The United States Supreme Court: Trevino and Assistance of Counsel Claim - Essay Example

Introduction In Trevino v. Thaler No. 11-10189, the defendant, Carlos Trevino, was convicted of participating in the rape and murder of 15-year-old Linda Salinas. The issue of this case is ineffective assistance of counsel. Trevino claims that his attorney for his case not only did not discover evidence that would have mitigated Trevino’s crimes at the penalty phase, so that he possibly would not have gotten the death penalty, but the first attorney also did not present the mitigating factors at the first state habeas proceeding. The first attorney withdrew from the case before the first federal habeas proceeding, and a new attorney was assigned to assist Trevino in the federal habeas proceeding. This new attorney found the evidence that the first attorney did not, and presented the evidence to the federal habeas court. However, the court in the federal habeas proceeding ruled that the evidence was still inadmissible, because the evidence should have been properly presented at the state habeas proceeding. Trevino returned to the state court to argue ineffective assistance of counsel on the first state habeas proceeding. The state court denied the ineffective assistance of counsel claim on this level, stating that Trevino had a duty to raise the ineffective assistance of counsel claim during the first state habeas proceeding. Trevino tried on the federal level to assert his ineffective assistance of counsel claim, but the federal court also denied him, stating that the claim was not properly raised in the state court. According to the court’s reasoning on this issue, the fact that Trevino had ineffective counsel during this first state habeas proceeding does not excuse his failure to present the ineffective assistance of counsel argument during the first state proceeding. The United States Fifth Circuit Court of Appeals reaffirmed this decision made by the district federal court, so Trevino further appealed. The United States Supreme Court granted certiorari on the limited question of whether an inmate’s ineffective assistance of counsel during the state habeas proceeding excuse the failure to raise the proper claim of ineffective assistance of counsel earlier in the state proceedings. For the reasons stated below, the Supreme Court should overturn the Circuit Court’s decision in this case to deny Trevino’s ineffective assistance of counsel claim, and order a re-hearing on the penalty applied to Trevino, using the new evidence that has been collected which would mitigate his moral culpability. Analysis At first blush, this case would seem to be, for lack of a better word, a “no-brainer.” The federal court is essentially stating that a lawyer has the duty to raise ineffective assistance of counsel arguments about himself. Moreover, the first lawyer did not really know just how ineffective he, himself, really was, at the time of the first state habeas proceeding. This is because the evidence that the lawyer should have found, that would be the basis for the ineffective assistance of counsel claim in the first place, was not yet found. In other words, during the first state habeas proceeding, the evidence upon which to base an ineffective assistance of counsel claim was not yet discovered. Yet the district federal court, and the circuit court, somehow thinks that the ineffective assistance of counsel claim should have been raised at a time when there was not any evidence available to raise it. Because the lawyer who was ineffective didn’t find that evidence yet! For this reason alone, the facts of the case strain common sense. However, the fact that the facts strain the boundaries of common sense does not present a legal basis for how the court should rule, so this is the analysis that needs to be fleshed out. A more careful analysis of the opinion in the Fifth Circuit Court of Appeal may provide clues to the court’s reasoning regarding this case, as well as flesh out a little more what the evidence was that the first attorney did not find (Trevino v. Thaler No. 10-70004). Specifically, what the evidence shows is that Seanito “Sam” Rey, who was a co-defendant in the crime, provided statements that contradicted the prosecution’s case, which was that Trevino was the one who actually killed Salinas. According to one of Rey’s statements made to the police on this matter, Rey said that another defendant, a Santos Cervantes, took Salinas into the woods alone. When Cervantes returned, he told Rey that he, Cervantes, had killed the girl. The issue was that the second statement that Rey had made was not discovered by Trevino’s trial counsel, who was also the same counsel who presented the first state habeas case. The problem was that the statement that Rey had made, which clearly implicated Cervantes, was available to the trial attorneys before trial. The statement was a part of the discovery that the prosecutors had provided the defense attorneys prior to trial. The two trial attorneys, Gus Wilcox and Mario Trevino, filed affidavits that they had never seen the statement prior to trial. The prosecutors provided affidavits that they had supplied Gresham’s entire report to the defense attorneys prior to trial, and that this report included all of Rey’s three statements, which, of course, means that the second statement implicating Cervantes was a part of this report. Primarily based upon this, Trevino filed a claim stating that, had Rey’s statement been properly disclosed, and if Rey had been put on the witness stand by the defense attorneys during the trial phase, it might have provided reasonable doubt as to who actually killed Salinas, and this would have, in turn, been a mitigating factor in sentencing Trevino. The nondisclosure of Rey’s second statement, and the failure to call Rey as a witness, was prejudicial both for the guilt phase of the trial and the penalty phase of the trial. The Supreme Court precedent upon which Trevino relied was Brady v. Maryland, 373 U.S. 83 (1963). In this case, the prosecutors had actually withheld evidence from the defendant until after the defendant was tried and convicted. The Court of Appeals in that case remanded the case for a retrial on the question of punishment, but not on guilt, stating that the defendant had been denied due process of law, because of the suppression of the evidence at trial. The Supreme Court in Brady agreed with the Court of Appeals, that suppression of evidence denies the defendant his due process rights. However, in the Brady case, the Court relied upon their ruling in Mooney v. Holohan, 294 U.S. 103 (1935), which states that, when a prosecutor withholds evidence, that it is a “deliberate deception of the court” (p. 112). They also compared the Brady facts to a prior case that relied upon perjured testimony (Pyle v. Kansas, 317 U.S. 213 (1942)). The reasoning was that, when a conviction is based upon suppressed evidence or perjured testimony, that the defendant was not given a fair trial. Therefore, it would seem that, had the Trevino case actually had been a case where the prosecutor had withheld the second statement from Trevino’s lawyers, the defendant would have a solid case. The lawyers could rely upon the Brady ruling, which would mean that Trevino was denied his right to a fair trial, because exculpating evidence was withheld both from the jury during the guilt phase, and the judge during the penalty phase. However, the facts on Trevino are not that cut-and-dried. For one thing, there was a question of fact as to whether or not the prosecutors did actually disclose the second statement. The prosecutors filed an affidavit stating that they did disclose the statement. Defense attorneys filed a counter-affidavit stating that the prosecutors did not disclose the statement. The Circuit Court further found that Rey’s second statement was not material, affirming the District Court’s decision regarding the statement. The Circuit Court’s states that, under the Brady ruling, evidence is considered to be material if, had the evidence been available at trial, it would have changed the outcome of the trial. The Circuit Court states that the evidence strongly favored the prosecution, with regards to whether or not the prosecution had actually disclosed the statement to defense attorneys prior to trial. Moreover, the Circuit Court stated that the evidence was not material, ie, if the evidence was disclosed, the trial would not be different. This is because, even though Rey’s second statement exculpated Trevino for the actual murder, Rey’s third statement inculpated him – in Rey’s third statement, he told the police that Trevino was with Cervantes in the woods, and that Trevino came up and told Rey that “they killed her,” and that Trevino had blood on his shoes. In other words, the third statement would have negated the second statement. The Circuit Court also reasoned that, if anything, disclosing Rey’s second statement at trial would have done more damage to Trevino’s case than the non-disclosure. That is because the defense attorneys would have had to put Rey on the stand, in order to authenticate the Rey’s second statement. At that point, the prosecutor would have cross-examined Rey with Rey’s third statement, which was very damaging. Therefore, the defense attorneys were better off not calling Rey to the stand at all, and putting Rey on the stand would have caused more damage than not. Therefore, not disclosing Rey’s second statement was deemed immaterial, because, if the statement were disclosed properly, it would not have affected the outcome of the trial. The Circuit Court therefore found that Trevino’s claim for ineffective assistance of counsel failed for the same reasons as above. According to Strickland v. Washington, 466 U.S. 668 (1984), there are two factors in showing that counsel was deficient – 1) that the performance was deficient and 2) that the deficiency prejudiced the defendant. According to the Circuit Court, Trevino cannot show prejudice from the ineffective assistance of counsel for the exact same reason that he could not show that the second Rey statement was material – that Trevino wasn’t prejudiced by the alleged ineffective assistance of counsel because, even if the counsel was “effective,” which would mean that they noticed Rey’s statements and used them, the outcome would have been the same. And, the Circuit Court found that the attorneys were not effective – the attorneys made the reasonable calculation that putting Rey on the stand would inculpate the defendant, so they strategically decided not to put Rey on the stand. Therefore, this was not evidence that the counsel was ineffective, but was, instead, evidence that the attorneys were shrewd. This was the reasoning of the Circuit Court who heard Trevino’s appeals. The attorneys for Trevino’s Supreme Court appeal, however, have different arguments. They state that Trevino’s counsel was deficient, and that the counsel for Trevino’s state habeas was also deficient, which is the reason why Trevino’s state habeas was procedurally defaulted. And, when the state habeas attorney is the reason for the procedural default at the state habeas level, then this is a narrow exception to the rule that a procedural default precludes further review (Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). When counsel is ineffective at the state habeas level, according to Martinez, then this excuses the default. Martinez is on point for the case at bar – Martinez is an Arizona case, and in Arizona, as in Texas, there is a two-track procedures for post-conviction relief - direct appeals, and collateral proceedings. The collateral proceedings in both state is where an ineffective assistance of counsel claim must be raised. In Martinez, the Supreme Court found that, while, generally, ineffective assistance of counsel claims must be brought in the first state habeas proceedings, if they are not properly raised because the attorney for the state habeas proceedings is ineffective, then this is the exception to the general rule, and excuses the procedural default. The attorneys for Trevino on the Supreme Court appellate level recited facts which the Circuit Court did not take judicial notice of, which means that the Circuit Court did not use these facts in their decision to uphold the District Court’s decision that Trevino had exhausted his state habeas proceedings, therefore was not eligible to raise the ineffective assistance of counsel argument. The facts that Trevino’s Supreme Court attorneys found regarded mitigating circumstances which would have been relevant for the penalty phase, but not the guilt phase (Trevino v. Thaler, No. 11-10189). Among the facts that were uncovered by the federal habeas attorney, who entered the case after the state habeas attorney withdrew for psychological reasons, were that Trevino’s mother was emotionally unstable and physically abusive; that Trevino’s mother abused alcohol throughout her pregnancy; that, because Trevino’s mother abused alcohol throughout her pregnancy, Trevino weighed only four pounds at birth, and was in the hospital for the first few weeks of his life; that, throughout Trevino’s life, he suffered from the effects of fetal alcohol syndrome, along with suffering from his mother’s physical and emotional abuse; that Trevino suffered numerous head injuries when he was a child, and was not treated for these head injuries, because his mother and father neglected him; that Trevino was exposed to alcohol and drug abuse while he was very young, and started abusing drugs and alcohol himself at the age of 12; that Trevino became involved in street gangs and street crimes at the age of 12; that Trevino suffered, throughout his life, disability, adversity and disadvantage; that Trevino was a poor student who attended school irregularly; and that Trevino had impaired cognitive abilities (Trevino v. Thaler, No. 11-10189, Brief for the Appellant, pp. 11-12). According to the attorneys for Trevino, the reasoning in Martinez, which states that a procedural default at the state habeas level may be excused when the counsel is ineffective, applies in full force to cases decided in Texas. Martinez is an Arizona case, which has similar rules as Texas with regards to state habeas proceedings, which are dual-track with appellate proceedings, and occur simultaneously with separate counsel for both. In both Texas and Arizona, the state habeas proceedings provide the first occasion for the inmate to present the record that is required to establish ineffective assistance of trial counsel. In both Texas and Arizona, there was a conscious attempt by the legislature that the inmate’s claims for ineffective assistance of counsel would be heard at the collateral proceedings, which mean, in this case, the state habeas proceedings. Because of the fact that the state habeas proceedings is the only place where an ineffective assistance counsel claim can be raised in Texas, this means that, if there is a procedural default at the state habeas level, then no court can review the ineffective assistance of counsel claim, which, in turn, means that the fairness of the trial may forever go unaddressed (Trevino v. Thaler, No. 11-10189, Brief for the Appellant). What the attorneys for Trevino argue is that the evidenced of Trevino’s fetal alcohol syndrome and other issues might have been persuasive for the jury at the penalty phase. This means that at least one juror could have been persuaded by the evidence to sentence Trevino to life in prison, as opposed to sentencing him to death. This is because the evidence might have persuaded the jury with regards to Trevino’s moral culpability (Trevino v. Thaler, No. 11-10189, Brief for the Appellant). Conclusion The Supreme Court should allow Trevino to pursue his ineffective assistance of counsel claim, and should order a re-hearing at the trial court level on the issue of moral culpability during the penalty phase. The Circuit Court’s decision in this case was focused upon the wrong issue – the issue that they focused upon, and virtually based their decision upon, was the issue regarding the fact that the second statement of Rey was overlooked by either the prosecutor or the defendant. At any rate, the second statement was never brought in. The Circuit Court focused upon this issue, instead of focusing upon the real issue – that the state habeas attorney never developed the mitigating factors that would have perhaps swayed the jury to vote for life in prison for Trevino, instead of death. Namely, that his parents were abusive and alcoholic, andthat he, himself, suffered the ravages of fetal alcohol syndrome. As noted, Martinez is on point for this case, and Martinez states that, if the state habeas attorney if ineffective, that the defendant will get “another bite of the apple,” so to speak – in other words, the procedural default at the state habeas level may be excused, which would mean that, at the very least, Trevino would be able to pursue his claims for ineffective assistance of counsel at the state habeas level again. Otherwise, the defendant will never get his ineffective assistance of counsel claim heard, which means that, even if his trial was fundamentally unfair because his counsel was ineffective, he will never get this heard if the state habeas procedural default is allowed to stand. For this reason, the United States Supreme Court should overturn the decision of the Circuit Court, and allow Trevino to pursue his ineffective assistance of counsel claim at the State habeas level. Cases Used Brady v. Maryland, 373 U.S. 83 (1963). Martinez v. Ryan, 132 S. Ct. 1309 (2012). Mooney v. Holohan, 294 U.S. 103 (1935). Pyle v. Kansas, 317 U.S. 213 (1942). Strickland v. Washington, 466 U.S. 668 (1984). Trevino v. Thaler No. 11-10189. Trevino v. Thaler No. 10-70004. Read More