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This week, Tea Party groups in Tennessee have targeted Senator Lamar Alexander (R-TN) by holding “auditions” in five cities to find a formidable candidate to run against the state’s senior senator. The Tea Party groups turned against their Republican senator largely due to his support for the bipartisan Gang of Eight immigration bill. Then, during a town hall meeting, a crowd of Tea Party supporters cheered when U.S. Representative Scott DesJarlais (R-TN) told an 11-year old girl that nothing can be done for her father who is undergoing deportation because there are laws that need to be followed. These incidents have become typical in Volunteer State politics, which is full of right-wing politicians who hold some of the most radical views and propose some of the most outrageous laws of any state party in the country.

From the state whose Tea Party legislators tried to forbid the use of the word ‘gay’ in public schools, emailed constituents to report that President Obama was staging a fake assassination attempt to stop the 2012 election, and proposed fining individuals who don’t use the public restroom or dressing room that match the gender listed on their birth certificate, here are five more of the worst ideas to come from the Tennessee Legislature.

Photo: J. Stephen Conn via Flickr.com

Linking Welfare Benefits to Children’s School Grades

Rear view of class raising hands

State Senator Stacey Campfield (R-TN), who once pushed legislation that would require welfare recipients to be drug tested, introduced a bill in January that would tie welfare benefits to children’s classroom achievements.

If families don’t meet requirements, they face a 20 percent reduction in assistance. While the bill doesn’t explain how this would be assessed, Campfield defended the bill, stating, “We have done little to hold [parents] accountable for their child’s performance. What my bill would do is put some responsibility on parents for their child’s performance.”

Campfield eventually dropped the bill after facing anger and criticism from parents.

Photo: CT.gov — Image by © Royalty-Free/Corbis

Removing The ‘Minority Experience’ From History Books

American History Books

In a list of demands for the 2011 legislative session, Tea Party groups pushed to clear up the “lies” and misrepresentations currently told in Tennessee’s history books… by minimizing their focus on the “minority experience” in America.

Tea Party groups want to fight back against “an awful lot of made-up criticism about, for instance, the founders intruding on the Indians or having slaves or being hypocrites in one way or another.” They continued, “The thing we need to focus on about the founders is that, given the social structure of their time, they were revolutionaries who brought liberty into a world where it hadn’t existed, to every—not all equally instantly—and it was their progress that we need to look at.”

Photo: Pesky Library via Flickr.com

Combating The War On Christmas

tennessee state house christmas

Making good use of time and taxpayer money, State Senator Stacey Campfield (R-TN) proposed legislation in August that would save the use of “Merry Christmas,” “Happy Hanukkah,” and “Happy Holidays.”

Campfield said, “This stops all these silly lawsuits that say you can’t say ‘merry Christmas’ or ‘happy Hanukkah’ or have a Christmas tree.”

Unlike Texas where similar legislation has been signed, Campfield’s bill was introduced in June and remains untouched since.

Photo: SeeMidTN.com via Flickr.com

Jailing Sharia Followers

Sharia law

As noted in the last slide, Tennessee Tea Party legislators are eager to defend their own religious freedoms, but not the freedoms of others—especially if said religion is Islam. With complete disregard for religious freedoms stipulated in the First Amendment of the U.S. Constitution, which Tea Party groups hold near and dear, Tennessee State Senator Bill Ketron (R) and State Representative Judd Matheny (R) introduced legislation that makes it illegal to adhere to Sharia law. If found guilty, one could face 15 years in jail. This bill was signed into law in June 2011.

Practices that fall under Sharia include prayers, feet washing, and traditions that teach moral values. Completely ignorant of what Sharia law is, Matheny defended the bill, saying, “This is providing the tools for our law enforcement here in Tennessee to protect not only the citizens, but those peaceful worshiping Muslims who do not interpret Sharia in an extremist manner as to call for jihad…I ask that they stand on our side.”

Photo: AslanMedia via Flickr.com

Dismissing Patient Privacy In Cases Of Abortion

abortion

Tea Party State Representative Matthew Hill (R-TN) proposed a bill entitled The Life Defense Act, which discloses the names of all doctors who perform abortions as well as demographic information about the women who receive them. Hill said of the bill that passed and went into effect in July 2012, “The Department of Health already collects all of the data, but they don’t publish it. All we’re asking is that the data they already collect be made public.” Doctors could see their names listed on the internet, and women in small communities risk being identified for having abortions.

Jeff Teague, President and CEO of Planned Parenthood of Middle and East Tennessee, told The Tennessean, “In an environment where doctors are victims of violence—and we’ve had physicians who provide abortion care murdered in the past few years—I think this is an attempt to intimidate and allow for providers to be terrorized.”

Photo: World Can’t Wait via Flickr.com

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Adnan Syed leaving prison in Maryland on September 19, 2022

Judge Melissa M. Phinn of Baltimore City Circuit Court freed Adnan Syed, the subject of Chicago public radio station WBEZ’s hit true crime podcast, Serial, on September 19, 2022. A new episode is out. It’s a very, very good thing that Syed walked free and went home to rummage through his family’s refrigerator for a snack.

What isn’t good is the way Syed was freed. The Baltimore State’s Attorney filed a motion that questioned the integrity of Syed’s conviction and Phinn granted that motion to vacate it. That move, by a prosecutorial body, deserves respect. But it covered a multitude of judicial sins in Syed’s case and beyond, namely the appellate decisions that cemented into place the precedent that essentially authorizes attorneys to do nothing to protect their clients against criminal charges.

For years, Syed’s pleas for freedom centered around his lawyer’s performance or lack thereof. Syed remained steadfast about his innocence and his trial attorney, the late Cristina Gutierrez, refused to interview, much less present evidence from, an alibi witness and she didn’t notice that cell phone geolocation data was admittedly unreliable.

It’s entirely probable that jurors would have assessed the state’s case differently if they had heard from Asia McClain, a Woodlawn High School classmate who was with Syed at the time the state of Maryland says Hae Lee Min was murdered. And the cell phone data that attempted to show Syed’s location when he received calls was deemed unreliable by the phone service provider might have introduced some doubt for the fact-finders — if the late Attorney Gutierrez had presented them.

The Sixth Amendment enshrines the right to effective assistance of counsel, but courts determine whether a defendant received it through a law that was established 38 years ago in a United States Supreme Court case captioned Strickland v. Washington.

The facts of the Strickland case bear repeating here along with its holding, because it was a terrible fact pattern on which to decide what effective assistance looks like. A man named David Washington went against his attorney’s advice and confessed to three murders. He also rejected counsel when deciding to be sentenced by a judge instead of the jury.

This was part of grander legal scheme: his lawyer assumed that the judge would appreciate Washington’s taking responsibility for the murders and that a zealous argument at sentencing could replace mitigating evidence to keep Washington off death row. The attorney’s plan didn’t pan out and his client was sentenced to die.

Later on, appellate counsel claimed that Washington’s trial attorney, William Tunkey, failed to provide effective counsel because he hadn’t investigated Washington’s background or psychological history to present it as evidence for why Washington’s life should be spent behind bars. To be frank, Tunkey did employ some strategy and that was enough to spare him a Sixth Amendment skewering.

Washington was guilty, unsympathetic and yet at least one court agreed and reversed Washington’s conviction. The Supreme Court ended all of that for Washington, but devised a test to determine which attorney performances are so bad that they deny their clients a fair trial. It’s called a two-prong test and it requires, first, that the attorney did a janky job and second, that subpar showing prejudiced the defendant. That is, the attorney must have screwed up in a way that prevented his client from winning.

It seemed like a sensible test until lower courts started applying it. Some circuits and states subject inmates to an impossible standard in the ways they apply the Strickland test. They find the attorney fouled up, and severely, only to decide that it didn’t affect their client’s defense.

And the performances courts have approved include: The attorney who had a mental breakdown and wanted to go to an inpatient psychiatric facility right before trial; the Ninth Circuit Court of Appeals held that the lawyer “acted no differently than any other criminal defense attorney.” The attorney whose alcoholism was so advanced that he put the phone number to the local pub, Kelly’s Keg, on his business card. His client didn’t receive ineffective assistance either, according to the Supreme Court of Kentucky. The attorney who actually slept through what the appellate court described as an "insubstantial" portion of his client’s trial.

"The Supreme Court has implied that a lawyer is competent to represent poor defendants if you can pass the foggy-mirror test," Judy Clarke, a federal public defender who represented Boston Marathon bomber Dzhokar Tsarnaev told the Christian Science Monitor almost 30 years ago. "If you breathe on a mirror and it fogs up, you qualify.”

The Strickland test requires someone who seeks to overturn her conviction to prove that she would have won her case if her attorney had acted differently. That burden of proof asks any judge presiding over post-conviction proceedings to second-guess a conviction by accepting a hypothetical as fact. That’s a bad idea for any defendant, so some courts refuse to do it.

That’s what happened to Syed. After years of appellate wrangling, his lawyer’s effect on his life was finally decided by the Court of Appeals in Maryland. They agreed that Attorney Gutierriez performed abysmally but that Syed wasn’t prejudiced by it. They used the evidence at trial to make that decision, though, not the evidence that could have been used if Gutierrez had done her job.

Syed’s case, had it been accepted by the Supreme Court, would have made law on how the prejudice prong would be decided: with ‘the evidence that was’ or ‘the evidence that would have been.’ But the Supreme Court declined to hear it and the final decision of the Maryland Court of Appeals remains the law, at least in Maryland where it’s a binding authority, and a persuasive one everywhere else. That means courts outside of Maryland should follow it, even if they’re not required to do so.

The case of Texas v. Andrus might have changed things when it was decided in June 2020 by the Supreme Court. The Court decided this case using the Strickland test and reversed Andrus’ conviction because of the prejudice prong. It’s not very helpful though, because the Court’s remand — only Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented and wanted Andrus put to death without exploring what other courts meant when they assessed his case — didn’t modify the Strickland test. It just happened to use that standard to a prisoner’s benefit, rare but not revolutionary.

The Maryland Attorney General’s Office has said that the absence of evidence doesn’t exonerate Syed. Technically, they’re right but it’s never been the facts against Adnan that have hampered his post-conviction review. It’s the law that was Syed’s — and many other criminal defendants’ —problem. And it hasn’t changed even though Syed walks free.

Incompetent attorneys aren’t an isolated problem but their scale remains unseen. Many defendants don’t receive proper representation: 841 of the convictions in the National Registry of Exonerations at the University of California Irvine Newkirk Center For Science & Society, University of Michigan Law School, and Michigan State University College of Law were complicated by grossly deficient defenses. And we only know this because the registry recorded cases in which the defendants were successful in their ineffective assistance of counsel claims. It may well be that incompetent defense was a significant factor in the 3248 or so other wrongful convictions on its books as of September 24, 2022.

And there are thousands more people whose names will never reach that law school registry. Only about one percent of federal petitioners seeking to overturn their convictions because of bad lawyering win their claims. It’s about ten percent in state courts according to legal scholars.

Despite the recent overturning Roe v. Wade and Justice Clarence Thomas’ open salivation over other precedents the justices can upend, reversing Supreme Court precedent is rare because courts think that it’s better that law is settled for good than settled right. Finality is better than fairness; Supreme Court Justice Louis Brandeis admitted as much.

So the chance that a petitioner will get to the highest court and change or improve the Strickland test for bad lawyering is low. Syed was the one great hope to shed the Supreme Court’s careless and cynical precedent on ineffective assistance of counsel. And now that he’s out of custody, that hope’s pretty much gone.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.


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