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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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