holding that graphic nature of murder weighs against finding of prejudice
How later courts described this case
- holding that graphic nature of murder weighs against finding of prejudice
- remanding for evi-dentiary hearing on whether pursuit at trial of actual innocence defense, instead of intoxication defense or a combination of defenses, was informed strategic decision
- “Skipper [v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)], Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)], and Lockett[ v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978),] require that the defendant be allowed to present all relevant mitigating evidence to the sentencing jury or court .... These cases do not require that the sentencing body accept the conclusion that the evidence constitutes a mitigating circumstance or that the mitigating circumstances outweigh the aggravating circumstances.”
- “Prejudice is more easily shown in jury override cases because of the deference shown to the jury recommendation.”
Written by the judges who cited it.
Later courts went against this
Overruled by Robert Dewey Glock v. Harry K. Singletary, 36 F.3d 1014 (1994)
Glock overruled Harich v. Wainwright, 813 F.2d 1082, 1104 (11th Cir.1987),
The opinion
FAY, Circuit Judge,
dissenting in part, concurring in part:
While concurring in most of what Judge Clark has written for the court, I most respectfully dissent from the conclusion reached in section IA. My personal conclusion is that defense counsel was not ineffective.
Harich contended at trial that he did not commit these horrible crimes. The jury believed otherwise. Deborah Miller proved to be a most credible witness and made her in-court identification. It is easy to understand why the jury rejected the far-fetched story told by Harich including his “delayed ability” to recall the events of that evening and that he had dropped the girls off at a store about 11:00 P.M.
Defense counsel was faced with an extremely difficult situation. His client denied committing the offenses. He maintained that he remembered the evening and testified concerning his version of what transpired while he was with the two girls. To suggest to the jury that Harich was so drunk that he could not have “intended” the consequences of these acts proved by strong evidence would have been totally contrary to and undermining of the position being taken by Harich himself. Although inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury.
By handling the matter the way he did, defense counsel was able to inject the thought of diminished capacity (due to heavy drinking and marijuana) without totally rejecting the testimony of Harich.
The record also convinces me that any more strenuous pursuit of the intoxication defense would have been futile. The events described by Deborah Miller took an extended period of time. The conversation held at the gas station (to which Harich had driven his van), the group ride to a pier, the trip to the woods (where Harich had his marijuana growing), picking marijuana leaves, spreading the marijuana leaves on the hood in an unsuccessful attempt to have them dry (said to have taken about an hour in itself), driving to the spot where Harich forced the girls to perform the sexual acts, the shootings, the cuttings and the return to town all took time. In my opinion, defense counsel would have been foolish to attempt to defend on a theory that Harich was so “bombed” or “out of it” that he was unable to form a mental intent and yet drive his vehicle and engage in all of these activities.
Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 90 L.Ed.2d 674 (1984) sets forth the standard regarding claims of ineffectiveness of counsel.
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of .a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687 , 104 S.Ct. at 2064 . No such showing has been made here.
To hold that a hearing is required, under the facts of this case, runs afoul of the warning issued by. the Supreme Court in Strickland that such intrusive post-trial inquiry will do nothing but encourage the proliferation of such challenges. Id. at 690, 104 S.Ct. at 2066 . It also renders meaningless the presumption of competence surrounding such representation. Id.
*1106 Harich tried to convince the jury that he was not with Carlene and Deborah when these repulsive crimes were committed. The jury did not believe him. Now he claims his lawyer should have defended him on the grounds that his capacities were so diminished that he didn’t know what he was doing. Such Monday morning quarterbacking or second guessing is precisely what the Supreme Court has said should not be allowed. Harich is not entitled to try a different strategy simply because his first failed.
I would affirm, in to to, the denial of relief.