August 06, 2022

Did you know about the lawyer who:

  • Told their client they could not testify because their criminal record and its details would be admissible where the law was directly to the contrary.
  • Let the jury know their client “lawyered up” and sat idly by while the prosecutor argued that as proof of guilt.
  • Filed a pleading averring that after thorough review there were no valid issues for post-conviction relief when in fact the defendant had pleaded guilty to and been sentenced for a crime that did not exist.
  • Failed to consult with medical experts who could have shown that death did not occur as the prosecution alleged
  • Misread a DNA report and failed to recognize that it applied to a different item of clothing than that testified to at trial

The law creates a presumption that attorneys are effective, but whether due to sloth, case overloads, ignorance or over-confidence,  lawyers make mistakes – indeed serious mistakes – on a daily basis in criminal cases.  Unlike surgeons and airline pilots, they lack checklists for quality assurance, and there is no resource center available to most lawyers for a call or an assist.

A recent decision of the United States Supreme Court ignores that reality and  limits federal habeas review in a way that will tolerate mistakes even when innocence is at issue; and unless Pennsylvania law is corrected and resources are provided, the tolerance for error will prevail.

Justice Thomas, joined by five conservative colleagues, eviscerated federal habeas review in a recent decision, Shinn v. Ramirez, 212 L. Ed. 2d 713 (2022).  To understand its devastating reach, one must understand how ineffective assistance of counsel claims are litigated.

In Pennsylvania, the direct appeal following a conviction and sentence may consider only issues preserved by trial counsel.  If that appeal fails, a convicted person may file a Post Conviction Relief Act [P.C.R.A.] claim raising errors trial counsel missed or made.  That process, too, allows an appeal if relief is denied at the trial court level.

But what if P.C.R.A. counsel also failed miserably, neither re-investigating the case nor identifying errors in the trial case.  Until Ramirez, if a new [third] lawyer entered the case and found those errors or compelling new evidence, the claim could be presented to a federal habeas court with a full evidentiary hearing to present the new proof.

That is what Mr. Ramirez tried.  A death penalty case, his trial and post-trial counsel failed to unearth and deploy compelling proof of intellectual disability, a ground for a jury to return a sentence less than death if not an absolute bar to capital punishment.  The companion case of Jones was even more egregious – as explained in the Ramirez dissent, federal habeas counsel “presented evidence that the injuries to [the victim] could not have been inflicted at the time the State alleged that Jones was with her, and…this evidence would have been readily available to Jones’ trial and state postconviction counsel, had they investigated the case.” Shinn v. Ramirez, 212 L. Ed. 2d 713, 742 (Sotomayor, dissenting).

Until Ramirez, federal courts were allowed to and sparingly permitted the development of such proof once federal habeas counsel – usually better trained and better funded – uncovered it.  Justice Thomas and colleagues wrote that process out of federal law.  Their OPINION extolled federalism, states’ rights, and the need for finality, never once acknowledging the phenomenon of wrongful conviction or the inability of states to ensure properly resourced counsel at trial, appeal and post-conviction stages.  The Court conflated the ill-lettered, incarcerated petitioner with their counsel, blaming the former for the dereliction or inadequacy of the latter.

No matter how flawed the lawyering was, no matter how compelling the new proof, no matter how high the risk of wrongful conviction and the execution of a factually innocent person, federal judges are now forbidden to consider this – instead, they are limited to the state court record, the record that itself was devoid of this information.  As Justice Sotomayor concluded, “[t]he Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.” 212 L. Ed. 2d at 740.

And in Pennsylvania?  As is true nationally, the 6th Amendment guarantee of the right to counsel extends only to trial and the direct appeal, and there is no constitutional right to effective representation on P.C.R.A.  The Commonwealth does guarantee that right as extrapolated from its Rules of Criminal Procedure, but as of today that may be more a chimera than reality, especially for the indigent.

Here is why.  When a convicted person loses their appeal, it is up to them or their family to initiate a P.C.R.A. claim.  If indigent, that pleading will be passed to a court-appointed lawyer, often one with few or no resources, no mandatory training or certification, and not even a checklist to be used to search for and identify error.  If counsel is retained, there is no guarantee of a greater level of skill in scanning a record for error or re-investigating a case – and often the funds to hire counsel are insufficient to also pay for investigations or experts.

And if the P.C.R.A. lawyer gets it wrong, missing an issue or failing to investigate as did the lawyers in Ramirez and Jones?  The Pennsylvania Supreme Court took a small but important step this past October when it ruled that a second lawyer on P.C.R.A. [such as one hired for an appeal after the P.C.R.A. is denied in the Court of Common Pleas] may claim P.C.R.A. counsel number one was ineffective by showing what claim[s] that lawyer missed.  Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).  Yet the right is in many instances illusory.

Why?  The decision to seek/obtain second counsel is that of the petitioner, a person often ill-educated and thus not prepared to realize the deficiencies in first P.C.R.A. counsel’s performance.  For the non-indigent petitioner, barriers are greater – they must recognize that they ‘did not get what they paid for’ and then gather enough funds, in a limited period of time, to pay for the second attorney.  Finally, all of this must be done while the P.C.R.A. is pending; if P.C.R.A. counsel’s errors are discovered after the P.C.R.A. concludes, a second P.C.R.A. is simply too late, regardless of the seriousness of counsel’s error(s).

What, then, can Pennsylvania do to avoid the dilemma highlighted by Justice Sotomayor – “leav[ing] many people who were convicted in violation of the Sixth Amendment…without any meaningful chance to vindicate their right to counsel.” Were criminal defense funded more fairly and fully statewide, the risk would be reduced on the front end.  But in a system of inadequate protection at the trial level, a series of steps must be contemplated for the right to effective post-conviction counsel to be more than an empty process.  These include:

  • A resource center for post-conviction counsel, one staffed by experienced post-conviction attorneys and offering model pleadings, reference manuals and individual case consulting and assistance
  • Better funding for court-appointed P.C.R.A. attorneys, to attract more to the field and permit more work to be done in reviewing and investigating cases
  • Contemplating a certification process, with required training, for post-conviction attorneys

At one time, habeas corpus was deemed the “great writ,” a fail-safe mechanism to correct error and avoid injustices.  Unless Congress redraws the habeas statute, the role of correcting error will be that of each individual state.  One need not have a crystal ball to know that Congress will not act; the question is whether Pennsylvania will.