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. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

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  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.