Sunday, January 25, 2015

Problematic Presentation PCR

In re Williams, 2014 VT 67

By Hannah Smith

In what reads like the plot of Every Defense Attorney’s Worst Nightmare, the SCOV upholds the decision of a post-conviction relief (PCR) court finding that an attorney failed to provide his client with adequate representation.

This case began more than a decade ago, with a tragic series of events. On October 2, 1999, a fire broke out in an apartment complex in Milton, Vermont. The fire spread quickly, killing the upstairs tenant and her three grandchildren. The subsequent police investigation revealed the fire originated in the petitioner’s bedroom; petitioner admitted during a police interview that he had unintentionally started the fire by lighting paper on fire in his wastebasket. 
 
Petitioner was charged with four counts of first degree murder and four counts of arson causing death, and was assigned a public defender. The public defender did his due diligence in reviewing the evidence against the petitioner and filed the requisite motions, but took a job out of state before the hearing took place. A new public defender entered his appearance for the petitioner and represented him in a plea agreement, at which point the prosecution reduced the charges to four counts of involuntary manslaughter, and petitioner pled guilty to all counts. Following a sentencing hearing, the court handed down a sentence of 40 to 60 years. Petitioner has been incarcerated since his arrest in 1999.

After the sentencing hearing the petitioner filed a PCR petition, and in 2012 the PCR court issued a decision concluding that the defense counsel had provided “no more than a perfunctory performance” during the sentencing hearing, resulting in prejudice to the petitioner. The PCR decision vacated petitioner’s sentence and ordered a new sentencing hearing. Both sides appealed.

Petitioner argued that the defense attorney’s performance was, shall we say, lackluster, both prior to and during the sentencing hearing. Pre-hearing, he contends the new defense attorney should have hired an independent fire expert to investigate the scene, should have filed a motion to dismiss three of the four arson charges on grounds of multiplicity, and should not have advised him to plead guilty. The SCOV rejects these arguments on the basis of precedent, clearing the attorney for his pre-hearing conduct. For all the lawyers out there:
  • If you hire a competent expert to review the findings of a police investigation, you may accept that expert’s opinion; you need not continue to investigate until more favorable evidence is found, or hire different experts more likely to opine in your favor. The Court found that new defense attorney's decision to trust the opinion of the fire expert hired by the original defense attorney was reasonable; he had no duty to hire additional experts who may or may not offer a more favorable opinion.
  • You will not be ruled “ineffective counsel” for failing to raise meritless arguments. The SCOV found that under existing case law, a defendant may be prosecuted for multiple counts of arson causing death if a single fire resulted in the death of multiple victims; thus new defense attorney's decision not to assert a “multiplicity challenge” was reasonable.
  • If you adequately prepare for your case, you will not be found “ineffective” for advising your client to plead guilty if, in light of the situation, you believe such a guilty plea will result in the best outcome for your client.
The SCOV gives a far more critical performance review of new defense attorney's behavior during the sentencing hearing. To succeed on his claim of ineffective counsel, petitioner needed to prove that his attorney’s performance “fell short of professional standards,” and that petitioner’s sentence would have been less had he been adequately represented.

On the first count, the SCOV concludes that new defense attorney did not perform up to par at the sentencing hearing. The SCOV agrees with the PCR court’s findings that new defense attorney failed to investigate his client’s background, and failed to call any witnesses who could paint the petitioner in a positive light, offering only a few statements on the petitioner’s troubled childhood. Accordingly, the hearing became a platform for outpourings of grief from bereaved friends and relations of the fire victims, advocating for the longest sentence allowable. New defense attorney also failed to file a memo before the hearing that would have allowed him to present his case in a “less hostile and emotionally-charged environment.” The PCR court’s determinations were supported by the expert testimony of two attorneys who are apparently experts at . . . being attorneys. The attorneys did not find new defense attorney's performance to be up to their professional standards. New defense attorney presented no evidence that he had a strategic reason for his actions at the sentencing hearing; therefore the SCOV affirmed the PCR courts’ finding that new defense attorney failed to adequately represent his client at the sentencing hearing. 

The petitioner also had to show there is “reasonable probability” that but for counsel’s inadequate assistance, the hearing would have resulted in a lesser sentence. The SCOV acknowledges the challenge of proving causation for events that never occurred, but is willing to rely on circumstantial evidence to support the contention the new defense attorney's poor performance resulted in petitioner’s substantial sentence.

The SCOV reviews the two standards applied by the PCR court to determine whether there was a reasonable probability that petitioner was prejudiced by his defense counsel’s performance. The first standard applied, the Cronic standard (from the SCOTUS ruling in United States v. Cronic), states that when defense counsel fails entirely to provide a meaningful defense, prejudice to the petitioner can be presumed. The PCR court found that new defense attorney's performance was presumptively prejudicial to petitioner; the SCOV is not so harsh. The SCOV rerasons that the Cronic standard was improperly applied; it should only apply when there is a complete lack of representation. The SCOV instead concludes that the second standard used by the PRC court, the Strickland standard, is applicable.

The Strickland standard (from the SCOTUS decision in Strickland v. Washington) requires the petitioner to show actual prejudice. The SCOV pauses here to clarify why this exercise is necessary: under the Sixth Amendment of the Constitution, defendants are guaranteed assistance of counsel, and such assistance must be necessarily adequate “to justify reliance on the outcome of the proceedings.” Seems fair. The Sixth Amendment is the beating heart at the center of this case, and the purpose behind what seems like an otherwise harsh public reprimand of a (likely overworked) public defender. Criminal prosecutions can only be relied upon to produce fair outcomes if defendants can rely on their public defenders to defend them.

The SCOV goes on to review the sentencing process to determine whether it was reasonably probable that the attorney’s behavior during the course of sentencing resulted in prejudice to the petitioner. In articulating the purposes of sentencing (punishment, prevention, rehabilitation, and deterrence), the SCOV is faced with the difficult task of balancing the petitioner’s absence of criminal intent against the incredible loss to the victims and their families. What good is prevention, rehabilitation, and deterrence, to an individual who acted with no malice, and feels nothing but remorse? This was a case of (gross) negligence; the petitioner was a young, law abiding citizen with no criminal record or ill will towards the victims whose thoughtless behavior resulted in four untimely deaths. But it is this exact sentiment the Court found the defense attorney failed to convey during sentencing. He filed no memorandum arguing for the minimum sentence, he did not develop petitioner’s side of the story, or call witnesses to testify to the petitioner’s good character at the sentencing hearing, to emphasize the fact that petitioner made an unfortunate mistake but presents no danger to society worthy of extensive punishment. He did nothing more than offer a few remarks. And that, ladies and gentlemen, is the definition of “perfunctory.”

As a result of the attorney’s merely perfunctory performance, the hearing became a demonstration on behalf of the victims, calling for retribution. The only testimony presented was that of victims’ family members, the only real information about the petitioner was contained in the pre-sentencing investigation report filed with the court. The SCOV acknowledges the fact that the crime committed should have resulted in a lesser sentence, but cannot deny that the sentencing hearing was controlled by the prosecution, and driven by concerns of “retributive justice.” The SCOV agrees with the four main defects the PCR court identified in finding petitioner’s defense to be inadequate (again, lawyers out there take note):
  • The plea agreement allowed for an unusually wide gap between the minimum and maximum sentence
  • New defense attorney, through his inadequate performance at the hearing, did not give the sentencing judge a good reason to impose a sentence at the low end of the range
  • New defense attorney failed to adequately develop positive information about petitioner, or paint the petitioner in a positive light at the hearing, and
  • New defense attorney failed to “stand up to the strong emotional feelings present in the courtroom.”
Collectively, these errors on the part of new defense attorney resulted in prejudice to the petitioner, and accordingly the SCOV remanded for resentencing.

A note on the dissentThe dissenting justice (retired Justice Burgess, specially assigned) argues that petitioner is required (under the Strickland standard), and failed, to affirmatively show that the defense attorney failed to present some ground-breaking piece of evidence that would have changed the outcome of the hearing. In this case, the dissent argues, the petitioner failed to articulate evidence that, had it been presented by defense counsel, would have been substantially likely to result in a lesser sentence. The dissent argues that the pre-sentencing investigation report and defense counsel’s arguments at the sentencing hearing in fact contained mitigating information, such as statements about the petitioner’s clean record and good character, and neither the petitioner nor the PCR court identified any additional information that the defense counsel could have dug up that would have actually changed the result of the sentencing hearing. 

A lackluster performance by the defense, the dissent contends, still requires proof of actual prejudice to the petitioner to justify post conviction relief. The dissent wants to knowwhat witnesses should have been called, and what would they have said that would have changed the outcome? What information that defense counsel failed to unearth would have resulted in a lesser sentence? Without these answers, the dissent argues, the majority should not have found a “reasonable probability” that defense’s performance affected the outcome, as is required under Strickland. Defense counsel also did not “roll over and play dead,” as is required to presume prejudice under the Cronic standard. As the dissent summarily states, “Albeit brief, counsel’s presentation left nothing available unsaid. No law obligates counsel to engage in redundancy, or to develop witnesses with nothing helpful to offer.”

I acknowledge the importance of PCR proceedings in order to address errors and maintain confidence in the fairness of the sentencing process. But objectively speaking, I find it unfortunate that this litigation has resulted in a protracted consideration of a situation that caused so many people so much pain.

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