sidekick – former FBI informant Lloyd Williams – would approached defendants with pending criminal charges, explaining to them that if they paid Anthony vastly inflated legal fees up front, he would use some of the money to pay off high-ranking federal officials to get the cases dismissed or settled on really good terms.

Some may find the following shocking: Anthony and Lloyd had no government contacts on their bribery payroll. Instead, they just took the money and run.

It worked for awhile, with anxious defendants and their families parting with over $1.5 million to the deceptive duo. The record included tales of shoeboxes with $450,000 being left on the seat of Anthony’s car. But it all fell apart finally, and Anthony, Lloyd and (for good measure) Anthony’s wife all got charged.

Williams had a better lawyer than he deserved, because he pled guilty quickly. Anthony and his wife went to trial. Wifey got acquitted, but Anthony went down hard, getting 15 years. He appealed on a host of issues, but earlier this week, the 5th Circuit rejected them all.

order170317All but one. Anthony – a defense attorney who talked countless clients out of reasonable plea deals because he was allegedly bribing their way out of trouble, and who discouraged clients from preparing for trial for the spurious reason that their cases were going to be thrown out – complained to the district court that his defense attorney was ineffective. If so, this would truly be cosmic justice. But even lawyers who made a career out of screwing criminal defendants are entitled to effective counsel.

philosophy170317Anthony filed a motion before sentencing claiming his trial attorney was ineffective by (1) failing to interview key witnesses, including FBI agents; (2) failing to investigate potential defenses; (3) failing to introduce impeachment evidence; (4) failing to make offers of proof to admit exhibits; (5) failing to request proper jury instructions; and (6) refusing to ask for a trial continuance after counsel fell ill during trial and underwent surgery. Anthony supported his claims with affidavits and text message conversations between himself and counsel.

lawyer15170317The district court threw out the motion without requesting further briefing or holding a hearing. On appeal, the 5th Circuit reversed the dismissal of the claims. The Court said, “We conclude that the factual issues underlying Fisch’s claims of ineffective assistance cannot be determined on the current record. The Supreme Court has noted that such factual issues are best resolved by the district court on 28 U.S.C. § 2255 review. See Massaro v. United States, 538 U.S. 500, 505 (2003). Consequently, we decline to address Fisch’s ineffective assistance claims on direct appeal. Nothing about our affirmance of Fisch’s convictions affects Fisch’s right to bring ineffective assistance of counsel claims—including those that were stated in Fisch’s motion below—in a timely § 2255 proceeding.”

Therefore, Anthony will get another bite of the apple in a 2255 motion. We have one prediction: whatever his trial counsel’s failings (if there were any at all), they had nothing on the havoc Anthony deliberately wreaked on his clients.

United States v. Fisch, Case No. 15-20663 (5th Cir., Mar. 14, 2017)

– Thomas L. Root