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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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