Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Combat experience may warrant leniency, the Supreme Court ruled today. 

In Porter v. McCollum, issued November 30, 2009, the U.S. Supreme Court found that defense counsel’s failure to introduce evidence of the Porter’s frontline engagement in two battles in the Korean War as mitigation during the penalty phase of the trial was ineffective assistance of counsel.  Defense counsel failed to investigate potential mitigating evidence, and was therefore ineffective.  The court stated,

Had Porter’s counsel been effective, the judge and jury would have learned of the “kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” . . .  They would have heard about (1) Porter’s heroic military service in two of the most critical—and horrific—battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling.

In finding that the state court had unreasonable applied Strickland in finding that the evidence of Porter’s war efforts would not have influenced the outcome, the Supreme Court stated

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The decision was per curiam.

 This decision came two weeks after the U.S. Supreme Court reversed the Ninth Circuit’s conclusion that omission of mitigation evidence had been ineffective assistance in Wong v. Belmontes.   However, in Belmontes’s case, the omission of the mitigating evidence had been a strategic decision made necessary by the extremely aggravating evidence -- i.e., another murder -- for which the mitigating evidence would open the door. 

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The Court’s final published decision of 2009, Nika v. State, affirmed the dismissal of a petition for post conviction relief based upon the jury instruction that did not separately define the terms “willfulness,” “deliberation,” and “premeditation” Nika was convicted of murder in 1994. Years later, the Court ruled in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), that such an instruction was improper, as the three terms are distinct elements of the mens rea required for the relevant category of first-degree, and applied that rule prospectively. Here, addressing  a claim that the failure to challenge the instruction in 1994 had been ineffective assistance, the Court affirmed a prior determination that the Byford ruling represented a change in the law, rather than a clarification in existing law. Accordingly, it was not ineffective assistance of counsel for Nika’s counsel to fail to challenge the instruction.  

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In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

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In Foote v. Del Papa,  the Ninth Circuit affirmed Nevada’s Federal District Court Judge Jones’s decision denying the petition for habeas relief.    The defendant had filed a lawsuit against his trial counsel, leading to the withdrawal of that attorney, and appointment of private counsel.  That lawsuit had been dismissed by the time the defendant was convicted and sentenced, whereupon the public defender was appointed to represent him on appeal. The defendant sought habeas relief, stating that a conflict of interest had existed with his appellate counsel The Court held that trial counsel’s irreconcilable conflict arising from the since dismissed lawsuit did not create an irreconcilable conflict with a appellate public defender.

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In Schriro v. Landrigan, the U.S. Supreme Court held that the district court did not abuse its discretion in denying an evidentiary hearing of the defendant’s claim he had received ineffective assistance of counsel in the penalty phase of his trial.

The record reflected that Landrigan interrupted attempts to present mitigating evidence, and asked his wife and mother not to testify. The Ninth Circuit had held, en banc, that these instructions during the penalty phase could not excuse a failure to investigate mitigation prior to trial.

The Supreme Court, with Thomas authoring the opinion, held that Landrigan’s instructions against presenting mitigating evidence prevented any prejudice arising from a failure to investigate. The Ninth Circuit’s reasoning that the record did not establish that  Landrigan’s instruction that no mitigating evidence be presented was “informed and knowing” was rejected as contradicted by the record, although Thomas also noted that the Supreme Court had never imposed an “informed and knowing” standard upon a defendant’s decision to present evidence.  Roberts, Scalia, Kennedy and Alito joined in the opinion.

Stevens drafted the dissent, joined by the remainder of the court. The dissent noted that there has never been disagreement that defense counsel’s failure to obtain thorough psychiatric review was below the standard of representation. Stevens explains that the failure of counsel to investigate mitigation meant that Landrigan did not learn of his psychological condition until year later, even though he may have known of individual facts, such his mother’s use of alcohol during pregnancy, her subsequent abandonment of him, and the childhood mistreatment his suffered.  

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