Post-conviction remedies

  • October 6, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.  

    Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.

    Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.

  • March 28, 2012
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law and Lee Kovarsky, an associate professor at the University of Maryland School of Law. Together they are writing a habeas corpus casebook, forthcoming next year from Foundation Press. Garrett is the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Professor Kovarsky was a primary author of the American Bar Association’s Amicus brief in Martinez.

    Last week, the Supreme Court’s two opinions requiring competent plea-bargaining counsel justifiably received considerable public and scholarly attention. A 7-2 decision in favor of the prisoner in a third case, Martinez v. Ryan, may nonetheless have a greater long-term impact on criminal process — with perhaps the most surprising outcome of the three. Martinez will improve the representation of prisoners at a downstream phase of criminal adjudication: during the murky process of state “post-conviction” review, often called “state habeas.”

    An Arizona jury had convicted Louis Martinez of sexually abusing his eleven-year-old stepdaughter. His trial lawyer did not challenge DNA evidence the State presented, never called a rebuttal expert, and never objected to the prosecutor’s expert. Arizona — like many states — required Martinez to file his first Sixth Amendment challenge to the effectiveness of his trial lawyer in a state habeas proceeding. However, Martinez’s habeas lawyer filed a statement saying that Martinez had no viable Sixth-Amendment claim. After the time to file the claim elapsed, Martinez obtained a new lawyer, who filed a state habeas petition challenging the trial lawyer’s representation. The Arizona courts held that the claim had been forfeited. The lower federal courts also refused to consider the claim, citing to the state procedural default. (Federal habeas review is usually unavailable to a prisoner that has not complied with applicable state procedural rules.) In short, the inadequacy of his state habeas lawyer made it impossible for Martinez to enforce his right to an effective trial lawyer. The Supreme Court reversed, and held Martinez should have been given a chance to present the claim that his trial lawyer was ineffective. His inadequate representation excused his untimely state habeas filing.

    What is state habeas review? It is a phase of criminal process that is usually sandwiched between direct state review of the conviction and federal habeas review. (We say “usually” because sometimes the direct review and state post-conviction phases overlap.) There is enormous variation in state post-conviction law, including the circumstances under which a prisoner is entitled to state post-conviction counsel. Prisoners must navigate an extraordinarily complex body of state criminal process either pro se or without a federal guarantee of effective representation. Moreover, some claims, such as ineffective-assistance-of-trial-counsel challenges, are not usually raised on appeal. The facts demonstrating a trial lawyer’s ineffectiveness usually lie outside the four corners of the trial transcript. Moreover, there is also often a conflict of interest on appeal — the trial lawyer and the appellate lawyer are often the same representative. State habeas process allows state courts to review the effectiveness of trial counsel without such problems, all before federal habeas process becomes necessary. Yet state habeas process, which usually produces nothing more than a summary order, is notorious for lacking procedural safeguards.

  • April 1, 2011

    By Brandon L. Garrett, a professor at the University of Virginia School of Law.

    Is it obvious that prosecutors cannot hide evidence of a defendant’s innocence? Can an entire prosecutor’s office fail to take that obligation seriously? What if that happens and an innocent man spends 18 years in prison and is nearly executed – could the office then be held responsible? What if they buried a forensic lab report that would have provided scientific evidence of innocence?

    The Supreme Court addressed those questions in its ruling this week in Connick v. Thompson. John Thompson spent 18 years in prison and came within weeks of execution for a murder he did not commit. Prosecutors had concealed a key lab report with a blood test from the victim’s clothing, which the culprit had bled on, as well a series of other items including eyewitness statements describing an attacker who did not at all resemble Thompson.

    In a chilling ruling, the majority, split along 5-4 lines, said that the issue raised “nuance[d]” and technical questions, but in a formalistic and circular way, said that there was no “obvious” need for prosecutors to be trained on such “gray areas.”  

    When prosecutorial misconduct came to light in the Duke Lacrosse case, did we dismiss Mike Nifong’s actions as a technical issue? Or when it came to light that key evidence was concealed from the defense in the Ted Stevens prosecution? Yet in a cavalier prosecutor’s office without careful training and procedures, such serious violations will occur; shouldn’t that much be obvious?

  • March 31, 2011
    Convicting the Innocent
    Where Criminal Prosecutions Go Wrong
    Brandon L. Garrett

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.

    On January 20, 1984, Earl Washington, Jr. was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man. 

    DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free.   Wrongful convictions are ubiquitous in the news.  In just the past few weeks, yet another innocent man was freed by DNA tests in Virginia.  Improvements to eyewitness identification procedures in response to wrongful convictions have been considered by legislators, scandals have wracked  dozens of crime laboratories and Congress is considering legislation in response, and the U.S. Supreme Court ruled that civil rights actions can be used to seek DNA testing, In my new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, I examine what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing. I studied their trial transcripts, pre-trial hearings, appellate and post-conviction rulings, and confession statements. 

    A close look at the transcripts from Washington’s original criminal trial sheds light on how he was convicted in the first place.  His lawyer had never tried a death penalty case before, and it showed.  The guilt phase of the trial was only five hours long.  The prosecution presented a series of witnesses, but Washington was defended for all of forty minutes. His lawyer never claimed he was innocent, never challenged his confession, and never hired an expert to develop how he confessed due to mental retardation. The jury heard that Washington confessed to a series of details that supposedly only the killer could have known. We now know this confession was false and this mentally retarded young man likely just answered “Yes, sir,” each time law enforcement told him more about how the crime happened.