Thu, Nov 08, 2007 - Page 9 News List

How bad could bad legal advice get? It could cost you your life

By Linda Greenhouse  /  NY TIMES NEWS SERVICE , WASHINGTON

Eighteen years have passed since an Idaho murder defendant took his lawyer's advice and rejected the state's offer of a guilty plea that would have resulted in a life sentence.

The defendant, Maxwell Hoffman, went to trial instead, and was sentenced to death for participating in the murder of a government informer.

A federal appeals court eventually ruled that the lawyer's advice reflected such bad judgment that it did not meet the guarantee of effective assistance of counsel in the Sixth Amendment. On Monday, the US Supreme Court announced that it would use the case to decide how appellate courts are to evaluate claims of ineffective assistance of counsel in plea negotiations.

To that question, posed by Idaho's attorney general in the state's appeal, the justices added a question of their own: What should the remedy be for bad legal advice during plea negotiations if the defendant is later convicted and sentenced after a fair trial?

In its opinion, issued in July of last year, the 9th US Circuit Court of Appeals granted Hoffman's petition for a writ of habeas corpus and gave Idaho the choice of offering him the same plea agreement that he turned down in 1989 or releasing him from confinement.

The Idaho attorney general, Lawrence Wasden, is arguing in the appeal that the 9th Circuit incorrectly concluded that Hoffman's legal representation was unconstitutionally deficient. A defendant should have to show not just bad judgment but "gross error" by the defense lawyer, the state's brief maintains, explaining that such a high standard is needed to keep appellate courts from second-guessing a defense strategy with the benefit of hindsight.

GROSS ERROR

Although a 1970 Supreme Court decision, McMann vs. Richardson, referred to a "gross error" standard, the court has not elaborated on that requirement in the intervening decades. Hoffman's current lawyers are arguing that the court effectively rejected that standard in 1984, when it decided the case that has provided the modern framework for evaluating claims of ineffective assistance of counsel.

The 1984 case, Strickland vs. Washington, requires defendants to prove both "cause" -- a quality of legal representation that is objectively deficient -- and "pre-judice," proof of harm from the lawyer's behavior. In 2003, the court applied the Strickland case to overturn the sentence of a man on Maryland's death row on the grounds that the defense lawyer had failed to investigate and present to the jury facts of his client's personal history that could have led jurors to spare his life.

In the new case, Arave vs. Hoffman, the 9th Circuit concluded that Hoffman had met both prongs of the Strickland test. The court found that Hoffman's court-appointed lawyer, William Wellman, who had never before handled a murder case, failed to conduct "reasonable research into the legal landscape" before advising his client to reject the guilty plea. The appeals court also found a "reasonable probability that the outcome of the proceedings would have been different had counsel acted competently."

It was the defense lawyer's misfortune to receive the assignment in Hoffman's case at a moment when death-penalty law was in a particularly high state of flux. Just six weeks before Idaho offered the plea bargain to Hoffman, the 9th Circuit had invalidated Arizona's death penalty law on the ground that it gave too much fact-finding power to the judge. Since Idaho's death penalty law was indistinguishable, and Idaho is also in the 9th Circuit, Wellman reasoned that even if his client received a death sentence, it would be overturned on appeal.

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