ILNews

Deficient counsel does not overcome convincing evidence

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

ADVERTISEMENT