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My bogus journey to Cincinnati

Here's an appellate lawyer's worst fear about oral argument.  You're standing there at the podium when one of the judges leans over the bench and asks, "Mr. Bensing, how does our decision in Michigan v. Gardner affect your case?"

oral argument cincinnati.jpgAnd you have no idea in the world what he's talking about.  You've never heard of the case, let alone read it, you don't even know enough about it to fake it.  You stand there like an idiot, unable to utter a word, until finally the judges look at each other, shake their heads, and walk off the bench.  Your opponent tries unsuccessfully to suppress a smirk as she gathers up her papers.  The other people in the courtroom look away, as if to avert their gaze from someone with a wretched facial disfigurement.

Gosh, that was pretty dark, huh?  Well, that's never happened to me, but I figured if it ever did, it was going to be last Friday morning in Cincinnati.

Here's what happened in my case.  Tom and Reggie are at a college town partying, and get into an argument with Ray and his pals.  The upshot is that Tom coldcocks Ray with a sucker punch to the back of the head, Ray falls on the ground and cracks his head on the pavement, and then, according to the state's witnesses, Tom and Reggie kick the hell out of him.  Six days later, Ray dies.

An attorney we'll call Gary represents Reggie.  Tom's case is tried first.  He asks for lesser included offense instructions on involuntary manslaughter, assault, and reckless homicide.  The judge denies them, and the jury convicts him of murder.

Reggie's case is tried next, and Gary doesn't request lesser included offenses, instead going for an "all-or-nothing" defense.  He rolls snake-eyes, and Reggie gets the same 15 to life sentence that Tom does.

And here's where things get hinky.  Gary gives the appeal to his wife and business partner, Meg.  Soon thereafter, they begin going through a divorce.  In her brief, Meg alleges that trial counsel -- her husband -- was ineffective.  On the date of the oral argument, he goes out to argue the case, apparently intending to own up to his own incompetence.  (The reason she didn't go out was because, by this time, he'd locked her out of the office.)  The court of appeals won't hear of it, telling him he can't raise his own incompetence on appeal (nor can a business partner of his), and that post-conviction relief is the way to raise that issue.  Meg (again) files a petition for post-conviction relief, but doesn't include any claim of ineffective assistance.

I got a call from the post-conviction unit of the Ohio Public Defenders office.  They'd taken over the case at some point, filed a 26(B) against the appellate counsel, but lost that.  The next step was habeas in Federal court.  They'd decided against doing it; would I be interested?  Sure.  What's the deadline?  "Six days."  Oh, good.

Habeas is its own other world.  It's basically governed by the Anti-terrorism and Effective Death Penalty Act, which Congress passed in 1996 because they were getting pissed off with Federal courts overturning death sentences on habeas.  So now there are rules. 

Boy, are there rules.  Rules like fair presentation:  you have to have presented your Federal issue to the state courts; they get a chance to clean up their own mess.  You have to exhaust the claim; an appeal to the Ohio Supreme Court may be pointless, but if you haven't sought one, you're out.  You don't win unless you can show that the state court decision is "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or was based on an unreasonable determination of the facts.  Factual determinations by the state court are presumed correct, and that presumption can be overcome only by clear and convincing evidence.  You have to use the word "ubiquitous" twice in your petition, in a meaningful way.

Okay, I made that last one up, but you get the idea.  Accompanying all this is tons of case law, like when ineffective assistance of appellate counsel -- IAAC, as distinguished from IATC, ineffective assistance of trial counsel, in habeas parlance -- constitutes cause and prejudice excusing a procedural default.  And no, I didn't make that one up.

Here's the thing I didn't tell you:  the appellate decisions for Tom and Reggie come out the same day.  In Tom's case, the court reverses, deciding that the judge erred in not instructing on the lesser offenses.  In Reggie's case, they affirm.  Of course, Reggie's lawyer didn't ask for the lesser included instructions, so that wasn't an issue on his appeal.

Oops.

And that was my argument:  the lawyer should have requested them.  In light of the evidence - ten witnesses testified that Reggie kicked the victim while he was on the ground, and only Reggie testified to the contrary - and the great benefit of conviction of the lesser offenses - maximum three years in prison versus 15 to life - pursuing an all-or-nothing strategy was unreasonable.

The district court didn't buy it.  So I appeal, right?  Yes, but you don't have an automatic appeal in habeas:  either the trial court or the court of appeals has to grant you a "certificate of appealability."  The district judge denied one, but the 6th Circuit granted it, so I felt pretty good about that.  They also agreed to have oral argument, which is a big thing; in my two recent forays into the 6th, they decided they didn't need to waste an additional thirty minutes of time listening to my bullshit.

So I was feeling pretty good about the whole thing.  And no, my worst fear didn't come true; there were no trick questions, and I deftly answered the ones they posed.

That was the good news.  The bad news is that whatever I was selling, they weren't buying.  There are few strategic decisions accorded more deference than an attorney's determination of whether or not to seek lesser included instructions, and unless you can show that the attorney spent most of the trial wearing a drool cup, you're not going to win that one.

But at least I wasn't treated like I had some wretched facial disfigurement, so there's that.

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