Lawyer Did Not Get School & Jail Records – IAC?

The principles governing a claim of ineffective assistance of counsel (IAC) are: “The right to counsel is a fundamental right of criminal defendants: it assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman v. Morrison (1986) 477 U.S. 365, 374.

“[T]he right to counsel is the right to effective assistance of counsel.” Strickland v. Washington (1984) 466 U.S. 668.

Under Strickland’s two-part test for claims of ineffective assistance of counsel, a convicted defendant must show (1) constitutionally deficient performance by counsel by showing counsel’s performance fell below an objective standard of reasonableness; and (2) that prejudiced the defendant.” Strickland, supra, at 687 – 688.

“The essence of an ineffective assistance of counsel claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and verdict rendered suspect.” Kimmelman, supra, at 374.

“As is obvious, Strickland’s standard, although by no means insurmountable, is highly demanding.” Kimmelman, supra, at 382; see also Padilla v. Kentucky (2010) 559 U.S. 356, 371 (“Surmounting Strickland’s high bar is never an easy task.”).

“When counsel focusses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry (2003) 540 U.S. 1, 8 (citing Strickland, supra, at 690). “Even if inadvertence (not tactical reasoning) results in non-pursuit of a particular issue, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”

“Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . .” Strickland, supra, at 690. There is wide latitude given to counsel’s tactical choices. See, e.g., United States v. Ferreira-Alameda (9th Cir., 1996) 815 F. 2d 1251, 1253 (“Review of counsel’s performance is highly deferential and there is a strong presumption that counsel’s conduct fell within the wide range of reasonable representation.”).

To establish IAC, a defendant must show his or her attorney’s performance was deficient and that defendant suffered prejudice as a result. Strickland, supra, at 687.

To establish prejudice, defendant must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, supra, at 695.

Applying these standards can be tough, as the following 2022 case of Theodore Washington v. David Shinn, Director of Arizona State Prisons, exemplifies. The case involves events in Arizona, but applies federal IAC standards, so it applies to California cases for IAC.

At about midnight on the evening of June 8, 1987, at least two men forced their way into the home of Ralph and Sterleen Hill’s house in Yuma, Arizona. The men forced the Hills to lie face down on the floor of the master bedroom with their hands tied behind their backs in preparation to be shot execution-style. The men yelled at the Hills to give them drugs or money.

While this was happening, the Hills’ teenage son got up and ran away. The intruders then shot Ralph Hill in the head with a shotgun. They then shot Sterleen.

Miraculously, Ralph survived the blast to his head, but Sterleen did not.

Theodore Washington was later arrested, charged with and convicted of the murder of Sterleen Hill and the attempted murder of Ralph Hill. He was sentenced to death.

In his habeas corpus petition, he challenged his conviction and sentence on many grounds, but this article will narrow its scope to only his claim for ineffective assistance of counsel. Washington claims that his counsel did not investigate and did not present sufficient mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse and substance (cocaine) abuse, which was set forth in his school records and jail records.

The U.S. Court of Appeals for the Ninth Circuit, in San Francisco, found that his counsel’s performance was neither deficient in this regard, nor prejudicial, so his habeas petition was denied.

The Ninth Circuit explained that Washington failed to establish that, while a psychiatrist had found Washington suffered from antisocial personality disorder and was poorly adjusted to living in society, “there is nothing . . . which lessened his ability to differentiate right from wrong or conform his actions with the law.” The Ninth Circuit also discounted his alleged diffuse brain damage, which doctors stated could cause poor social judgment and poor impulse control and an inability to appreciate the long-term consequences of one’s actions, because doctors did not find it overcame his ability to understand the wrongfulness of what he did.

Therefore, the death penalty was affirmed.

We present this article as a bit of a cautionary tale. Many people are eager to blame an attorney for their legal problems, but on appeal it is extremely difficult to show but for the alleged poor performance of counsel, a different result would have occurred. Therefore, we recommend hiring the very best counsel one can find from the outset, rather than having to present what can be a nearly impossible argument of IAC.

The citation for the United States Court of Appeal for the Ninth Circuit ruling discussed above is Theodore Washington v. David Shinn, Director of Arizona State Prisons (9th Cir., 2022) 46 F. 4th 915.

For more information about IAC, please click on the following articles: