U.S. Supreme Court rejects 'nothing to lose' argument.

• Date: 30 March 2009
• Author: Ziemer, David

Byline: David Ziemer

Freedom's just another word for nothing left to lose, at least according to the Kris Kristofferson song, Me and Bobby McGee.

However, no prisoner will be getting his freedom back by arguing in federal court that his trial attorney was deficient because he had nothing to lose by pursuing a trial strategy, but didn't do it.

The argument could still work in state courts though.

On March 24, the U.S. Supreme Court reversed a Ninth Circuit opinion, which had held that, because a defendant's attorney had nothing to lose by pursuing an not guilty by reason of insanity (NGI) plea, therefore, he rendered ineffective assistance of counsel. Justice Clarence H. Thomas wrote for the court, This Court has never established anything akin to the Court of Appeals' 'nothing to lose' standard for evaluating [ineffective assistance] claims.

The court could have stopped there, given the procedural posture of the case -- a habeas corpus review of a state court conviction. Nevertheless, the court proceeded to consider the merits, and held that counsel was not ineffective in any event.

Alexandre Mirzayance had been charged in California state court with first-degree murder. He entered pleas of both guilty and NGI.

During the guilt phase, his attorney sought a lesser included offense of second-degree murder. In doing so, he...