stating that “judicial scrutiny of counsel’s performance must be highly deferential” in any instance, because “it is all too easy for a court, examining counsel’s performance after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable” (quotation simplified)
How later courts described this case
- stating that “judicial scrutiny of counsel’s performance must be highly deferential” in any instance, because “it is all too easy for a court, examining counsel’s performance after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable” (quotation simplified)
- stating that “it is an abuse of discretion for a district court to deny a 60(b) motion to set aside a default judgment if there is a reasonable justification for the moving party’s failure 20190661-CA 5 2020 UT App 100 Young v. Hagel and the party requested 60(b) relief in a timely fashion”
- holding that in the context of a motion to set aside judgment under rule 60(b) of the Utah Rules of Civil Procedure, “a defense is sufficiently meritorious if . . . it is entitled to be tried”
- stating that “it is an abuse of discretion for a district court to deny a 60(b
Written by the judges who cited it.
The opinion
WILKINS, Associate Chief Justice,
concurring in the result.
" 120 I concur in the result reached by my colleagues. Given the facts presented, it is simply impossible to understand, much less justify, Mr. Brass' conduct in this case. Calling his behavior here "ineffective" rather understates the case. That alone is enough to require the district court to give Menzies the benefit of the doubt on seeking to set aside the summary judgment granted primarily as a result of Mr. Brass' failure to represent his client's interests in any meaningful way. A total failure to represent one's chents interests is always ineffective.
121 Mr. Brass, a classmate of mine from law school, has, in the past, been a fine lawyer doing an excellent job. His passion about the rights of the accused has resulted in his willingness to be assigned the defense of some truly awful individuals charged with hideous acts. He has been an express belieyer in the right of all citizens to a vigorous defense against charges of criminal behavior brought by the State. He has, on many cecasions, reminded judges and juries of Utah that our joint agreement, embodied in both state and federal constitutions, provides the benefit of the doubt to the accused. Periodically, some of the guilty go free as a result of the high burden we have all imposed upon the State to prove our guilt. This allows us to be more certain that only the guilty are punished.
1122 In cases where the death penalty is possible, we have become increasingly more thorough in our appellate review. The motivation for this increased care comes in part from the ever-changing federal constitutional interpretations of the Supreme Court of the United States. One is left with the impression that in time the death penalty, no matter how painlessly or righteously imposed, will *521 be found violative of the United States Constitution by the high Court. Such a decision, if and when it comes, will no doubt be hotly debated on grounds of "original intent" versus the "living constitution" by those deeply concerned with the topic. Although I harbor an opinion on the question, it does not come into play here whatsoever.
{123 I do not subscribe to the general "framework" discussion offered by my colleagues. In this and other death penalty cases, we universally express concern that society is extracting the ultimate penalty from the defendant convicted of a capital crime. I am troubled by the usual absence of any attempt to demonstrate consideration for the truly innocent victims and their loved ones who are selected by death row inmates as targets for their crimes in the first instance. Moreover, I am deeply troubled by the exacting and seemingly endless requirements to review, re-review, analyze, and reanalyze any possible defect in the proceedings by which those found guilty of crimes so hideous that the death penalty is imposed. The death penalty acts as a deterrent to those put to death, for sure. It does not seem to have any realistic application to anyone else. Based on our experience, a sentence of life without parole may not only be as good a deterrent, but also less expensive to the state, more miserable for the guilty, and more certain for the victims and society.
124 I am not certain that those convicted of death-eligible offenses against the rest of us deserve the extreme level of attention we extend to them in the name of being absolutely certain of their guilt and that their crime warrants death. I think it might be better to abandon the effort and simply impose a life-long removal from society. I suppose an alternative might be to expend the effort and resources instead in training and educating our children to prevent capital crime in the first place.
{125 Nonetheless, this court has once again extended greater protections to those convicted of capital crimes than recognized by the United States Supreme Court, finding a statutory right to effective assistance of counsel in state post-conviction proceedings. In addition, my colleagues rely in part on ABA Death Penalty Guideline 10.15.1, which provides in part that post-conviction counsel "should seek to litigate all issues, whether or not previously presented, that are arguably meritorious" and, further, assume that Menzies' claim of innocence clearly eries out for factual investigation. I agree with none of these propositions.
126 It is enough that Mr. Brass utterly failed to represent Menzies' interests in the matter. A total failure of counsel, when counsel is provided by law, is sufficient to get another chanee at post-conviction relief. No more is needed in this case.