The National Law Journal by Tony Mauro - October 14, 2009
Lawyer competence was the topic of the day at the U.S. Supreme Court on Tuesday, as justices heard two cases involving claims of ineffective assistance of counsel that violated the Sixth Amendment. In one, a lawyer's flawed advice exposed his client to deportation. In the other, the defense lawyer in a capital case called his client sick and twisted during a closing argument, and minimized mitigating evidence that might have helped avoid the death penalty. In the first case, Padilla v. Kentucky, a lawyer told his client Jose Padilla, a permanent resident alien arrested for drug trafficking, that pleading guilty as part of a plea agreement would not expose him to deportation. That advice was flat wrong. Padilla sued in 2004, claiming ineffective assistance that deprived him of his constitutional rights. But the Kentucky Supreme Court ruled that incorrect advice on matters that are collateral to the criminal case don't make out a case of ineffective assistance under the Supreme Court's Strickland v. Washington standard. Most U.S. Supreme Court justices seemed wary of expanding the definition of ineffective assistance to include flawed advice on matters beyond the actual criminal case the lawyer is handling.
"We have to decide whether we are opening a Pandora's box here," said Justice Antonin Scalia, who said flawed advice about the effect of a guilty plea on child custody could be another issue defendants would raise. Justice Stephen Breyer also said, "The world is filled with 42 billion circumstances" that could trigger ineffective-assistance claims for other reasons. Stephen Kinnaird of Paul, Hastings, Janofsky & Walker, arguing for Padilla, said deportation is "so severe and so material" that the Court could limit its ruling to advice in that area. "The lawyer has the distinct duty to assess the advantages and disadvantages of the plea." Deputy Solicitor General Michael Dreeben told the Court that a criminal defense lawyer does not have a constitutional duty to advise his client about immigration law, but if he or she does and does so incorrectly, "the lawyer has used his professional skills to undermine a personal decision that belongs to the defendant alone." The Padilla case is being tracked by immigrant rights advocates who say thousands of immigrants have been put in jeopardy by poor legal representation and advice. "Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile," said Benita Jain, co-director of the Immigrant Defense Project.
The second case argued Tuesday was Smith v. Spisak. Frank Spisak Jr. was convicted of murdering three people at Cleveland State University in 1983. During trial, Spisak testified of his Nazi past and showed no remorse for the murders during his trial. He claimed insanity, but was found guilty. At the sentencing stage his lawyer's task was to present mitigating evidence, but instead he emphasized the "clearly horrendous" aggravating circumstances. He even suggested his client did not deserve mitigation and would never be rehabilitated, arguing, "He is demented, and he is never going to be different." Ohio Attorney General Richard Cordray, trying to knock down the notion that the closing argument amounted to a constitutional deprivation, told the Court that in fact it represented a "coherent strategy" to appeal to jurors' humanity and ask them to spare his client, as demented as he might be. Scalia apparently agreed, calling it a "brilliant closing argument" aimed at jurors who were unlikely to be sympathetic toward Spisak. "The technique that counsel used to try to get mercy for this fellow was the best that could have been done." Breyer also seemed reluctant to judge whether the argument was constitutionally flawed, stating, "Since there is a lower court that seemed to find this adequate, how can I sit here and say it wasn't?" Spisak's lawyer before the high court, Michael Benza of Chagrin Falls, Ohio, said, "I have been litigating capital cases since 1993. I have never seen a closing argument like this." One indicator of how bad the closing argument was came in a brief filed in the case by a group of law professors who are experts on trial advocacy. They told the Court of their "considerable dismay" with the fact that the state of Ohio cited their treatises in arguing that the trial lawyer's strategy was legitimate.