Nothing to lose
In Knowles v. Mirzayance, decided yesterday, the U.S. Supreme Court denied Mirzayance's claim of ineffective assistance of counsel where his attorney declined to present his only available defense during the insanity phase of his trial.
In California, in a trial where the defendant enters a plea of not guilty and a plea of not guilty by reason of insanity, the trial is bifurcated into a guilt phase and an insanity phase where the jury is to consider each separately. Mirzayance had presented evidence of his mental state during the guilt phase in an attempt to obtain a verdict of 2nd degree murder rather than 1st degree murder, arguing that the requisite intent was not present due to Mirzayance's illness; the jury rejected the mental illness evidence and found Mirzayance guilty of 1st degree murder.
Mirzayance's counsel then decided not to present the evidence of not guilty by reason of insanity during the second phase of the trial because it would have been futile, since the jury had already rejected the same testimony. MIrzayance's petition for post conviction relief in state court was denied, then he filed a habeas petition in federal court asking for relief, arguing that his trial counsel's decision to forgo the insanity defense was ineffective assistance of counsel because there was no other valid defense and therefore Mirzayance had nothing to lose by arguing insanity during the second phase of the trial.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Supreme Court held that there is no clearly established "nothing to lose" rule, and therefore MIrzayance's claim fails. Ineffective assistance claims must be evaluated under the Strickland v. Washington two pronged test of ineffectiveness under prevailing professional norms and prejudice to the defendant. The Court went on to hold that counsel's decision to forgo the insanity defense, even though there was no other defense available, was an acceptable tactical decision that did not fall below the standard of "reasonableness under prevailing professional norms," and that there was no prejudice to Mirzayance anyway because the jury had already rejected the testimony regarding MIrzayance's mental state.
The Court's reasoning is easy enough to follow, and I understand that the standards for what is competent representation under the 6th Amendment are ridiculously low, but it is hard to swallow that when there is only one available defense and there is nothing to lose, that counsel does not have a duty to present that defense and throw everything he's got at the jury, regardless of his odds of success. It doesn't sound reasonable under prevailing professional norms for an attorney to lay down and quit because he doesn't think the jury will agree with him. If there is not a "nothing to lose" standard for situations like this there should be - but the Court has passed by the opportunity to create one in this case.
