Supreme Court decides two important cases affecting attorneys obligations to clients

The Supreme Court published opinions in two important cases this week, LAFLER v. COOPER and  MARTINEZ v. RYAN.  The cases recognize two obligations that attorneys owe their clients:  (1)  the right to effective counsel during plea bargaining and (2) a procedural remedy, if not a recognized right, during post-conviction challenges.  Both cases set forth the minimum standards of constitutional protections to be afforded individuals during either the plea process or in some situations upon collateral post-conviction.


In Lafler an attorney's bad advice led a client to reject a prosecutor's plea offer, resulting in a harsher sentence after trial. Noteworthy about this case is the Court's expansion of the right to competent counsel to the plea bargaining process. Previously, there was no specifically recognized right to plea bargaining or to a competent lawyer at that point:


“as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  “Because ours ‘is for the most part a system of pleas, not a system of trials,’” Justice Kennedy reasoned, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”


In Martinez, the Court recognized the process--without going so far as recognizing the right--of people convicted in state court to effective assistance of counsel in collateral state post-conviction proceedings. Historically there is a well recognized right to effective counsel in direct appeals. However, there is no established right to competent counsel for collateral review of a conviction.


Justice Kennedy, without saying that a person has a right to effective counsel for these proceedings, nonetheless found that there is a procedure by which an individual can seek federal review of a constitutional claim if the person was denied that opportunity in state court because of attorney ineffectiveness:


"when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington."

Both opinions produced critical dissents from Justice Scalia, and through those he writes that these opinions will open floodgates of litigation for both the newly recognized procedure in post-conviction proceedings and the right to effective counsel during plea negotiations.

Practically speaking where over 90% of criminal cases are resolved by pleas rather than trials, these decisions will have a significant impact in the day-to-day practice of law. While previously it was ethically required only for attorneys to relate plea offers to defendants, it is now a basic minimum requirement.  For most lawyers this is a small but important safeguard in our system of justice.

Pending legislation would impact Constitutional right to counsel

By Jay Perry

The Tennessee and Federal Constitutions both guarantee the right of the accused in “all criminal prosecutions” to have an attorney.  For an increasing number of people who cannot afford an attorney, that right is satisfied by the appointing of an attorney.  In 1989 the General Assembly of Tennessee created a statewide system of public defenders divided into 31 districts.  Those public defenders handle the bulk of appointed cases although private attorneys are appointed in cases where the public defenders’ have an ethical conflict.  The court is to appoint an attorney when the accused can demonstrate that they are “indigent” and this usually means the completion of an affidavit and questioning by the judge.

There is currently proposed legislation that would deny an appointed attorney to anyone who has made an appearance bond in their case.  This bill, SB 2989 – HB 3364, would require many facing a criminal charge to make an impossible choice between freedom and exercising their right to an appointed attorney.  This is true because in many cases the appearance bond is low, sometimes as low as $500 or $1000 (appearance bonds typically increase with the seriousness of the charges).  To make such a bond would only require the accused (or their family) to pay a bondsman $50-$100.  Many people, even those who are truly indigent, are able to utilize family resources to scrape together that relatively small amount of money.  It makes sense to do so also, as many cases take a long time to arrive at a disposition and often the end result is no jail time.  And that small amount does not even begin to pay the fee of any competent attorney.  This bill does not explain how these defendants would find attorneys willing to represent them for such little money.

The justification for this proposed legislation must be largely economic because public defenders very often handle overwhelming case loads and private attorneys are compensated by the state for appointed cases.  Interestingly however, the Fiscal Review Committee found that the fiscal impact of this bill would be not significant.  The impact would be significant however on those defendants who are indigent in every sense of the word.  They would be consigned to wait in jail for the end of their relatively minor criminal proceedings in order to have the assistance of a lawyer.  As written, this bill brings into conflict a constitutional right with the natural yearning of all people for freedom.   As such, this bill directly contradicts the principles espoused in both Constitutions by inappropriately placing a price of the invocation of those rights.  

TN Supreme Court Examines the Constitutionality of Two Murder Convictions and the Subsequent Death Sentence

• Leonard Edward Smith v. State of Tennessee

The TN Supreme Court recently decided the case of Leonard Smith, convicted murderer on death row. The long case with a complicated procedural history began in 1985. He was convicted of murdering John Pierce in 1985 and of murdering Novella Webb in 1989, both occurring in the process of an armed robbery.

There were four issues on appeal. The first, and arguably the most interesting, is whether Smith was denied his Constitutional right to a fair trial at his 1995 re-sentencing hearing when his counsel failed to investigate and present evidence in support of his motion to recuse the presiding judge. Judge Brown, presiding judge over Smith's case, also served as a Prosecutor in Carter County. In May of 1984, Smith was indicted in Carter County for simple robbery and DUI. Prosecutor Brown (now Judge Brown) was assigned to prosecute him. Therefore, Smith was being prosecuted at the same time in two different counties for four crimes: the two murders and the robbery and DUI in Carter County. Smith appealed his convictions for the simple robbery and DUI but was denied relief. Meanwhile, Prosecutor Brown later became Judge Brown and presided over Smith's 1995 re-sentencing hearing.

When presented with these facts, Smith's attorneys neglected to investigate further into Judge Brown's involvement in the prior convictions to determine whether he had an obligation to recuse himself.

In determining whether Smith's counsel was ineffective, the Court looked to the United State Supreme Court's holding in Strickland v. Washington. Specifically, the Court in Strickland stated that the ultimate focus on the effectiveness of an attorney is "whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Judicial impartiality is a fundamental requirement in the guarantee for due process. Therefore, the test is an objective one: the Court examines whether the Judge is likely to be "neutral" or whether there is an unconstitutional "potential for bias."

The Court held that Smith's counsel were ineffective when they neglected to investigate or further pursue the motion to recuse. This ineffective counsel resulted in prejudice to Smith in that he was denied his right to a fair trial before an impartial tribunal. Particularly damaging to Smith's case was Judge Brown's involvement in the re-sentencing. As part of justification for a sentence of death, a judge should consider any aggravating factors such as prior violent felony convictions. Not only did Judge Brown know of the prior conviction for robbery, but he was the attorney that prosecuted Smith for that crime. This is clearly a situation that would point to a "potential for bias" by the Judge.

The Court examined three other issues: 1) whether Smith met the definition for "intellectual disability" and would thus be precluded from receiving a death sentence; 2) whether Smith's counsel were ineffective in their voir dire of potential jurors when they neglected to ask the jurors if they or someone close to them had been victims of a crime; and 3) whether the post-conviction claims Smith brought for the Pierce murder were barred by the statute of limitations.

The Court decided the lower courts should be given the opportunity to further examine whether Smith met the definition of "intellectual disability." The case was remanded back to sentencing. If found to have an "intellectual disability," Smith cannot be sentenced to death. Next, the Court decided that his attorneys were ineffective when they neglected to ask the potential jurors if they or anyone close to them had been a victim of a crime. The boyfriend of the daughter of one of the jurors was murdered in the recent years before Smith's trial. When asked if that would impair his ability to be impartial, the juror responded that he could remain impartial throughout his decision. Although counsel was ineffective, since Smith could not prove actual bias, he could not be afforded a remedy. Lastly, the court held that Smith's post-conviction claims were barred by the statute of limitations. The statute of limitations for bringing post-conviction claims is three years from the final action of the highest appellate court. Smith waited twelve years to bring post-conviction claims for the Pierce murder. The Court held this was obviously in violation of the statute of limitations and the claims were barred.

After all of that it might be difficult to tell where exactly Smith stands. Here is the rundown:

• Smith's conviction for the Pierce murder are affirmed.
• Smith's conviction for the Webb murder is affirmed.
• Smith's death sentence was vacated, and the case is remanded to the trial court for hearings on Smith's mental capacity. These hearings are to be conducted by a judge other than Judge Brown.

U.S. Supreme Court to Revisit the Confrontation Clause... Again

Staircase at US Supreme Court  by RLHyde

The U.S. Supreme Court heard oral arguments on the potentially monumental case of Williams v. Illinois yesterday. The case involves a laboratory test in a rape case. A sample of Williams' DNA was sent to a lab in Maryland where it was tested. The result proved that Williams' DNA matched the DNA of a rape assailant. At his trial, an analyst with the Illinois State Police Laboratory testified about the DNA and how the DNA taken from the assailant in the rape case matched the DNA taken from Williams. The analyst admitted that the DNA sample was tested in a Maryland laboratory and that she never touched it, but that she did an independent review of the findings in her preparation as an expert witness. Williams was convicted and appealed. The Illinois Court of Appeals affirmed stating that the analyst was testifying as an expert and that the Maryland test results were never entered into evidence. Since there was an opportunity for cross-examination of the analyst, the Court saw no error in the proceedings.

The U.S. Supreme Court granted certiorari to revisit the Confrontation Clause as guaranteed by the Sixth Amendment. The Confrontation Clause provides a Defendant with the right to confront their accusers; particularly the right to cross-examine them at trial. The big issue for Williams is whether it is a violation of the Confrontation Clause that the actual technician who tested the DNA sample was not at trial and could not be cross-examined.

This is not a new issue before the Supreme Court. In fact, there have been two very recent opinions regarding issues of the Confrontation Clause: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz stood for the principle that laboratory results are "testimonial" and that the defendant's Sixth Amendment rights were violated because the technician who handled the lab results had not testified. Bullcoming involved the same issue, but the lab technician who ran and handled the tests for a blood alcohol sample was on unpaid leave at the time of the trial. The testimony came from another analyst who was familiar with the testing process but did not touch the actual sample. The Supreme Court ruled 5-4 that this was a violation of the Confrontation Clause.

The dissenters in both Bullcoming and Melendez-Diaz stated fears that due to the majorities' holding, guilty criminals would go free because a lab technician couldn't be at trial. They also worried about the effect the holdings would have on the demand for technicians in court. The already long waiting period for lab results will undoubtedly increase if all the technicians are under Court-ordered Subpoena. The question for the dissenters becomes, what happens when a lab technician is permanently unavailable? Does that then mean that the lab result will never be admitted at trial?

Many are hoping these questions will be answered in Williams v. Illinois. Erwin Chemerinsky, Dean and law professor at the University of California Irvine School of Law, wrote an article on Williams for the ABA Journal. He stated that if the Court were to affirm Williams' conviction, experts can then testify based on a laboratory report without it actually being entered into evidence. If the Court chooses to reverse the Illinois courts, he says, then prosecutors will not know what to do in cases where a technician is unavailable or in a case such as this, where there are multiple steps and multiple technicians involved in the process.

Chemerinsky provides a little perspective regarding this issue when he says, "the underlying basic question is: how much should practical consequences matter in interpreting a provision like the Confrontation Clause?"

It will certainly be an interesting case to watch. We'll keep you updated on its progress throughout the upcoming Supreme Court season.

6th Circuit holds a Sleeping Attorney is Not "Ineffective" Counsel

• Muniz v. Smith

The 6th Circuit heard a case out of Michigan last week that involved a defendant's appeal of a conviction for assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz argued that his 6th Amendment right to counsel was violated because his attorney fell asleep during his trial.

The 6th Circuit first had to decide which rule of law to follow. Muniz argued that the Court should only apply the rule of U.S. v. Cronic which held that there are "circumstances so likely to prejudice the accused that the cost of their effect in a particular case is unjustified and prejudice is presumed." The lower Court previously used the standard of U.S. v. Strickland which held that in order to successfully claim that an attorney was so ineffective as to violate the 6th Amendment, the defendant must prove two things: that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

Applying both rules, the 6th circuit determined that the defendant had not proven that his counsel's slumber had a prejudicial effect on his defense. Applying the rule from Cronic, the Court had to decide whether Muniz had proven that his attorney slept through a "substantial part" of his trial. The only evidence Muniz offered was testimony from two of the jurors who said they saw the attorney sleeping during Muniz's cross-examination. His cross-examination made up only a very small part of the trial transcript. This evidence, the Court held, did not prove the attorney slept through substantial portion of the trial.

Applying the rule from Strickland, the Court had to decide whether the attorney's conduct fell below an objective standard of reasonableness, and if so, if that conduct prejudiced the defendant. The Court held that there is no question that the attorney's conduct fell below an objective standard of reasonableness. Sleeping in court during your client's cross-examination is not reasonable conduct for an attorney. What the defendant could not prove, however, was that his attorney's conduct prejudiced the defendant's defense. In order to do so, Muniz would have to prove that the outcome of the trial would have been different. The evidence against Muniz was so strong, the Court held that it was unlikely that the outcome of the trial would have been different even if the attorney had not fallen asleep.

If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is? Sounds like the Court is asleep on this issue as well. I understand that in a case--especially one of strong proof--that the court can't be reversing on collateral issues. But I wonder what the trial court was doing. Surely, if two jurors are to believed and counsel was asleep, the Court was aware. I can't think of anything more damaging to the integrity of the judicial process than a sleeping defense attorney. You can imagine what the jurors said, "if his own lawyer doesn't care enough to be awake for the trial you know he's guilty."

TN Court of Appeals Affirms Aggravated Robbery Conviction

• State of Tennessee v. Alvertis Boyd

The Tennessee Court of Appeals decided State v. Alvertis Boyd on July 1. The Defendant, Boyd, was convicted by a jury of aggravated robbery. Boyd brought several issues up on appeal including, in particular, the argument that the prosecution violated Rule 609(a)(3) of the Tennessee Rules of Criminal Procedure.

Rule 609(a)(3) allows for the admission of a prior conviction to impeach the credibility of a defendant testifying at trial. The impeaching conviction must be either "punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted" or "must have involved dishonesty or a false statement." When deciding whether to admit a prior conviction for impeachment purposes, the Court must first determine if the prior conviction is relevant to the defendant's credibility. Second, if the prior conviction is substantially similar to the crime for which the defendant is being tried, the court must weigh the probative value of the impeachment conviction against the prejudicial effect the conviction would have on the defendant. If the probative value of the impeachment conviction outweighs the prejudicial effect, trial courts may admit the prior conviction during trial.

At trial, the prosecution used Boyd's prior convictions of aggravated robbery and theft to impeach him. Boyd argued that since one of the prior convictions was the same offense for which he was on trial, the jury believed that because he was previously convicted of aggravated robbery, he must be guilty on this offense. The Court of Appeals disagreed and held that the convictions of aggravated robbery and theft were extremely probative of credibility because each of the crimes involved dishonesty. Because there was no evidence that the trial court abused its discretion, the Court of Appeals affirmed the conviction.

Indigent Defendants Do Not Have the Right to an Attorney in Civil Contempt Proceedings

Turner v. Rogers

The U.S. Supreme Court decided an interesting case this week, Turner v. Rogers, addressing an indigent defendant's right to counsel for civil contempt proceedings when facing incarceration. Turner was held in contempt of court and sentenced to incarceration several times over many years because of his failure to pay child support. While imprisoned for a year, he appealed arguing that under the Fourteenth Amendment, he was entitled to counsel during his hearing (even though the custodial parent, Rogers, did not have an attorney at the hearing either).


The Court unanimously held that Turner was not entitled to an attorney at his hearing. The Court noted that the Sixth Amendment right to counsel only applies in criminal cases so they had to look to the Fourteenth Amendment's Due Process clause. Citing policy reasons for the importance of due process, the Court ultimately decided that providing an indigent defendant with an attorney in civil contempt proceedings would make the proceedings "less fair" overall. The reasoning for this is because, as here, a lot of times the custodial parent seeking child support is not represented by counsel either. Since this parent is arguably a single parent, trying to support a family, he or she may not have the money for an attorney. To appoint counsel to one party and not the other would make the proceedings vastly unfair.


The Court also held, however, that there are certain procedural safeguards that should be in place to prevent violations of due process in situations like this. For instance, the lower court should have informed Turner of the legal significance of his financial situation; or they should have had a common form for defendants to fill out regarding their financial situations; or lastly, they should have afforded Turner the opportunity to answer questions about his financial status during the hearing. Without these procedural safeguards, the Court was required to vacate the decision and remand the case for further proceedings.


Tennessee Criminal Law Review discussed this case after Oral Arguments here.  There has been extensive coverage about his case: New York Times, Washington Post, and the Wall Street Journal Blog all offer analysis that is worth reading.

Tennessee Supreme Court says Lawyers must advise Clients of Mandatory Supervision in Sex Cases

Jason Calvert was represented by two lawyers after an indictment in Davidson County on numerous sex offenses. He and his lawyers met at least 6 times. They provided him discovery. They went over the materials with him. After these meetings, he entered a written plea agreement to several offenses, two of which were aggravated sexual battery. Calvert received a sentence of 10 years suspended after he served 9 months in jail. During the plea colloquoy, the Judge believed the sentence was illegal because aggravated sexual battery was non-probatable. After consulting with his lawyers, Calvert changed his plea from two counts of aggravated sexual battery to two counts of rape. Neither his attorney nor the Court advised him that rape carries with it mandatory lifetime supervision.


In revieweing Calvert's post-conviction petition, the Tennessee Supreme Court held that a lawyers failure to advise their clients of such an important and adverse consequence such as mandatory lifetime supervision when the client is considering a plea consitututes ineffective assistance of counsel under the 6th Amendment. The Supreme Court further held that because the Defendant testified that he thought it would have made a difference in his decision, that such deficiency constitutes prejudice.


Practice Note: Slow down attorneys. The Court has made it clear that even if your client is considering a plea that carries lifetime supervision, that you must advise of the possible supervision requirements. In Calvert, This issue got past the Judge and both Defense Attorneys who did not mention it. The one person it did not get past was the District Attorney who checked the box on the Judgment form. However, the DA never announced that condition in the plea colloquoy transcript. Had he announced it on the record, how much time could have been saved avoiding a post-conviction hearing and appeal?

• JASON CALVERT v. STATE OF TENNESSEE