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The Right-to-Counsel Term

The US Supreme Court's next term does not formally begin until October, but we can already see a major theme shaping up.  There are five cases on the right to counsel, and none of them directly involves counsel's representation in a criminal trial.
Lafler v. Cooper, 10-209, and Missouri v. Frye, 10-444, are not formally consolidated.  However, the Court granted certiorari in both on the same day and added the identical question to both cases: "What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?"  CJLF's answer is, quite simply, none.  A defendant who is convicted in a fair trial (Cooper) or who knowingly and voluntarily agrees to a plea bargain (Frye) has suffered no constitutional injury, even if a better lawyer would have gotten him off with a better bargain.  The briefs of the defendants are due today, and the supporting amici are due a week later.

Maples v. Thomas, 10-63, is a procedural default case where the inmate's lawyers blew the appeal deadline in state collateral review.  If you think that sounds like it's "on all fours" with Coleman v. Thompson, which settled that question two decades ago, you win the prize.  See prior post here.

Martel v. Clair, 10-1265, is yet another disaster from the Ninth Circuit.  The panel in this capital case was Judges Pregerson, Reinhardt, and Wardlaw.  That's all you need to know to predict the outcome.  After sitting on the case for five years on appeal from denial of habeas, the Notorious Ninth sent the case back to District Court because the petitioner asked for a change in counsel after the case had been litigated and was awaiting decision in the District Court.  Does a habeas petitioner have a greater right to change his appointed counsel than a defendant has at trial?  Does he have any such right at all?

Martinez v. Ryan, 10-1001.  The Sixth Amendment right to counsel, on which the Gideon right to appointed counsel is based, applies only to trial.  That is well established.  In Douglas v. California, the Supreme Court created a right to appointed counsel for indigents in the first appeal, although the theoretical basis for that decision was decidedly fuzzy.  However, the Court has refused to further extend that right to additional reviews of the judgment, including review in the state high court (in states with multiple levels of appellate courts), certiorari in the U.S. Supreme Court, and habeas corpus.  Where there is no constitutional right to counsel, ineffective assistance is not cause for a default.  Martinez claims that the Douglas rule for the first appeal applies when state collateral review is the first time an ineffective assistance claim can be litigated.  Hence he is entitled to counsel for the first state postconviction.  Hence the ineffective assistance of that lawyer in muffing his attack on the trial lawyer is cause for default, and he can get review of that claim in federal court.  Got all that?

If you think that sounds a lot like Maples which in turn sounds a lot like Coleman, you're on a roll.

So why did the Court take Maples and Martinez?  They might have taken Maples because they believed the nonsense that it presented a case of attorney "abandonment" distinguishable from Coleman.  It does not, as the state's brief demonstrates. 

But then why did they take Martinez?  Maples did get a ruling on the merits of his claim in the state trial court.  What he lost from the attorney error was additional reviews in other courts.  Martinez did not get any review of his claim.  So are they really going to extend the Douglas right to counsel and the Evitts v. Lucey right to litigate whether counsel was effective to yet another stage of review?  That's a pretty scary thought. 

Ineffective assistance litigation is already a huge waste of resources.  In a sample of 2384 noncapital cases, King, Cheesman, and Ostrom found that IAC was claimed in 768, just over half, and the claim was determined to be meritorious in a grand total of one.  In capital cases, the grant rate is higher, but it's almost always on penalty, not guilt, and thus strongly influenced by the judge's view of whether death is a just punishment for murder.  Another round of litigation with yet another lawyer attacking the prior lawyer is the last thing our justice system needs.

Stay tuned.


The state's brief in Maples is quite good. What was really nice was how they showed that the "abandonment" argument conflicts with the murderer's Flowers argument. Also, how the state used the 11th Circuit oral argument was great too. Marc De Leeuw must have choked when he read the state's brief.

This case should be 9-0--it won't be, but it should be.

The other funny thing about Maples' argument (as pointed out in the brief) is the unstated idea that because the clerk had the last clear chance (borrowing from tort law that pre-dated comparative fault) to prevent the default, it obviates counsel's error.

Hasn't SCOTUS held that it is proper for the government to push IAC to post-conviction relief? Wouldn't that create a reliance interest on the part of the states? Shouldn't that bar things like re-opening 20 year old death sentences (e.g., Cook)?

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