Comments on Akbar, pt. 3 -- IAC

In this post, I’m going to look at the ineffective assistance of counsel (IAC) allegation in the unpublished Akbar opinion that relates to the mitigation investigation, findings phase, and presentencing phase.  In the next post, I’ll use the unpublished Akbar opinion as a platform to discuss admission defenses and mitigation in a capital case.  My last post will be on the Ring/Apprendi issue, and then I’ll give this case a rest.

To start, I’m going to restate the Strickland test to make it flow a little better, and then we’ll look at the unpublished Akbar opinion.  First, counsel are presumed competent.  The framework for analyzing an accusation of IAC is: did the counsel actually do what the appellant says they did?  If so, was that action an error?  You check for error by asking: what was the expected standard; did that action fall measurably below that standard; and was there a reasonable explanation for the action?  If there was error, then you test for prejudice.  That test is: absent the errors, would there have been a different outcome. 

The court’s reasoning in the IAC section, when combined with its reasoning about whether the counsel were qualified, is unusual.  The Akbar court should have applied the Strickland test, outlined in Green, which the court cites at the beginning of its discussion of IAC.  Instead, when testing for IAC, this court never clearly follows Strickland.  Instead, it “defer[s] to qualified counsel to determine what evidence should be presented and presume that because counsel in this case were qualified, their strategic decision were sound; therefore, appellant did not receive ineffective assistance of counsel” (p. 50-51).

In an earlier post, I discussed how that is not the appropriate test to apply.  The court is supposed to look at the counsel’s actual performance (a retrospective analysis).  Instead, the court decided to declare the counsel “well-qualified” without actually stating what standards make you “well-qualified,” and then relied on its own proclamation that the counsel were qualified to “defer” to those counsel’s decisions -- which essentially means that the court would not rigorously apply Strickland. 

A serious flaw with this reasoning is that even qualified counsel can commit IAC.   We should expect that qualified counsel will not commit IAC, but they can, and if there is an allegation that they did, the courts still need to apply Strickland – and not just say, the counsel met the “learned counsel” qualification (or whatever it is for that jurisdiction), so we won’t analyze the underlying allegation.  Remember, the test for IAC is retrospective.  The test for “qualified counsel” in those jurisdictions that have adopted a standard (we haven’t) is prospective, and is litigated early in the case if the defendant thinks he has not received qualified counsel.

The Strickland line of cases often uses deferential language, but that language is in the context of the test itself, which is extremely deferential: the counsel’s actions have to have been unreasonable and have fallen measurably below the professional norms.  To protect against Monday morning quarterbacking, the Court devised a test that essentially says the mistake has to be really, really bad.

Applying Strickland is difficult in capital cases. Take a look at part of the test for error – “the counsel’s performance fell measurably below expected standards.”  To apply that test, a reviewing court will have to come up with what those expected standards are for each allegation.  The Wiggins (539 US 510) and Strickland (466 US 668) Courts stated “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”  In capital cases, that requires looking at unfamiliar sources (like the ABA Guidelines) and taking evidence from those that practice in the field and who know what the standards are.  The standards themselves evolve as the national practice improves.  

Let’s look at the allegations in this case and the court’s reasoning when dealing with them.

Toward the mitigation investigation, the defense appellate attorneys alleged that the trial defense counsel failed to fully investigate Akbar’s social history, ignored information, and quit using their mitigation specialists. 

The court should have applied Strickland, but does not clearly apply that test.  We don’t know which of these actions the court believes the counsel actually took, but from the discussion, it appears that the court thinks the counsel did terminate the investigation at some point, but maintained communication with the primary mitigation specialist.  The court cites the counsels’ affidavit, where they state that “The information [the mitigation specialist] was uncovering, while interesting in the abstract, did not add much evidentiary value to the detailed review already conducted by [an earlier specialist],” which appears to go toward the allegation that they ignored information. 

Assuming the accusations are true, to know if those actions are error, we need to determine the applicable standards and see if the counsel were unreasonable in their decision and fell measurably below that standard.  In this section, the court appears to reach back to the 1994 Loving opinion for a standard: “What is required is a reasonable investigation and competent presentation of mitigation evidence.”  The court pulls some language from Wiggins that says, “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant,” but that language is essentially describes actions that fall outside the actual test.  Here is the Strickland/Wiggins test: “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  The Wiggins Court explains that reasonableness is measured by the prevailing professional norms, and the Court in Wiggins sanctions looking at the ABA Standards and Guidelines as guides to what those prevailing norms were when deciding that case.

However, the Akbar court never conducts the underlying analysis.  The court just defers to “qualified counsel” to make decisions on when to terminate the investigation and on whether the information that was uncovered was not of much value.  But that is the whole issue – were those decisions error.  Maybe it was unreasonable and measurably below professional standards to end the investigation.  Maybe there were still reasonable lines of investigation to pursue (and not just conceivable ones that would not assist the defendant.)  Maybe it was unreasonable and measurably below professional to decide that the uncovered information was of no real value. 

The Court in Wiggins looked closely at the counsels’ actions rather than simply showing them deference.  However, this court did not.  We don’t have any substantive discussion of whether the counsels’ actions and decision were error.  I don’t know if the counsel made an error in this phase – they may, in fact, have made really good decisions.  The point is that we need to analyze the problem precisely, using the Strickland framework.

Last, the court does seem to apply the last prong of Strickland, stating the appellate attorneys had not brought forth any new evidence that would alter the outcome of the case.  If that was the case, then maybe the best thing for the court to do in this section would have been to say something like, “We don’t need to address whether the counsel actually did what the appellant says, or whether those actions were error, because the appellant has failed to show any prejudice.”

The discussion on IAC in the findings was also unusual, but in this section, the court seems to follow the Strickland framework a little more closely.  The unusual part is that the court appears to have combined an allegation that the defense conceded every element of the capital offense with an allegation that the defense committed IAC when devising a trial strategy, although this could have been how the parties framed the issue.

Under Article 45, an accused cannot plead guilty to a capital offense, and under Dock, 35 M.J. 627, and McFarland, 23 C.M.R. 320, an accused cannot plead guilty to a lessor included offense or to an equivalent offense if it practically amounts to a plea to the capital offense.  Akbar did not plead guilty to a lessor or equivalent offense, so it appears that the appellate attorneys were looking to extend Dock to a case where the defense does not formally plead guilty (or even use a confessional stipulation), but concedes every element at trial.  The court did not address this legal issue but points out that the defense did not overtly concede the premeditation of the capital offense.  The defense argued throughout the merits that Akbar was mentally ill, short of what is required for a lack of mental responsibility defense, and so could not premeditate.  (I will discuss this more in the next post).

Turning to the trial strategy issue, the threshold question – did the counsel actually follow the alleged strategy – was easy to answer.  They did.  The next question should be, was that error.  The court cites a few sources that indicate that this type of a strategy is an accepted practice in a capital case, and I agree that it is.  See here.  The court does not call this strategy “an admission defense,” but that is what it is.  At this point, the analysis pretty much ends.  This type of strategy is not error.  In fact, it is good strategy.  (I will discuss in the next post the nuances of using an admission defense to address premeditation).  The court then spends several pages showing how the defense brought out evidence to support their theory during the government’s case in chief, and in their case in chief. 

The last section, the one that deals with the presentencing case, also has unusual reasoning.  The defense sentencing case was thirty-eight minutes long.  From the opinion, it is hard to tell what the actual allegation is, but it appears that the claim is that a thirty-eight minute sentencing case in a capital trial is per se measurably below standards and unreasonable.

The court does not clearly follow Strickland.  If they had, the first question – is the allegation factually true – is easy to answer.  That was how long the case was.  Next we turn to error.  The court appears to define the professional standard as “telling the client’s life story.”  Again, I think the court should have stated what the prevailing professional norm is (I think it is to do more than to tell the life story).  The court then says that by itself, thirty-eight minutes would be error, but says that because the defense gave the panel a “Good Soldier Book” and the panel got to look at the book overnight, that was good enough.  Essentially, this did not fall measurably below the court’s standard.

I think that is a tough sell.  I think the better argument is that the defense successfully introduced most of the extenuating and mitigating evidence during the merits phase, and if you look at the twelve-page discussion of the merits case, it appears the defense did a pretty good job getting in good extenuation and mitigation evidence.  I think the better argument is that the thirty-eight minutes during the presentencing hearing is not an accurate measure of the whole presentencing case.  The military judge did a nice job summarizing the mitigating evidence during the presentencing instructions, and much of that came out during the merits.

Again, the court did not clearly apply Strickland and uses the “defer to qualified counsel” test instead.  I think that if the appellate court clearly applied Strickland – like the Court in Wiggins did – their conclusion that the counsel did not commit IAC could be defensible.  However, it might also turn out that if the prevailing standards in 2003-05 are clearly laid out, that the counsels’ actions were measurably below those standards.  The key is that when working these problems, we need to apply precise analysis.

Okay, so the next post will be a teaching opportunity for me to discuss admission defenses and mitigation.  I’ll challenge you to look at the military judge’s sentencing instruction on mitigation and then label each one as lingering doubt, reduced culpability, shared culpability, or not generally persuasive, and discuss how to construct an admission defense in a case like this.

LTC Carpenter