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Trial strategy and ineffective assistance of counsel

Insight and remorse being two items in short supply among the prison population, it's unlikely that there are a large number of inmates whiling away their days of incarceration saying, "I shoulda listened to my lawyer."  One of them most certainly is not Maxwell Hoffman.

Hoffman was charged with capital murder in Idaho, and the state offered him a deal:  plead out to first degree murder and take a life sentence.  Hoffman's attorney, though, persuaded Hoffman to reject the deal, telling him that Idaho's death penalty would be declared unconstitutional in another then-pending case.  Hoffman took the advice, went to trial, lost, and was sentenced to death.  Oh, and that other then-pending case?  Ooops.  Turns out the lawyer was wrong:  the death penalty was upheld.

Hoffman's case eventually went into habeas, and this year the 9th Circuit held he'd had ineffective assistance of counsel:  the lawyer's advice was based on faulty interpretation and incomplete research.  The court offered Idaho the choice of giving Hoffman the same deal, or trying him again.  Idaho took it up, and the other day the Supreme Court granted cert.

Ineffective assistance of counsel is sort of the legal equivalent of Bigfoot:  people swear to have seen it, but confirmed incidents are exceedingly rare.  One of the reasons for that is the deference reviewing courts give to questions of "trial strategy and tactics"; if an attorney's action falls into that category, it's virtually immune from review.

The problem is that the exception threatens to swallow the rule:  virtually anything can fall under the rubric of "trial strategy."  Didn't call alibi witnesses?  Well, maybe the attorney figured they weren't any good.  Didn't ask the judge for a charge on a lesser included offense?  Maybe the attorney didn't want to give the jury a chance to come up with a compromise verdict.  Told the jury that his client was a drug dealer, which were the "scourge of the country," and that he couldn't believe the things that came out of his client's mouth, even after months after trial preparation?  According to the 1st District's decision last week in State v. Fikes, that's trial strategy, too.

I handled an appeal several years back where the client had been convicted of impersonating a police officer; he and an employee had gone to a woman's house to recover money from a social security check that she'd bounced, and thought it a good idea to wear jackets proclaiming that they were FBI agents.  The employee had given no fewer than three different statements to the police, each one more damning of my client than the last.  The prosecutor brought the Bruton problem to the judge's attention, but for reasons known only to him and his god, my client's trial lawyer decided to waive the right to separate trials.  The statements were introduced, the client wound up getting convicted of everything and went off to do a five-year streatch, and the employee walked out with a misdemeanor theft conviction.  I argued on appeal that no lawyer in his right mind would've agreed to a joint trial, but once a decision falls within the category of trial strategy, courts are loathe to review it, regardless of how unreasonable the strategy was.

It could be that the Supreme Court will use Hoffman's case to articulate a clear standard of when "trial strategy" immunizes a lawyer's decision from review.  It could be that, in the future, reviewing courts will have to evaluate such decisions more critically.

Or it may not, which is where the smart money is.  My guess is that the Court simply wants to play the 2008 version of its favorite game, 9th Circuit Smackdown.  Last year, fully one-third of the merit decisions the Supreme Court wrote on cases from the federal circuits came from the 9th, and the reversal rate was 90.5%.

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