Ineffective Assistance, Strategic Decisions, and Making a Record

The U.S. Supreme Court wrapped up its October 2020 Term with a summary reversal of a federal court of appeals decision for — you guessed it — giving the state court insufficient credit as required by the Antiterrorism and Effective Death Penalty Act’s so-called “deference” provision, 28 U.S.C. § 2254(d). This time it was the Eleventh Circuit, further undermining my old “circuits divisible by three” rule.

The twist in Dunn v. Reeves, No. 20-1084 is that the Eleventh had based its holding on Justice Sotomayor’s dissent from denial of certiorari earlier in the same case. The unsigned opinion of the Court rebukes the Eleventh for its failure to properly observe § 2254(d), noting that the case is in a different posture on habeas corpus than on the Supreme Court’s direct review of a state court decision. Despite that difference, Justice Sotomayor is livid, with a dissent as long as the opinion of the Court.

Once more, with feeling, one and only one federal court has appellate jurisdiction over state courts. That is the United States Supreme Court. The federal district courts and courts of appeals do not. They do have jurisdiction to hear collateral attacks on the judgments of state courts sending criminal defendants to prison, but the grounds for a collateral attack on the judgment of a coordinate court are considerably narrower than the scope of review by a higher court hearing an appeal from a lower court.

State courts are not bound by precedents of the lower federal courts. They can exercise their own judgment in interpreting constitutional requirements within the bounds set by U.S. Supreme Court precedent. Congress made this clear in § 2254(d)(1) when it limited federal habeas courts to asking whether a state court’s ruling on a matter of law was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” A quarter century hence, many federal judges still resent Congress’s curtailment of their power to overturn mainstream state-court decisions merely because they disagree with them. The “massive resistance” campaign continues, and the Supreme Court must regularly, and often sternly, correct violations of § 2254(d).

This brings us to the tar pit of ineffective assistance of counsel. This is the single most popular claim of murderers trying to avoid execution, and it is easy to see why. This is the one claim that even the most diligent prosecutor can do almost nothing to foreclose. Capital litigation seminars for prosecutors teach in great detail how to protect a judgment by detailed documentation at every step of the trial, but the prosecution has no access to defense counsels’ reasons for doing what they do. It’s all behind a cloaking device straight out of Star Trek.

In its 2003 decision in Massaro v. United States, the Supreme Court recognized that effectiveness of counsel must generally be litigated on collateral review, not appeal, because the needed facts are rarely in the trial record. This is particularly true when the claim relates to what trial counsel did not do, as in this case. “The trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them.”  538 U.S. 500, 505 (emphasis added). The reasons are essential. Calling a witness very often has a potential downside as well as an upside, and weighing them is central to trial strategy. A strategy call is not ineffective assistance merely because it appears to be the wrong call in hindsight.

The best evidence of the underlying reasons is generally the testimony of trial counsel. Of course, that evidence may not be available. The trial may have been a long time ago. Trial counsel may be dead, may have dementia, or may simply not remember. But where the best evidence is available, the failure of the party with the burden of proof to introduce it is a “curious incident,” as Sherlock Holmes put it.

The big brouhaha in this case is whether the opinion of the Alabama Court of Appeals is correctly interpreted as establishing a per se rule that the failure of the habeas petitioner to call the defense counsel as a witness is necessarily fatal to his case every time. The opinion of the Court does not read it that way; the dissent and the Eleventh Circuit do.

To give a bit of the flavor of the debate, the Eleventh Circuit says that the Alabama Court of Appeals “explained that Mr. Reeves’ ‘failure to call his attorneys to testify [was] fatal to his claims of ineffective assistance of counsel,’ because without such testimony ‘the record is silent as to the reasons trial counsel . . . chose not to hire Dr. Goff[.]’ ”

The Supreme Court chides the Eleventh for truncating the quote: “But that quote was not quite complete; the original sentence reads, ‘In this case, Reeves’s failure to call his attorneys to testify is fatal to his claims of ineffective assistance of counsel.’ ” (Slip op. at 6-7, emphasis added by the Supreme Court.)

Does it matter whether the state court applied a per se rule or not? The statute refers to the decision, not the opinion, of the state court. That court is correct that the petitioner has the burden of proof. It is correct that counsel’s decisions are presumed to be valid strategy and the petitioner must prove to the contrary. And it is correct that in this case the failure to call counsel as witnesses left the record silent on an essential element of the petitioner’s case.

Justice Sotomayor responds with the odd assertion that the prosecution’s failure to call the attorneys is just as telling the other way. The situation is not symmetrical. Witnesses sometimes surprise the party calling them. The petitioner has the burden of proof. It would be perfectly valid strategy for the state’s collateral review attorney to conclude that the petitioner had not carried his burden and not to call a witness, even if that witness was expected to testify favorably. Quit while you’re ahead.

State court decisions that are actually so far wrong as to qualify for the § 2254(d)(1) exception to the relitigation bar are quite rare.  The provision was intended to limit relitigation to correcting “extreme malfunctions” of the state court system. Those are uncommon, and they are particularly uncommon in capital cases, which receive the greatest attention from the state courts. Reeves got a fair review of his case from the state courts, and that should have been the end of it. The pointlessness of extended relitigation of the penalty when guilt is clear is illustrated by the facts of the case. Today’s opinion properly begins with them:

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road. In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.

This was 23 years ago. The only injustice in this case is that the thoroughly deserved penalty has taken so long to carry out.