Justices find ineffective assistance in case

Michael W. Hoskins
January 1, 2008
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The Indiana Supreme Court has determined an appellate attorney rendered ineffective assistance in an Evansville kidnapping case that resulted in a police dog being fatally shot 10 years ago.

A unanimous court ruled Feb. 27 in Antwain Henley v. State of Indiana, No. 82S05-0701-PC-31, which comes from a Vanderburgh County case at the post-conviction relief stage involving a pro se litigant. The Court of Appeals panel issued a ruling in October 2006, reversing and holding in favor of the defendant Henley, and remanding for a new trial. The Supreme Court granted transfer last year and heard arguments in April.

The case goes back to August 1998, when Henley kidnapped two women at gunpoint and forced them into their car's trunk, after having them remove their clothes. Police stopped the car and Henley ran; officers used a canine to track him into a van, where he fatally shot the dog inside. A jury convicted him on several felony counts the following year, after litigation disputes about whether Henley was representing himself or having standby counsel assist, and he received an 80-year sentence. On appeal, Henley's attorney raised 10 issues but four were waived for lack of cogent argument and citable authority.

Last year, the sole argument that won the three-judge panel's reversal was an assertion that direct appeal counsel provided ineffective assistance by failing to challenge the trial court's summary denial of Henley's request that standby counsel during trial deliver closing arguments. At the time, the trial court had determined Henley was proceeding pro se.

Writing for the court, Justice Robert D. Rucker reversed the post-conviction ruling on an issue not addressed by the Court of Appeals because of the appellate attorney's ineffective assistance.

The lawyer representing Henley on appeal should have challenged the sufficiency of the evidence, since a conviction on the attempted murder charge requires proof of a specific intent to kill, Justice Rucker wrote. Evidence in this case reveals that, as he was fleeing from police, Henley shot his gun in an attempt to ward off an attack by a large dog and protect himself, not that he was trying to kill the canine officer. Though a jury rejected that argument, Justice Rucker said the record doesn't include any evidence to support the claim and that intent wasn't established beyond a reasonable doubt.

"In this case, the Court of Appeals on direct review did not actually adjudicate Henley's sufficiency of the evidence claim. This was so because although appellate counsel presented the issue, he did such a poor job that the court declined to address the claim on grounds of waiver," Justice Rucker wrote. "We are persuaded that had appellate counsel presented cogent argument with citation to relevant authority challenging the sufficiency of evidence to support the attempted murder conviction, the outcome of the appeal would have been different, namely, the conviction would have been reversed."

While ruling that appellate counsel didn't adequately challenge the evidence of intent, Justice Rucker also made an interesting footnote that a similar legal issue is being argued in March before the U.S. Supreme Court, and that decision could change the analysis of this state case.

That case is Indiana v. Edwards, 128 S. Ct. 741 (2007), and questions whether states may adopt higher standards for measuring competency to represent oneself at trial than for measuring competency to stand trial. Arguments are set for March 26.

"The outcome of Edwards may have a bearing on our analysis in this case," Justice Rucker observed. "But we are bound by the present state of the law, which declares that competency to represent oneself at trial is measured by competency to stand trial. Henley concedes that he was 'competent to waive counsel and represent himself in spite of his mental retardation.' We are compelled to agree."

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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. 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.

  4. 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.

  5. 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.