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March 08, 2005


Three Generations

I cannot access the link, it does not load. But going by what you've said, it sounds absurd. How much further will courts erode the protections of the 6th amendment? As it is the standards in Habeas cases are ridiculously difficult.



1) here is the link http://pacer.ca6.uscourts.gov/opinions.pdf/05a0111p-06.pdf – it works for me

2) http://appellate.typepad.com/appellate/files/survey.html gives you access to all of the pages from the CTAs

3) Unless and until the Supremes clarify the c/p standard in Strickland this is the way things will be. But, I have been thinking of ways that people could show prejudice. I wonder, per chance, if a defendant, through his new lawyer, could hire a “jury simulation” firm and show how the result would have been different.


Scotus's comment is right-- under the existing law you have to show prejudice. But 3 Generations' comment points to something that is wrong-- and why the blurb in the case set my teeth on edge.

What's happening in my part of the world is this: state-level post-convictions are being handled now by a state-funded office *that is not working up the files*-- they are filing "record based" post-conviction applications. In the present climate, those are virtually doomed. You can identify a lawyer screw-up-- hiring a psych the day before trial, say-- from the record, but you have to DO SOME INVESTIGATION to show that there was something the lawyer could have accomplished if he/she had done their job.

Any lawyer would look at a death penalty case and say "massive screw-up" on not preparing a mitigation case before trial. Period. But it counts for nothing (and you've lost postconviction and then habeas) if someone doesn't do the investigation. Or put another way, proving there was an utterly, completely, indisputably incompetent lawyer isn't enough to show ineffectiveness.

And an incompetent state post-conviction work-up will insulate the incompetent trial counsel from review.

So I agree with 3 Generations' yelp-- but know that the law is as suggested by the case blurb.

Three Generations

I work in such a state funded office. It is a part of the Public Defender's Office (so, I'm a public defender) and all my files are "worked up". I have two investigators on the staff full-time and boy are they busy. My gripe (and this is universal of anyone in the Habeas field) is that the standard is absurd and you've hit right on the point. The deficient performance prong isn't that difficult most of the times (though habeas judges love to use every opportunity to applaud trial attorneys), it is the prejudice prong that is the main stumbling block (add to that procedural default and you're cooked).

So I guess my yelp wasn't at discovering the law is such, but at the more general state of things in the habeas world. Strickland was bad enough, but then they upheld Hill v. Lockhart, which quite frankly in my opinion, is an abomination.


In my experience, a large PD's office (e.g. Connecticut's) is probably the best a criminal defendant can do. There are internal quality controls and in a post Miranda (the 9th circuits Nevada-Miranda) world, they are subject to even 1983 actions.

Anyway, I think that post-conviction counsel needs to be more creative in showing prejudice.

Three Generations

Thank you for that vote of confidence in CT's system :) I believe we are a pretty damn good PD's office. I'm not sure if I've ever heard of a 1983 action, though.

I'm also not sure what you mean by "more creative". The problem with showing prejudice is that often times the impact of an abandoned course of action by trial counsel is intangible. The effect that a better cross examination might have had on the jury, or the presentation of a certain piece of evidence might have had is rather difficult to portray in a habeas hearing. The judges are also very eager to state that the defendant was convicted based on the evidence/strategy not the basis of the habeas petition.


For a copy of Miranda v. Clark, see http://caselaw.lp.findlaw.com/data2/circs/9th/0015734p.pdf

I have speculated (based on nothing) that it might be possible to show prejudice by creating a sample jury and retrying the case to that jury. (I don’t know if this is possible or if it would work.)

The other way, I think that prejudice could be shown would be by presenting evidence of similar jury verdicts which went the other way – only – because of something that was omitted in this case was not.

Three Generations

Yes, I'm sorry. You mentioned that in a previous comment and I meant to respond to it, but it slipped my mind. I'm not entirely sure if that has even been tried in the past. What ocurrs to me is the great expense involved in doing something like that and whether pd's offices or states would spring for something like that. The risk that you run, obviously, is that the "staged" jury would come back with the same verdict and then you're completely cooked. Coaching the "jury" obviously would be pure rigging and fabrication.

Perhaps the manner in which this might be done is by contacting the actual jurors and asking them what affected their decision and then perhaps asking them how their votes would have changed based on better performance of counsel or some piece of investigation that was left undone.


Awhile ago, I was asked to research whether it is ethical for a non-government entity to withhold expert reports (or simulations) that were unfavorable to it. I conclude that it was, and it seems to be the general practice in many fields. (This does not apply to the government in most situations.)

This method would probably want to be tried by some other group, besides a PD.


I've seen the "actual jurors" approach 3Generations mentions used in postconviction cases. I've seen a mix of juror affidavits, some (in effect) impeaching the verdict, and some saying, more or less "if I'd known ___, it would have made a difference." Both categories seem slightly odd to me--the rules against allowing a juror to impeach their verdict are too ingrained, and the 2nd one seems only to glancingly relate to the legal standard (about which more in a moment) but they have a serious emotional impact in the way they favor the petitioner in the cases I've seen.

The problem with a mock-retrial as suggested by S.cotus is that it doesn't really relate to the legal standard-- which is (as it is stated-- I'm don't have the confidence it's how it's applied...) about whether you can say the omitted evidence or error would likely effect a reasonable juror (I may have slightly misstated the standard but that's close)-- undertaking to win before a mock jury seems to me an actually higher standard. And, in any event, this is an analysis the court does at the level of mixed-question-of-law-and-fact. I'm not sure how sympathetic to direct proof a court would be on it.


I am just brainstorming here, but how about using a "fake" jury as a form of expert testimony, wherei n the person who did the expariment offers to testify as an expert.


You'd have to show that using the fake jury met Daubert standards. And Free v. Peters, 12 F.3d 700 (7th Cir. 1993), implies that it would be nearly impossible to.

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