High court rejects ‘nothing to lose’ argument

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“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 Thomas wrote.
Turning to the merits anyway, the court concluded that trial counsel was not deficient.
The court noted that in the NGI phase, Mirzayance would have the burden of proving insanity by a preponderance of the evidence; yet, the jury had already found, when the state had the burden of proof, that he had the requisite mental intent for guilt.
The court concluded that Mirzayance’s attorney reasonably concluded that the defense was “almost certain to lose”: “Mirzayance’s counsel reasonably believed that there was almost no chance that the same jury would have reached a different result when considering similar evidence, especially with Mirzayance bearing the burden of proof.”

Case Analysis

It would be a mistake to dismiss this opinion as just one more “smackdown” of the Ninth Circuit by the United States Supreme Court for misapplying the AEDPA standards.
There is some merit to the “nothing to lose” argument and it has been accepted in a unanimous opinion from the Wisconsin Supreme Court. State v. Pitsch, 124 Wis.2d 628, 369 N.W.2d 711 (1985).

Pitsch testified in his own defense at trial. However, his counsel failed to determine how many prior convictions he had, and failed to request a hearing under sec. 906.09(3), to determine how many he would have to admit to, if he testified.

The state Supreme Court stated the standard rule that deficient performance must be viewed “in light of all the circumstances.”

However, in effect, the court held that failure to determine a client’s prior record is deficient performance per se.

The court wrote, “Defense counsel had nothing to lose and everything to gain by obtaining a complete and accurate record of the defendant’s prior convictions. Getting this information would not have been difficult.” Pitsch, 369 N.W.2d at 717.

So, while no U.S. Supreme Court opinion has adopted “anything akin to the [Ninth Circuit’s] ‘nothing to lose’ standard,” the Wisconsin Supreme Court has.
Failure to obtain accurate information regarding prior convictions is not the only type of failure that could be deemed deficient per se.

The most obvious instance where the “nothing to lose” argument should prevail is when defense counsel fails to poll the jury after a guilty verdict.

Unfortunately, the only appellate opinion in Wisconsin to consider the argument rejected it. State v. Hart, 201 Wis.2d 814, 549 N.W.2d 285 (Ct.App., June 11, 1996)(unpublished). Fortunately, the opinion was unpublished.

The state Court of Appeals in Hart wrote, “Hart’s argument is essentially that it is always deficient performance for counsel to waive polling because, as he phrases it, there is ‘nothing to lose and everything to gain.’ We reject the argument because Hart is incorrect that there is nothing to lose. The thing to be lost is time. … [I]t is not deficient performance for counsel to fail to pursue every conceivable, but most likely futile, gesture.”

Admittedly, polling the jury is “most likely futile,” and it would be all but impossible to prove prejudice from the failure to do so.

Nevertheless, the reasoning in Pitsch should have been applied to Hart’s claim. The time it takes to poll a jury is so miniscule; and there is nothing to lose and everything to gain.
Like failing to obtain a copy of the defendant’s record before he testifies, failure to poll the jury should be considered per se deficient performance under the “nothing to lose and everything to gain” rationale.