A Criminal Enterprise

Strickland Prejudice: What Would One Juror Do?

Posted in Uncategorized by Robert Smith on September 23, 2009

I finally read the 5th Circuit’s recent decision in Linda Carty’s case. (fifth circuit opinion here, Clive Stafford Smith’s Op-ed in the Guardian available here, StandDown Texas post here and here ). My major beef is not with the court’s final decision (I don’t know the facts well enough to know if this was the right outcome), but with how courts in general handle the question of whether a defendant was prejudiced by the ineffective assistance of her counsel (the same goes for Brady “materiality” and Brecht “harmless error”).

In reviewing Carty’s ineffective assistance of counsel claim, the Fifth Circuit concluded that, yes, counsel was deficient, but

Carty bears the burden of showing a reasonable probability of a different result had Corona not testified. Although this is a close case, she has not made the requisite showing that his testimony rendered her conviction “fundamentally unfair or unreliable.”

Although the proffered testimonies would have given more detail and more focus to the mitigating evidence, in light of the totality of the evidence presented at trial, they were not of sufficient quality and force to establish a reasonable probability that, had the jury heard them, it would have elected to impose a life sentence.

[The improperly admitted] testimony provided nuance to the case but did not alter the entire evidentiary picture.

Carty has not shown that but for trial counsel’s deficient failure to advise Corona of his marital privilege there was a reasonable probability that she would not have been convicted of capital murder.

The Strickland standard turns on what a jury would have decided (guilt/innocence or life/death) absent the ineffective assistance. For example, when evaluating whether a death sentence should be overturned due to penalty phase ineffective assistance of counsel, the standard is whether a reasonable probability exists that, absent the errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not warrant death.

Question: How do three judges on the Fifth Circuit know what a jury would have decided? Or, put differently, what decisional guideposts do courts use to decide whether a jury (in most cases, one juror–since one juror’s decision is enough to change the outcome) would have reached a different conclusion.

Answer: There are no set standards.

The Fifth Circuit in this case looked at the “overwhelming evidence of guilt” and whether the new evidence was merely “cumulative” to other evidence presented at the penalty phase.

But shouldn’t appellate judges know how actual juries decide issues (setting aside for a moment the alternative option that SCOTUS can decide instead to do away with the charade and change the standard to whether or not the outcome is now objectively unreliable)?

For example, while the degree to which new evidence is cumulative is relevant, how it is relevant differs based on the facts of a case. In Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004), the Ninth Circuit explained that “a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” The Third Circuit took a similar approach in Jermyn v. Horn, concluding that although child abuse evidence was presented at the penalty phase, “strong and specific testimony about a horrific home” presented at the post-conviction hearings evidenced abuse of an “entirely different weight and quality.” 266 F.3d 257, 310-311 (3d Cir. 2001).

The approach taken by the Ninth and Third circuits accord with the weight of social science research (including studies of capital jury decision-making and interviews with actual capital jurors). Evidence that is more vivid and comprehensive can do more than “provide[] nuance to the case” and in fact can “alter the entire evidentiary picture”

Who delivers the message (lay, expert, lay AND expert? Family member?) can also make a difference in the outcome of a case, especially when the only other mitigation evidence comes from the defendant. As Judge Cole wrote, dissenting from the Sixth Circuit’s 2006 opinion in Slaughter v. Parker,

The [majority’s] holding presumes a defendant’s self-serving testimony—even when he testifies to spare his own life—has the same impact regardless of whether other witnesses corroborate it. That conflicts with the Supreme Court’s recognition in Skipper v. South Carolina, 476 U.S. 1, 8 (1976), that a defendant’s testimony is inherently suspect and a jury will naturally discount it.” Slaughter v. Parker, 467 F.3d 511, 513 (6th Cir. 2006) (Cole, J., dissenting).

Again, social science research confirms Judge Cole’s intuition: simply adding another supporting  voice to the chorus  may enhance the credibility of a position.

I am not advocating (at least not here) for any specific criteria. But I think it would be nice to tether appellate determinations about what a juror would do to something more than whatever the judge would do if she was to sit on the new jury.

I also think it is important to abandon  “linear” or  “additive” models, as scholars have long done. Justice Souter in Old Chief came close to making the case:

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict

Note: My thoughts on this issue stem from an amicus brief that Charles Ogletree and I wrote shortly after I graduated from law school. That case, Jeffrey Leonard’s (known only as “James Earl Slaughter” until after he was convicted and sentenced to death), is a prime example of how excluding new evidence that isn’t different in kind can be the equivalent of treating a stick figure of a woman and the Mona Lisa as being the same. Our amicus in that case is embedded below and Judge Cole’s unforgettable dissent from the denial of rehearing en banc is here (and is absolutely worth a read, and I cannot resist including his intro at the very end of this post).

View this document on Scribd


We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as “James Slaughter,” approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court’s seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact. Accordingly, I dissent from the denial of rehearing en banc.

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