Wednesday, October 12, 2005

Counsel Erred in Failing to Inform Client that Statements Made during Proffers Could Be Used Against Him, but Error Did Not Prejudice Client

Davis v. Greiner, Docket No. 04-4087-pr (2d Cir. Oct. 11, 2005) (Calabresi, Cabranes, Pooler): The Circuit affirms the district court's denial of Davis's § 2254 petition, based on a Sixth Amendment IAC claim that Davis's attorney failed to warn him that statements he made during proffer sessions with prosecutors could be used against him at trial if the plea deal collapsed. Although the Court agreed with Davis that his attorney's conduct fell below professional norms, it upheld (with some reservations) the district court's largely factual finding that Strickland's prejudice prong was not satisfied because Davis would have participated in the proffer sessions even if his lawyer had told him that his statements could eventually be used against him.

The essential facts are sad and simple. Sixteen-year-old Davis and his half-brother were recruited by their foster sister to attack the sister's ex-boyfriend, who died as a result. All three were arrested and charged with second degree murder, which carries a 25-year to life sentence.

The prosecution approached Davis's lawyer and offered Davis a chance to plead guilty to manslaughter and to be adjudicated as a youthful offender. In exchange, Davis would have to meet with the prosecution and agree to testify against his siblings.

Counsel told Davis the terms of the deal and encouraged him to take it. Counsel did not tell Davis, however, that any statements he made during meetings with prosecutors could be used against him at trial if the plea deal fell through.

Davis followed his attorney's advice. He met with prosecutors on several occasions and divulged his role in the offense. Davis then pled guilty to manslaughter.

By this time, Davis's half-brother had pled guilty. However, his foster sister went to trial. The prosecution put Davis on the stand to testify against her. Davis testified for 45 minutes but then refused to continue. He later explained that he could not continue because he saw his foster sister crying during his testimony.

Davis withdrew from the plea agreement, and the court allowed him to withdraw his guilty plea as well. At his trial for second degree murder and over objection, the prosecution introduced Davis's proffer statements against him. Davis was convicted and sentenced to 25 years to life.

After exhausting his state appeals, Davis filed a § 2254 petition in the E.D.N.Y, raising an IAC claim based on counsel's failure to inform him that statements made during proffers could be used against him at trial. The district court denied the petition, finding that Davis failed to meet either the performance or the prejudice prong of the Strickland test. The Circuit affirms.

The most notable portion of the opinion concerns its disagreement with the district court -- the Circuit's conclusion that counsel's performance fell below professional norms. As the Court saw it, given Davis's age (16), inexperience with the criminal justice system, and obvious attachment to his siblings, counsel should have made sure that his client understood not only the benefits of cooperation, but also its potential pitfalls -- including the consequences that may follow if Davis's effort to cooperate failed. The Court explained:

"Counsel failed to fulfill his professional duty to assist Davis in making an informed decision [about whether to plead or go to trial] because he neglected to apprise Davis of a crucial aspect of the agreement -- that anything Davis said during the proffer session[s] could be used against him if he did not satisfy all of the conditions of the plea offer . . . . We consider this to be a crucial aspect of the plea bargain, in part, because it essentially constituted a waiver of Davis's right against self-incrimination -- an important constitutional protection."

Op. at 14; see also id. at 15 ("By failing to warn Davis of this crucial aspect of the plea offer, Nash deprived Davis of the ability to make a fully informed decision for himself.").

Ultimately, however, the Court upheld the district court's denial of the writ because it could not conclude that the lower court's primarily factual determination that Davis would have participated in the proffer sessions anyway (i.e., even if he had been informed that his statements could later be used against him) was clearly erroneous. The district court conducted an evidentiary hearing at which several participants, including Davis, testified. And while Davis claimed that he would not have met with prosecutors had he been properly advised by counsel, the district court rejected this as "purely 'self-serving, post-conviction testimony.'" Op. at 17. It thus concluded that Davis failed to satisfy the prejudice component of Strickland.

The Circuit admittedly "harbor[ed] some doubts about this factual finding." Op. at 17. However, because "[o]ur doubts . . . are not sufficient to permit us to conclude that the district court's factual determination was clearly erroneous," given the "highly deferential" nature of appellate review over that court's factual findings," the decision below was upheld. Op. at 17-18.


Anonymous Mark Mahoney said...

Was there no issue raised as to the competence of the lawyer who allowed his client to agree to such a provision at allk, apart from making sure the client understood it?

October 13, 2005 at 10:57 AM  
Blogger Yuanchung Lee said...

It's even worse than that -- Davis's attorney not only failed to seek a "non-use" agreement barring the use of statements made by Davis during the proffers (standard, in a limited form, in the federal "Queen-for-a-Day" proffer agreements I've seen), but did not even accompany his young client to the proffers!

Davis raised these 2 points, along with the issue discussed in the Circuit's opinion, in his § 2254 petition. However, Davis sought & received a certificate of appelability only on the single issue discussed in the Circuit's opinion, so that's the only one addressed by the Court.

October 13, 2005 at 4:36 PM  

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