By Reversing Grants of Relief, Supreme Court Signals Lower Courts to Apply Stricter Approach to Review of Ineffective Assistance of Counsel Claims

In the past two weeks, the Supreme Court over­turned grants of relief for two death-sen­tenced pris­on­ers. In both cas­es, low­er courts had found they received inef­fec­tive assis­tance of coun­sel at tri­al. The Court’s rul­ings are in line with its oth­er deci­sions in death penal­ty cas­es restrict­ing appeals for death-sen­tenced pris­on­ers and extolling the impor­tance of ​“final­i­ty” over merits-based review. 

Under Strickland v. Washington (1984), an attor­ney is inef­fec­tive when 1) his per­for­mance is defi­cient, and 2) his defi­cient per­for­mance prej­u­dices the defen­dant. When an attor­ney fails to present cer­tain evi­dence, a court weighs the new evi­dence along­side the aggra­vat­ing and mit­i­gat­ing fac­tors present in the case and asks whether there is a ​“rea­son­able prob­a­bil­i­ty” that the out­come might have been dif­fer­ent if the attor­ney had pre­sent­ed the new evi­dence at trial.

Thornell v. Jones

The Supreme Court grant­ed cer­tio­rari in December when offi­cials in Arizona asked for a rever­sal of the Ninth Circuit’s grant of relief to Danny Lee Jones. The Ninth Circuit had over­turned Mr. Jones’ death sen­tence based on his attorney’s fail­ure to intro­duce key mit­i­gat­ing evi­dence of Mr. Jones’ brain dam­age, child­hood phys­i­cal and sex­u­al abuse, and psy­chi­atric prob­lems. The Court appeared poised to rule in Arizona’s favor at oral argu­ment in April, when most of the jus­tices made com­ments sug­gest­ing that the Ninth Circuit had improp­er­ly applied the Strickland stan­dard for deter­min­ing whether a defense attorney’s con­duct prej­u­diced the defen­dant. However, the jus­tices appeared to dis­agree on whether the Court should vacate and remand the case — giv­ing the Ninth Circuit anoth­er chance to con­duct the Strickland analy­sis — or if it should reverse the case and impose its own judg­ment as to whether coun­sel was ineffective.

On May 30, the Court issued a 6 – 3 opin­ion in favor of Arizona, revers­ing the Ninth Circuit and hold­ing that Mr. Jones did not receive inef­fec­tive assis­tance of coun­sel. For the major­i­ty, Justice Samuel Alito wrote that the Ninth Circuit ​“down­played the seri­ous aggra­vat­ing fac­tors present here and over­stat­ed the strength of mit­i­gat­ing evi­dence that dif­fered very lit­tle from the evi­dence pre­sent­ed at sen­tenc­ing.” The 16-page rul­ing effec­tive­ly rein­states Mr. Jones’ death sen­tence. (See DPIC’s ear­li­er cov­er­age of the facts of the case.) 

Justice Sonia Sotomayor dis­sent­ed, joined by Justice Elena Kagan. Justice Sotomayor wrote that though she agreed the Ninth Circuit improp­er­ly weighed the fac­tors in vio­la­tion of Strickland, the ​“major­i­ty unnec­es­sar­i­ly goes fur­ther and engages in the reweigh­ing itself.” Because the ​“record in this case is com­plex, con­test­ed, and thou­sands of pages long,” and it ​“is not the Court’s usu­al prac­tice to adju­di­cate either legal or pred­i­cate fac­tu­al ques­tions in the first instance,” Justice Sotomayor would have vacat­ed the rul­ing below and allowed the Ninth Circuit to recon­sid­er the case. This dis­sent close­ly fol­lows Justice Sotomayor’s com­ments at oral argu­ment, where she said that she agreed the Ninth Circuit had not prop­er­ly bal­anced the fac­tors, but told Arizona’s attor­ney that ​“we’re not factfind­ers, and we gen­er­al­ly don’t weigh evidence.” 

Justice Ketanji Brown Jackson sep­a­rate­ly dis­sent­ed and argued that the Ninth Circuit had prop­er­ly con­duct­ed the Strickland analy­sis to con­clude that Mr. Jones received inef­fec­tive rep­re­sen­ta­tion at tri­al. She said that though the Ninth Circuit’s dis­cus­sion of the aggra­vat­ing fac­tors was ​“con­cise,” ​“there is no bench­mark length for any such dis­cus­sion.” She also con­tend­ed that “[i]n its search for legal error in this cap­i­tal habeas case, the [major­i­ty] makes many mis­takes of its own, includ­ing mis­read­ing the Ninth Circuit’s opin­ion.” She echoed Justice Sotomayor in argu­ing that the Supreme Court is ​“not the right tri­bunal to parse the exten­sive fac­tu­al record in this case.” 

Alabama v. Williams

On June 10, the Court grant­ed cer­tio­rari in an inef­fec­tive assis­tance of coun­sel case in Alabama, vacat­ed the Eleventh Circuit’s judg­ment, and remand­ed the case for fur­ther con­sid­er­a­tion in light of the recent deci­sion in Thornell. Like in Thornell, the state was the peti­tion­er in Alabama v. Williams after los­ing in the low­er fed­er­al cir­cuit court. Alabama filed its peti­tion eight days after the Supreme Court grant­ed review in Thornell and asked the Court to con­sid­er Williams and Thornell togeth­er to ​“help illu­mi­nate recur­ring prob­lems with Strickland prej­u­dice.” While the Court did not con­sid­er the cas­es togeth­er, its sum­ma­ry deci­sion in favor of Alabama under­scores its sym­pa­thy to Alabama’s crit­i­cisms of Strickland—despite research sug­gest­ing that Strickland is a ​“vir­tu­al­ly-impos­si­ble-to-fail” test for states, as courts have ruled that sleep­ing, drunk, and com­plete­ly inex­pe­ri­enced defense lawyers were adequately effective. 

Marcus Williams was con­vict­ed and sen­tenced to death for the rape and mur­der of his 20-year-old neigh­bor, a young moth­er, com­mit­ted when Mr. Williams was 21. A few weeks after the mur­der, he attempt­ed to rape anoth­er woman. Mr. Williams, who had no sig­nif­i­cant crim­i­nal his­to­ry, even­tu­al­ly con­fessed to both crimes. At tri­al, his attor­ney pre­sent­ed only two mit­i­gat­ing wit­ness­es: Mr. Williams’ moth­er and great-aunt. The great-aunt met the attor­ney that day. The women tes­ti­fied that Mr. Williams had a chaot­ic child­hood, strug­gled after an injury end­ed his ath­let­ic career, and expressed remorse for the mur­der. However, Mr. Williams’ attor­ney did not use mon­ey allot­ted for a mit­i­ga­tion inves­ti­ga­tor and failed to uncov­er exten­sive evi­dence of trau­ma in Mr. Williams’ life. The jury nev­er heard that Mr. Williams had been sex­u­al­ly abused mul­ti­ple times by a male babysit­ter between the ages of 4 and 6, his moth­er was an alco­holic who often neglect­ed him, he start­ed drink­ing around age 12, and he came from a fam­i­ly with a ​“per­va­sive his­to­ry of child­hood sex­u­al abuse and incest…which spans generations.” 

A dis­trict court con­duct­ed an evi­den­tiary hear­ing and grant­ed Mr. Williams habeas relief in a detailed 141-page opin­ion, which was affirmed by the Eleventh Circuit. Both courts con­clud­ed that had the jury heard the new evi­dence, there was a rea­son­able prob­a­bil­i­ty that Mr. Williams would not have been sen­tenced to death. 

Alabama argued that the Eleventh Circuit erred by only con­sid­er­ing the new evi­dence in a pos­i­tive light, ​“ignor­ing the bad” as in Thornell, and the new evi­dence could have been a ​“dou­ble-edged sword” that the jury inter­pret­ed neg­a­tive­ly. However, Mr. Williams’ attor­neys accused Alabama of mak­ing ​“sig­nif­i­cant mis­state­ments about the facts and deci­sion below.” For instance, Alabama claimed that the Eleventh Circuit ​“ignored” the attempt­ed rape case, but the Eleventh Circuit ​“inde­pen­dent­ly reweighed all the avail­able evi­dence” from the dis­trict court, and the dis­trict court had devot­ed sev­en pages of prej­u­dice analy­sis to the attempt­ed rape. Alabama also sought to present as many sim­i­lar­i­ties to Thornell as pos­si­ble, but where Thornell involved three vic­tims, four statu­to­ry aggra­vat­ing fac­tors, sig­nif­i­cant­ly more mit­i­ga­tion pre­sent­ed at the orig­i­nal tri­al, and a ​“con­vo­lut­ed” pro­ce­dur­al his­to­ry that includ­ed ten fed­er­al judges dis­sent­ing from a deci­sion in Mr. Jones’ favor, Williams involved one vic­tim, one aggra­vat­ing fac­tor, min­i­mal mit­i­ga­tion, and two courts approv­ing relief after weigh­ing all the factors. 

Mr. Williams’ attor­neys made a cru­cial point: where the dis­trict court ruled against Mr. Jones, the dis­trict court here ruled for Mr. Williams. As a result, where Arizona argued in Thornell that the Ninth Circuit should have deferred to the dis­trict court’s detailed find­ings after an evi­den­tiary hear­ing, Alabama was ask­ing for the oppo­site relief: to pun­ish the Eleventh Circuit for defer­ring to a dis­trict court’s detailed and evidence-supported findings. 

With this dis­tinc­tion laid bare, the Court’s sum­ma­ry judg­ment in Williams fol­low­ing Thornell offers lit­tle guid­ance to appel­late courts review­ing inef­fec­tive assis­tance of counsel cases. 

Alabama’s brief argued that grants of relief for Mr. Williams and Mr. Jones ​“damage…the final­i­ty of con­vic­tions” and ​“reflect dif­fer­ent symp­toms of the same root prob­lem — a will­ing­ness to treat new evi­dence as a one-way ratch­et in favor of the defen­dant.” In oth­er words, the appeals process may unearth new evi­dence that under­mines the orig­i­nal tri­al and death sen­tence, and appel­late courts may find that the new evi­dence mit­i­gates the defendant’s cul­pa­bil­i­ty. As Justice Jackson wrote in dis­sent in Thornell, the ​“real cri­tique does not appear to relate to the…methodology. Rather, it mere­ly takes issue with the weight…assigned to each of the relevant facts.”