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

Just 10 Seconds of your Time!

SANTA FE – Governor Bill Richardson released the following statement regarding the passage of a bill that would repeal the death penalty: “This is an extremely difficult issue that deserved the serious and thoughtful debate it received in the Legislature,” said Governor Bill Richardson. “I have met with many people and will continue to consider all sides of the issue before making a decision.”

Governor Richardson has three days from the time he receives the bill until he must take action (excluding Sunday.) Persons interested in providing their input to Governor Richardson about the bill to repeal the death penalty have two options: 1. Call 505-476-2225 and leave a message. People can urge the Governor to either sign or veto the bill, or they can leave a message with their opinion about the issue. 2. E-mail the Governor through his web site at: www.governor.state.nm.us Click on “Contact the Governor” and follow the prompts. The Governor’s staff will work through the weekend to tally people’s positions and provide the Governor with the opinions.

Legislators in New Mexico vote to repeal death penalty

Support for the death penalty is a mile wide, but only a inch deep. Consider today's wire story from the Associated Press (Edited for brevity):

Saturday, March 14, 2009
SANTA FE, New Mexico:

The State Legislature voted Friday to repeal the death penalty, meaning New Mexico could become the 15th U.S. state without capital punishment if the governor signs the bill into law.
Gov. Bill Richardson has opposed a repeal in the past, but now says he would consider signing it. "I haven't made a final decision," the governor said this week.
If Richardson signs the bill, New Mexico — one of 36 states with capital punishment — will become the second state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. New Jersey was the first, in 2007.
The state Senate voted 24-18 on Friday in favor of the bill, which replaces capital punishment with a sentence of life-without parole. The House approved it a month ago. However, a repeal would not affect the sentences of the state's two inmates on death row.
Countrywide, death sentences and executions have been on a steady decline for more than a decade. Legislation being debated in several states to abolish capital punishment is getting more attention than in the past. Repeal legislation has passed the state Senate in Montana and awaits a House hearing. The state Senate in Kansas is expected to debate a repeal bill on Monday.
President Barack Obama has said he is in favor of executions only in extreme cases, but has otherwise mostly avoided the issue and has no direct sway over states' death penalty laws. But he could appoint more liberal justices to federal courts who are less likely to impose death sentences.
In part, recent death row exonerations prompted by improved methods of testing physical evidence, including DNA samples, have planted seeds of doubt. And changes to state laws also have made a difference, as more states have been giving juries the option of imposing life without parole rather than death.
"As beautiful as our justice system is ... it is still a justice system of human beings, and human beings make mistakes," Sen. Cisco McSorley, an Albuquerque Democrat, said during nearly three hours of debate.
Financial necessity also is a driving factor. The death penalty is expensive — trials often require extra lawyers for appeals and higher security costs — and cash-strapped states are responding to the notion that it is cheaper to imprison people for life.
Observers caution that the death penalty is not likely to end soon in a country where polls still show 60 percent of people support executions. They point to the mostly conservative American South — which does not include New Mexico — as the major reason.
Of the 1,151 executions nationwide since the U.S. Supreme court reinstated the death penalty in 1976, the vast majority — 951 — occurred in the South, according to the nonprofit Death Penalty Information Center. New Mexico has executed one, convicted child killer Terry Clark in 2001.