Courthouse Steps Decision: Thornell v. Jones

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, June 12th, 2024, we're delighted to host a Courthouse decision on Thornell v. Jones.  which was decided recently by the court. My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on this program as the Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more, you can access his impressive full bio at fedsoc.org. Today, we're fortunate to have with us Robert McBride, who is a partner in charge of the Kentucky office of Stettinius & Hollister LLP. Prior to his time there, Bob was an Assistant United States attorney in the Eastern District of Kentucky for over 15 years.

As an AUSA, He first chaired criminal jury trials in the US District Court and handled appeals before the Sixth Circuit Court of Appeals. Additionally, he was the district's national security prosecutor and the Anti-Terrorism Advisory Council Coordinator. During his tenure as an AUSA, Bob also held several leadership positions serving as manager of the London Branch office, Criminal Chief, and Supervisor of the Fort Mitchell branch office. Bob also formerly served in the United States Navy's Judge Advocate General Corps for over 10 years, and I'll leave it there. A last note and then I'll hand it over for a set of opening remarks. To our audience, if you have questions throughout the program, please submit them via the question-and-answer feature, as we'll have an extended portion of this webinar available to answer those. With that, however, I'll hand it over. Bob, the floor is yours.

Robert K. McBride: Thank you, Chayila. I always appreciate your very kind introduction. So today we're going to talk about Thornell v Jones that came out and the opinion was issued on May 30th, 2024. In very general terms, the case involves reiteration of the, pardon me, maybe a restatement of the standards for determining ineffective assistance of counsel under the Strickland standard. I'm going to first talk about sort of a brief overview of the law of IAC, and how those cases generally come to fruition procedurally. Then I'll talk about the quick procedural history of this case and finally about the court's decision. So let me start with an overview of the law and it's rather fundamental, so the Sixth Circuit, or pardon me, the Sixth Amendment of the Constitution, provides every defendant with the right to have assistance of counsel for his defense. This right applies at all levels of the criminal proceedings at which the fair trial may be jeopardized. Consistent with this, the Supreme Court has held that the representation has to be effective. So ineffective assistance of counsel then violates the Sixth Amendment. The issue becomes - or was - what constitutes ineffective representation?

That issue was out there because prior to this Strickland case that was issued in 1984, ineffective or effective assistance of counsel cases were handled on a case-by-case basis. But over time, courts tended to find an objective standard. So in Strickland v. Washington, issued in 1984, the court provided us with the test, and the test is under counsel's representation, it must not fall below an objective standard of reasonableness. It determined that there is a two-pronged test. First, was the representation unreasonable under the prevailing practice? This sort of makes sense. There are different practices in state courts and federal courts. There are different practices across time. Second, was there a reasonable probability that the outcome of the proceedings would've been different had the lawyer's representation been effective? So this is reasonable, the subjective test had a lot of litigation because there are arguments that some of these terms determining the objectivity based on the circumstances are easily litigated. So this case comes up on a habeas petition initially under 28 USC 2254.

How these cases happen is you'll have a sentence or a determination of a guilty plea usually with a plea agreement. So as a practice note, it's interesting that most state bars do not permit a plea agreement where the defendant waives his right to collaterally attack a guilty plea sentence or conviction through his habeas petition, which is a collateral attack. So if you're entering a guilty plea, you can have a waiver of the substantive waiver of the conviction, guilty plea, and sentence, but you can't waive the collateral right to do that. So let me make some distinctions here about the substantive and the collateral rights. So the collateral right comes up after there is a conviction. In some cases, it's not ripe until the case goes up to the Court of Appeals on the substantive claims or even the Supreme Court. Generally, the petitioner has one year after the final resolution of the substantive issues, for lack of a better term, the habeas petition.

And there are two statutes here, 28 USC 2254, and in federal court, federal defendants use 28 USC 2255. The prisoner, either a person who is serving a sentence or is going to serve a sentence very shortly, may file the petition but almost universally it's somebody who is already incarcerated on a sentence. So they can bring this civil collateral attack as a habeas petition to challenge what is essentially ineffective assistance of counsel. Now you might imagine that this term, "ineffective assistance of counsel" allows for a lot of creativity for prisoners to challenge their convictions, sentences, or judgment based on things their lawyer did or did not do. Anybody who has practiced criminal law, particularly at the trial court level, knows that once the defendant gets into jail, they may read something like "Busted By The Feds" or talk to their other fellow incarcerates, many of whom have already been through the system a couple of times, and all of a sudden your defendant decides that you have represented him ineffectively, and ultimately everybody in jail believes themselves to be innocent.

So the habeas petition is a way for the courts to officially address these issues. In general, the habeas petitions have to be filed after one year of the final determination of the substantive issues, whether the district court, Court of Appeals, or the Supreme Court. For a state case, it can go all the way through the state trial court, state Court of Appeals state Supreme Court, and then be kicked over to the US District Court and finally Court of Appeals and up to the Supreme Court. So as you can imagine, some of these claims take a long time to adjudicate. The government tries to make it easy for petitioners to file. They file with their court, their trial-level court. There are actually forms in the rules in the rule book and most prisons have the petitions on the computers and available to the defendants. There are rules the defendant has to follow in presenting his petition, but as a practical matter, even if they don't follow the rules in completeness and substance, courts are going to take them up anyway, and then what happens when a district court or trial level court receives the petition? There is a hearing that puts the prosecutor and the defense counsel in an unusual circumstance and the defense counsel is actually represented by the prosecutor in most cases who defends the work of the defense lawyer. In other words, the prosecutor is going to present evidence, sometimes the testimony of the defense lawyer, him or herself to try to defeat the claim of ineffective assistance of counsel.

At these hearings, you can introduce evidence and witnesses and sometimes the defense lawyer will testify. Very often the defense lawyers submit an affidavit and sometimes that's enough. The lesson for defense lawyers though is to document your file because I've seen some of these cases go off the rails when the attorney has not adequately documented his or her file as to what they did, what they advised, and so on. So let's get to this case. This case took about 32 years to get the Supreme Court through the habeas petition process. So it actually involves a triple murder. In 1992, a fellow named Danny Lee Jones was drinking with his buddy Robert Weaver at Robert's Home. Jones knew that Weaver had a gun collection and for whatever reason, Jones decided he wanted that gun collection. The first step in getting the gun collection was to beat Robert over the head with a baseball bat, rendering Robert unconscious.

He goes into the house and finds Robert's grandmother, a woman named Catherine, sitting in a living room watching TV. He hits Grandma with a baseball bat, hard enough to crack her skull. He leaves her lying there on the living room floor while all this is going on, Robert's 7-year-old daughter is in the house and she sees the grandmother assaulted with a baseball bat. So she does what every kid would do. She runs under her parents' bed. Jones comes into the room, drags her out under the bed, and hits her with the baseball bat, causing a gash on her left face from her ear to her jaw. Instead of finishing her off with a baseball bat, he decides to smother her with a pillow, killing her. Jones gets the guns and goes to load them in Catherine's car, grandmother's car. And while he does that, Robert wakes up and Robert tries to run away. Jones catches him and hits him with a baseball bat. He finally gets him into the garage and kills Robert with a baseball bat while Robert's on his knees inside the garage. The grandmother remains in a coma. Jones is then charged by the state of Arizona with two counts of first-degree murder, Robert and his daughter Tisha, and one count of attempted first-degree murder. Oh by the way, what Jones did was he took the guns, sold them for two grand, and went and had himself a little bit of a vacation in Las Vegas.

When the first responders showed up, as I mentioned, the grandmother was still alive and was in a coma. So when the state charged Jones, that's why it was two counts of first-degree murder and one attempted first-degree murder, even though after the charging of the case the grandmother died. In a jury trial, Jones was convicted on all counts and the Arizona trial court imposed the death sentence. Now under Arizona's law - and if there are any experts on here, please jump in and help me - when the judge is determining the sentencing for a death penalty case, there are enumerated aggravating factors and mitigating factors that the court must consider based on the evidence at trial and at the sentencing hearing. So in this case, the court found that the aggravating factors were that Jones committed multiple homicides during the commission of this offense and that Jones was motivated by pecuniary gain, the $2,000 to go to Las Vegas. The murders were especially, and this is the statutory language, "especially heinous, cruel or deprived." I think that was met by the way he committed the murders. And finally, the victim, 7-year-old Tisha, was a child. There was evidence provided by the defense lawyer, and this is sort of classic mitigation evidence - all of which are enumerated under Arizona law - one, that Jones suffered from long-term substance and alcohol abuse since the age of 13. I think the testimony was that his grandfather introduced him to alcohol and drugs at the age of 13.

Second, the incident may have been caused by a genetic predisposition to alcohol and head trauma he received from abuse as a child and that at the time of Jones' Crime, he was under the influence of alcohol and /drugs. All of that evidence was supported both by the pre-sentence report and the sentencing hearing. So the PSR found Jones was abused as a child, began using drugs and alcohol at 13, had brain trauma repeatedly through the ages of 9 and 19, had received psychiatric treatment as a child and then both his father and his stepfather had physically abused him. Counsel, which I think is particularly important here, provided testimony from a forensic psychologist and he testified that Jones was reared in a chaotic, in his words, "grizzly and violent situation that was prevalent with physical abuse." He confirmed that he had serious head trauma that potentially contributed to the act, he had diagnosed Jones with Bipolar Disorder and ADHD and that he was, pardon me, Jones was predisposed to substance abuse and importantly that he would not have committed the murders had he not been intoxicated at the time. And finally, Jones showed some remorse. So the Arizona court found, according to its statutes, that the mitigating factors were not sufficiently substantial to outweigh the aggravating sentences and as a result was required to sentence Jones to death. Jones appealed the conviction, it went all the way up to the Supreme Court, which upheld the convictions.

Then Jones sought relief on the theory that his defense counsel was ineffective. Here's what Jones claimed at the trial court level whenever we heard the 2255 issue; first, that his lawyer should have retained a neuropsychologist instead of a forensic psychologist. And second, his lawyer failed to timely request neurological or neuro-physical testing. So the first element one could see might be very close to having a forensic psychologist testify, the second obviously comes from his theory that he should have had a neuropsychologist. Obviously, a neuropsychologist would've required more time for testing, according to him. The state court - trial court -denied the petition. It went through the appellate court and up to the Arizona Supreme Court which upheld the District Court's determination that there was no ineffective assistance of counsel.

One note that I missed is that the district court in Arizona was considering the IAC claim and looked at the testimony that was presented both at the original hearing and that was augmented and found that it didn't move the needle with regard to the balance between the mitigating evidence and the aggravating evidence. After the Arizona Supreme Court, our friend Jones goes up to the district court and federal district court. The Federal District Court agreed with the Arizona Supreme Court, the Arizona Court of Appeals, and the Arizona trial court, finding that the aggravating factors based on the evidence outweighed the mitigating factors. Jones then went to the Ninth Circuit. The Ninth Circuit granted relief. 

The Supreme Court then vacated that determination by the Ninth Court instructing to consider whether it was proper to consider the new evidence under Cullen v. Pinholster. The Ninth Circuit again granted relief, holding it was permissible to consider the new evidence and importantly that there was a reasonable probability that Jones would not have gotten the death penalty if that evidence was presented at trial. The government asked for an en banc review which was denied, but among the dissenters for the denial of the en banc review., Judge Bennett commented - and I note this because it's important - that the panel flouted Strickland by crediting questionable, weak, and cumulative mitigation as enough to overcome the weighty aggravating circumstances. I point that out because it comes back in the decision of the Supreme Court, which the state of Arizona took it to.

So the Supreme Court's decision was written by Justice Alito, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Sotomayor - joined by Justice Kagan - dissented, but they agreed with the decision of the majority court, and I'll talk about that briefly, what their dissent was, and Justice Jackson descended in whole with the decision of the majority. So a couple of key points. First from the Supreme Court. First, they found that, as Justice Bennett had said, pardon me, Judge Bennett had said that the Ninth Circuit had inadequately taken into account the aggravating circumstance in this case. Second, it noted that the Ninth Circuit had a strange rule that prohibited it from evaluating the relative strength of expert witnesses in a habeas case. On that point, the Supreme Court said essentially that's a completely unsound rule and that in habeas cases it's of the essence to evaluate the relative strengths of the aggravating and the mitigating evidence In this particular case.

They also found that thirdly, the Ninth Circuit had attached persuasive value to Jones' mental health conditions, even where there was no link between the mental health conditions and the execution of the victims in this case. In other words, there was nothing about them that triggered this event or caused him to carry through in such a violent way. The SCOTUS sort of admonished the Ninth Circuit because the Ninth Circuit in finding and relying on the mental health conditions argued that under Eddings v. Oklahoma, essentially that a sentencer cannot refuse to consider the relevant mitigating evidence. But it took it a step, a logical step beyond that, and essentially used that theory to find that the mitigating evidence could not be unpersuasive. And what the Supreme Court said "No, what it means is you have to consider the mitigating evidence. That does not mean that you can find mitigating evidence unpersuasive as all the prior courts have done." The court believed that the Ninth's evaluation was fundamentally at odds with the standards set out under Strickland to determine ineffective assistance of counsel. The court looked at the factors, which is one of the reasons for Justice Sotomayor's dissent, and found if you were looking at the district court's decision that the mental health evidence didn't move the needle at all because there was no causal connection between that and the act, that evaluation doesn't change the balance. The PTSD findings of the experts, new and old and ADHD findings, had they been linked by the evidence, the court did say that would've been a significant mitigating factor, but that evidence simply didn't apply in this case. As for the mental health impairments, despite there being some issues there, the defendant's IQ was essentially average, and he knew what he was doing.

Jones had also introduced new evidence that his grandfather who introduced him to drugs and alcohol had sexually abused him. The problem with this new evidence that seemed to have been overlooked by the Ninth was that the parents' testimony contradicted this. The parents at the sentencing hearing said, "Look, grandfather did introduce him to alcohol and drugs, but there is no evidence to indicate to us, we had no experience in which the grandfather was sexually abusing Jones." In addition, some of the new evidence that Jones wanted the court to consider was that his stepfather had sexually abused him. The original evidence was that he had physically abused him. I think you saw or recall the PSR between 9 and 19 he had been physically assaulted. Well, that was supposedly by his stepfather, Randy. The new allegation was physical abuse.

Interestingly, the Supreme Court noted that Arizona courts don't give a lot of weight to this kind of mitigation evidence where it's not substantiated and not contemporaneous. The same thing goes for the new allegation of physical abuse by Randy. This new allegation, I'm sorry, I think I misstated this. Randy was very strict and verbally hostile at the trial court. That was the testimony here. The new allegation was that he was physically abusive. I apologize for that mistake with regard to this new kind of evidence. Again, unsubstantiated by prior testimony from the courts of Arizona, their case law indicates that they don't really see that as a significant factor to mitigate the need to move the needle here. One comment I want to make here is that when you're looking at a Strickland analysis for ineffective assistance of counsel, every trial court will tell a defendant that's a high bar to reach. The reason it's a high bar to reach is that under Strickland, as long as a defense lawyer provides classic mitigation, mental health, drug abuse, physical abuse, immaturity, and mitigating circumstances around the case, which we don't really have here, factual mitigation, then generally a defense lawyer has met its effective representation. In fact, Strickland's really most effective where none of this classic mitigation evidence has been presented. So such a complete lack of mitigation where it exists, classic mitigation, is generally constitutionally insufficient.

So based on its analysis, the Supreme Court upheld the denial of the US District Court's denial of the habeas. There were two dissents, as I mentioned, the first one from Justice Sotomayor joined by Justice Kagan. Now while they agreed with the decision, the complaint, pardon me, the criticism of the majority was that they went too far into evaluating the facts of the case themselves. And I think there is some legitimacy at some level of that determination in general of that decision in general or that position in general. But in a case like this where it's so factually determinative because of the way in which the Arizona law construes the mechanism for coming to or against the imposition of a death penalty, I think the majority really had no choice in this circumstance. But I do see as a general matter Justice Kagan's dissent and why they dissented and joined by Justice Kagan. 

Justice Jackson simply did not agree with the decision of the court and felt that the Ninth Circuit had followed all of the precepts of Strickland by looking at the evidence, evaluating the evidence, and finding that there was a reasonable probability that had the defense counsel provided the additional new evidence and brought in a neuropsychologist that Mr. Jones would not have gotten the death penalty. So in sum, the Supreme Court really reiterated the application of Strickland to the Ninth Circuit and all circuit courts below and district courts and the two dissents were, I don't think Justice Jackson's dissent was overly persuasive, at least not to me, and I understand justice. Sotomayor's dissent and the basis for it that was joined by Justice Kagan. All right, Chayila, I'll turn it over to you.

Chayila Kleist: Well, thank you. That was a really helpful summary of the case, the opinions, and how we got here. As you mentioned, it's a decades-long history and that was an effective 30 minutes to get us all up to speed. I will indicate to our audience that we can now take questions. If you have those, please feel free to send them. In the meantime, I have a couple of my own that I'd love to pose. I always love moderating these because then I get to ask the questions. Starting where you left off, Justice Jackson's dissent argues that the record of factors was suitably considered and raises the fact that relief has been granted by SCOTUS in what she argues are similar cases, while the majority argues that the Arizona Supreme Court has notably not granted habeas relief in cases with even lesser aggravating factors. Under the Strickland framework, is there clarity as to which court's precedent matters for relevance concerning the likelihood of a different outcome? Is that something that usually comes up? How do those precedents and court perspectives affect the way that this is understood?

Robert K. McBride: Well, the Supreme Court is the supreme court of the land, so I think in the opinion and the majority opinion, what the court was trying to illustrate was how these factors under Arizona law are evaluated to give a normative understanding of how it works even in murder cases. I think what was most compelling to me was, and maybe it's just my practice history, that they had never filed mitigating factors overwhelmingly when there's a contemporary or at the same time double murder. And if you look at some of the factors that the Arizona Court cited, the heinousness of the murders, the child victim, the way Jones went back and finished off Robert, the fact that it was an invasion of a private house for a fairly minimal amount of value of the guns, I think it's really hard to get away from the aggravating factors overruling the mitigating factors in the Arizona context. The mitigation that was presented by the defense lawyer was classic mitigation. And very often in cases like this, there just isn't too much. It's not like there's evidence that Robert started a fight with him and he was defending himself. It's not as though he was in a confused state where he didn't understand what he was doing and why he was doing so I think those cases were really to give a flavor of what has happened below in the Arizona Supreme Court more than relying on precedent that they were following.

Chayila Kleist: Got it. Thank you. Moving to Jones's interpretation of Strickland, he seemed to put forward a fairly novel understanding of what was required in order for there to be a need to administer relief in contending that if there was substantial evidence of a kind that a reasonable sentencer might deem relevant to the defendant's moral culpability. If that kind of evidence had not been presented, then that was enough and he should get habeas relief. Was that argument granted at any level?

Robert K. McBride: No. Well, no. The moral evidence, first I would say what moral evidence? I don't know what moral justification there would be for murdering somebody over $2,000 worth of guns. I mean, that's probably - as a practical matter, that's probably a collection of junk given how expensive firearms actually are, and it avoids the actually properly established standard by Strickland, which is "Is there evidence which has a reasonable probability of changing the outcome of the trial or the sentence?" While I could see in some instances where this morality theory is something that could be introduced as motive or sort of an equitable argument, I think it skirts Strickland and was inviting a change in Strickland in those standards.

Chayila Kleist: Got it. Thanks. As you mentioned, Justice Sotomayor's dissent, which Justice Kagan joined agrees that the Ninth Circuit is an error and then they just suggest that the appropriate remedy is to remand for reconsideration based on the full record. You talked a little bit about this given that Arizona is a bit unique, but since the court had already sent this back once, why not just remand again? And does the fact that the case had already come up and already been sent back to the Ninth Circuit once affect whether or not it would be appropriate to remand in such a way?

Robert K. McBride: Well, I am not very good at understanding the motives of the Supreme Court, but were I sitting on that bench, I probably would've had enough. From my view, this case is overwhelmingly in favor of the aggravating factors and that whatever was introduced subsequently did not move the needle in mitigation. I think in death penalty cases, people permit courts, judges, and lawyers, permit as much flexibility in the rules as they can. And the Ninth had already made the same decision essentially twice, and it seemed as though it might've been futile to send it back to the Ninth again. And on the record, full record, well, presumably the court had looked at the full record too.

Chayila Kleist: Got it. Thanks. Looking again at sort of the interestingness of the way that Justice Sotomayor's dissent is a dissent and also kind of agrees, given the way that the dissents were argued, although it's technically a six-three split, how should the actual arguments affect the way we think about how the court is actually split on this issue?

Robert K. McBride: Well, I think that Justice Sotomayor looks at the case - if I'm reading her mind, I think she's looking at this case and saying, okay, Strickland factors, we could have just determined it on the Strickland factors and looking at the Arizona court's evidence and finding no reason that there's a substantial flaw there. Instead of getting into the further evaluation of the evidence, perhaps even talking about the Arizona cases you noted, I feel that Justice Sotomayor's opinion is really about how far should the Supreme Court really be evaluating or reevaluating evidence in cases. As I said before, I think there's some legitimacy to that point of view. However in this type of case, I think that it lent itself more to an evaluation of the facts than might be usual.

Chayila Kleist: Got it. That's useful. In sort of thinking through the actual split. Other than the impact for the parties in the case itself, what if anything could be the immediate impact of this decision, and are there any other cases that might be affected by this ruling? It might be too narrow for there to be a larger impact.

Robert K. McBride: No, I think the impact will be more systemic. There's a lot of litigation over these 2255 cases if you'll let me use the shorthand, and it's understandable because people are in prison. That's the general fact pattern, but a course can be overwhelmed with this kind of litigation. The same issues are raised over and over again, and I think what this case does is provide us with a clear vision of how the court wants the stricter Strickland standards to apply. I'll give you an example. Some of the courts in this area require defense counsel to provide a notice 14 days after the notice of appeal runs, stating that they had consulted with their client and that they're contemporaneous with the notice period for the appeal and that your client does not want to file a notice of appeal. You file that notice in the event that you did not file a notice of appeal. So you have 14 days to file a notice of appeal. You've got to assert to the court that you have consulted with your defendant, your client, that he did not, he or she did not want to file a notice of appeal. And the reason for that is one of the routine complaints in 2255s is, "My lawyer didn't tell me I had a right to appeal" or, "I told my lawyer to appeal and he didn't." So it kind of obviates or makes it more difficult for the defendant to raise that issue. It also makes sure the defense lawyer goes back and talks to his client and says, "Hey, have you changed your mind? You really want to file a notice of appeal You haven't filed, we haven't talked about it", what have you. So I'm not averse to that practice, but I think the Strickland standards, when properly interpreted, can reduce some of the routine litigation that often goes nowhere.

Chayila Kleist: Got it. That's interesting and useful to think about as sort of an impact of the decision beyond just for the parties in the case. Now that we have the decision, and this will be my second to last question, are there any questions that remain open in this area of Strickland review?

Robert K. McBride: Well, none that I see, but there will be continued litigation on this issue because lawyers are creative and defense lawyers are creative and there'll be lots of litigation on this, whether it reaches the Supreme Court at any time soon, I don't know. But the problem with the standards are is it reasonable under the current norms of practice. Well, that varies across the nation. It varies across the tribunals, it varies across the type of case. So there's some flexibility there to making that argument. And then the reasonable probability standard, like any totality of the circumstances standard is subject to litigation. So is it going to quell litigation? No. Will it crystallize the standard a little more? Probably.

Chayila Kleist: Got it. And any last comments, thoughts, or concluding remarks you'd like to give?

Robert K. McBride: No, I think you've let me ramble enough.

Chayila Kleist: Not at all. We really appreciate you joining us and taking the time. Thanks also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We're adjourned.