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Case Update

No decisions from SCOTUS last week, or yet, for that matter, but we're only two months into the term.  The Court had oral argument in one criminal case last week, Whitfield v. US, which involves an interpretation of the Federal statute which imposes a minimum ten-year sentence on a bank robber who "forces another person to accompany him" during or fleeing from the robbery.  Whitfield fell into the latter category, entering the home of 79-year-old Mary Parnell after his failed robbery attempt, and when he told her to move with him to her home's computer room, she had a heart attack and died.  The notable thing about the argument was the justices' questions about whether prosecutors might charge an offender with that section in "comparatively trivial" cases in order to induce a plea.  The assistant solicitor general reassured the justices that prosecutors would do no such thing, which was met with gales of laughter, or should have been.

Several years ago, I served as a moot court judge in a case involving whether a state which allowed groups to have their own official license plates could limit what message the plate conveyed.  Life imitates art, or whatever, as the Court granted cert last week in a case involving Sons of Confederate Veterans, who had their bid to have a Confederate flag license plate rejected by Texas because it was deemed offensive.  Who knew?  More interesting to criminal practitioners is Brumfield v. Cain, a death penalty case in which Brumfield argues his defective mental state should have been the subject of a separate hearing to determine whether he was eligible for the death penalty, rather than having that be decided in the penalty phase after he was convicted.   

The penalty phase is also at issue in State v. Herring, in which the court affirms by a 4-3 vote the 7th District's decision granting Herring's post-conviction relief petition on grounds that his counsel was ineffective in preparing mitigation evidence.  The case raises some interesting issues about ineffective assistance claims and trial strategy and tactics in the context of death penalty cases.

Herring was the mastermind -- such as it was -- of a bar robbery in which five people were shot, three killed, in particularly savage fashion.  Herring's conviction was pretty much a foregone conclusion, and at the penalty phase, the defense offered only two witnesses, Herring's mother and sister, who testified as to the loving relationship among the family members, plus evidence that the Herring's accomplices didn't receive the death penalty.  The latter was explained by the fact that two were juveniles and two had much lesser roles -- one was the getaway driver, and another ran as soon as the shooting started.  The former was not enough to persuade the jury to save Herring's life.  Herring's conviction and sentence were affirmed on appeal.

And so Herring went into post-conviction relief, claiming that his attorneys failed to do an adequate job of investigating the mitigation evidence.  There certainly seems to be a case that they didn't.  The petition was accompanied by an affidavit from the mitigation specialist that he did a substandard job because he "underestimated the amount of time which was needed to contact all of the necessary mitigation witnesses and locate all the necessary resources and records."  The inadequacy of the job done by the mitigation specialist was confirmed by an affidavit from the supervisor of the mitigation division of the Public Defender's Office.

Herring also included a letter from the clinical psychologist to the trial attorneys indicating that the testing given to Herring -- a single MMPI -- wasn't sufficient, and that further testing and a clinical interview was necessary.  It was never done.  While tests done in connection with the post-conviction relief petition did show Herring to be only slightly below average in intelligence (IQ test results ranged from 85 to 91), it also revealed that he had the perceptual learning skills of a ten-year-old. 

That would seem in itself a basis for reversal, but things take an interesting turn with the affidavit of Dr. Jolie Brams, a psychologist, who contends that the testimony of Herring's mother and sister "presented a distorted picture of Herring's upbringing."  Turns out -- quelle surpise -- he had a pretty crappy one.  Family members introduced him at an early age to gangs and drug dealing, which was "the family business," according to Brams.  Well, some family members; his father was killed in a drug dispute when Herring was four.  Herring became a gang member when he was 11 or 12, and starting using marijuana and alcohol a year later.  By that time he'd become "a 'feral child,' who roamed the neighborhood aimlessly, without any adult having meaningful or consistent concern."

Herring's trial counsel testified at the hearing that they'd decided to go with a positive presentation of mitigation evidence because they figured it would play better with what they deemed was a "very conservative jury," and that evidence that "Mr. Herring had been involved in a life of crime would simply be more ammunition for them to find a death verdict."

As we all know, a lot of attorney mistakes can be swept under the rug of trial strategy and tactics, and the majority opinion and the dissent spend a lot of time debating that issue.  But a trial strategy must be reasonable, and that requires an attorney to have full knowledge of all the facts, so that he can make an informed decision.  The majority finds the lawyers here didn't have that knowledge.

But the opinions also diverge in whether it would have made a difference.  The evidence that Herring was the ringleader of a gang which had planned to not only conduct a robbery but kill every person in the place was overwhelming.  There is research which indicates that evidence of a horribly abusive childhood just results in jurors deciding that the defendant is such "damaged goods" that he's not worth saving, and O'Donnell's dissent argues that introduction evidence of Herring's "extensive criminal past" -- he committed his first shooting as an eighth grader -- "might have caused the jury to conclude that Herring was beyond rehabilitation."

All this reminds me of the concurring opinion of Judge Boggs in Poindexter v. Mitchell, a 2006 decision in which he suggested that the most effective way of representing a capital defendant was to not investigate mitigation evidence, thus ensuring a reversal for ineffective assistance down the road.  The opinion actually inspired a law review article entitled "Tactical Ineffective Assistance in Capital Trials."  It comes to the conclusion that tanking it isn't a good idea, and often backfires. 

It didn't in Herring's case.


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