ABA Standards for Criminal Justice Case Summaries (July 2007)
Death Penalty Cases Citing to the
ABA Standards for Criminal Justice
US SUPREME COURT CASES
Rompilla v. Beard, 545 US 374 (2005).
The Supreme Court reversed the ruling of the Court of Appeals and held that counsel has a duty to make reasonable efforts to learn what is possible about any previous offenses, which included obtaining the prior conviction file and ascertaining any possible mitigating and aggravating factors or evidence. The court held that defense counsel was deficient in not obtaining the file, given that they were knowledgeable that the death penalty was being pursued.
In discussing the ABA Standards for Criminal Justice, the Court cites Standard 4-4.1 and notes that it reads, an "investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities." Rompilla, 545 US at 387, n. 6. The Court basically stated that, in all cases, defense counsel should make reasonable efforts to obtain information in the possession of either the prosecution or law enforcement officials. Id.
In a dissent written by Justice Kennedy and joined by Justices Scalia, Thomas, and Rehnquist, the dissenting members of the Court note that the ABA Standards for Criminal Justice are a useful reference, but take care to note that they are only guidelines and "do not establish the constitutional baseline for effective assistance of counsel." Id at 400. The dissent strongly suggests that the majority ignores this admonition and treats that ABA Standards as "binding statutory text." Id.
Deck v. Missouri, 544 US 622 (2005).
The Supreme Court overruled a Missouri Supreme Court finding which stated that the appearance of the defendant at the sentencing proceeding, in which he was bound by handcuffs, shackles, and a belly chain, did not violate his state or federal constitutional rights. The Supreme Court found that the appearance of the defendant led the jury to adopt an almost inevitable implication that the state authorities considered him a danger to the community. The Court stated that the appearance of the defendant affected the jury's perception of the character of defendant, and thus, inevitably undermined the jury's ability to weigh all the relevant considerations when it determined whether death was a proper sentence. The Court stated that lower courts should not routinely place defendants in shackles or physical restraints during sentencing proceedings, but also that judges could do so when the particular need to protect the courtroom and its occupants calls for such restraint.
In discussing the ABA Standards for Criminal Justice, the Court noted that courts in this country have held close to the conception that defendants enjoy a right to be free from restrain during the guilt phase of the proceedings. Deck, 544 U.S. at 628. However, while this right does have a constitutional dimension, the Court noted that the right may be properly overcome by the presence of "essential state interests such as physical security, escape prevention, or courtroom decorum." Id.
Wiggins v. Smith, 539 US 510 (2003).
The Supreme Court reversed the Circuit Court's ruling and remanded the case for further proceedings, finding that defense counsel's decision not to broaden its investigation beyond the pre-sentence report and Department of Social Services records fell short of professional standards. The Court stated that the mitigating evidence that could have been discovered had defense counsel made a reasonable investigation was relevant in addressing the defendant's moral culpability. The Court also found that there was both a reasonable probability that a competent attorney would have presented the evidence at the sentencing phase, and a reasonable probability that a jury would have returned a difference sentence.
In discussing the ABA Standards for Criminal Justice, the Court noted its decision in Williams v. Taylor, that, in accordance with Standard 4-4.1, counsel has an "obligation to conduct a thorough investigation of the defendant's background." Wiggins, 539 U.S. at 522. In addition, the Court noted that the ABA Standards are guides that suggest "thorough investigations," and that "[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable." Id.
The Court outlined the possible mitigating evidence that defense counsel must make a reasonable investigation to find, including the possible topics of "medical history, education history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Id. at 524.
In a dissent written by Justice Scalia and joined by Justice Thomas, the ABA Standards are treated as mere guidelines and not as binding case law or as a prior rule handed down by the Supreme Court. Id. at 543.
Williams v. Taylor, 529 US 362 (2000).
The Supreme Court reversed the circuit court's ruling that the defendant's death sentence was constitutionally firm and instead held that the defendant's right to effective assistance of counsel was violated.
In discussing the ABA Standards for Criminal Justice, the Court noted that defense counsel's lack of presentation of mitigating evidence demonstrated that counsel did not fulfill its' obligation to conduct a thorough investigation of the defendant's background. The Court also noted that whether the omissions were clearly prejudicial to affect the outcome of the sentencing proceeding is irrelevant, as counsel still did not fulfill an obligation. Williams, 529 U.S. at 396.
Burger v. Kemp, 483 US 776 (1987).
The Supreme Court affirmed the circuit court's ruling that the defendant did not receive ineffective assistance of counsel as the result of a conflict of interest resulting from the representation of co-defendants. The Court declared that the defendant had not established acts or omissions that were outside the realm of acceptable and professional assistance.
In discussing the ABA Standards for Criminal Justice, the Court did state that "accepting or continuing employment by more than one defendant in the same criminal case is unprofessional conduct. Burger, 482 U.S. at 799 n.4 (citing ABA Standards for Criminal Justice 4-3.5(b)(2d ed. 1979)). In such a case, the trial judge is to make "appropriate inquiries" in reference to whether defendants fully comprehend the challenges and difficulties that attorneys can encounter while representing numerous defendants. Id.
Darden v. Wainwright, 477 US 168 (1986).
The Supreme Court affirmed the defendant's murder conviction, holding that he was not denied the effective assistance of counsel and that the prosecutor's comments did not render the trial unfair. The Court stated that the defendant had failed to show that counsel's actions fell below an objective standard or reasonableness.
In referencing the ABA Standards for Criminal Justice, the Court noted that an attorney is not permitted to state his/her personal opinion as to the credibility of a witness or the guilt of the defendant. Darden, 477 U.S. at 191 (citing ABA Standard for Criminal Justice 3-5.8(b)(2d ed. 1980)). In a similar reference to Standard 3-5.8(d), the Court declared that a prosecutor should refrain from argument that would divert it from its duty to decide the case based on the evidence presented by arguing issues pertaining to the guilt or innocence of the defendant or by making predictions about the consequences of possible verdicts. Id. at 192. Finally the court stated that a prosecutor is not permitted to use arguments solely calculated to "inflame the passions or prejudices of the jury." Id. (citing ABA Standards for Criminal Justice 3-5.8(c) (2d ed. 1980)).
Short v. Sirmons, 472 F.3d 1177 (10th Cir. 2006).
The Court of Appeals for the Tenth Circuit affirmed the district court's denial of a habeas petition, ruling against the defendant. The court found that certain inadmissible testimony was properly suppressed and that the victim impact testimony was not improper.
However, the court did not that the exclusion of "relevant, probative, and otherwise admissible evidence is an extreme sanction that should be used only when justified by 'some overriding policy consideration.'" Short, 472 F.3d at 1188 (citing United States v. Davis, 639 F.2d 239, 243 (5th Cir. 1981). The court noted the importance of this standard by stating that the "exclusion sanction is not recommended because its results are capricious." ABA Standards for Criminal Justice 11-4.7(a) (2d ed. 1980).
Outten v. Kearney, 464 F. 3d 401 (3rd Cir. 2006).
The Court of Appeals for the Third Circuit reversed and remanded this case so that the state court could conduct a new sentencing hearing or sentence the defendant to life in prison. The circuit could found that the defendant's right to effective assistance of counsel was violated by his failure to conduct a reasonable investigation in light of the penalty facing the defendant. In addition, the court found counsel deficient in failing to provide or present any mitigating evidence during the penalty phase, holding that counsel fell short of the prevailing national standards, and as such, the defendant was prejudiced because at least one juror might have voted differently.
In discussing the ABA Standards for Criminal Justice, the court noted that the relevant inquiry is not whether defense counsel should have presented mitigating evidence, but rather "whether the investigation supporting counsel's decision not to introduce mitigating evidence . . . was itself reasonable." Outten, 464 F.3d at 417 (citing Wiggins v. Smith, 539 U.S. 510, 511 (2003) (emphasis in original)). The court then stated that "reasonableness" is ascertained by looking at "prevailing norms of practice as reflected in the American Bar Association standards," and that the ABA standards serve as guidelines in determining what is reasonable. Id. at 417.
In addition, the court noted that defense counsel has an obligation to present mitigating evidence both to the prosecutor initially, and eventually to the court at sentencing, and that investigation into mitigating factors "is essential to the fulfillment of these functions." Id. at 418.
Sanders v. Brown, 171 Fed. Appx. 588 (9th Cir. 2006).
The Court of Appeals for the Ninth Circuit reversed a district court ruling that denied the defendant an evidentiary hearing, and held that defense counsel had a duty to complete a sufficient investigation of mitigating factors to assure that the client's decision was informed and knowing. The court determined that counsel was deficient in the performance of his investigation due to the large nature and volume of possible mitigation evidence.
In discussing the ABA Standards for Criminal Justice, the court noted that comments to Standard 4-4.1, while not applying to a situation where a client forbids investigation into his background, "suggests that a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed wishes." Sanders, 171 Fed. Appx. at 592. The court also stated that in a previous case, Silva v. Woodford, and in cases before the Supreme Court, the ABA guidelines have been relied upon in order to find ineffectiveness for failure to investigate. Id. at 593.
Franklinv. Anderson, 434 F. 3d 412 (6th Cir. 2006).
The Court of Appeals for the Sixth Circuit affirmed a district court ruling allowing a petition for writ of habeas corpus and held that counsel was ineffective because counsel failed to meet with his client and keep him informed of the case as well as failed to adequately represent the client at trial .
In discussing the ABA Standards for Criminal Justice, the court considered prevailing norms of professional practice and also cited to comments in ABA Standard 4-3.8, which states, "the lawyer has a duty to keep the client informed of the developments in the case and the progress of preparing the defense." ABA Standard for Criminal Justice 4-3.8 (2nd ed. 1980). The court noted that counsel has a special responsibility to develop a relationship of trust and confidence with the client so the client will appreciate that the lawyer knows the case and has the client's best interests clearly in mind." Franklin, 434 F.3d at 429. The court specifically found that at no instance did defense counsel keep the defendant "informed of the developments in the case," and that counsel did not meet established ABA guidelines. Id. at 430.
Marshallv. Cathel, 428 F.3d 452 (3rd Cir. 2005).
The Court of Appeals for the Third Circuit affirmed a district court order which granted the defendant's habeas petition, vacated his death sentence, and remanded the case for a new sentencing phase after the defendant had been sentenced to death twenty years earlier. The court found that defense counsel failed to investigate and prepare for the penalty phase of the trial, and as such, failed to discover possible important mitigating evidence.
In discussing the ABA Standards for Criminal Justice, the court noted that a decision made by counsel not to investigate or present mitigating evidence is presumed to be reasonable, but is ascertained using prevailing norms of professional practice as articulated in the ABA Standards. Marshall, 428 F.3d at 453; see also Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). Along with seminal cases such as Stickland, 466 U.S. 668, and Rompilla, 545 U.S. 374, the court also noted that the ABA Standards for Criminal Justice set forth guidelines stating that counsel has a duty to "conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in case of conviction." Standard for Criminal Justice, 4-4.1 (2d ed. 1982 Supp.). In addition, this duty "exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." Id. The court determined that ABA guidelines, when coupled with Strickland, requires separate penalty phase investigation in order for representation to be considered reasonable. Marshall, 428 F. 3d at 467 (citing Marhsall v. Hendricks, 313 F.Supp. 2d 423, 441 (D.N.J. 2004)).
Canaanv. McBride, 395 F.3d 376 (7th Cir. 2005).
The Court of Appeals for the Seventh Circuit affirmed a district court's granting of habeas relief and held that the defendant was entitled to a new sentencing hearing. The court found that defense counsel was deficient in that they did not discuss whether the defendant should testify or not. Defendant's testimony was the only evidence of mitigating factors and the court stressed that professional norms in place require that defense counsel discuss with their client the right to testify. The court found that the defendant was indeed prejudiced because the jury might have returned a different sentence had the mitigating evidence been presented.
In discussing the ABA Standards for Criminal Justice, the court noted that the standards are guides for determining what is reasonable conduct for attorneys. The court stated that the Standards "are not determinative" but rather "represent 'well-defined norms' on which the Court has routinely relied." Canaan, 395 F.3d at 384. The court made clear that the ABA Standards state, "'defense counsel should alert the accused to the right of allocution' at sentencing," and noted that defense counsel in this case provided ineffective assistance because of the lack of such discussion and advisement. Id. at 385 (citing ABA Standards for Criminal Justice, Defense Function Standard 4-8.1(d) (3d ed. 1993)).
Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004).
The Court of Appeals for the 10th Circuit reversed a district court's judgment denying defendant a new sentencing hearing. The court found that the guilt phase of the defendant's trial was not prejudiced by either prosecutorial misconduct or ineffective assistance of counsel. However, the court did find that the defense counsel failed to afford him constitutionally adequate representation. The court noted that evidence concerning the defendant's background, brain damage, and mental retardation should have been presented as mitigating evidence, and had that been done, at lease one juror might have struck a different balance when considering the proper sentence.
In discussing the ABA Standards, the court noted that it reviewed counsel's actions with greater attention, stating that the heightened review paralleled the heightened sentence handed down. The court cited to the ABA Standards by stating, "[s]ince the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused." Smith, 379 F.3d at 939 (citing ABA Standards for Criminal Justice 4-1.2(c) (3d ed. 1993)).
Mitchell v. State, 136 P. 3d 671 (Okla. Ct. Crim. App. 2006).
The Court of Criminal Appeals for Oklahoma reversed and remanded the defendant's death sentence based on cumulative error. Specifically, the court found that the trial court erred when it denied the defendant any opportunity to voir dire jurors who expressed reservations about the death penalty or to rehabilitate jurors who expressed an unwillingness to consider life sentences. In addition, the court also found that the trial court erred in admitting evidence of photographs of the victim and a crime scene video, in admitting victim impact testimony, and in excluding certain mitigating evidence. Finally, the court also found evidence of prosecutorial misconduct and trial court bias against the defendant.
In discussing the ABA Standards, the court noted that "the trial judge has an affirmative obligation 'to ensure that the final argument to the jury is kept within proper, accepted bounds.'". Mitchell, 136 P. 3d at 711 (n. 219) (citing ABA Standards for Criminal Justice, The Prosecution Function, 3-5.8(e) (1980)).
Commonwealth v. Hughes, 581 Pa. 274 (Pa. 2004).
The Supreme Court of Pennsylvania vacated an order and remanded the case for additional proceedings, finding that there was a genuine dispute regarding counsel's awareness of the proof and nature of his investigation. In addition, the court determined that there was a factual dispute as to whether the decision to not present certain evidence was based on strategic decisions.
In discussing the ABA Standards, the court noted that defense counsel has a duty to conduct a prompt investigation of the circumstances of the case and any facts relevant to the merits or the penalty. Hughes, 581 Pa. at 362 n.56 (citing ABA Standards for Criminal Justice, The Defense Function; Investigation and Preparation, 4-4.1 (2d ed. 1980)). In addition, the court cited to the commentary to the Standards as well and indicated that investigation and presentation of mitigating evidence is an important duty for defense counsel. Id.
Commonwealth v. DeJesus, 580 Pa. 303 (Pa. 2004).
The Supreme Court of Pennsylvania vacated the sentence of death and remanded the case for a new sentencing hearing, finding that the "send a message" argument used by the prosecutor was prejudicial per se and required a reversal of the sentence.
In discussing the ABA Standards, the court noted that a prosecutor should not express his or her personal belief as to the credibility of any testimony or evidence, and should not express his opinion as to the guilt of the accused. DeJesus, 580 Pa. at 319. In addition, the court declared that the use of arguments used solely to influence the jury to base their verdict on emotion rather than reflective judgment will not be tolerated. The court relied on ABA Standard 3-5.8(d) and stated, "[t]he prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence." Id. at 323.
In re Lucas, 33 Cal. 4th 682 (Cal. 2004).
The Supreme Court of California vacated a judgment imposing the death sentence, finding that the defendant had a meritorious ineffective assistance of counsel claim. The court held that the defense counsel failed to make an adequate investigation concerning mitigating evidence to be presented at the penalty phase of the proceedings. Furthermore, the court declared that counsel lacked a sufficient basis upon which to forgo further investigation, but rather failed to address indications that a reasonable inquiry into the defendant's background would have revealed strong mitigating evidence to be presented at the sentencing proceedings.
In discussing the ABA Standards, the court stated that even though some of the evidence concerning the defendant was not favorable, the failure to present any evidence during the sentencing proceedings prejudiced the defendant. Lucas, 33 Cal 4th at 728. In addition, the court noted that the failure to present any mitigating evidence whatsoever was not based on a tactical decision to focus solely on the defendant's voluntary confession. Id.
Arthur v. State, 575 So. 2d 1165 (Ala. Crim. 1990).
The Court of Criminal Appeals of Alabama reversed and remanded the defendant's conviction and sentence, holding that it is improper for authorities to re-interrogate a suspect in custody after he/she has made a clear assertion of request for counsel. In addition, the court found that the references made to the defendant's invocation of his Fifth Amendment right was impermissible and prejudicial.
In discussing the ABA Standards, the court noted that a prosecutor, in stating phrases such as the jury must "do its job" implies that a certain verdict must be reached. Arthur, 575 So. 2d at 1185. The court, along with the ABA Standards, made it clear that "pressure, whether by the prosecutor or