CA6: "I didn't write that part of the brief, your Honor" = Ineffective Assistance

The Sixth Circuit has affirmed the award of a writ of habeas corpus in a capital case due to juror prejudice and ineffective assistance of appellate counsel. Franklin v. Anderson, Nos. 03-3636/3697.

Lessons to be learned from this case include:

Be prepared to argue co-counsel's brief. Attorney Greenham had a family emergency that precluded her attendance at oral argument, and was denied an extension; Dieffenbach was left to argue the whole case:

At oral argument, Dieffenbach refused to discuss or answer questions on any part of the brief that Greenham had prepared. Having counsel refuse to address half of the issues raised before the appellate court is like having trial counsel refuse to attend half the trial. On those issues, therefore, Franklin suffered a total lack of meaningful advocacy.

Talk to your clients:

Twice Franklin asked Dieffenbach to withdraw from his case. The first time she responded only by saying the she had argued his case before the Court of Appeals. The second time she responded only by saying that she had argued his case before the Ohio Supreme Court. At no point, therefore, did Franklin’s counsel meet the ABA guidelines of keeping Franklin “informed of the developments in the case” or of developing a relationship of trust with him.

Be prepared and professional:

The transcript of their [Ohio Supreme Court] arguments include five instances of wholly inappropriate laughing on the part of both of Franklin’s lawyers, an admission by Dieffenbach that she may be wrong about one of her contentions, equivocal responses to questions from the justices, and Greenham’s introductory statement that she “wished we had more to say on Mr. Franklin's behalf.” In addition, Franklin’s counsel displayed a lack of familiarity with the facts relevant to the arguments she made to the court. For instance, Greenham did not recall the length of the videotape she argued was gruesome and prejudicial, and stated that “apparently it was very graphic,” strongly suggesting she had not even viewed the allegedly offending videotape herself. Dieffenbach did not know how many points of identification existed between Franklin’s fingerprint and the print lifted from the champagne bottle found in the Strauss apartment. Greenham displayed an astounding lack of solemnity under the circumstances when she employed the term “overkill” to describe the photographic and videographic evidence, then laughed and said “Excuse the pun.”

The dissent takes on the majority treatment of Ohio R. App. P. 26(B). Contrary to federal Court, in Ohio you may not raise ineffective assistance of counsel in a habeas proceeding unless the issue was raised on direct appeal. Rule 26 strives to allow parties to make the record necessary to pursue such claims. Ohio courts' inconsistent application of the rule has led to the creation of a regional AEDPA issue.