Equal protection and the peremptory challenge

flowers 3

Reasoning: four critical facts, taken together, require reversal. First, in the six trials combined, the state employed is peremptory challenges to strike 41 of the 40 to Black prospective jurors that it could have struck, which is a statistic that the state acknowledged at oral argument in this court. Second, in the most recent trial, the 6 trial, the state exercise pre-emptive strikes against Five of the six black prospective jurors third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the stay engaged and dramatically different questioning of black and white prospective jurors. Fourth, the state then struck at least one black prospective juror, Carolyn Wright, who is similarly situated to White prospective jurors who are not struck by the state - over the course of the first four trials, there were thirty-six black prospective jurors against whom the state could have exercised a peremptory strike. The state tried to strike all 36 -in miller-el v dretke, this court skeptic leave you the state's decision to accept 1 black juror, explaining that a prosecutor might do so in an attempt to obscure the otherwise consistent pattern of opposition to seating black jurors. The overall record of this case suggests that the same tactic may have been employed here - the state asked the five black prospective jurors who were struck a total of 145 questions. By contrast, the sweet ass to the 11 seeded white jurors a total of 12 -miller-el v cockrell- If the use of the disparate questioning is determined by race at the outset, it is likely that a justification for a strike based on the resulting Divergent views would be pretextual - desperate questioning and investigation of prospective jurors on the basis of race can Arma prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race - in this case, Carolyn right with a black prospective juror who said she was strongly in favor of the death penalty as a general matter. And she had a family member who was a prison security guard. Yet the state exercised a peremptory strike against right. - White prospective juror Bobby Lester worked at the same bank and also encountered flowers family members. Although bhesteen and lester were questioned during group voir dire, the state did not ask them individual follow-up questions in order to explore the death of their relationship with the flowers family. And instead of striking those jurors, the state accepted them for the journey - the state also explained that it exercise a pre-emptive strike against right because she had worked with one of our sisters. That was incorrect. But incorrect statements of that sort may show the state's intent: when a prosecutor misstates the record and explaining a strike, that misstatement can be another clue showing discriminatory intent - our disagreement with the Mississippi courts largely comes down to whether we look at the wright strike in isolation or instead look at it in the context of all the facts and circumstances. Our presidents require that we do the latter

post verdict motions cont

the defendant may also ask the trial judge to order a new trial on the ground that the jury's verdict was contrary to the weight of the evidence so my phone because the remedy of a new trial is less disruptive than the remedy of a court directed acquittal, the standard for granting such emotion is somewhat favorable to the defendant, as compared to the aforementioned motion for Judgment of acquittal -a motion for a new trial based on grounds other than newly discovered evidence is often subject to very strict time limits. Rule 33- 14 days

skilling 3

Reasoning: rideau v louisiana- what the people in the community saw on their television sets, we observed, was rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder. To the tens of thousands of people who saws and heard it, we xplained, the interrogation in a very real sense was rideau's trial- at which he pleaded guilty. We therefore did not hesitate to hold that the kangaroo court proceedings trailing the televised confession violated due process -skilling asserts that we need not pause to examine the screening questionnaires or the voir dire before declaring his jurys verdict void. We are not persuaded. Important differences separate skillings prosecution from those in which we have presumed juror prejudice -first we have emphasized in prior decisions in the size and characteristics of the community in which the crime occurred. In rideau, for example, we noted that the murder was committed in a parish of only 150,000 residents. Houston, in contrast is the fourth most populous city in the nation. At the time of skillings trial, more than 4.5 million individuals eligible for jury duty resided in the houston area. Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain -second, although news stories about skilling were not kind, they contained no confession or other blatantly prejudicial info of the type readers or viewers could not reasonably be expected to shut from sight - third, unlike cases in which trial swiftly followed a widely reported crime, over four years elapsed between enrons bankruptcy and skillings trial. The decibel level of media attention diminished somewhat in the years following enrons collapse -finally, and of prime significance, skillings jury acquitted him of nine insider-trading counts . it would be odd for an appellate court to presume prejudice in a case in which jurors actions run counter to that presumption -although the widespread community impact necessitated careful identification and inspection of prospective jurors connections to enron, the extensive screening questionnaire and follow-up voir dire were well suited to that task -although causeys well publicized decision to plead guilty shortly before trial created a danger of juror prejudice. The court delayed the proceedings by two weeks, lessening the immediacy of that development. And during voir dire, the court asked about prospective jurors exposure to rcent publicity, including news regarding causey. Only two venire members recalled the plea, and neither ultimately served on skillings jury Although publicity about a co-defendants guilty plea calls for inquiry to guard against actual prejudice, it does not ordinarily- and we are satisfied, it did not here- warrant an automatic presumption of prejudice

rompilla cont

Reasoning: this is not a case in which defense counsel simply ignored their obligation to find mitigating evidence, and their workload as busy public defenders did not keep them from making a number of efforts, including interviews with ompila and some members of his family, and examinations of reports by three mental health experts who gavve opinions at the guilt phase. None of the sources proved particularly helpful -counsel found him uninterested in helping. There were times when rompilla was even actively obstructive by sending counsel off on false leads -the state post conviction court found that counsel spoke to the relatives in a detailed manner, attempting to unearth mitigating info. Defense counsel also said that because the family was coming from th position that rompilla was innocent, they weren't looking for reasons for why he might have done this -when new counsel entered the case to raise rompillas post conviction claims hoover, they identified a number of likely avenues the trial lawyers could fruitfully have followed in building a mitigation case, including school records and records of rompillas juvenile and adult incarcerations. And while counsel knew from police reports provided in pretrial discovey that rompila had been drinking heavily at th time of his offense, and although one of the mental health experts reported that rompillas troubles with alcohol merited further investigation, counsel did not look for evidence of a history of dependence on alcohol that might have extenuating significance -counsel knew that the commonwealth intnded to seek the death penalty by proving rompilla had a significant history of felony convictions indicating the use or threat of violencce, an aggravator under state law. Counsel further knew that the commonwealth would attempt to establish this history by proving rompillas prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victims testimony given in that earlier trial. It is also undisputed that the prior conviction file was a public document, readily available for th asking at the very courthouse where rompilla was to be tried -it is clear, however, that defense counsel did not look at any part of that file, including the transcript, until warned by the prosecution wice. Even after obtaining the transcript of the victims testimony on the eye of the sentencing hearing, counsel apparently examined none of th other material in the file -counsel fell short here bcause tehy failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce rompilas prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment -although we suppose it is possible that a jury could have heard all this evidence and still have decided on th death penalty, that is not the tst. It goes without saying that the undiscovered mitigating evidence, taken as a whole, might well have influenced the jurys appraisal of rompillas culpability, and the likelihood of a different result in the evidence had gone in is sufficient to undermine confidence in the outcome actually reached at sentencing -Prejudice prong fulfilled bc looking at the file wouldve identified a number of leads for mitigating factors Rule: since counsels failure to look at the file fell below the line of reasonable practice, there is a further question about prejudice, that is, whether there is a reasonable probability but for counsels unprofessional errors, the result of the proceeding would have been different

batson cont

Rule: more than a century ago, the court decided that the state denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposely excluded. Strauder v west virginia. - Equal protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable and partially to consider the state's case against a black defendant - the invidios quality of governmental action claims to be racially discriminatory it must ultimately be traced to a racially discriminatory purpose. Washington v davis. circumstantial evidence of invidious intent may include proof of disproportionate impact. For example, total or seriously disproportionate exclusion of black people from jury venires is itself such an unequal application of the law as the show intentional discrimination - a defendant May establish a prima facie case of purposeful discrimination in selection of the petit jury it solely on evidence concerning the prosecutors exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants race. second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor use that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the impaneling of the petit jury, as in the selection of the venire, raises the necessary and Friends of purposeful discrimination -In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a pattern of strikes against black jurors included a particular venire might give rise to an inference of discrimination. Then why are we the prosecutor's questions and statements during voir dire examination and an exercise in his challenges May support or refute an inference of discriminatory purpose - once the defendant make the prima facie showing, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors. We emphasized that the prosecutors explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendants prima facie case of discrimination by stating merely that he challenged jurors other defendants race on the assumption- or his intuitive judgment- that day would be partial to the defendant because of their shared race (whereas in swain, you could strike for this reason) Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then we'll have the duty to determine if a defendant has established purposeful discrimination -then court makes a credibility determination- Is it a race neutral reason or merely pretextual -court said you don't have to show that youre a member of a cognizable racial group (group that receives 14th amendment scrutiny) -have to show that the facts and circumstances create an inference that prosecution used peremptory challenges to strike on account of race

consistency of the verdict; General verdicts

The general rule is that no constitutional issue is created by the return of inconsistent verdicts because such products may be simply the product of permissible leniency -last for example a defendant can be convicted of armed robbery but acquitted of possessing a firearm. Harris v. rivera.- Upholding conviction by inconsistent verdict in bench trial in State Court

Rule 44 right to and appointment of counsel

(c)inquiry into joint representation 1. Joint representation occurs when: A. Two or more defendants have been charged jointly under rule 8b or have been joined for trial under rule 13; and B. The defendants are represented by th same counsel or counsel who are associated in law practice 2. Courts responsibilities in cases of joint representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel

batson notes

-swain did the prohibition, batson did the enforcement of the prohibution •The majority opinion seems to equate for equal protection Clause purposes to situations: (1) the use of peremptory challenges and fastened to remove all black people from the jury and a particular criminal case involving a black defendant, on the assumption that they would tend to favor the black defendant more than white jurors would; and (2) the practice prior to Swain of excluding all black people from the venire in all cases, on the assumption that they were unqualified as a class to serve as jurors •In JEB v alabama ex rel TB, the court, in a paternity case where 9 out of the 10 male prospective jurors were removed by peremptory challenges, how old is that gender-based use of peremptory challenges also violates the equal-protection clause -the only question is whether discrimination on the basis of gender and Jury selection substantially furthers the state's legitimate interest in achieving a fair and impartial trial •Powers v ohio- The courthouse that a white defendant indeed has standing to raise a bad Sin equal protection claim. -The Batson right not only belongs to the defendant, but also to the excluded prospective jurors, and under traditional rules of standing to raise constitutional claims, defendants canister third-party standing to raise the bats and right of excluded prospective jurors of A different race

joinders cont

A defendant who objects to a consolidated trial thus has two avenues of attack. Initially he can allege that the charges or defendants are not properly joined under rule 8; that is, he can claim there was misjoinder In addition, or in the alternative, he can argue that even if the charges are properly joined, the court should sever the charges or defendants under rule 14a, because of the risk of unfair prejudice

unanimity cont

Allen v US- the court upheld the giving of an instruction in the midst of a prolonged period of jury deliberation designed to encourage any jurors still in the minority to reconsider the reasonableness of their views -You can say "you must continue deliberating" and can urge people to reconsider their positions -But in jenkins v US, the court found a due process violation when the trial judge instructed the jury that you have got to reach a decision in this case •Lowenfield v phelps- there the trial judge gave an instruction not specifically addressed to jurors who were in The Minority, but urgent all of the jurors to rethink their views. The judge also polled the jury twice to see whether the jurors believed that further deliberations would be productive ( this procedure is not allowed in federal cases, brasfield v US) -the court concluded that on the fax the combination of polling of the jury and the supplemental instruction was not coercive in such a way as to deny the defendant any constitutional right

Wice: chaos in the courthouse, the inner workings of the urban criminal courts

Although particular agencies or institutions within each City's Criminal Justice System may have differing levels of understaffing, all we're affected in some degree by personnel shortages most common method Criminal Courts utilize and dealing with their caseload And Delay problem is the practice of plea bargaining since nearly two-thirds of all defendants accused of committing a felony or Indigent, the state is constitutionally obligated to provide the overwhelming majority of the assistance of counsel

Batson v kentucky

Facts: petitioner, a black man, was indicted. The prosecutor used his peremptory challenges to strike all for black person's on the venire, and a jury composed of only white person's was select it. Defense Council moved to discharge of the jury before it was sworn on the ground that the prosecutors removal of the black veniremen value-laden petitioners rights under the 6th and 14th amendments to a jury drawn from a cross-section of the community and under the Fourteenth Amendment to equal protection of the laws. Council requested a hearing on this motion. the judge said tonight petitioners motion. The jury convicted petitioner on both counts. Petitioner also contended that the facts show that the prosecutor had engaged in a pattern of discriminatory challenges in this case and establish an equal protection violation under Swain v alabama Holding: in swain v alabama (1965), this court recognized that a states purposeful or deliberate denial to black people on account of race of participation as jurors and get administration of justice violates the equal protection Clause. We reaffirm this principle today - because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remain this case for further proceedings. If the trial court decides that the facts established prima facie purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our presidents required that petitioners conviction be reversed

Cuyler v sullivan

Facts: respondent sullivan was indicted with carchidi and anthony dipasquale for the first degree murders of gorey and janda. The victims were shot to death in goreys seocnd story office. Mcgrath, a janitor, saw the three defendants in the building just before teh shooting. Two privately retained lawyers preresented all three defendants throughout the sate proceedings that followed the indictment. Sullivan had different counsel at the medical examiners inquest, but he thereafter accepted representation from the two lawyers retaind by his codefndants. At no time did sullivan or his lawyers object to the multiple representation. Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of mcgraths testimony. The jury found sullivan guilty and fixed his penalty at life imprisonment. Sullivans codefendants, carchidi and dispasquale, were acquitted at separate trials. Sullivan alleged that he had been denied effective assistance of counsel because his defense lawyers represented conflicting interests Issue: whether a state trial judge must inquire ito the propriety of multiple representation even though no party lodges an objection. -whether the mere possibility of a conflict of interest warrants the conclusion that he defendant was deprived of his right to counsel

Strickland v washington

Facts: the State of Florida indicted respondent for kidnapping and murder and appointed an experienced criminal lawyer to represent him. Council actively pursued pretrial motions and Discovery. He cut his Efforts short however and he experienced a sense of hopelessness about the case, when he learned that, against his specific advice, respondent had also confessed it to the first two murders. Respondent waived his right to a jury trial, again acting against the council's advice, and pleaded guilty to all charges including three capital murder charges. In preparing for the sentencing hearing, Council spoke with the responded about his background. He also spoke on the telephone with respondents wife and mother, though he did not follow up on the 1 unsuccessful effort to meet with them you did not otherwise seek out character Witnesses for respondent. Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems. Council decided not to present and hands not to look are there for evidence concerning respondents character and emotional state. The Plea colloquy communicated sufficient information about these subjects, and by forgoing the opportunity to present new evidence on these subjects, counsel prevented the state from cross-examining responded on his claim in from putting on psychiatric evidence of his own . The trial judge concluded that a careful consideration of all matter is presented to the court and Pals the conclusion that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. He therefore sentence responded to death on each of the three counts of murder. Responded next filed a petition for a writ of habeas corpus. claim of actual ineffectiveness of consoles assistance

Mickens v taylor

Facts: virginia jury convicted petitioner mickens of the premeditated murder of timothy hall. He was sentenced to death. Mickens filed a petition for writ of habeas corpus that he was dnied effective assistance of counsel because one of his court appointed attys had a conflict of interest at trial. Federal jabeas counsel had disvovered that petitioners lead trial atty was representing the victim on assault and concealed weapons chargs at the time of th murder. Atty was appointed to represent the victim, a juvelile, on march 20 1992 and had met eith him for 15-30 mins some time teh following week. Halls body was discovered on march 30 and 4 days later a juvenile court judge dismissed the charges against him, noting on the docket sheet that hall was deceased. On april 6, the same judge appointed the atty to represent petitioner. He did not disclose to the court, his co-counsel, or petitioner that he previously represented the victim Rule: the rule applied when the trial judge is not aware of th conflict (and thus not obligated to inquire) is taht prejudice will be presumed only if the conflict has significantly affected counsels performance- thereby rendering the verdict unreliable, even though strickland prejudice cannot be shown -sullivan- until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim for IAC. thus, the federal rules of crim pro treat concurrent representation and prior representation differently, requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single atty (44c), but not when counsel previously represented another defendant in a substantially related manner, even where the rial court is aware of the prior representation Reasoning: th sullivan standard, which requires proof of effect upon representation but (once such effec is shown) presumes prejudice, already crates an incentive to inquire into a potential conflict. We doubt that the deterrence of judicial dereliction that would be achieved by an automatic reversal rule is significantly greater -since this was not a case in which (as in holloway) counsel protested his inability simultaneously to represent multiple defendants; and since the trial courts failure to make the sullivan-mandated inquiry does not reduce teh petitioner's burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsels performance -the case was presented and argued on the assumption that (absent some exception for failure to inquire) sullivan would be applicable

Skilling v US

Facts: we consider in this opinion two questions arising from the prosecution of jeffrey skilling, a longtime enron executive, for crimes committed before the corporations collapse. Enron spirald into bankruptcy. The governmnts investigation uncovered an elaborate conspiracy to prop up enron short tun stock prices by overstating the companies financial well-being. A grand jury indicted skilling, lay and orchard causey, enrons former chief accounting officer. Skilling moved to transfer the trial to another venue; he contended that hostility toward him in houston, coupled with extensive pretrial publicity, had poisoned potential jurors The court converted skillings submission, with slight modifications, into a 77 qustion, 14 page documnt that asked prospective jurors about their sources of news and exposure to enron-related publicity, beliefs concerning enron and what caused its collapse. The parties agreed to exclude, in particular, each and every prospective juror who said that a preexisting opinion about enron or the defendants would prevent her from impartially considering the evidence at trial. Causey pleaded guilty. Skilling renewed his change-of-venue motion, arguing that th juror questionnaires revealed pervasive bias and that news accounts of causeys guilty plea further tainted the jury pool. The jury found skilling guilty of 19 counts, including the honest-services fraud conspiracy charge, and not guilty of 9 insider-trading counts -challenging under 6th amendment right to fair trial Issue: first, did pretrial publicity and community prejudice prevent skilling from obtaining a fair trial? Second, did the jury improperly convict skilling of conspiracy to commit honest-services wire fraud -skillings fair-trial claim thus raises two distinct questions. First, did the district court err by failing to move the trial to a different venue based on a presumption of prejudice? Second, did actual prejudice contaminate skillings jury

strickland 4

Holding: the conduct of respondents counsel at and before respondents sentencing proceeding cannot be found unreasonable. They also make clear that, even assuming the challenged conduct of counsel was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence -the state courts properly concluded that the ineffectiveness claim was meritless without holding an evidentiary hearing -respondent has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsels assistance. Respondents sentencing proceeding was not fundamentally unfair -we conclude therefore that the district court properly declined to issue a writ of habeas corpus Reasoning: the record shows that respondents counsel made a strategic choice to argue for the extreme emptional distress mitigating circumstance and to rely as fully as possible on respondents acceptance of responsibility for his crimes. Nothing in the record indicates that counsels sense of hopelessness distorted his professional judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable -the trial judge's views on the importance of owning up to one's crimes were well known to counsel. Restricting testimony on respondents character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and respondents criminal history, which counsel had successfully moved to exclude, would not come in -the evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile presented to the sentencing judge. Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and hence the sentence imposed Marshall dissent -my objection to the performance standard adopted by the ocourt is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the 6th amendment is interpreted and applied by different courts -i object to the prejudice standard adopted by the court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared bettr if his lawyer had been competent -the majority contends that the 6th amendment is not violated when a manifestly guilty defendant is convicted after a trial when he was represented by a manifestly ineffective atty

Pena-rodrieguez 3

Holding: the court now holds that where a juror makes a clear statement that indicates they relied on racial stereotypes or animus to convict a criminal defendant, the sixth amendment requires that the no impeachment rule giveaway in order to permit the trial court to consider the evidence of the jurors statement and any resulting denial of the jury trial guarantee Rule: for the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that casts serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was it significant motivating factor in the jurors vote to convict. Whether that threshold showing has been satisfied is a matter of committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the Proffered evidence -if defendant shows this, then verdict can be overturned Thomas dissent - the Court's holding also cannot be squared with the original understanding of the 6th or 14th Amendment - the court today acknowledges that the states adopted the no impeachment rule as a matter of common law, but ascribes no significance to that fact in the absence of a definitive common-law tradition permitting impeachment by jury testimony, we have no basis to invoke a constitutional provision that merely follows out the establish courts of the common law in all trials for crimes to overturn Colorado's decision to preserve the no impeachment rule Alito dissent - today, with the admirable intention of providing Justice for 1 criminal defendant, the court not only pries open the door; it rules that respecting the privacy of the Jury Room, as our legal system has done for centuries, violates the Constitution - until today, the argument that the court now finds convincing has not been thought to be sufficient to overcome confidentiality rules like the one at issue here - nothing in the text or history of the sixth amendment or in the inherent nature of the jury trial right suggest that the extent of the protection provided by the amendment depends on the nature of a jury's partiality or bias - it will be difficult for judges to discern the dividing line between those that are clearly based on racial or ethnic bias and those that are at least somewhat ambiguous Justice Kennedy's majority opinion seems to stand for the proposition that race is different and that our desire to wipe out vestiges of discrimination Justified overriding other interests, including finality under repose

mickens cont

Holding: the court of appeals having found no such effect, the denial of habeas relief must be affirmed -no automatic reversal for a judges failure to inquire into a potential conflict Kennedy concurrence -the constitutional question must turn on whether trial counsel had a conflict of interest that hampered the epresentation, not on whether the rial judge should have been more assiduous in taking prophylactic measures Souter dissent -when the problem comes to the trial courts attention before any potential conflict has become actual, the court has a duty to act prospectively to assess the risk and if the risk is not too remote, to eliminate it or to render it acceptable through a defendant's knowing and intelligent waiver -since the distinct court in this case found hat the state judge was on notice of a prospective potntial conflict, this case calls for nothing more than the application of the prospective notice rule announced and exemplified by holloway and confirmed in sullivan and wood

flowers cont

Issue: whether the Mississippi Trial Court clearly erred in concluding that the state was not motivated and substantial part by discriminatory intent when exercising for a e strike at flowers 6 trial Facts: Curtis flowers allegedly murdered four people in Winona Mississippi. Flowers is black. He has been tried 6 separate times before a jury for murder. The same lead prosecutor represented the state and all 6 trials. In the first trial, flowers was convicted of the Mississippi Supreme Court reversed the conviction due to numerous instances of prosecutorial misconduct. In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. And the third trial, flowers was convicted put the Mississippi Supreme Court again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process in his sixth trial, which is the one at issue here, flowers was convicted. The states dropped five of the six black prospective jurors. On appeal, flowers argued that the state again violated bad send an exercising program 3 Strikes against black prospective jurors

US v rodriguez-moreno cont

Holding: the kidnapping to which the firearm offense is attached was committed in all of the places that any part of it took place, and venue for the kidnapping charge against respondent was appropriate in any of them Reasoning: (firearm statute)- whoever, during and in relation to any Crime Of Violence for which he may be prosecuted in a court of the United States, uses or carry the firearm shells, in addition to the punishment provided for such Crime Of Violence, be sentenced to imprisonment for five years - the third circuit looked to the verbs of the statute to determine the nature of the substitute with friends. But we have never before held, and declined to do so here, that birds are the sole consideration and identifying the conduct that constitutes an offense. Well The Verve test certainly has value as an interpretive tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language - to prove the firearm violation in this case, the government was required to show that responded used a firearm, that he committed all the acts necessary to be subject to punishment for kidnapping ( a crime of violence) in a court of the United States, and that he used a gun during and in relation to the kidnapping. In sum, we interpret the statute to contain two distinct conduct elements, as is relevant to this case, the using and caring of the gun and the commission of a kidnapping - a kidnapping, once begun, does not end until the victim is free. It does not make sense then to speak of it and discreet Geographic fragments. The statute criminalize the defendants use a firearm during and in relation to a crime of violence. in doing so, Congress prescribed both the use of the firearm and the commission of the acts that constitute a violent crime. It does not matter that responded used the gun in Maryland only because he did so during and in relation to a kidnapping that was begun in Texas. In our view, the statute does not define a point in time offense when a firearm is used during and in relation to A continuing crime of violence Scalia dissent - it seems to me I mistakenly clear from the text of the law that this crime can be committed only where the defendant both engages in the ACT making up the predicate offense and uses or carries the gun - the crime before us does not consist of distinct parts that can occur in different localities. It's two parts are bound in separately together by the word during

flowers 4

Holding: the trial court committed clear error in concluding that the state's Priam tri-strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. We break no new legal ground. We simply enforce and reinforce fats and by applying it to the extraordinary facts of this case -we remanded the case for further proceedings not inconsistent with this opinion Alito concurrence - were it not for The Unique combinations of circumstances present here, I would have no trouble affirming the decision of the Supreme Court of Mississippi Thomas dissent - the court almost entirely ignored, and certainly does not refuse, the race-neutral reasons given by the state for striking wright and for other black prospective jurors Batson- For a court to find a violation, it necessarily must find that the lawyer (a) intentionally discriminated against potential jurors based on their race or gender, and (b) lied to the court about the reasons or the strikes

skilling 5

Holding: we conclude, in common with the court of appals, that skillings fair trial argument fails; skilling, we hold, did not establish that a presumption of juror prejudice arose or that actual bias infected th jury that tried him. But we disagree with the 5th circuits honest-services ruling -persuaded that no presumption arose, we conclude that the district court, in declining to order a venue change, did not exceed constitutional limitations -skilling failed to establish that a presumption of prejudice arose or that actual bias infected th jury that tried him Sotomayor concurrence and dissent The district courts inquiry lacked the necessary thoroughness and left serious doubts about whether the jury empaneled to decide skillings case was capable of rendering an impartial decision based solely on the evidence presented in the courtroom. Accordingly, i would grant skilling relief on his fair trial claim I agree with the court that the prospect of seating an unbiased jury in houston was not so remote as to compel the conclusion that the district court actd unconstitutionally in denying skillings motion to change venue Perhaps it had underestimated the publics antipathy toward skilling, the district courts 5 hour voir dire was manifestly insufficient to identify and remove biased jurors

Rompilla v beard

Holding: we hold tha even when a capial defendants family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravating at the sentencing phase of trial -the lawyers were deficient in failing to examine the court file on rompillas prior conviction -we think rompilla has shown beyond any doubt that counsels lapse was prejudicial Facts: jams scanlon was discovered dead. Rompilla was indicted for the murder and the commonwealth gave notic of intent to ask for the death penalty. Two public defenders were assigned to the case. During the nsuing penalty phase, the prosecutor sought to prove three aggravating factors to justify a dath sentence: that the murder was committed in th course of another felony; that the murder was committed by torture; and that rompilla had a significant history of felony convictions indicating the use or threat of violence. Rompillas evidncce in mitigation consisteed of relatively brief testimony: five of his family members argued in effect for residual doubt, and beseeched the jury for mercy, saying that they believed rompilla was innocent and a good man. The jurors assigned the greater weight to the aggravating factors and sentenced rompilla to death. Rompilla filed a habeas petition alleging ineffective assistance by trial counsel in failing to present significant mitigating evidence about rompillas childhood, mental capacity and health, and alcoholism

Pena-rodrieguez v colorado

Issue: whether there is an exception to the no impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statement indicating that racial animus was a significant motivating factor and their vote to convict -6th amendment jury trial guarantee claim Facts: State prosecutors in Colorado brought criminal charges against petitioner. In the bathroom of a Colorado horse racing facility, a man sexually assaulted two teenage sisters. Each girl separately identified petitioner as the man who had assaulted her. The jury found petitioner guilty of unlawful sexual contact and harassment, but it failed to reach a verdict on the attempted sexual assault charge. Two jurors stated that during deliberations, another juror had Express and anti-hispanic bias toward petitioner and petitioners Alibi Witnesses

US v rodriguez-moreno

Issue: whether venue in a prosecution for using or carrying a firearm during and in relation to any crime of violence is proper and any District where the crime of violence was committed, even if the firearm was used for carried only in a single District Facts: during a drug transaction that took place in Houston, a New York drug dealer stole 30 kg of a Texas drug Distributors cocaine. A distributor hired a respondent and others to find the dealer and to hold captive the middleman and the transaction, avendano. in pursuit of the dealer, the distributor and his henchman drove from Texas to New Jersey with avandano. the group used avendano's New Jersey apartment as a base For their operations for a few days. They soon move to a house in New York and then to a house in Maryland, taking avendano with them. surely after respondent and the others arrived at the Maryland house, you put the gun to the back of avendano's next, but at the urging of his cohorts, did not shoot. The neighbors called the Maryland police, who arrested respondent. Responding and his co-defendants were tried jointly in New Jersey. Responded was charged with conspiring to kidnap, kidnapping, and using and carrying a firearm in relation to the kidnapping. At the conclusion of the government's case, responded moved to dismiss the Firearm count for lack of venue. He argued that venue with proper only in Maryland, the only place where the government had proved he had actually used a gun Rule: art III of the Constitution requires that the trial of all crimes shall be held in the state where the said crimes shall have been committed. it's command is reinforced by the sixth amendment's requirement that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and District wherein the crime shall have been committed, and is echoed by rule 18- that the prosecution she'll be held in a district in which the offense was committed -the locus delicti of the charge defense must be determined from the nature of the crimes alleged and the location of the act or acts constituting it. US v. cabrales. In performing this inquiry, of course it must initially identify the conduct constituting the offense ( the nature of the crime) and then discern the location of the commission of the criminal Acts -US v lombardo- A crime consists of distinct Parts which have different localities oh, the whole may be tried where any part can be proved to have been done. Congress has provided that continuing offenses can be tried in any District in which such offense was begun, continue, or completed

Cuyler v sullivan 3

Reasoning: nothing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest. The provision of separate trials for sullivan and his codefendant significantly reduced the potential for a divergence in their interests. No participant in sullivations trial ever objected to the multiple representation. The opening argument also suggested hat counsel was not afraid to call witnesses whose testimony might be needed at the trials of sullivans codefendants Holding: we conclude that the 6th amendment imposed upon the trial court no affirmative duty to inquire into the propriety of multiple representation -we hold that the possibility of conflict is insufficient to impugn a criminal conviction -since the court of appeals did not weigh these conflicting contentions under the proper legal standard, its judgment is vacated and the case is remanded for further proceedings consistent with this opinion Marshall concurrence and dissent -i believe that the potential for conflict of intrest in representing multiple defendants is so grave that whenever two or more defendants are represented by the same atty the trial judge must make a preliminary determination that the joint representation is the product of the defendants informed choice -i therefore think that the trial court has a duty to inquire whether there is multiple representation to warn defendants of the possible risks of such representation, and to ascertain that the representation is th result of th defendants informed choice

Pena-rodrieguez cont

Reasoning: tanner v US- the court rejected a sixth amendment exception for evidence that some jurors were under the influence of drugs and alcohol during the trial -warger v shauers- involved a civil case where after the verdict was entered, the losing party sought to proffer evidence that the jury forewoman had failed to disclose Pro defendant by during voir dire. The court stated that even if jurors lie in voir dire in a way that conceals bias, juror in partiality is adequately insured by the party's ability to bring to the Court's attention any evidence of bias before the verdict is rendered, and to employ non juror evidence even after the verdict is rendered -in warger however the court did reiterate that the no impeachment rule May admit exceptions. As in ried and mcdonald, The court Warren of Jeremiah so extreme that, almost by definition, the jury trial right has been a bridge. If and when such a case arises, the court indicated it would consider whether the usual safeguards are or are not sufficient to protect the Integrity of the process - it must become the heritage of our nation to rise above racial classification that are so inconsistent with our commitment to the equal Dignity of all persons - time and time again, this court has been called upon to and forth the Constitution's guarantee against state-sponsored racial discrimination and the jury system. Beginning in 1880, the court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. Strauder v west virginia - Discrimination on the basis of race, odious and all aspects, is especially pernicious in the administration of justice. Rose v mitchell - Racial bias of the kind of ledged in this case differs and critical ways from the compromise verdict in McDonald, the drug and alcohol abuse in Tanner, for the pro defendant bias in warger. the behavior in those cases is troubling it unacceptable, but each involved anomalous behavior from a single jury order gone off course - the same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court's decision demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so Central to a functioning democracy -The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of jury deliberations - as the preceding discussion makes clear, the court relies on the experiences of the 17 jurisdictions that have recognized a racial bias exception to the no impeachment rules, it's time for over half a century, with no signs of an increase in juror harassment or a loss of your willingness to engage and searching and candid deliberations

batson 3

Reasoning: the court in strauder recognize however that up defendant has no right to a petit jury composed in whole or in part of persons of his own break. The state will not exclude members of his race from the jury venire on account of race - while decisions of this court have been concerned largely with discrimination during selection of the venire, The principles announced there also forbids discrimination on account of race in selection of the petit jury. Since the fourteenth amendment protects and accused throughout the proceedings bringing him to Justice, the state may not throw up its Jury list pursuant to neutral procedures but then resort to discrimination at other stages in the selection process -swain court none unless indicated that the equal protection Clause placed some limits on the state's exercise a peremptory challenges - to preserve the preamp true nature of the prosecutors challenge, the court and Swain decline to scrutinize his actions in a particular case by relying on a presumption that he properly exercised States challenges - the core guarantee of equal protection, ensuring citizens that their state will not discriminate on account of race, would be meaningless where we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors race - petitioner made a timely objection to the prosecutor's removal of all black person's on the venire Issue: whether the defendant had met his burden of proving purposeful discrimination on a part of the state Marshall concurrence the decision today will not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges and tires Rehnquist dissent as long as peremptory challenges are applied across the board 2 jurors of all Races and nationalities, I do not see, and the court most certainly has not explained, how there are you spying with the equal protection clause

Strickland cont

Rule: The Benchmark for judging any claim of an Effectiveness must be whether council's conduct so undermine the proper functioning of the adversarial process that the trial could not be relied on as having produced a just result - a convicted defendants claimed that council's assistance was so defective as you require reversal of a conviction or death sentence has two components. First, the defendant must show that councils performance was deficient. This requires showing that Council made errors some serious that council is not functioning as the council guaranteed the defendant by the 6th Amendment. second, the defendant must show that the deficient performance Prejudice the defendant. This requires showing that counsels errors were so serious as to deprive the defendant a fair trial, a child whose result is reliable - the proper standard for attorney performance is that a reasonably effective assistance. The defendant must show that counsels representation cell below and objective standard a reasonableness - Council of the client a duty of loyalty, a duty to avoid conflicts of interest. counsel also has a duty to bring to bear such a skill and knowledge as well run trial a reliable adversarial testing process - in any case presenting an ineffective Miss claim, their performance inquiry must be whether council's assistance was reasonable considering all the circumstances. Prevailing Norms are practice as reflected in the American Bar Association standards are guides to determining what is reasonable, but they are only guides - Judicial scrutiny of councils performance must be highly differential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of consoles Challenge on duct, and to evaluate the conduct From council's perspective at the time. Because of the difficulties inherent in making the evaluation, of Court must indulge a strong presumption that counsels conduct Falls within the wide range of reasonable professional assistance - a court deciding an actual ineffectiveness claim must judge the reasonableness of consoles challenge conduct on the facts of the particular case, you'd as of the time of council's conduct.

Cuyler v sullivan cont

Rule: holloway requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the 6th amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. Unless the trial court knows or should have known that a particular conflict exists, the court need not initiate an inquiry -holloway reaffirmed that multiple representation does not violate the 6th amendment unless it gives rise to a conflict of interest. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the oppotunituy to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that th possibility for conflict has resulted in ineffective assistance of counsel -in order to establish a violation of the 6th amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affectd his lawyers performance -glasser established that unconstitutional multiple representation is never harmless error. The conflict itself demonstrated a denial of the right to have the effective assistance of counsel. Thus, a defendant who shows a conflict of interest actually affeced he adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance -in order to demonstrate a violation of his 6th amendment rights, a defendant must establish that counsel actively represented conflicting interests and an actual conflict of interest adversely affected his lawyers performance Do not have to show that the conflict + performance affected the verdict (no prejudice standard)

Skilling v US cont

Rule: the 6th amendment secures to criminal defendants the right to trial by an impartial jury. That trial occurs in th state where the crimes have been committed. Art III §2. Also 6th amendment- right to trial by jury of the state and district wherein the crime shall have been committed. The constitutions place of trial prescriptions, however, do not impede transfer of the proceeding to a different district at the defendants request if extraordinary local prejudice will prevent a fair trial- a basic requirement of due process. In re murchison -our decisions, however, cannot be made to stand for the proposition that juror exposure to news accounts of the crime alone presumptively deprives the defendant of due process. Murphy v florida. Jurors are required to be totally ignorant of the facts and issues involved -jury selection is particularly within the province of the trial judge -in reviewing claims that jurors in particular were openly biased, the deference due to district courts is at its pinnacle: a trial courts findings of juror impartiality may be overturned only for manifest error -it is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court -affords huge deference to trial judges. (hard to reverse)

Blumberg: the practice of law as confidence game, organizational co-optation of a profession

The overwhelming majority of convictions in criminal cases ( usually over 90%) are not the products of a combative, trial by jury process at all, but instead merely involved the sentencing of the individual after a negotiated, bargained for plea of guilty has been entered simple explanation is one of an ongoing system handling delicate tension, managing the trauma produced by Law Enforcement and Administration, and requiring almost pathological distrust of Outsiders bordering on group paranoia where is therefore seek to keep their client in a proper state of tension, and to arouse them in the precise edge of anxiety which is calculated to encourage prompt fee payment lawyers frequently claimed to have inside knowledge in connection with information in the hands of the DEA, police, probation officials, or to have access to these functionaries the criminal lawyer performs an extremely vital and delicate mission for the court organization and the accused

US v auernheimer

US v auernheimer- only essential conduct elements can provide the basis for venue; circumstance elements cannot -The court analyzed eacg of the relevant crime statutes to determine the essential conduct prohibited -For the CFAA crime, it was accessing a computer without authorization and obtaining without authorization (or in excess of authorization) and disclosing data or personal identifying information. And for the federal identity theft crime, it was the transfer, possession, or use of the identity info, and doing so in connection with a federal crime or state felony -The court concluded that none of the essential conduct occurred in new jersey -The court likewise rejected the governments argumnt that any error with respect to venue was harmless, noting that (1) the supreme court has never held that venue errors are subject to harmless error analysis, and (2) in any event, the error was not harmless because it affected the defendants substantial right to be tried in the place where his alleged crime was committed

Natapoff: gideon skepticism

The right to counsel has been a central lens through which to evaluate the criminal process and it is often seen not only as a necessary but increasingly sufficient guarantee our core defendant entitlements the Supreme Court treats Council as a cure for coercion and inaccuracy go to treatment, conviction and Punishment of individuals may be unfair and Ways but their attorney, no matter how skilled, can not meaningfully address when unfairness flows not from lack of evidence or a government mistake, but from institutional features of the criminal process, defense lawyers have you are too old to protect their clients

Effective assistance of counsel

The right to have the assistance of counsel guaranteed by the sixth amendment and extended to the states through the 14th Amendment the meaning of effective assistance •An attorney may not be prohibited from conferring with the client during an overnight recess that falls between direct examination and cross-examination. Geders v US -a lawyer may not be denied the right to get a closing summation in a non-jury trial. Herring v NY -The state may not prohibit the attorney from a listening the client's testimony on direct examination. Ferguson v georgia -The state cannot restrict the attorneys Choice as to when to put the defendant on the stand. Brooks v tennessee -In perry v leeke, The Court held that the trial court did not err by ordering the defendant not to consult with his lawyer during a 15-minute Recess that immediately followed his direct examination and preceded his cross-examination •a large proportion of the state, and most of the federal circuit, replace the mockery of Justice standard with one that requires counseled to possess and exercise the legal competence customarily found in the jurisdiction

skilling 4

reasoning: Actual prejudice: -when pretrial publicity is at issue, primary reliance on the judgment of the trial court makes especially good sense because the judge sits in the locale where the publicity is said to have had its effect and may base her evaluation on her own perception of the depth and extent of news stories that might influence a juror -the district court initially screened venire members by eliciting their responses to a comprehensive questionnaire drafted in large part by skilling. Voir dire thus was, in the courts words, the culmination of a lengthy process -the court examined each prospective juror individually, thus, preventing the spread of any prejudicial info to other venire members. To encourage candor, the court repeatedly admonished that there were no right and wrong answers to the question -eleven of the seated jurors and alternates reported no connection at all to enron. 14 jurors and alternatives specifically stated that they had paid scant attention to enron related news. The remaining two jurors indicated that nothing in the news influenced their opinions about skilling -justice sotomayor, in turn, repeatedly relies on irvin, which she regards as closely analogous to this case. We disagree with that characterization of irvin -the facts of irvin are worlds apart from those presented here. Leslie irvin stood accused of a brutal murder and robbery spree in a small rural community. In the months before irvins trial, a barrage of publicity was unleashed against him, including reports of his confession to the slayings and robberies -this court noted that the pattern of deep and bitter prejudice in the community was clearly reflected in the sum total of the voir dire: prospective jurors or almost 90% of those examined on th point entertained some opinion as to guilty and out of the 12 jurors thought irvin was guilty -of key importance, houston shares little in common with the rural community in which irvin trial proceeded, and circulation figures for houston media sources were far lower than the 95% saturation level recorded in irvin -the district court did not simply take venire members who proclaimed their impartiality at their word. The court followed up with each individually to uncover concealed bias. This face to face opportunity to gauge dmeanor and credibility, coupled with information from the questionnaires regarding jurors backgrounds, opinions and sources of news, gave the court a sturdy foundation to assess fitness for jury service -skilling contends that juror 11- the only seated juror he challenged for cause- expressed the most obvious bias. Juror 11 stated that greed on enrons part triggered the companies bankruptcy and that corporate executives. But, as the fifth circuit accurately summarized, juror 11 had no idea whether skilling had crossed that line, and he didnt say that every CEO is probably a crook. He also asserted that he could be fair and require the government to prove its case, that did not believe everything he read in the paper -skilling also objected at trial to the seating of six specific jurors whom, he said, he would have excluded had he not already exhausted his peremptory challenges. -skilling points to juror 63 who, skilling points out, wrote on her questionnaire that skilling probably knew he was breaking the law. During voir dire, however , juror 63 insisted that she did not really have an opinion about skilling guilty either way. Jurors, we have recognized, cannot be expected invariably to express themselves carefully or even consistently. From where we sit, we cannot conclude that juror 63 was biased

Strickland 3

rule: (part of performance prong) A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of council that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the Circumstances, be identified Acts or omissions for outside the wide range of professionally competent assistance. And making that determination, the court should keep in mind that counsels function, as elaborated in prevailing professional Norms, is to make the adversarial testing process work in a particular case (in practice, standard amounts to gross incompetence- more than negligence) - strategic choices made after a thorough investigation of law end facts relevant to possible actions are virtually unchallengeable; insert a choice is made After less than complete investigation are reasonable precisely to the extent that reasonable professional judgment support the limitations on Investigation. in other words, I'm still has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. And any ineffectiveness case, particular decision not to investigate must be directly assess for reasonableness in all the circumstances - inquiry into Council conversations with defendant may be critical to a proper assessment of consoles investigation decision, just as it may be critical to a proper assessment of consoles other litigation decisions - an error by Council, even if professionally unreasonable, does not warrant setting aside the Judgment of a criminal proceeding if the air had no effect on the Judgment. Any deficiencies in council's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution -in certain 6th amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice -cuyler v sullivan- the court held that prejudice is presumed when counsel is burdened by an actual conflict of interest -it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding -(prejudice prong) the defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome For prejudice prong, you can look at the record. Don't need an evidentiary hearing -the assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably conscientiously, and impartially applying the standards that govern the decision. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judges sentencing practices, should not be considered in the prejudice determination -when a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer- including an appellate court, to the extent it independently reweighs the evidence- would have concluded that the balance of aggravating and mitigating circumstances did not warrant death -in making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. A verdict or conclusion only weakly supported by the record is more likely to have been affected by the errors than one with overwhelming record support -although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite th strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results -since fundamental fairness is the central concern of the writ of habeas corpus, no special standards ought to apply to ineffectiveness claims made in habeas proceedings -this test is an ex post guarantee (when poor advocacy is shown, as opposed to preventing it before It happes)

flowers V Mississippi

rule: in Batson V Kentucky, this Court ruled that a state may not discriminate on the basis of race when exercising Crabtree challenges against prospective jurors in a criminal trial - under Batson, once a prima facie case of discrimination has been shown by a defendant, the state must provide race-neutral reasons for its pram 3 Strikes. The trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination -First, the batson Court rejected Swain's insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. instead, the Batson Court held that a Criminal defendant could show purposeful discrimination and selection of the petit jury solely on evidence concerning the prosecutors exercise of peremptory challenges at the defendant's trial - second, the Batson Court rejected Swain's statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant - third, the Batson Court did not accept the argument that race paste Graham 3 challenges should be permissible because black, white, asian, Hispanic defendants and jurors were all equally subject to race-based discrimination - fourth, the Batson Court did not accept the argument that race paste Priam jury challenges are permissible because both the prosecution and defense could employ them in any individual case and in Essence balance things out - what factors does the trial court consider in evaluating whether racial discrimination occurred? Our presidents allow criminal defendants raising Batson challenge has to present a variety of evidence to support a claim that prosecutors peremptory strikes were made on the basis of race. For example, defendants May prevent: statistical evidence about the prosecutors use a peremptory strikes against black prospective jurors as compared to what prospective jurors in the case, evidence of a prosecutor questioning and investigation of black and white prospective jurors in the case, side-by-side comparisons of black prospective jurors who were struck and white prospective jurors were not struck in the case, prosecutors misrepresentation of the record when defending the strikes during the Batson hearing, relevant history of the state's pre-emptive strikes in past cases, or other relevant circumstances that bear upon the issue of racial discrimination - the ultimate inquiry is whether the state was motivated and substantial part by discriminatory intent - The prosecutor's questions and statements during voir dire examination and an exercise in his challenges May support or refute an inference of discriminatory purpose - disparate questioning or investigation alone does not constitute a Batson violation. But the disparate questioning or investigation can also, along with other evidence, inform the trial Court's evaluation of whether discrimination occurred - when a prosecutor is proffered reason for striking a black panelist applies just as well to an otherwise similar 9 black panelists who is permitted to serve, that is evidence tending to prove purposeful discrimination. a defendant is not required to identify and identical white juror for the side-by-side comparison to be suggestive of discriminatory intent - a state's failure to engage in any meaningful voir dire examination on a subject the state alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination

rodriguez-moreno notes

•18 USC 3237- Any events involving the use of males, transportation and Interstate or foreign Commerce, or the importation of an object or person into the United States is a continuing offense, and except as otherwise expressly provided by an enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such Commerce, male matter, or imported object or person moves •If an offense involves the use of the mails, venue is proper is any district from, through, into which the mail travels •US v brennan- the allegedly fraudulent mailings were sent from the defendants offices in the southern district of NY, but the case was filed in the eastern district of NY. the government defended its venue choice by showing that the fraudulent mailings would have gone through either kenedy or laGuardia have thus moved through there within the meaning of §3237 -The second circuit rejected the argument, holding that the mail fraud statute does not proscribe conduct involving the use of the mails within the meaning of 3237a •US v smith- where the defendant was accused of violating 18 USC 1001 by lying to an FBI agent about fraudulent conduct that took place in oklahoma. The false statements were made during an interview in defendants home in minnesota, and when he was indicted in oklahoma -The court rejected the argument that the effect of the false statements on the oklahoma investigation was sufficient to make venue proper there, and also rejected the claim that the ongoing effect of the false statements made the violation a continuing crime

post verdict motions

•After the jury's verdict has been announced, and assuming that the defendant has been convicted, there are several procedural routes by which the defendant May seek to overturn the verdict in the trial court -the defendant May file a motion or a judgement of acquittal, rule 29, on the ground that the evidence presented during trial was legally insufficient for a conviction (i.e the evidence did not meet the legal standard of proof of guilt Beyond A Reasonable Doubt) -the trial judge has the authority to enter a judgment of acquittal notwithstanding the jury's verdict if the judge finds the evidence legally insufficient, although the fact that the jury reached the opposite conclusion will inevitably weigh heavily on the judge is mind -in addition, the trial judge must be the evidence in light most favorable to the prosecution, further reducing the likelihood of the defendants success •the defendant may also file a motion for a new trial, either on the ground of newly discovered evidence we're on some ground, often including the interest of Justice -in the case of newly discovered evidence, Most states and the federal system limit the time. After judgment during which such evidence can be used to seek a new trial. Rule 33- 3 year limit -Moreover, to qualify as newly discovered, such evidence generally must have been unavailable to the defendant, even assuming the exercise of due diligence at the time of the trial

bell v cone

•Bell v cone- at the sentencing proceeding, the defense counsel cross examined government witnesses but called no defense witnesses. The defense counsel also waived the closing argument -Respondents argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of strickland and that of chronic, this difference is not of degree but kind -Strickland applies- have to have a complete deprivation to right of counsel -No closing argument and not calling witnesses is not enough •Strickland court states explicitly that attorney performance must not be judge in hindsight; lawyers judgments are to be assessed according to how those judgments appeared at the time they were made. -But the prejudice standard is applied with hindsight: the defendant cannot obtain relief unless he shows it is reasonably likely that his atty's errors altered the outcome

Burger v kemp

•Burger v kemp- the court held that na actual conflict of interest was not prsent in the following circumstances: two law partners represented two codefendants in a capital murder case. One of the partners wroe the appellate briefs for both codefendants. The brief filed on burgers behalf did not make a lessr culpability argument -Th court concluded that the decision to forgo this argument had a sound strategic basis, and found that if there were any conflict, it had not affected the representation burger reeived •Holloway case- public defender, appointed to represente codefendants chargd with robbery and rape, moved twice before trial for separate counsel based on conflict of interest, but the tial judge denied both motions -PD- each one of them wants to testify. Judge- let them testify. PD- if one defendant takes the stand, somebody needs to protect the other two's interest that one is testifying, and i ant do that since i have talked o each one individually. I cant even put them on direct exam. Judge- you can just put them on th stand and tell teh court that you have advised them of their rights and they want to testify -The court reversed holloways convictions -The judge then failed either to apppoint separate counsel or to take adequate steps to ascertain weather the risk was too remote to warrant separate counsel. We hold that the failure , in the face of the representations made by counsel weeks befor trial and again before teh jury was empaneled, deprived petitioners of the guarantee of assistance of counsel -The court concluded that whenver a trial court improperly requires joint representation over timely objection reversal is automatic

Georgia v. mcCollum

•Can Batson apply to peremptory challenges exercised by defendants? Yes. Georgia v. mcCollum •Edmonson v leesville concrete co- the Court held that bad sent applies to civil cases on the ground that state action ( a requirement for an equal protection claim) can be found in the Judicial Systems close supervision of jury selection and peremptory challenges even if both litigants are private parties •what if a defendant seeks to exercise a peremptory challenge against a juror who would not be subject to a for Cause Challenge and the peremptory challenge is erroneously denied by the trial judge based on Batson and mcCollum? The court unanimously held that such an error does not require automatic reversal as a matter of federal law. Rivera v Illinois. -the court house that it was up to each state to decide as a matter of state law weather the erroneous denial of a peremptory challenge should lead to automatic reversal or be subject to harmless error analysis -No structural harm to juror bc they were seated already- so no automatic reversal •Hernandez v NY- the offered reason for the strikes was that they were based not on ethnicity, but instead on the prosecutors perception (derived from voir dire) that the challenged individuals who are bilingual would find it difficult to accept the court translators English version of the Spanish language testimony. The trial judge rejected the defendants batson claim and the Supreme Court Affirmed -while the prosecutor's Criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutor's actions into a person a violation of the equal protection clause. The trial judge's however may consider disproportionate impact as evidence that the offered reason might be a pretext for racial discrimination

Glover v US

•Glover v US- the legal error at sentencing, petitioner alleges, increased his prison sentence by at least 6 months and perhaps by 21 months (didn't affect finding of guilt or innocence). We must deide whether this would be prejudice under strickland -Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time had 6th amendment significance -We hold that th 7th circuit erred in engrafting this additional requirement on to the prejudice breach of the strickland test. It is clear that prejudice flowed from the asserted error in sentencing (satisfied prejudice prong) •Note, incidentally, that glover-type ineffectiveness claims would seem to be plausible only where the defendant is deprived, as a result of his lawyers mistake, of a particular sentence (or sentencing range) to which he is legally entitled. -This in turn is likely true only where the sentence is determinate •If the defendant specifically indicates that he wants to appeal his conviction, even from a guilty pleea, and defense counsel does not file a notice of appeal, the strickland test is satisfied- the failure to abide by the clients wishes in this context is professionally unreasonable, and because defendant was deprived of an appeal that he otherwise would have taken, prejudice is again presumed. Roe v flores-ortega •But suppose the defendant not only pled guilty, but as part of the plea deal signed a waiver of his right to appeal. Even an appeal waiver does not relieve defense counsel of their obligation to abide by the clients wishes. -The court concluded that the presumption of prejudice that attached to other failures to file an appeal continued to apply when the defendant had signed an appeal waiver. Garza v idaho

rompilla notes 2

•In light of this, should a defense lawyer always be required to secure the defendants prior consent before conceding guilty at trial and focusing his efforts entirely on aguing for leniency at capital sentencing? If the lawyer concedes guilty without the defendant's consent, is this the kind of failure to subject the prosecution's case of meaningful adversarial testing that triggers the chronic presumption of prejudice? -In florida v nixon- the supreme court unanimously answered "no" to both questions -According to the court, the decision to concede guilt in a capital case is not the same as entering a guilty plea or waiving basic trial rights -In nixon- while he did not consent to his attorneys actions, neither did he explicitly withhold consent •In mcCoy v louisiana, by contrast, the defendant explicitly instructed his lawyer not to concede guilt. The attorney believed th only hope was to concede that the defendant was the killer at he guilty stage -The majority treated this as a case of an atty conceding guilt (which has some support in the record), and held that conceding guilt of a charged crime over a defendants objection is a structural violation of the 6th amendment necessitating a new trial

Unanimity of the verdict

•In schad v Arizona, the court affirmed a state conviction for first-degree murder despite the fact that the jury may not have been unanimous on whether the defendant acted with premeditation or was guilty of felony murder -But in richardson v US, the court reversed a federal conviction because the jury was not required to reach a unanimous verdict with respect to the defendants Commission of numerous specific violations of federal drug laws that were alleged to be part of a series of violations needed to establish the larger crime of operating a continuing criminal Enterprise -the Richardson Court explained that resolving this question requires close examination of the statutory elements of the crime charged: where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat where others might conclude he used a gun. -But that disagreement, a disagreement about means, would not matter as long as all 12 jurors unanimously concluded that the government had approved the necessary related element, namely that the defendant has threatened force -So, have to be unanimous that all elements were proved beyond a reasonable doubt. Don't have to be unanimous about how those elements were satisfied

rompilla notes

•In strickland, on the one hand, the court evalutated th defense attorneys performance from the perspctive of the lawyer at the time he made his decisions about what to do or what not to do -In rompilla, on the other hand, hte court seems to have evaluated the defense atty's performance with the benefit of hindsight -To put it another way, sticklands performance was ex ante, whereas rompillas was ex post •Buck v davis- the court held that a death row inmate was entitled to appeal he denial of a rule 60b6 motion to reopen the tial judgment against him. In a federal habeas case involving alleged ineffective assistance of defense counsel calling as a witness at capital sentencing a psychologist who testified that defendants race increase the probability of future dangerousness, because the defendant had demonstrated a valid ISC claim and because he case presented extraordinary circumstances sufficient to justify granting exceptional relief under rule 60b6 •-Schriro v landigan- dfndant refused to allow his defense counsel to present mitigating evidence at capital sentence, and indeed told the trial judge that he did not want to have such evidnce introduced, preferring instead to bring on the depth penalty -The court held the denial of the evidentiary hearing wa within the district courts discretion in light of the defendants own actions

Notes on ineffective assistance, habeas corpus, and death penalty

•In the anti-terrorism and effective death penalty act of 1996, congress esablished a dferential standard of review for federal habeas corpus decisions. Federal courts are authorized t grant relief and overturn state court decisions only when they are contrary to, or involved an unreasonable application of, clearly established federal law, as determined by SCOTUS -The court has stressed that an unreasonable application of federal law is different from an incorrect application of federal law. Williams v taylor •To prevail in federal court, the defendant must show that trial counsel behaved so unreasonably that it was unreasonable- and not merely incorrect- for the state habeas court to deny relief

Joinder and severance

•Jurors are unfamiliar with complex criminal transactions (one hopes), and may have a hard time understanding the relevant evidence unless that evidence is placed in a broader context, much of which the rules of evidence would label irrelevant if the matters were tried separately -In this respect, joint trials can increase the accuracy of the verdict •Rule 14a permits the court, either sua sponte or on motion of a party to sever Rule 8 joinder of offenses and of defendants a. Joinder of offenses. The indictment or info may charge a defendant in separate counts with 2 or more offenses if the offenses charged- whether felonies or misdemeanors or both- are of the same or similar character, or are based on the same act or transaction, o are connected with or constitute parts of a common scheme or plan b. Joinder of defendants. The indictment or info may charge 2 or more defendants if thy are alleged to have participated in the same act or transaction , or in the same series of acts or transaction, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count Rule 14 relief from prejudicial joinder c. Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the gov, the court may order separate trials of counts, sever the defendants trials, or provide any other relief that justice requires

impeachment of the verdict

•Once the jury has reached its verdict, the traditional rule is that no impeachment of that Verdict by a jury will be allowed except for the rear case in which a juror testifies that some external influence affected the jury's deliberations -Rule of evidence 606b1- during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or indictment that occurred during the jury's deliberations; the effect of anything on that jurors or another jurors vote; or any jurors mental processes concerning the verdict or indictment. The court may not receive a jurors affidavit or evidence of a juror statement on these matters -Rule 606b2 then gives exceptions to this blanket prohibition on Jared's impeaching the vertical in a juror May testify about whether (A) extraneous prejudicial information was improperly brought to the jury's attention; or (B) an outside influence was improperly brought to bear on any juror •Tanner v US- after a federal fraud trial was over and the defendant was convicted, adger came forward with information that several of the jurors consumed alcohol during lunch breaks, causing them to sleep through the afternoon sessions of the trial. The Court held that this information about the jurors Behavior was of no legal consequence -there is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdict reached after irresponsible or improper jury Behavior -however, full and Frank discussion in the Jury Room, jurors willingness to return and unpopular verdict, and the community's Trust In A system that relies on the decisions of late people would all be undermined by a barrage of post-verdict scrutiny of Juror conduct

Purkett v elem

•Purkett v elem- the prosecutor use pre-emptive jury challenge has just dragged to Black prospective jurors Because of his long curly " unkempt" hair and the second because of his mustache and goatee beard. The court found that the prosecutors explanations, whether reasonable or not, we're race-neutral and the satisfied step two of the bats an inquiry. -The court emphasized that in step 3, the proper focus is on the genuineness of the alleged race-neutral motive rather than its reasonableness •Johnson v california- the defendant satisfies the requirements of Batson's First Step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred •the message of Johnson seems to be that most batson claims ( all those that are not facially implausible) should survive the first stage of the batson Analysis and proceed to the second and third stages •Remedies for batson violations: strike the panel and start fresh, seat the jury, strike that juror, dismiss and start a new case without refiling •Batson violations are structural errors (so not subject to harmless error doctrine) and thus subject to automatic reversal

Changes of venue

•Rule 21b- upon the defendants motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties and witnesses and in the interest of justice •While the court is to consider the convenience of both parties and the witnesses in ruling on a motion, only the defendant can initiative the process •Rule 21a- upon the defendants motion , the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot oibtain a fair and impartial trial there -Abuse of discretion is the standard of review for 21a •A case cannot be transferred against the defendants wishes

application of Strickland cont

•Strickland prejudice requires more than that attorney ineffectiveness have an effect on the outcom of the case; it requires the right kind of outcome effect -The idea seems to be that preventing perjured testimopny by the defendant is not the sort of thing that leads to an unjust result, regardless of what one thinks of defense counsels conduct -Must a defendant show a reasonable probability that he is innocent? The court seemed to answer "no" in mcCoy v louisiana. •Lockhart v fretwell was a capial case in which fretwell's defense counsel failed to object to one of the aggravating circumstances hat was used to authorize the death penalty. Under binding 8th circuit precedent, the objection surely would have succeeded, and the defendant almost surely would have avoided the death sentence. By the time the issue was raised in fretwells federal habeas corpus petition however, an intervening supreme court decision reversed the 8th circuits prior precedent -Reviewing fretwells ineffectiveness assistance claim, the court held that he suffered no prejudice under strickland because the outcome in his case was neither unfair nor unreliable; avoiding the death sentence based on an erroneous precedent would have been a windfall to wheel the law does not entitle •Williams v taylor- cases such as nix v whiteside and lockhard v fretwell do not justify a departure from a straightforward application of strickland when the ineffeciveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him -Treats as nix and lockhard as narrow exceptions

rule 44 notes

•The general view seems to be that a client may waive the right to conflict-free representation. US v curcuio (2d cir. ) -However, in wheat v US, SCOTUS held that trial courts are not required to accept defendants waivers of conflict free representation, notwithstanding the presumption in favor of counsel of choice •US v fulton (2d cir)- During trial, gov disclosed that gov witness presently on the stand had alleged that he had illegally imported heroin for fultons defense counsel. Court of appeals reversed conviction on the ground that no rational defendant would knowingly and intelligently be represented by a lawyer whose conduct was guided largely by a desire for self preservation . Sullivan applies •US v schwarz (2d cir)- extended fulton. Conflict adversely affected his counsels representation and that conflict was unwaivable where two cops (schwarz and bruder) were charged with assault. Schwarz atty worked for the same law firm as victims atty. Also, same law firm was paid a $10 mil retainer as counsel for police union, a codefendant in a civil suit filed by victim -The waiver given by schwarz would defeat his claim of ineffective assistance of counsel unless it is determined that (1) the conflict with respect to the PBA retainr was so severe as to be unwaivable, or (2) the waiver by schwarz was not knowing and intelligent with respect to the specific conflict that led to the lapse in defense counsel's representation -The conflict between defense counsels representation of schwarz and his ethical obligation to the PBA as his client and his self interest in the PBA retainer was so severe that no rational defendant in schwarz's position would have knowingly and intelligently desired defense counsel's representation - therefore unwaivable (no rational defendant.... is unwaivable standard)

strickland notes

•There are two key practical observations to be made about strickland. First, strickland emphasizes that, with respect to defense atty performance, strategic choices are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation •Cuyler v sullivan- th court also held that ineffective assistance by retained counsel can violate th 6th amendment right to counsel -It is insufficient to permit an indigent to sue, under 42 USC 1983, the public defender who represented him for damages resulting from allegedly ineffective assistance in derogation of the indigents right to counsel •In polk county v dodson, the court held that a public defender appointed to represent an indigent cliant does not act under color of state law. Therefore, §1983 is not applicable •Douglas held that a criminal defndant has the right to counsel- under the 14th amendment, not the 6th amendment, on his appeal as of right. -Evitts v lucey addressed the related question whether the due process clause of th 14h amendment guarantees th criminal defendant the effective assistance of counsel on such an appeal. The answer is yes •Wainwright v torna- refused to extend the right to the effective assistance of counsel to petitions for discretionary review -Respondent is in custody pursuant to several felony convictions. The florida supreme court dismissed an applicatoin for a writ of cert on the ground that the application was not filed timely. A petition for rehearing and clarification was later denied -In ross v moffit, this court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this court -Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsels failure to file the application timely

US v cabrales

•US v cabrales- The defendant was charged with money laundering. The court began by recognizing that where the crime occurred it must be determined from the nature of the crime alleged and the location of the act or acts contents. After examining the money-laundering statues, it concluded that they interdict only the financial transactions ( acts located entirely in Florida), not the interior criminal conduct that yielded the funds allegedly laundered -the court rejected the government's argument that these crimes were continuing offenses. Under the statutes, the crime took place where the conduct occurred- the financial transactions themselves- not where the events giving rise to the circumstance element, the illegality of the funds, took place •Conspiracy- venue is proper in any jurisdiction where the agreement was made or where an overt act in furtherance of the conspiracy occurred -this, if A in Alaska, B in Idaho, and C in California agree by telephone to manufacture illegal drugs, and if B then goes to Montana to obtain a needed chemical, each of the three defendants could be required to stand trial for conspiracy in any of the four states •note however that the broad rule extends only to the conspiracy itself, and not necessarily to the crime that is the object of the conspiracy -US v walden- a prosecutor who wants to bring both the conspiracy and a substitute charge in a single case must file the charges were venue is proper on the substantive counts

US v cronic

•US v cronic- shortly before trial, cronics defense counsel withdrew; the trial judge appointed a young lawyer with a real estate practice to represent cronic, but allowed him only 25 days for pretrial preparation, even though it had taken the government over 4.5 years to investigate the case. Cronics lawyer presented no dfense, but did cross examine the prosecutions witnesses with some success. Chronic was convicted on 11 of 13 counts -The 10th circuit did not find specific flaws in holding that the 6th amendment was violated because the circumstances of the case created an inference that defense counsel could not perform effectively; this inference was based on: (1) the time afforded for investigation and preparation (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel -The supreme court held that no such inference of constitutional ineffectiveness arose from the facts of the cronic case -This case is not one which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel. The criteria used by the court of appeals do not demonstrate that counsel failed to function in any meaningful sense as the gov's adversary- Complete deprivation of counsel (ex. When counsel is appointed the day of trial) -Chronic adds a fourth category of presumed prejudice: where counsel failed to function in any meaningful sense as the governments adversary

Location of the crime

•Venue refers to the geographic location of the trial. Where the trial is to be held as determined in the first instance by the government when it files the criminal charge -so the initial, and usually final, decision of where a defendant will be tried rests with the prosecution -if challenged by the defense, the prosecutor must prove at trial that venue is proper, although only by a preponderance of the evidence •Art III sec 2 of the Constitution said that the trial of all crimes, except in cases of impeachment, shall be held in the state where said crime shall have been committed -the sixth amendment said that in all criminal prosecutions, the accused shall enjoy the right to a speedy and impartial trial, by an impartial jury of the state and District wherein the crime shall have been committed. The sixth amendment requirement is referred to as the vicinage provision, as it refers to the place from where the jury is to be drawn, rather than specifying the location of the trial itself -these requirements for later incorporated into rule 18, which provides impart that unless a statute or these rules permit otherwise, the government must prosecute an offense in the district where the offense was committed

Application of strickland

•What is a defense lawyers responsibility when dealing with possibility perjurious testimony? In nix v whiteside- no gun was found at the crime scene, and none of the other witnesses reported seeing a gun. Whiteside told robinson (lawyer) that he had seen something metallic in the victims hand. He addd, "if i dont say i saw a gun im dead." robinson informed whitside that this would be perjury , and that he would not assist in it. Robinson told whiteside that if he insisted on perjuring himself, robinson would advise the trial court about the perjury, impeach whitesides testimony, and withdraw from whitesides representation -The majority found robinsons conduct acceptable under prevailing professional norms -Considering robinsons representation of respondent in light of the accepted norms of professional conduct, we discern no failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the 6th amendment right to counsel -Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely -We hold that, as a matter of law, counsels conduct complained of here cannot establish the prejudice required for relief under the second strand of the strickland inquiry. Whether he was persuaded or compelled to desist from perjury, whiteside has no valid claim that confidence in he result of his trial has been diminished by his desisting from the contemplated perjury bc you would be achieving the alternate outcome lawlessly

location cont

•so to determine whether venue is proper, prosecutors and reviewing Court must determine where the crime charged was committed. Note that this requirement does not necessarily relieve the accused of the burdens of defending himself in a location Far From Home •often the place where the crime committed is obvious and leave no choice to the prosecution •18 USC 3237- except as otherwise expressly provided by enactment of Congress, any offence against the United States begun in one district and completed and another, or committed in more than one District, may be inquired of and prosecuted in any District in which such offense was begun, continued, or completed