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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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