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Sixth Amendment Right to Counsel

The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right...to have assistance of counsel for his defense." Over the years the Court has defined what that has meant, but in recent years the question has been whether counsel has been effective.  This does not mean that if a lawyer loses a case he or she is by definition "ineffective"—the defendant may have been guilty and the prosecution had ample evidence to prove it. This past Term the justices dealt with more than a half-dozen cases involving claims of ineffective assistance.

Relatively early in the Term the Court sided with a Florida death row inmate, George Porter, Jr., who claimed that poor lawyering by his court-appointed counsel prejudiced the jury against him in his trial for the murder of his former girlfriend and her boyfriend. Both the Florida Supreme Court and the Eleventh Circuit rejected the ineffective assistance claim.

But in a powerful unsigned per curiam decision handed down right after Thanksgiving, the Court in Porter v. McCollum detailed Porter's "horrible family life" and his trying Korean War experiences that earned him two Purple Hearts and other decorations—none of which was told to the trial court as mitigating evidence during the sentencing phase of the trial. The trial lawyer's failure to introduce this evidence "did not reflect reasonable professional judgment," and could well have affected the outcome of the case.

In language that will certainly be cited in future cases involving veterans, the Court said that the fact that Porter went AWOL in Korea did not detract from the significance of his combat experience as mitigating evidence.  "Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toil that combat took on Porter." The ruling, which did not affect the finding of guilt, sent the case back to the lower courts for further proceedings affecting the sentence.

In Padilla v. Kentucky, a lawyer told his client, Jose Padilla, a permanent resident alien arrested for drug trafficking, that pleading guilty in a plea agreement would not expose him to deportation, and that advice was completely wrong. Padilla sued in 2004, claiming ineffective assistance had deprived him of his constitutional rights, but the Kentucky Supreme Court ruled that incorrect advice on matters collateral to the basic criminal charge did not amount to ineffective assistance under the standards set by the Court in Strickland v. Washington (1984).

At oral argument the justices seemed wary of expanding the meaning of ineffective assistance to matters beyond the actual criminal case.  Justice Breyer noted that "the world is filled with 42 billion circumstances," any one of which could trigger a claim. But Padilla's attorney said that deportation is "so severe and so material" that the Court could limit its ruling to advice in that area.

The justices essentially took his advice, and Justice Stevens, writing for a 7-2 majority, ruled that lawyers have a constitutional obligation to advise clients of the collateral deportation consequences of a guilty plea in a criminal case. "It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel," Stevens wrote.

Although the case addressed deportation, it is likely that lawyers will be more careful in the future to advise clients about other collateral consequences as, for example, in sex offender cases where recent laws have imposed post-prison penalties such as having one's name on a list, and even having to serve additional jail time.

A third case involved Frank Spisak, Jr., convicted of the murder of three people and the attempted murder of two more at Cleveland State University in 1983.  During his trial Spisak openly boasted of his Nazi sympathies and showed no remorse for the killings.  He claimed insanity, but the jury found him guilty.  At the sentencing stage, where his attorney could present mitigating circumstances, the lawyer instead emphasized the "clearly horrendous" aggravating circumstances, and even suggested his client did not deserve mitigation and would never be rehabilitated. "He is demented, and he is never going to be different." The jury recommended, and the judge imposed the death penalty.

While on the face of it one could question the lawyer's conduct, the Ohio attorney general said that it represented a "coherent strategy" to appeal to the jurors' humanity.  Justice Scalia agreed, calling it a "brilliant closing argument" aimed at jurors who might prove sympathetic.  "The technique the counsel used to try to get mercy for this fellow was the best that could have been done."

After losing his appeals in state court, Spisak applied for habeas in federal court, claiming inadequate assistance as well as flawed jury instructions to which his counsel did not object. The Court of Appeals agreed with Spisak, but in an earlier trip to the Supreme Court the justices sent it back to the appeals court for further review.  There Spisak won again, and the high court once again reversed.  Justice Breyer, speaking for a unanimous Court, held that the jury instructions, even if not perfect, did not amount to sufficient error to overturn the death decision, and the state court's decision that counsel was not ineffective was based on sufficient reasons.

Finally the justices had to decide just how bad a lawyer had to be to stop the clock on the time for filing a habeas petition. Albert Holland had been convicted of murder in 1991, and his conviction became final in 2001 after he had exhausted all of his state appeals.  According to the Antiterrorism and Effective Death Penalty Act of 1996 he then had 365 days in which to file a federal habeas petition.  Florida appointed Bradley Collins to represent him in post-conviction proceedings, and Collins filed a state post-conviction motion 351 days into the one-year federal limit.  That motion stopped the clock on the federal deadline, but it would resume ticking once his state motion was denied, leaving him only fourteen days to file for habeas relief.  Collins missed that deadline.

The Court of Appeals for the Eleventh Circuit ruled that attorney negligence, even gross negligence as in this case, did not entitle a habeas petitioner to a tolling (stopping) of the clock absent additional proof of "bad faith, dishonesty, divided loyalty, mental impairment, or so forth."

The Supreme Court by a 7-2 margin found the Eleventh Circuit's standards too rigid, and held that failure to meet well-known deadlines, especially when it involved the Great Writ, too rigid. Justice Breyer found that Collins had not represented Holland effectively, and ordered the case sent back to the lower court for further review utilizing more flexible standards.



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