And I don't know if anyone else saw this but Wendy Murphy wrote an open letter to Martinez giving him 'pointers' for the sentencing re-trial and one thing she says is often defense lawyers will purposely not call witnesses for one reason or another, one being setting up an ineffective assistance of counsel appeal, and one way Juan can undermine that is by calling the witnesses himself. So the family, ALV, Brewer, are still fair game and Juan can call them if he thinks it'll help his case.
The butcher in her 12 page whine devoted lots of space to the complaint that Nurmi had not thoroughly investigated mitigation witnesses. No doubt that's because she has some understanding of what charges of ineffective counsel have any chance of success.
I'm not an Atty, but I have read a fair amount of studies addressing how often courts order DP penalty phase retrials based on demonstrable showing of ineffective counsel. Overall--its really rare.
More to the point, its most rare when ineffective counsel is being charged because of a failure to present mitigation evidence. Ineffective counsel is NOT assumed even when defense offers absolutely no mitigation evidence at all.
The reviewing court essentially assumes the defense had intentional strategic reasons to present or not present the mitigation case under review. The convicted appellant must demonstrate that the defense's decision was negligent, not strategic, AND that "omitted" mitigation evidence was sufficient to change the outcome, including outweighing existant aggravators.
Consider a case heard by the Supreme Court .......Burger v. Kemp, 1987. The defendant in that DP case was 17, had an IQ of 82, had possible brain damage due to child hood beatings. His defense team presented no mitigating evidence at all. Defendant's appeal based on ineffective counsel was denied.
Courts, especially the 9th Circuit, are more likely to be sympathetic to charges that the defense did not conduct a thorough enough investigation of mitigating factors. Hence the butcher's focus, IMO. Its still very rare for this tactic to succeed. Defense is not obligated to investigate every last possible lead or angle. They just have to try hard, which her team did. The two mitigating circumstances that if overlooked or not adequately investigated most often serve as basis for ineffective counsel are:
1. Severe abuse in childhood (nope)
2. Significant/ severe mental illness (defense investigated, chose PSTD path. Strategic, not negligent.)
No one knows all this better than Juan Martinez. Wendy Murphy needs to find something else to worry about!
