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Deficient counsel does not overcome convincing evidence

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Even though the 7th Circuit Court of Appeals spelled out in a 17-page opinion what defense counsel should have done during a bench trial, the appellate panel ultimately concluded the deficient representation did not prejudice the case.

Roy Smith appealed the U.S. District Court for the Northern District of Indiana’s denial of his habeas petition to set aside his criminal conviction because of ineffective counsel. In Roy A. Smith v. Richard Brown, 12-3731, the 7th Circuit affirmed the denial of the habeas petition.

Smith, serving a 90-year sentence for murder in an Indiana state prison, was charged with attempted murder and aggravated battery after correctional officers saw him stab another inmate with half a pair of scissors.

James Cupp was appointed as Smith’s public defender. Smith continually complained to the trial court about Cupp’s performance, claiming the attorney was not filing the motions he wanted and was not communicating with him.

After he was convicted, Smith obtained a review by the Indiana Court of Appeals which found defense counsel did not mount a defense but ruled Smith had failed to show any prejudice from Cupp’s performance. Smith then filed a petition for post-conviction relief which was also denied.

The District Court considered Smith’s habeas petition and agreed with the Court of Appeals that Cupp’s behavior did not prejudice Smith.

At the 7th Circuit, the judges faulted Cupp on multiple counts. It noted at trial, the defense attorney failed to explore Smith’s self-defense motive, did not point out inconsistencies between the testimonies of two guards, and did not highlight to the trial court that none of the other inmates provided testimony and the victim himself refused to identify his attacker.

Moreover, the 7th Circuit criticized Cupp for offering a closing argument that was a little more than “just a throat-clearing exercise.”

However, the appellate panel pointed out the evidence was overwhelming against Smith, and Cupp did not abandon his client nor egregiously fail in his representation of the defendant.

“… against the overwhelming weight of the state’s evidence, he did not have many promising options,” Judge John Tinder wrote for the court. “Considering prejudice, or its absence, is particularly important when a lawyer’s deficient representation is at least in part influenced by the utter weakness of the defendant’s case.”

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  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

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