The Sixth Amendment guarantees a person accused of a crime the right to obtain counsel of their choice or to court-appointed counsel if they are indigent. This right includes the collateral obligation of counsel to provide effective assistance to the client.
Many criminal defendants lack the financial means to retain counsel; therefore, counties throughout every state have established some form of “public defense” system to fulfill the legal needs of these financially insecure defendants. Unfortunately, and too often tragically, these systems are understaffed, lack meaningful financial resources, and fail horribly in their responsibility to provide effective assistance.
In a January 2022 report, the American Bar Association put it this way.
“Across the country, criminal courts are failing to meet the promise of equal justice under the law. As these failings are examined, increased attention is being paid to the obligation to provide effective assistance of counsel to all those accused of crimes and facing imprisonment who cannot afford private lawyers. For far too long, public defenders have raised concerns that their caseloads do not permit them to give appropriate time and attention to each client.
“Overwhelming caseloads force even excellent public defenders to cut corners. They must either triage, focusing on a select group of clients at the expense of the others, or they must spend less time than they should on every client’s case. They cannot conduct full investigations, consult experts when appropriate, or adequately prepare motions and arguments. These conditions create a heightened risk of error.”
On June 26, 2024, the Texas Court of Criminal Appeals (CCA) confronted an ineffective assistance claim in Ex Parte Hayes.
In that case, Michelle Lee Hayes was placed on community supervision in Harrison County following a guilty plea to a charge of serious bodily injury to a child. Two months later, Hayes was adjudicated guilty after violating the terms of her supervision and was sentenced to 15 years in prison.
Once in the state’s prison system, Hayes filed an application for a writ of habeas corpus alleging a violation of her Sixth Amendment right to effective assistance of counsel. She based her claims on two specific deficient performances by her attorney: 1) that her counsel failed to inform her that the victim had not suffered any serious bodily injuries, and 2) that her counsel did not offer any evidence of a lesser offense to serious bodily injury to a child at the guilt adjudication proceeding.
After being given two remand orders by the CCA, the trial court denied Hayes’ habeas application. The CCA found the trial court’s reasons for denying habeas relief in the second remand proceedings to be “faulty” and, therefore, refused to rely on them in making its final determination.
The CCA, utilizing the trial court records before it, then conducted its own independent analysis of Hayes’ ineffective assistance claims. The court stated the specific issue about counsel’s failure to inform Hayes that the child suffered no serious bodily injury (“SBI”) this way:
“Before Applicant pled guilty, her attorney hired a medical expert, Dr. Stephen Nelson. Dr. Nelson wrote a report summarizing the victim’s medical records and the injuries and conditions they documented. His report did not express an opinion about SBI. He testified by affidavit at the habeas stage that he had offered no opinion about SBI because he had not been asked for it or given its legal definition. After he was given the definition by habeas counsel, he concluded that the victim had suffered no SBI. The primary issue at habeas was whether Applicant pled guilty without knowing that Dr. Nelson believed there was no SBI. She claimed that she did; the trial court found otherwise. The secondary issue was whether she would have insisted on trial if she had known about the true state of the evidence of SBI. Given its first finding, the trial court made no finding on the record regarding the second issue.”
The CCA noted that after its first “generic” remand order, the trial court conducted proceedings and found that Hayes’ attorney had informed her that the medical expert “did not believe” the child had suffered SBI. The CCA found this trial court conclusion was not “supported” by the record.
At the CCA’s second, more specific remand proceedings, Hayes’ attorney testified that before Hayes’ pleading guilty, he informed her about the medical expert’s no SBI injury opinion. Given that testimony, the trial court once again denied habeas relief. Once again, the CCA refused to defer to the trial court’s ruling, specifically, that of attaching credibility to the defense counsel’s testimony that he had properly informed Hayes about the no-SBI injury opinion.
The CCA gave two reasons for its refusal to defer to the trial court’s conclusions.
First, the medical expert’s pre-plea report did not mention SBI; and, second, during the second remand proceeding, defense counsel “evaded” the specific question about why he had not asked the medical expert why he did not include SBI in his report by saying the medical expert did discuss the “severity” of injuries suffered by the child. The CCA, however, pointed out that “severity” is not “synonymous” with the legal definition of SBI.
The CCA found that this “false suggestion” by the defense counsel and the trial court’s decision to attach “credibility” to it, undermined the trial court’s ultimate conclusion that the defense counsel had properly informed Hayes about the SBI issue.
In a serious rebuff to both defense counsel and the trial court, the CCA said, “we find that [defense counsel] did not tell [Hayes] about Dr. Nelson’s no-SBI opinion.”
Having established a deficient performance by defense counsel, the first prong in an ineffective assistance claim, the CCA then addressed whether that deficient performance resulted in prejudice to Hayes. The CCA found, “The record supports Applicant’s claim that, but for her attorney’s deficiency, she would have insisted on trial; she had a good chance of an acquittal of the SBI element, and she would have faced much less punishment without it.”
The CCA reversed Hayes’ conviction and ordered a new trial.
It is unclear if the defense counsel’s deficient performance was a heavy caseload or insufficient time to thoroughly discuss the medical expert’s opinion with his client. What is clear is that the defense counsel undercut his credibility by trying to “evade” the issue rather than offer a straightforward, honest explanation of the medical opinion.
It is perplexing why many defense lawyers would rather lie or make a “false suggestion” about their performance than admit an honest mistake.
Fortunately, Michelle Hayes will get another opportunity to contest this case, and this time, we hope she will receive effective and honest assistance or counsel.