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7th Circuit: counsel assistance wasn't ineffective

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A defendant didn't receive ineffective assistance of counsel when his attorneys failed to raise the issue of comments made by his victim's mother during the trial, the 7th Circuit Court of Appeals ruled.

Terry Brown challenged the denial of his petition for post-conviction relief and the District Court's denial of his petition for habeas corpus. During his murder trial, the mother of one of his victims said that "the situation was racist" while she was observing the trial, and while out on the courthouse steps, she said that the courthouse should be treated similarly to the World Trade Center and bombed. She made the comments shortly after Sept. 11, 2001.

Brown's trial counsel declined to request a hearing to determine the impact of the statements on the jury. His appellate counsel didn't raise the issue on appeal.

In order to prevail on his ineffective assistance of counsel claims, Brown had to prove the assistance was objectively unreasonable and resulted in a substantial risk of prejudice, but he failed to prove either.

Given that both Brown and his victim are African-American, it's not clear how the jury would interpret the remark in a manner injurious to Brown, wrote Judge Richard Cudahy in Terry C. Brown v. Alan Finnan, No. 08-3151. In addition, the jury may or may not have heard the comment, so it's reasonable for counsel to not elect to request a hearing following the mother's comments.

"An able attorney might well conclude that his client's cause would best be served by not drawing the jury's attention to issues that are largely, if not completely, irrelevant to his client's guilt or innocence," wrote the judge.

The Circuit Court disagreed with Brown's argument that Remmer v. United States, 347 U.S. 227, 229 (1954), compels a hearing.

With regards to the mother's comments outside the courthouse, Brown hadn't made any showing that any jurors heard or knew of the comments about bombing the courthouse. He just alleged a juror may have heard the comment, which is an insufficient basis for establishing a Remmer hearing. And even if there was some evidence a juror heard the comments, it's not clear that they would have prejudiced Brown, wrote Judge Cudahy.

Brown also failed in his claim for ineffective assistance of appellate counsel. There's no evidence any juror heard the mother's comments outside the courthouse and her in-court comment on the situation was ambiguous and innocuous. There was no need for a hearing and a reasonable appellate counsel could wisely disregard the mother's statements in favor of the issues that weigh on Brown's guilt and sentence.

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  1. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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