Supreme Court Happenings - 2.27.19 (Part 2)

Lloenflys

"Certainty is an illusion ..."
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The Supreme Court on Wednesday, February 27 issued three opinions. I discussed the first case, Jam v. International Finance Corp., in Part 1 of my writeup for that day. In this second part, I will discuss the second case which dealth with the 6th Amendment right to counsel. Rather stunningly, for perhaps the first time in history I find myself all alone with Justice Alito in how I would have disposed of the case.

Garza v. Idaho, 17-1026 (Supreme Court of Idaho)
MAJ: Sotomayor, joined by Roberts, Ginsburg, Breyer, Kagan and Kavanaugh
DIS: Thomas, joined by Gorsuch (in full) and Alito (for parts I & II)

Majority Opinion and Holding of the Court

This case addresses the question of whether an attorney fails to provide adequate assistance of counsel to a defendant if the attorney fails to file a notice of intent to appeal that has been requested by the defendant even after aggreeing to a plea deal that expressly waives the right to an appeal as part of a plea bargain.

In this case, the defendant was charged with multiple counts for which he faced a potential sentence up to life in prison. In a plea bargain agreed to between him and the state, this was reduced to a ten year sentence. As part of the plea deal, the Defendant agreed to waive his right to appeal. Nonethless, the defendant informed his attorney that he wanted to file an appeal after he had received the 10-year sentence agreeed to in his plea bargain. His lawyer did not file the notice with the court, and so when the Defendant sought appellate review of his sentence, it was summarily dismissed. The Idaho Supreme Court agreed that since the defendant had waived his right to appeal as part of his plea agreement that the lawyer's failure to provide notice to the court of a desire to appeal was irrelevant to the outcome of the case and refused to rule that the lawyer for the defendant had provided ineffective assistance of counsel.

Ineffective assistance of counsel cases arise under the 6th Amendment's guarantee of the right to have assistance of counsel for the purposes of carrying out a defense. The standard for analyzing an ineffective assistance of counsel claim was established in 1984 in Strickland v. Washington, 466 U.S. 668. The two-part test first asks (1) whether the counsel's performance was below an objective standard of reasonableness - in other words, that the performance was in some way deficient; and (2) whether the defendant was prejudiced in some way by this ineffective assitance.

The Court, however, has determined that the "prejudice" prong is in some cases presumed, removing any burden from the defendant to establish that prejudice actually occured. The Court cited situations when the defendant is "denied counsel at a critical stage of his trial" (United States v. Cronic, 466 U.S. 648), was left "entirely without the assistance of counsel on appeal" (Penson v. Ohio, 488 U.S. 75), or when "deficient performance deprives a defendant of an appeal he otherwise would have taken" (Roe v. Flores-Ortega, 528 U.S. 470).

While the Court acknowledged that the Defendant had agreed to an appeal waiver as part of his plea agreement, it also recognized that such a waiver does not foreclose every possible appeal - for example, any appeal based on insuffiency of counsel during the plea discussion itself would still be possible. The Court also noted that a notice of intent to appeal is a pretty simple, easy task to perform - it is generally merely a notice to the Court of an intention to appeal, with little if any evidence required at the notice stage. Such a notice is required to preserve the ability to appeal, but can be withdrawn at a later time if further consideration or investigation determines that there is no succesful path forward for an appeal.

Since failure to perform this relatively menial task bars the Defendant from any opportunity to appeal at all, even on topics outside of the appeal waiver, the Court determined that this fits within the Flores-Ortega standard of depriving a defendant of an appeal he otherwise would have taken, meaning that prejudice is presumed. To plainly state the ruling, prejudice is presumed under the Flores-Ortega standard regardless of whether or not a Defendant has signed an appeal waiver.

Justice Thomas' Dissent

Justice Thomas' three part dissent was joined entirely by Justice Gorsuch and joined as to parts I & II by Justice Alito. Part I is simply a recitation of the facts and the legal posture of the case, in greater detail than was provided by the majority. If you're interested in the question of how the case got to this point, Part I of Thomas' dissent is a great place to start.

Part II of the Dissent is the most consequential part. After first noting that 6th Amendment Ineffective Assistance claims are analyzed under the Strickland standard, the dissent criticizes the majority's reliance on Flores-Ortega in cases involving a plea waiver. First, Justice Thomas points out that the Flores-Ortega decision expressly refused to do what the Court did here - "effectively impose an obligation on counsel in all cases to either (1) file a notice of appeal, or (2) to discuss the possibility of an appeal with the defendant, ascertain his wishes, and act accordingly." The Flores-Ortega Court refused to impose that obligation because under Strickland, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances."

This case presents a compelling situation in which it may be perfectly reasonable for counsel not to file a notice of appeal. To understand why, you need to understand the consequences of appealing. While the majority offers up the fact that a defendant may have an appeal available for items outside the appeal waiver - such as whether the plea and the waiver were coerced or counsel failed to provide adequate counsel leading up to the plea agreement - there is no indication that the defendant in this case actually had such an appeal in mind.

The Defendant's primary goal in any planned appeal that he discussed with counsel was to change his sentence, to have his consecutive terms (adding up to 10 years) changed to terms that ran concurrently and so reduce his jail time. However, any attempt to file a substantive appeal over something covered in the appeal waiver would breach the plea agreement. The consequences of breaching the plea agreement would be to set aside the ten year sentence, proceed to trial, and face a sentence more in line with the underlying crimes - possibly life in prison.

Further, while there is a right to effective assistance of counsel at the trial level, there is no such right in postconviction proceedings. The dissent includes a footnote that indicates that over 90% of non-capital federal habeas petitioners proceed without benefit of an attorney. The overwhelming odds are that the Defendant here would be in such a position, and as such he would be at a much greater risk of accidentally violating his plea agreement and losing the benefit that he bargained for, with little or no practical possibility of appellate success. In these circumstances, when the defendant can articulate no legitimate grounds for an appeal, and where the defendant would lose so much through a frivolous appeal, the dissent views the best course of action for counsel to be not filing the notice of appeal.

Finally, Thomas loses Justice Alito for Part III of his dissent, in which he goes on about the original purpose of the 6th Amendment and how it really is a shame that we provide attorneys for people at all. Yeah, I'm ... not even doing his argument an injustice there, that's exactly what he says. The 6th Amendment in his view was originally intended only to prevent the state from requiring you to appear without a lawyer, which at one point was the standard for serious cases. However, he views the 6th Amendment as imposing no obligation on the state to assure counsel at all to the indigent, let alone "effective" counsel. Since it costs a lot of money to maintain a public defense system, his preference is to at least slow the expansion of 6th Amendment rights since he is unlikely to be able to rip it out root and branch. I am surprised that Gorsuch, who has proven to be fairly open to defendant's rights in other circumstances so far since joining the bench (he and Justice Sotomayor have teamed up for that purpose in the past) would join this section of the opinion, when even Justice Alito recognized how fringe it was.

Opinion Analysis

While I am normally on the side of the defendant when it comes to rights like this, I see no reason for the Court to have taken the step it did here. Justice Thomas is absolutely correct that the defendant's rights can be protected perfectly adequately by applying the basic Strickland analysis. There is no justifiable reason to presume ineffective assistance in a case like this because if it is present it will be easy to spot. Here, for instance, if the defendant had told his attorney "I think you pressured me into accepting the plea agreement and I am going to appeal that," or "the state lied to me and I didn't understand the consequences of the plea agreement," and the attorney had failed to file the notice of appeal, there is no question the Court would find prejudice to the defendant and find a 6th Amendment violation. Why the presumption is necessary is completely unclear and simply increases the likelihood that cases that should not proceed to appeals will do so, without any positive gain for defendant's rights. I would have joined parts I and II of Thomas's dissent, aligning myself (hopefully for the first and only time) with Justice Alito on this case.
 
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Further, while there is a right to effective assistance of counsel at the trial level, there is no such right in postconviction proceedings. The dissent includes a footnote that indicates that over 90% of non-capital federal habeas petitioners proceed without benefit of an attorney. The overwhelming odds are that the Defendant here would be in such a position, and as such he would be at a much greater risk of accidentally violating his plea agreement and losing the benefit that he bargained for, with little or no practical possibility of appellate success. In these circumstances, when the defendant can articulate no legitimate grounds for an appeal, and where the defendant would lose so much through a frivolous appeal, the dissent views the best course of action for counsel to be not filing the notice of appeal.
Didn't know this, but the lack of a right to an attorney in subsequent filings seems logical. And the resulting argument from that seems persuasive, as sad as I am to say, agreeing with Justice Thomas. -_-

Finally, Thomas loses Justice Alito for Part III of his dissent, in which he goes on about the original purpose of the 6th Amendment and how it really is a shame that we provide attorney's for people at all.

OOF, and then Thomas goes off the fucking deep end again....

Yeah, I can see why you sided with Alito in his nuanced dissent.
 
Absolutely, I love Supreme Court stuff -- SCOTUSblog just started up a podcast, btw.
 
Absolutely, I love Supreme Court stuff -- SCOTUSblog just started up a podcast, btw.

I'll have to check it out! There's another GREAT podcast called Opening Arguments that I think you would really enjoy - have you ever heard of it?
 
Haven't, no. I'll have to check it out.
 
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