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Jefferson v. Upton

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Over at Volokh Conspiracy, John Elwood has this post about the Georgia capital case of Jefferson v. Upton. The case is on the conference list for the seventh time tomorrow (see docket), and Elwood thinks a summary reversal is brewing.

The claim in the case is ineffective assistance in the penalty phase, which is not at all unusual. Indeed, capital habeas petitions that do not make that claim are rare. It is unusual, though, to have a lengthy dissent by Judge Carnes, who is definitely not a bleeding heart.

Elwood also notes, "Right off the bat you know this is not your usual capital case in that the defendant's middle name is neither 'Wayne' nor 'Dale,' which standing alone is probably enough to support a claim of actual innocence."

Anyhow, something is certainly up to have that many relistings.

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Since habeas is reserved for "extreme malfunctions" and for those whom "society has grievously wronged", it is difficult to see why this guy should qualify. He had an experienced defense attorney represent him who vigorously fought for his freedom and his life.

With respect to the Strickland claim, it's important to remember just how far Strickland has metastasized. The textual underpinning of Strickland is that a person has a right to counsel and that where counsel is so ineffective it is the functional equivalent of no counsel. That standard is not remotely met here. At bottom, the claim is that the guy would have had a better defense had the defense attorney gotten a psychological evaluation (in the face of an oral statement by the psychologist that the guy was just a criminal). But that there was a better defense (evaluated from the eyes of SCOTUS, and not an experienced Ga. defense counsel in 1986 who presumably had a better idea of what would fly with Ga. jurors) doesn't mean that there was no defense or that the deemed worse defense somehow deprived the defendant of his right to have the prosecution's case tested.

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