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Suppose a criminal defendant rejects a prosecution deal, unwisely places his bets on going to trial and ends up with a sentence more onerous than he would have received under the deal. Is a federal judge obliged to open an inquiry if the defendant alleges that his attorney gave bad advice, but offers only his own word as proof that he would have accepted the deal but for his attorney’s substandard performance? Two cases decided by the 6th U.S. Circuit Court of Appeals this year highlight a disagreement over that issue between that court on the one hand and the 2d, 7th and 11th circuits on the other. In Griffin v. U.S., 330 F.3d 733, decided in June, and Smith v. U.S., No. 01-5215, decided last week, the 6th Circuit reaffirmed its view that a defendant’s affidavit is sufficient, by itself, to merit a post-conviction evidentiary hearing into the “prejudice” prong of an ineffectiveness-of-counsel claim. (Under U.S. Supreme Court precedent, even if there is no doubt that an attorney’s performance was below par, a conviction still stands unless the defendant can prove prejudice, namely, that there is some likelihood that an able attorney would have produced a different result.) The two 6th Circuit cases give little analysis in support of its position. But the debate within the 7th Circuit, which has taken the lead in staking out the contrary position, is more informative. 20 years v. six years The 7th Circuit’s 1991 bellwether case, Toro v. Fairman, 940 F.2d 1065, concerned a defendant, Salvador Toro, facing drug-dealing charges. Inexplicably, a public defender urged Toro, who knew little English, to reject a six-year plea agreement and to take the witness stand and offer a full confession. Toro was sentenced to 20 years in prison. Despite describing the public defender as “incredibly naive,” the 7th Circuit declined to overturn the conviction. (While the Toro court spoke in terms of the ultimate issue-to overturn or not to overturn-it never explicitly discussed the pleading threshold sufficient to trigger an evidentiary hearing. It may be that the Toro decision has come to be thought pertinent to the latter point because the circuit court upheld the trial court’s rejection of Toro’s claims “out of hand.”) The 7th Circuit said that it found Toro’s post-conviction petition wanting because “Toro never states that he would have accepted the plea. The memorandum merely states: ‘[Toro] would have to have been insane not to accept the plea agreement for the minimum sentence.’ “ That wording seems to suggest that Toro was not subjective enough. If he had described his subjective state of mind-”I would have accepted the plea,” for example-instead of giving an “objective,” “reasonable man” view of the matter, then perhaps he would have merited a hearing, or so the court’s wording might lead one to think. But in fact the court chides him for being insufficiently objective, saying “Toro’s statement is self-serving . . . .Toro has not identified any objective evidence in support of his claim of prejudice.” In a concurring opinion in a 1998 case, Paters v. U.S., 159 F.3d 1043, 7th Circuit Judge Ilana Rovner suggested that the “objective evidence rule” is ill advised, noting that “In no other setting do we require evidence of this sort before the petitioner may obtain a hearing on his claim of prejudice.” She acknowledged that there are reasons to distrust self-serving statements, but argued that in many cases a “sentencing detriment” (e.g., the 14 extra years that Toro had to serve) would provide objective corroboration-an argument that seems to blur her original point that no objective evidence needs be provided. Both the 2d and 11th circuits have adopted the Toro “objective evidence rule.” But, adding to the confusion, when the 2d Circuit did so in 1998′s U.S. v. Gordon, 156 F.3d 376, it said that sentencing detriments (which Rovner said had no place under the rule) could give sufficient objective corroboration. Young’s e-mail address is gyoungnlj.com.

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