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

• 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 presented medical testimony that he was insane and thus incapable of the premeditation required for first-degree murder.

However, the jury convicted him of first-degree murder.

On the advice of counsel, Mirzayance then abandoned his NGI plea. His counsel was of the opinion that, because the jury had already rejected the medical testimony in the guilt phase, a defense verdict in the NGI phase was not plausible.

After sentencing, Mirzayance appealed, on the theory that his counsel was ineffective, because he had nothing to lose by at least trying the NGI defense. The state Court of Appeals rejected the arguments.

However, on federal habeas review, the Ninth Circuit held that, reasonably effective assistance would put on the only defense available.

But, the Supreme Court accepted review and unanimously reversed.

The court first concluded that the state court ruling was not contrary to clearly established Supreme Court precedent, the standard for federal habeas review.

[T]his Court has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success, Justice...