I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Michelle Byrom: What kind of representation did she have, Part 4: The Context for Michelle Byrom’s Ineffectiveness Claim

After Michelle Byrom lost her direct appeal, the next stage of her case was handled by the Office of Post-Conviction counsel.  Their job was to investigate possible claims that her conviction or death sentence was improper.  The most important claim they developed was that Byrom’s original lawyers had been ineffective in investigating and trying the sentencing phase of her case.

Recall that a death penalty trial has two parts.  In the first, the question is whether the defendant is guilty or innocent of a capital crime.  In the second, the jury is asked to decide whether the prosecution proves certain statutory “aggravating circumstances,” whether there are “mitigating circumstances” present and then whether aggravating circumstances outweigh mitigating.  An example of aggravating circumstances would be the one the judge found in Byrom’s case, that murder was carried out for “pecuniary gain.”  Mitigating circumstances can be anything that one can argue makes a death penalty inappropriate.  Building and proving a mitigation case involves investigating the defendant’s life and circumstances.

Byrom’s circumstances are filled with evidence that could be used in mitigation.  She grew up in a chaotic childhood, was by age 16 a stripper, was abused by her husband, and was mentally ill.  I will get into more detail as I describe the court’s decisions about whether her lawyers were effective.

There is a two-part standard for evaluating ineffectiveness claims, which was established by Strickland v. Washington.  First, the petitioner must show “cause”– that the lawyer’s work failed to meet the professional standard.  Second, the petitioner must show “prejudice”– that the failing likely effected the outcome.

In evaluating the “cause” component, a court will not view as ineffective “strategic” decisions.  That is, if a court (or the lawyers) can come up with a rationalization for what the lawyer did, the courts will not second guess the lawyer.   This principle has papered over a lot of lawyer failings.  But Byrom’s case shows at the same time there are limits– some supposed strategies are just too stupid to respect– but that even where lawyers exceed those limits outrageously, their clients still may have no recourse because the court might say it would not have had an impact on the result (prejudice).

Finally, a strategic decision has to be supported by a reasonable investigation.  If a lawyer decides, “I am not going to put on proof about the defendant’s childhood because I don’t think it will help,” but has not investigated the defendant’s childhood, a court is not supposed to respect that strategic decision.  Later, if the defendant is able to show that the proof about her childhood would have made a difference, she should get relief.  “Should” being the operative word, as opposed to “will.”

As with all issues, these have to be raised first in state court.  Because there has been no investigation about what kind of job the lawyers did, because the trial lawyers are more than likely the appeal lawyers, ineffectiveness issues are to be raised for the first time in a post-conviction proceeding, after direct appeal.

If the state court refuses to grant relief, the next step is federal court.  The federal courts, particularly in the Fifth Circuit, are a very tough place to win, even with what would appear to be clear claims.  First, the federal courts are required to defer to state court decisions that appear to be a reasonable application of the federal law.  Second, the federal courts have to respect state findings of fact.  These tough standards are applied to the already tough test for ineffectiveness, c cause and prejudice, and applied in a quite conservative circuit.

Byrom’s ineffectiveness claim had several components.  But because of a mismatch– claims were raised in state post conviction that were not fully developed, and her lawyers in federal court tried to more intelligently recast claims– really only one case was likely to survive into federal court review:  That her lawyers had failed to develop and prove evidence in mitigation in her sentencing hearing.  That’s what I’m going to analyze in subsequent posts about this claim, and not parts of the claim that might seem to me to have merit but where not really fully framed our preserved before federal review.

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