The United States District Court for the Eastern District of Pennsylvania reviewed the Constitutional standard for the Sixth Amendment to the United States Constitution´s guarantee of counsel for criminal matters in the recent matter of U.S. v. Keller, 2013 WL 6409360.
Keller, an attorney, was a defendant in a criminal case where he was convicted of wire fraud consequent to misappropriating his clients´ money which he held in escrow for them. After his conviction, Keller moved to vacate his conviction on the basis of having ineffective defense counsel pursuant to the Sixth Amendment, which is the subject of the above-cited case. In order to warrant a reversal of a criminal conviction on the basis of ineffective counsel, Keller had to demonstrate that his attorney´s performance was deficient and that his attorney´s deficient performance prejudiced his defense.
In order to demonstrate that his attorney´s performance was deficient Keller had to show that his attorney´s conduct was not just deficient, but below an objective standard of reasonableness. An objective standard of reasonableness means that the lack of success of a particular tactical decision is not necessarily evidence of deficient performance. The court will not engage in hindsight to evaluate an attorney´s decisions. To demonstrate prejudice, one must apply a “but for” analysis where one must show that the negative result of a trial (e.g., the conviction) would not have occurred but for the deficient representation.
Keller listed a multitude of issues which he believed demonstrated deficient representation to warrant setting aside his conviction; the Court disagreed with each one and each will be briefly described below.
First, Keller claimed that an agreement between the prosecutor and his attorney regarding certain evidentiary issues demonstrated a conflict of interest as Keller claimed his attorney wanted to “go easy” on the trial judge in order to curry favor with the trial judge in a concurrent civil case his attorney coincidentally also had with the trial judge. The Court rejected this argument, pointing to a lack of evidence and the fact that the evidentiary issues were not really in dispute.
Second, Keller took issue with the fact that his attorney did not oppose the prosecutions´ admission of recorded conversations as evidence. The Court rejected this argument on the basis that no viable argument for their inadmissibility could be articulated, nor did Keller attempt to make one in his motion. The Court made it clear that failing to raise non-meritorious arguments does not amount to deficient legal representation. Keller subsequently argued that these recordings were obtained through duress and/or were unfairly prejudicial or coercive. He also claimed that the transcripts for the recordings were flawed. These arguments were rebuffed by the Court, which indicated that pressure to reach agreements is not necessarily duress and there was no prejudice as an undercover investigation is, under applicable law, explicitly not prejudicial or coercive. Regarding the transcripts, the trial judge specifically instructed the jury to give weight to the recordings over the transcripts for the same if discrepancies were found between the two; regardless, Keller never identified which portions of the transcript were inaccurate. Indeed, Keller offered testimony to explain the above during the trial so the jury which convicted him was completely aware of the issues at play. Therefore, Keller´s attorney electing not to object to the above was not deficient.
Third, Keller was critical of his attorney´s handling of witnesses. The Court noted that Keller did not demonstrate that his attorney´s decisions regarding witnesses had any effect on the outcome on his trial. Further, the additional witnesses Keller wanted to be called (who his attorney did not call) did not amount to deficient counsel as the Court believed their testimony would only have amounted to cumulative evidence anyway. Besides, the Court noted, the witnesses his attorney elected not to call had their own set of credibility issues (e.g., one uncalled witness was Keller´s fiancée) to make the decision not to call them tactically justified. The trial judge also gave Keller´s attorney significant deference in how aggressively he examined the witnesses especially considering the tactical options open to him.
Fourth, Keller then complained that his attorney did not make an issue of the fact that one of the jurors audibly complained of the length of deliberations and that another juror held the hand of the victim during sentencing. According to the Court, even if both of the above were true, neither action evidenced enough prejudice to warrant setting aside the conviction. Moreover, Keller does not make any allegation that the above actually resulted in prejudice, confirming the trial judge´s ruling on the matter.
Fifth, Keller lists a variety of times he believed his attorney should have objected to testimony on the basis of hearsay. However, the Court rejected this argument as well as Keller failed to demonstrate that the testimony at issue was actually inadmissible. Indeed, the Court found that the testimony highlighted by Keller was either admissible or was strategically allowed to be entered in as evidence to help his case; regardless, Keller did not demonstrate that the admission of the testimony at issue led or contributed to his conviction.
Sixth, Keller took issue with his attorney not raising the issue of alleged false grand jury testimony. However, the Court was not persuaded by this argument noting the extremely high standard (which is unlikely to be met) to successfully make an issue of testimony before a grand jury and that, even if Keller is correct, it would have had no effect on his indictment.
Finally, Keller raised complaints about his attorney´s performance during sentencing. Keller´s initial argument regarding his attorney´s alleged failure to object to the amount calculated as damages was simply factually wrong as, according to the Court, he did object. His subsequent argument claiming the lack of character witnesses called by his attorney was rejected by the Court as Keller´s own testimony conflicted with the testimony he claimed he wanted elicited from his potential witnesses. He concluded by criticizing his attorney´s failure to raise an argument regarding the alleged insufficiency of evidence at the trial to prove his criminal intent, but the Court was not persuaded by this argument either as the Court ruled that any arguments to that effect were not meritorious anyway.
As can be seen above, the standard to successfully prove one had ineffective counsel sufficient to meet Sixth Amendment scrutiny is extremely high, which should be of some comfort to practitioners. Ultimately, regardless of the multitude of arguments presented by Keller, none could meet the basic two prong test his arguments had to pass, namely that: (1) an attorney´s representation must be objectively below standards and (2) the poor representation must result in a negative outcome.
Originally published in Upon Further Review on June 16, 2014 and can be seen here.