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Ethics

: Legal Ethics Forum

Supreme Court Update

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The Supreme Court's 2010 term opened with five cases involving the law of lawyering on the docket, and we're now up to a total of eleven by my count. Here are the cases, those decided listed first, then argued but not decided, followed by a list of cases that the Court will hear in the upcoming weeks.

Cases Decided

As I predicted in a post last fall, the Court reversed the Ninth Circuit's finding of ineffective assistance of counsel in Harrington v. Richter, where the defense attorney used vigorous cross-examination and other methods to create reasonable doubt rather than expert testimony and forensic evidence about blood found at the murder scene. (Opinion here.) On the same day, the Court reversed the Ninth Circuit again and found no ineffective assistance of counsel in Premo v. Moore, where the defense attorney did not move to suppress a coerced confession. (Opinion here.) Justice Ginsburg filed a concurring opinion in both cases. In Harrington, she agreed with the Ninth Circuit that in failing to consult blood experts the defendant's counsel was ineffective, but that the defendant was not prejudiced by this failing. In Premo, she noted the defendant never declared that, better informed, he would have opted for trial in lieu of taking the plea. And in yet another reversal of the Ninth Circuit, the Court overturned attorneys' fees awarded under 42 U.S.C. section 1983 in Los Angeles County v. Humphries. (Opinion here.)

Cases Argued but Undecided

Connick v. Thompson (Argued October 6) Connick questions the imposition of failure-to-train liability on a district attorney's office. A jury awarded $14 million to a former death-row inmate who spent 18 years in prison, released after prosecutorial misconduct was revealed. More details from a previous post here.

Cullen v. Pinholster (Argued November 9) At issue in Cullen is whether defense counsel was ineffective in failing to consult with an additional psychiatrist and more family members to produce sufficient mitigating evidence.

Cases Scheduled for Argument

Ashcroft v. al-Kidd (to be argued 3.2.11) Ashcroft questions the availability of prosecutorial immunity for then-Attorney General Ashcroft's use of the federal material witness warrant as a tool for preventative detention and investigation of terrorist suspects.

Fox v. Vice (to be argued 3.22.11) Fox involves the award of attorney's fees under a fee-shifting statute in civil rights litigation. The facts of this case are rather incredible, as the first line from the introduction of the petitioner's brief suggests: "The plot of this case reads like something out of Grisham. But the twist is pure Kafka." Here is the link to the brief, in case you want to read more...

Turner v. Price (to be argued 3.23.11) Turner addresses an indigent defendant's constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. Turner was jailed for failure to pay child support (he had no money to make the payments), and was neither represented by counsel nor advised by the court about his right to counsel.

Missouri v. Frye and Lafler v. Cooper (unscheduled) These cases involve separate appeals but are linked together because they address the same issue: whether bad advice from a lawyer during plea negotiations may impact a subsequent guilty verdict. Frye's attorney neglected to inform him about two deals offered by prosecutors before he pled guilty. Cooper was advised against taking a plea deal by his attorney only to be found guilty.

US v. Jicarilla Apache Nation (unscheduled) Here the federal government is claiming attorney-client privilege in an effort to withhold information from the Jicarilla Apache Nation Indian tribe about property the government holds in trust on the tribe's behalf.