Second Guesses
California Lawyer

Second Guesses

When criminal defendants attack their trial lawyers’ competence

January 2012


illustration by Huan Tran

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John Schick thought he had done a good job defending accused murderer Fernando Belmontes. Sure, his client got the death penalty - for bludgeoning a woman to death with a steel dumbbell bar during a burglary - but it was a nasty crime and there was plenty of evidence that Belmontes was the culprit. Schick, a long-time solo defense attorney in Stockton, considered it a victory of sorts that it took jurors two and a half days to agree that Belmontes should be executed for the killing. "Frankly, the jury had a tough time," he says, recalling the 1982 trial. "I think part of it was we had put on a good presentation."

So Schick was stunned when, 26 years later, the Ninth U.S. Circuit Court of Appeals ruled that he had performed poorly in the penalty phase of the trial; the panel granted Belmontes habeas corpus relief, meaning he would likely face life in prison without parole instead of capital punishment. The court, in an opinion by liberal standard-bearer Judge Stephen Reinhardt, held that Belmontes' Sixth Amendment right to effective assistance of counsel had been violated. (See Belmontes v. Ayers, 529 F.3d 834 9th Cir. 2008.)

The issue routinely comes up during habeas proceedings, when inmates - nearly all of them indigent - have a chance to challenge their convictions based on evidence of possible constitutional violations that may extend beyond the trial record, But no lawyer ever wants to be found deficient.

Schick certainly didn't. Even in 1982, ten years out of UC Davis law school, he was an experienced criminal defense lawyer, having spent five years in the San Joaquin County Public Defender's office before going solo in 1977. By the time he was appointed to represent the indigent Belmontes, he had already tried three homicide cases. Now 65, teaching at Humphreys College law school and with two dozen homicide cases behind him - including five death penalty trials - Schick still stands by his work for Belmontes. That's why Reinhardt's opinion stung so much. "It bothered me, I will be honest," he says. "I thought the criticisms were a little thin," applying today's legal standards to a decades-old case.

Joining the ranks of lawyers found to be ineffective is an unpleasant situation that can provoke conflicting emotions in anyone who's experienced it. On the one hand, it's a blow to any lawyer's professional reputation and, in some cases, can lead to state bar discipline if the conduct is particularly egregious. Yet if an attorney is found to have been ineffective, it could actually help the former client, who might be granted a new trial - or at least a modified sentence.

A claim of ineffectiveness - one of a laundry list of constitutional violations that can undermine a conviction - also pits trial defense lawyers against colleagues who specialize in postconviction work (or Monday morning quarterbacking, depending on your perspective). More broadly, some legal experts say, the continuing use of such accusations is an indictment of a justice system that provides far more resources for defendants after they're convicted - especially those on death row - than it does before and during their state court trials.

And for lawyers like Schick, it leads to a period of introspection. "You have to take a long look at yourself," he says.

Second-Guessing

Cliff Gardner has seen it all, over the years. A Berkeley-based postconviction specialist practicing with three other attorneys, he says there are two types of criminal defense lawyers: Those who respond professionally to an ineffectiveness claim, and those who don't. Those in the first category will tend to say, "If you find anything I did that was wrong, let me know." They are also the ones who are genuinely mortified at even the prospect that their conduct may have harmed a client's case. Those in the second group will fight tooth and nail, every step of the way.

Gardner, 56, has firsthand experience with both, having worked on postconviction proceedings - as paid, pro bono, and appointed counsel - in state and federal courts since 1981. Just last year he argued, unsuccessfully, before the U.S. Supreme Court that a client - Joshua Richter, who was sentenced to life without parole for a 1994 murder in Sacramento - had received ineffective assistance of counsel (Harrington v. Richter, 131 S. Ct. 770 (2011)). Almost all of Gardner's cases involve homicide defendants.

Gardner's take on trial defense attorneys is shared by Eric M. Freedman, a professor at Hofstra University School of Law in New York who frequently litigates capital cases. According to Freedman, lawyers who are truly incompetent - perhaps due to problems with drugs or alcohol - are the "most likely to be defensive" when challenged about their handling of a case.

Once a postconviction lawyer starts looking into the circumstances of a conviction, the role of the trial counsel is limited. He or she is required only to hand over case files and talk to the new attorney about the case. A cooperative trial attorney might file an affidavit or even testify at the habeas corpus hearing in federal court. But it doesn't always go that way.

Some lawyers whose trial work is called into question won't even pick up the phone, according to Charles Sevilla, 66, who has practiced criminal defense in San Diego since 1983, starting with 13 years as a public defender. In private practice, Sevilla has handled three postconviction capital cases, and argued three cases before the U.S. Supreme Court.

When the effectiveness of their representation is challenged, Sevilla says, a few lawyers continue to respond in negative ways - despite both a State Bar of California ethics opinion and an American Bar Association model rule of professional conduct that cite a duty to cooperate with successor counsel. (See Cal. St. Bar Comm. on Prof. Resp. & Conduct Formal Op. 1192-127; ABA Model Rule 1.16.) Sometimes he has to mail a copy of the ethics opinion to recalcitrant attorneys to get their attention. "It's not the way I want to start communication with trial counsel," he says.

Gardner knows firsthand about the awkwardness of the situation, having faced two claims of ineffective himself (neither stuck). "There's no worse feeling," he says.

Hard Feelings

Even when a habeus claim focuses solely on a defense attorney's tactical call rather than gross misconduct, it can upset the accused lawyer. Take veteran Los Angeles defense lawyer Donald R. Wager. He's still peeved about an unpublished Ninth Circuit opinion from 2007 holding that he wrongly advised Alexandre Mirzayance to withdraw plea of not guilty by reason of insanity. (See Mirzayance v. Knowles, No. 04-57102 (9th Cir. memorandum opinion filed Nov. 6, 2007), rev'd, Knowles v. Mirzayance, 556 U.S. 111 (2009).)

In the fall of 1995, Mirzayance stabbed Melanie Ookhtens, his 19-year-old cousin, nine times with a hunting knife and then shot her four times. He told police he killed Ookhtens because she complained that he was watching TV when they should have been preparing to meet her parents at the airport. He was sentenced to 29 years in prison.

Wager doesn't blame his former client for making the ineffectiveness claim. After more than 40 years as a defense lawyer, and seven years as a prosecutor before that, he doesn't feel he has anything left to learn. As a sole practitioner, he's worked on half a dozen murder cases and now focuses on paying clients in cases with a drug- or alcohol-abuse component.

Wager's frustration is directed, at least in part, at the lawyer who took up Mirzayance's case after the guilty verdict: Charles Sevilla. "The case left a bad taste in my mouth," he says. What upset Wager most was that Sevilla accused him at the oral argument of not understanding insanity pleas. "After the [Ninth Circuit] decision," he says, "I called him and said, 'I don't understand why you said that.' It was a low blow."

Sevilla stands by his argument that Wager had relied upon a law that was repealed by the time Mirzayance's case went to trial. "I just disagreed with his rationale," he says.

In Mitigation

The Mirzayance case is somewhat unusual in that the defendant's family paid both Wager (for the trial phase) and Sevilla (on appeal). The vast majority of homicide cases in California involve indigent defendants who, like Belmontes, are given a court-appointed lawyer. Every inmate in postconviction capital proceedings in California is indigent. Schick took on Belmontes's case because the public defender's office couldn't - it was representing his codefendant. The question on habeas corpus review was whether Schick should have completed a more thorough investigation of mitigating evidence.

In the sentencing phase of Belmontes's trial, Schick faced a tactical quandary over how to persuade the jury not to impose the death penalty. Jurors had already heard that, during the 1981 burglary, Belmontes had bashed Steacy McConnnell with a steel bar more than 15 times. It was all for a stereo that he and his accomplice then sold for $100 to fund a night of beer and drugs.

That testimony wasn't Schick's only problem: If he wasn't careful about evidence he introduced concerning Belmontes's personal history, he would open the door to the prosecution's highly damaging evidence linking his client to a prior murder. So Schick made the decision to limit the evidence he offered during the mitigation phase. After Belmontes's conviction there was plenty of time for second-guessing, which - as Freedman points out - frequently comes with greater resources than the original lawyer had at trial. Cases like Schick's, Freedman says, are a "reflection of the utter lack of investigative resources" at trial. He believes that the charge of ineffective assistance is "a metaphor for everything that's wrong with the system."

Put simply, at the trial phase - where indigent representation is funded at the local level and varies by jurisdiction - a lawyer like Schick is largely left on his own, even in a capital case. But after a defendant is convicted, more resources become available for post-trial proceedings, especially if the case makes it all the way to federal court and a full habeas corpus hearing. It's universally acknowledged within the defense bar that lawyers representing indigent defendants are unlikely to get county funding to complete all the necessary pretrial investigative work - whether it involves researching their client's personal history or retaining expert witnesses.

California caps payments for habeas corpus investigations in death penalty cases at $50,000, which lawyers say is rarely enough. The California Supreme Court appoints attorneys for capital cases, and in noncapital cases, various nonprofit groups around the state help provide lawyers.

At the other end of the spectrum are habeas corpus proceedings in U.S. district court, where the funding, provided by the federal government, depends on the facts of the particular case. In other words, if the habeus lawyer needs an expert, more than likely it will be provided.

The availability of experts is one reason new information comes out at that stage in the habeus corpus process, even years after the crime, notes Michael Laurence, executive director of the Habeas Corpus Resource Center in San Francisco. "These cases go into federal court and finally get access to funding that should have been provided at the trial court," he says.

But federal judges often hold strikingly divergent views about whether a lawyer's performance is deficient enough to constitute a Sixth Amendment violation. Consider the history of tussles between the Ninth Circuit and the U.S. Supreme Court. In recent years, the Ninth Circuit - often described as the most liberal-leaning circuit in the nation - has repeatedly reached findings of ineffective assistance of counsel only to be reversed, in short order, by the more conservative Supreme Court.

There have been five such cases in the high court's past three terms, including three in the 2010 term that ended last June. When the court decided one of these (Cullen v. Pinholster, 131 S. Ct. 1388 (2011)) it also vacated two other Ninth Circuit rulings and sent them back for further review. "It's a very striking phenomenon," says Arthur Hellman, a law professor at the University of Pittsburgh who tracks the Ninth Circuit's reversal record before the high court. No other circuit has received such close attention on claims of ineffective assistance of counsel, he notes.

The underlying question for cases involving ineffective assistance of counsel is how to apply the Supreme Court's key 1984 decision in Strickland v. Washington (466 U.S. 668 (1984)), in which the Court ruled that counsel can be found deficient only if their conduct fell below an "objective standard of reasonableness" that would have led to a different outcome. In recent years the high court has frequently found that the Ninth Circuit stretched that definition too far.

"More often than not," Gardner notes, "the dispute is not over whether there was a mistake but whether it was prejudicial."

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento thinks Strickland should have resolved those questions once and for all. "The trouble is, the habeas lawyers think they are on a crusade to stop executions," he says. "The Supreme Court said in Strickland there is no one right way to try a case. It's very easy after the case has been lost to look back and say he should have chosen the other way."

But as law professor Hellman notes, liberal judges like Reinhardt can point to two post-Strickland decisions by the Supreme Court that were pro-inmate: Wiggins v. Smith (539 U.S. 510 (2003)) and Rompilla v. Beard (545 U.S. 374 (2005)). Appeals court judges continue to opine on ineffective assistance of counsel "as long as Wiggins and Rompilla are on the books," he says.

Vindication

On November 16, 2009, Schick received something few lawyers have ever experienced: the pat on the back from a unanimous U.S. Supreme Court. The Court's ruling in Wong v. Belmontes (130 S. Ct. 383 (2009)) wasn't even close. The Court took the unusual step of summarily reversing the Ninth Circuit's ruling without hearing oral arguments - a clear indication that the justices felt the appeals court findings were way off base.

The per curiam opinion didn't pull any punches either: "A heavy-handed case to portray Belmontes in a positive light, with or without experts, would have invited the strongest possible evidence in rebuttal - the evidence that Belmontes was responsible for not one but two murders," the opinion stated (130 S. Ct. at 389). That didn't happen only because "Schick was careful in his mitigation case," the Court concluded (130 S. Ct. at 390).

Those words brought some comfort to the maligned attorney. "I would be lying to you if I didn't say I felt vindicated," Schick says. It was a stark turnaround: One minute a federal appeals court was labeling him ineffective, the next, the highest court in the land praised his handling of the case.

Wager enjoyed a similar moment when, in March 2009, the Court reversed the Ninth Circuit 90 in Knowles v. Mirzayance (556 U.S. 111 (2009)). Writing the opinion, Justice Clarence Thomas endorsed Wager's decision to withdraw Mirzayance's insanity defense after his parents declined to testify. "Counsel reasonably concluded that this defense was almost certain to lose," Thomas wrote (see 129 S. Ct. at 1421).

Now it's Sevilla, who argued Mirzayance at the Supreme Court, who is miffed. He believes that Thomas got it wrong and stands by his assertion that Wager failed his client by not continuing to pursue the insanity defense. "The function of defense counsel is not to give up defenses," he says.

Difficult Questions

Even with the supportive words of Supreme Court justices ringing in their ears, Wager and Schick still had a way to go on their emotional journeys. Both say they feel lingering dedication to their former clients, and neither is entirely comfortable with what happened in their respective cases.

"I felt sorry for the boy," Wager says ruefully of Mirzayance. "I always do want to see him win."

With the Belmontes case behind him - as well as his career in private practice - Schick adopts a philosophical tone. He understands why former clients facing dire futures make ineffectiveness claims, and why their new counsel have to ask difficult questions. "They're going to be looking over your shoulder," he says. "You kind of have to get used to it."


Lawrence Hurley is the legal reporter for Greenwire in Washington, D.C., and the former U.S. Supreme Court correspondent for the Los Angeles Daily Journal.

Reader Comments

Santiago Salinas - January 4, 2012
This is the 2nd reason (the first is a personal conviction of not participating is this process anymore) that I do not handle death penalty cases anymore. You worked your butt off to save your client; you are underpaid; you lose business because you are too busy; and then when it is over, here come the accusations of being inefective. Why be the enabler to assist the government in executing people. I believe that if all lawyers refused to handle these cases, it would mean the end of capital punishment.

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