ABA seeks high court review of waiver of some ineffective counsel claims

The American Bar Association filed an amicus brief before the U.S. Supreme Court Friday, urging the high court to clarify an earlier ruling that a defendant's waiver of his right to put on mitigation evidence in the punishment phase of a death-penalty case does not automatically waive his right to raise claims of ineffective counsel.

The case challenges lower court decisions that interpreted the 2007 U.S. Supreme Court's decision in Schriro v Landrigan. In that case, the court held that any finding of prejudice was precluded because the defendant had actively prevented counsel from investigating whether there was mitigation evidence to present in the punishment phase of his capital case.

The ABA brief in the current case, Loden v. Mississippi, is in support of a petition for writ of certiorari. The defendant Thomas Loden, Jr. waived his right to submit mitigation evidence at the punishment phase of his trial and the judge did not question Loden on the basis for that decision. He was sentenced to death, and now contends his waiver was the result of his trial counsel's failure to investigate available mitigating evidence, despite his willingness to assist, that included his history of childhood abuse and deprivation, and his service record as a decorated Marine in the Gulf War, with resulting post-traumatic stress disorder. The Mississippi Supreme Court concluded his claim was foreclosed under Landrigan and the U.S. Court of Appeals for the Fifth Circuit affirmed the Mississippi's court decision.

The ABA brief asserts that the lower courts should not have interpreted Landrigan as establishing a bright line waiver rule. Instead, the courts should have considered the role played by counsel in a defendant's waiver decision. The ABA brief asserts that under ABA standards that have been recognized by the U.S. Supreme Court as "guides to determining what is reasonable" for attorney representation in criminal cases, an attorney must thoroughly investigate the circumstances of a client's case and ensure that the client receives sound advice and can make informed decision.

"This Court's review is necessary to consider the distinction between a defendant like Landrigan, who was a 'bright star' in the 'constellation of refusals to have mitigating evidence presented' and a defendant like Loden, for whom the Eighth Amendment waiver may have been a direct result of counsel's inadequate investigation," the ABA brief asserts.

The ABA's amicus brief in Thomas Loden, Jr., v. Marshall L. Fisher, Commissioner, Mississippi Department of Corrections is available online.

Published: Tue, Aug 04, 2015


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