West Law Report

Ineffective Assistance of Counsel for Capital defendant

A leading case summery of Harvard Law Review: Schriro v. Landrigan (2007) (11 pages)

Sixth Amendment — Ineffective Assistance of Counsel

Capital defendants are not always cooperative or repentant, even at sentencing hearings determinative of their fates. Some death penalty defendants may refuse to aid in investigation of mitigating evidence, or they may actively obstruct presentation of it during the sentencing phase. Others may flaunt the purposeful nature of their killings, their lack of remorse, or their willingness to be put to death for their crimes. Courts must be aware, however, that this behavior may be due to mental illness or caused by physical and emotional abuse, a genetic disorder, or drug addiction — characteristics that may reduce a defendant’s moral culpability.

Last Term, in Schriro v. Landrigan, the Supreme Court upheld a state court’s finding that a defendant who refused to allow the presentation of mitigating evidence from his family members was not prejudiced by his counsel’s failure to investigate fully or to present other sorts of mitigating evidence. Thus, the Court held, the defendant was not entitled to an evidentiary hearing on the claim of ineffective assistance of counsel. The Court failed to analyze the context of Landrigan’s refusal, including unique concerns about particular mitigating evidence and the defendant’s background — factors that may have explained his statements and behavior. Moreover, the Court did not consider the defendant’s refusal in the context of its waiver precedents or the importance of mitigating evidence. Courts should not expand a limited refusal to present only some mitigating evidence into a complete refusal to present any mitigating evidence, nor should they allow recalcitrant behavior at sentencing to justify eradication of a defendant’s constitutional right to effective assistance of counsel.

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Supervening event effect

From The TimesMay 14, 2008

Supervening event effect
Whitehead and Another v Hibbert Pownall & Newton (a Firm) in the Court of Appeal
Court of Appeal

Published May 14, 2008

Whitehead and Another v Hibbert Pownall & Newton (a Firm)

Before Lord Justice Laws, Lord Justice Rix and Lord Justice Rimer

Judgment April 4, 2008

Where solicitors had negligently failed to prosecute a claim for damages for clinical negligence on behalf of a mother in respect of future losses for a wrongful birth, those losses were curtailed by the death of the mother; the solicitors were not liable in a subsequent claim for professional negligence brought on behalf of the mother’s estate for what amounted to a windfall in that, had her claim been brought to a successful conclusion before her death, the recoverable damages would have not have been curtailed by her death but would have extended to cover the costs of care into the future.

The Court of Appeal so held allowing the appeal of the defendant, Hibbert Pownall & Newton, formerly a firm of solicitors in Ashton-under-Lyne, and dismissing the cross-appeal of the first claimant, Eric Whitehead, suing on his own behalf and as administrator of the estate of Paula McLeish, deceased, from Mr Justice Griffith Williams who, on May 9, 2007, awarded damages to Mr Whitehead in his capacity as administrator, and dismissed the claim in his personal capacity.

Mr Bernard Livesey, QC and Mr Michael Harrison for the solicitors; Mr Gordon Bebb, QC and Mr James Counsell for Mr Whitehead.

LORD JUSTICE LAWS said that the Court of Appeal in Charles v Hugh James Jones & Jenkins ([2000] 1 WLR 1278, 1290) left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which, if taken into account in the later professional negligence claim, would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action.

That further question had arisen in the present case. It was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they happened since the notional original trial and so were by definition unknowable at that time.

Lord Justice Rix delivered a judgment concurring in the result; Lord Justice Rimer delivered a concurring judgment.

Solicitors: Davies Arnold Cooper; Donns LLP, Manchester.