Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus

University of Michigan Law School

January 19, 2013

Yale Law Journal, Forthcoming
U of Michigan Public Law Research Paper No. 311

Abstract:
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective-assistance-of-trial-counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective-assistance-of-trial-counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective-assistance-of-trial-counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures.

Don’t forget the AJA Midyear Meeting coming up May 2-4 at the Wyndham Lake Buena Vista in Orlando, Florida.  In addition to business meetings and a full day of excellent education sessions on Will Facebook be Friends with Courts:  Social Media, Digital Evidence and Emerging Trends, you and/or your family members may have time to enjoy the many attractions in the area.  Disney has created a complimentary webpage for AJA attendees to have access to some unique options and special savings on pre-arrival purchases for Disney theme park tickets.  The link is http://www.mydisneymeetings.com/wlbv.

For complete information about the meeting, you can go to http://aja.ncsc.dni.us/conferences/.

There appears to be no definitive law review articles on the subject nor does is there any course material available from the National Judicial College. So a Pennsylvania trial court judge had little precedent to guide his decision. The Associated Press reports that, “A county judge in eastern Pennsylvania has ruled against a former Lehigh University graduate student who sued to have a C-plus grade changed to a B.

The Express-Times of Easton said Northampton County Judge Emil Giordano made the ruling in the lawsuit filed by Megan Thode.

Thode was seeking $1.3 million over a grade in a 2009 graduate-level therapist internship course she says was retaliation because she supports gay marriage.

She says the grade is keeping her from becoming licensed therapist.

The teacher, Amanda Eckhardt, testified she stood by the grade. She said Thode’s behavior in class hurt her in the class participation component of her grade.

There is no word yet on how Ms. Thode will grade Judge Giordano in his judicial performance evaluation.

For over a decade the judges in New York got no salary increase. Budget cuts in other states have eliminated perks that judges used to get. Judicial pensions have been under attack in New Jersey. But as the Washington Post reported not many judges have thought about joining a union.

Some District judges have found themselves in the unusual position of envying the city’s teachers, firefighters and garbage collectors. Those jobs come with something not currently available to those who wear robes to work: the ability to join a union.

Now a group of city administrative law judges is seeking to organize for the first time, and the months-long effort — taking place over the strenuous objections of the judges’ supervisor — has generated frustration among union advocates who think Mayor Vincent C. Gray has failed to match his pro-labor rhetoric with action.

It is perhaps more than a bit ironic that the opinion was delayed because of lack of funding but California’s new Committee on Judicial Ethics Opinions has issued its first formal opinion.  The Los Angeles Times reported that the Committee on Judicial Ethics said it was ethical for judges to ask lawyers to lobby for sufficient court funding. The ABA Journal reported that,

“The committee, created in 2007, took longer than originally expected to begin turning out opinions because of lack of funding.

The opinion said that judges may ask lawyers to write op-ed pieces or otherwise engage in educational programs in the community to alert others to the need for full funding for the courts to ensure justice.

The committee carefully delineated various needs and requirements for such solicitations, especially concerning any appearances of impropriety, ranging from implications of favoritism in return for favors to coercion to gain help.

A judge “might avoid the appearance of favoritism by prefacing any request with the caveat that help is sought from anyone willing to volunteer, but without any expectations or benefits attached,” the opinion (PDF) says.”

The Los Angeles Times reports that, “California courts, reeling from years of state budget cuts, are delaying hearings and trials, allowing records to sit unprocessed for months and slashing services at public windows, a judge’s committee has reported.

The report by the Trial Court Presiding Judges Advisory Committee was based on a survey of all presiding judges and prepared for the Judicial Council, the policy-making body for the courts. All but 10 of the state’s counties responded to the survey.

California’s courts have lost about 65% of their general fund support from the state during the last five years, and Gov. Jerry Brown’s proposed budget fails to restore any of the lost revenue. Presiding judges told the committee that the loss of revenue has affected everything from small claims to child custody disputes.”

The full story is available here.

Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause

Nicholas M. McLean

Yale University

February 1, 2013

Hastings Constitutional Law Quarterly, Vol. 40, 2013

Abstract:
Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause can appropriately be understood as encoding both a proportionality principle and a further limiting principle linking financial penalties to the personal circumstances and economic status of the offender. This Article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento. I suggest that this principle is properly conceptualized as an “economic survival,” or “livelihood protection,” norm inherent in Eighth Amendment jurisprudence.

A growing scholarly literature suggests that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and harmful. Indeed, a number of authors have argued that the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity for reintegration into society. Such practices are not only open to criticism on a policy level, however, but may properly be seen as constitutionally infirm: a fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

An Ohio intermediate appellate court of appeals case, Crain v. Crain, 2012-Ohio-6180, reverses a contempt judgement in which counsel was denied. Richard Zora recently wote about the Ohio decision:

“The defendant had been found in civil contempt for failure to make child support payments, and had been refused an explicit request for counsel, with the magistrate purportedly relying on Turner as follows:

One thing I’m going to tell you, I’m going to deny your request for

counsel at this time.    There’s a recent U.S. Supreme Court decision that came down on contempt citations regarding child support, and the decision of the justices is that obligors that are facing jail time in civil contempts are not entitled to court appointed counsel. So we’ll proceed today without Court appointed counsel * * *. Crain at 3.

The Ohio Court of Appeals corrected this misreading of Turner as follows:

[W]hile Turner does not categorically require counsel to be appointed for persons facing criminal contempt convictions for nonpayment of child support, a reading of the opinion demonstrates that neither does it categorically require, as stated by the magistrate, the denial of appointed counsel. Instead, a court must determine whether there are procedural safeguards in place that adequately protect the obligor.    There was no such determination in this case. Crain at 5.

Aside from the unfortunate reference to “criminal contempt,” to which, of course, Turner does not apply, this is a powerful statement of the requirement that a court assess the sufficiency of the “procedural safeguards in place [to] .  .  . protect the obligor.”

The opinion goes further, however, excusing the lack of procedural objection to the ruling, both because the error is “plain and structural” and, in a comment of more general use outside the state, “In fact, the need to preserve error at the magistrate’s hearing by objecting to the magistrate’s decision is something that a layperson

would not be expected to know without the assistance of counsel.” Crain at 9.

The opinion also correctly distinguishes Turner based on the facts that this case was brought by the state, and that counsel appeared for the state. Crain at 5.

The case might have been somewhat complicated by an unusual statutory structure — but the Court really did not rely on that.

It’s a strong and clear decision.”

For followers of the United States Supreme Court there is a unique feature of the SCOTUS blog: The Petition of the Day. Recently sighted was Chappell v. Phillips.

The issue in the case is whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result. The case involved a claim that  the prosecution’s failure to reveal that a key prosecution witness received significant benefits in exchange for her testimony after the witness falsely testified she had been promised no such benefits, coupled with the prosecutor’s false representation to the jury that there was no agreement promising such benefits, violated his due process rights. The 9th Circuit opinion is an interesting read to show a case where prosecutors failed to follow the mandate of Brady.

Debra Milke was a celebrated villain of 1989, a woman accused and convicted of dressing up her 4-year-old son to see Santa Claus and, instead, sending him off to be shot execution-style in a desert wash.

She is one of three women on Arizona’s death row. A three-judge panel of the 9th U.S. Circuit Court of Appeals threw out her death sentence and murder conviction because the trial court refused to let her introduce evidence that might have discredited her supposed confession.

The Phoenix police detective who claimed Milke confessed to him had a history of lying to grand juries and extracting confessions even from unconscious suspects on hospital gurneys, according to the court opinion. There were no witnesses to the confession, and it was not recorded. Milke denied she ever confessed.

The 9th Circuit asked the U.S. District Court to send the case to the Arizona court system for a new trial and ordered that the detective’s personnel files be made available for Milke’s defense.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/07-99001 web – corrected.pdf