Wednesday, March 25, 2009

IAC: Abandoning a defense?

Is defense counsel ineffective by abandoning a defense when he has nothing to lose by pursuing it?

Yesterday, the USSC unanimously said no, at least where the defense (here, NGI) had little prospect for success.

Counsel presented metal health evidence in an effort to get a verdict of second-degree murder. When the jury came back with a malice murder conviction and the defendant's parents told counsel they would refuse to testify at the sanity phase, the defense withdrew the NGI plea. The Court sentenced the defendant to 29 to life.

The Ninth Circuit reversed and blamed counsel for abandoning the NGI claim because there was nothing to lose by pursuing it.

The USSC held there is no IAC in abandoning the NGI defense where, "Counsel reasonably concluded that this defense was almost certain to lose."

Embarrassingly, Judge Thomas's opinion suggest that the defendant was lucky not to get death or LWOP, even though no specials were alleged. "Mirzayance has no complaints about the sentencing phase since he received the lowest possible sentence for his first-degree murder conviction. California authorizes three possible sentences for murder: death, life imprisonment without parole, and imprisonment for 25 years to life. Cal. Penal Code Ann. § 190(a) ( (West 1999). Mirzayance was sentenced to 25 years to life plus 4 years for a weapons enhancement." (Knowles v. Mirzayance (3/24) 2009 U.S. LEXIS 2329.)
From what I can tell, def was maxed out. Am I wrong?
Michael C. McMahon
Chief Deputy Public Defender
Writs, Appeals, & Training
Ventura County, CA

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