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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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