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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues