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IN THE

UNITED STATES SUPREME COURT


January 2015
CIVIL ACTION NO. 01-234

Charles Thomas,
Petitioner
v.
Setonia,
Respondent

BRIEF FOR THE RESPONDENT

Attorney for the Respondent


Cecelia Chollette-Dickson
NJ LEEP, Inc.
570 Broad Street
Newark, NJ 07102
(973) 781-1212
January 2015
Submitted to Judge Giardina

TABLE OF CONTENTS
Statement of the Issue........................................................................................................................
Statement of the Legal Standard........................................................................................................
Statement of the Facts........................................................................................................................
Summary of the Argument................................................................................................................
Argument...........................................................................................................................................
A.Annie Advocates performance was objectively reasonable.............................................
B. Even if this Court finds Annie Advocates performance to be deficient, it did not
prejudice the outcome of the Petitioners trial...................................................................
C. Policy Argument ...............................................................................................................
Conclusion.........................................................................................................................................

Statement of the Issue


The issue is whether Annie Advocates professional performance was deficient under
Strickland, in that she failed to investigate and present mitigating evidence for Charles Thomas
sentencing trial; and if Annie Advocates professional performance was deficient, whether that
performance prejudiced the outcome of his sentence.

Statement of the Legal Standard


Pursuant to the Sixth Amendment, [i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously ascertained by Law,
and to be informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense. Amendment VI, U.S. Constitution. In Strickland v.
Washington, 466 U.S. 668 (1984), the United States Supreme Court enumerated a two-part test to
establish whether an attorneys performance was deficient under the Sixth Amendment. Under
Strickland, to establish ineffective assistance of counsel, it is the petitioners burden to prove that,
(1) Their trial attorneys performance was deficient; and (2) The attorneys deficient
performance prejudiced the outcome of the trial. Strickland. Additionally, [i]f a jury finds that
the aggravating factors presented by the prosecutor outweigh the mitigating factors presented by
the defense, then the jury may impose a death sentence.

Statement of the Facts


On December 23, 2012, at 7:00 p.m., three college freshmenMichael Smith, Darlene
Adams, and Samuel Johnsonwere tied up and executed on a football field at Madison High
School, located in the State of Setonia. After an investigation centered primarily on the DNA
evidence left at the scene, surveillance footage, and a match on the license plate of the distinctive
lime green Camaro parked in a lot outside of the field, Petitioner Charles Thomas was arrested as
a suspect in Setonia on January 2, 2013. He was indicted and, after a trial in federal court, the

jury convicted Petitioner on all three counts of capital murder on July 15, 2014. The sentencing
trial was set for August 30th, 2014.
On July 23, 2014, Annie Advocates supervisor assigned her the sentencing trial for
Petitioner, a pro bono matter for the Hope Association. Her firm, Jackson, Peim & Associates,
had represented Petitioner in noncriminal matters in the past. Although, they no longer had his
files, the files in the courts record room contained helpful information about his abusive
childhood. Ms. Advocate made an appointment to meet Petitioner on August 1, 2014, but due to
a hectic case schedule, had to reschedule their meeting to August 17, 2014. They met at said date,
and Petitioner told Ms. Advocate that he had accepted his guilt, and felt remorse for what he had
done. Petitioner told Ms. Advocate that he was broke at the time of the murders, having been out
of work for the past six months. It was hard for him to find jobs being that he dropped out of
high school after tenth grade. Petitioner also mentioned to Ms. Advocate that he was unable to
afford medication for his diagnosis as a schizophrenic, and was in the middle of a psychotic
episode at the time of his offense. Petitioner, believing that his family would still come to his aid,
provided Ms. Advocate with several phone numbers and addresses for his immediate family,
aunt, and local friends so that they could tell the sentencing jury about his life in a way that could
serve to mitigate his sentence to life. He also offered to testify on his own behalf. On August 20,
2014, Ms. Advocate began to investigate witnesses and evidence for Petitioners sentencing trial.
She called the numbers given to her by Petitioner, however no one answered and two were out of
service. Instead, she left messages requesting a chance to meet with them. Ms. Advocate was
able to speak with Petitioners doctor, who indicated that Petitioner had not renewed his
medication prescription for his schizophrenia, and was often late to do so. The doctor also told
Ms. Advocate that in the past he had offered to help Petitioner obtain medication if he needed it.
Ms. Advocate spent the rest of that week on the matters assigned to her by her firm. On August
25, 2014, she decided to contact Petitioners attorney from the murder trial so that she could
examine his case file, but upon calling his office, his secretary told Ms. Advocate that he was on
vacation. She called the courts record room to ask about ordering a copy of the personal record
in his old case files, but was told that it required a two weeks notice, she was too late. That
weekend she read the transcript from Petitioners trial. On August 28, 2014, Ms. Advocate
received a voice message from Petitioners wife, Elizabeth Thomas. While she did not want to
involve other family members, she agreed to testify on Petitioners behalf, and to meet Ms.
Advocate to discuss her planned testimony. Ms. Advocate then made strategic decisions as to
how she would present Petitioners sentencing case. She decided not to present Petitioners
doctor because she believed it would come across poorly that Petitioner failed to renew his
medication for his disorder and had three prior robbery convictions.
Elizabeth had the meeting with Ms. Advocate at the courthouse, prior to the hearing.
During the proceeding, the prosecutor presented their witnesses to describe the facts of the
underlying murder trial in detail. Ms. Advocate questioned Elizabeth and elicited information
about their family, their financial situation, and about Petitioners staying out of trouble. After a
two hour deliberation, the jury sentenced Charles to death for three counts of capital murder.

Summary of the Argument


Annie Advocates performance was reasonable. It was in no way deficient because she
had talked with Petitioner about his personal life, contacted all of his family and local friends,
contacted Petitioners doctor on his mental health and drug history, had files on his abusive
background, read the case file, and had spent a reasonable amount of time on the case. Ms.
Advocate did everything that was expected of an attorney. However, if the jury finds otherwise,
Ms. Advocates errors did not prejudice the outcome of the trial as the aggravating factors
outweighed the mitigating factors. If there were mitigating factors not presented to the jury it
wouldnt have been enough, even if strong, to overturn his sentence.

Argument
A.Annie Advocates performance was objectively reasonable.
Annie Advocates performance was objectively reasonable. Counsel was indeed
functioning within the requirements of an attorney. According to the Effective Assistance of
Counsel in Capital Cases two part test, A convicted defendants claim that counsels assistance
was so defective as to require reversal of a conviction or death sentence has two components.
First, the defendant must show that counsels performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the counsel guaranteed
the defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsels errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable. Strickland v. Washington,
466 U.S. 668 (1984). In Strickland case, counsel had spoken to the respondent, contacted his
family, attempted to find any indications of psychological problems that the respondent may
have had, and also excluded evidence from the sentencing hearing that most likely would have
proven more detrimental than helpful for their defense. A thorough mitigation investigation had
been made by the counsel; however, the aggravating factors outweighed the mitigating factors.
There, the Court held, [t]he trial judges views on the importance of owning up to ones crimes
were well known to counsel. The aggravating circumstances were utterly overwhelming. Trial
counsel could reasonably surmise from his conversations with respondent that character and
psychological evidence would be of little help. Respondent had already been able to mention at
the plea colloquy the substance of what there was to know about his financial and emotional
troubles. Restricting testimony on respondents character to what had come in at the plea

colloquy ensured that contrary character and psychological evidence and respondents criminal
history, which counsel had successfully moved to exclude, would not come in. On these facts,
there can be little question, even without application of the presumption of adequate
performance, that trial counsels defense, though unsuccessful, was the result of reasonable
professional judgment.
Here, like Strickland, Ms. Advocate met with Petitioner, discussed his personal life,
contacted all of his family, local friends, and his doctor on the matter of his mental health and
drug history, read the case file, and had spent a reasonable amount of time on the case. In
addition, the aggravating factors in this case were simply too overwhelming for the jury to have
decided differently. Ms. Advocate used her strategic judgment and excluded much of the
aggravating factors from the trial to the best of her ability. As demonstrated above, Ms.
Advocates performance was objectively reasonable because she thoroughly researched the case
and executed her actions as a result of strategic planning.

B. Even if this Court finds Annie Advocates performance to be deficient, did not prejudice
the outcome of the Petitioners trial.
As demonstrated above, Ms. Advocates performance was reasonable, but even if the
Court finds that there were errors within it, those errors did not prejudice the outcome of the
Petitioners trial. The Aggravating and Mitigating Factors rule states, If a jury finds that the
aggravating factors presented by the prosecutor outweigh the mitigating factors presented by the
defense, and then the jury may impose a death sentence. In Rhoades v. Arave, 2007 WL
1550441 (D. Idaho 2007) the attorney did not make an effort to research his client. However, he
was given a second chance to do so. The attorney looked into the Petitioners mental health;
spoke with the Petitioners family, friends, and former employer. However, he did not hire a
mitigation specialist to obtain records, develop background information, or conduct interviews,
and simply relied on the investigators work. Plus, the attorney did not separate relevant
documents to irrelevant ones. The attorney was deficient, but his errors did not prejudice the
outcome of the trial. The Rhoades case states, Although [the attorney] did conduct a mitigation
investigation, and he called a number of witnesses at the sentencing hearing, by his own
admission he devoted only an estimated 20 to 25 hoursthe equivalent about three work days
to prepare for the hearingThe aggravating circumstances in this case are simply too strong, and
the new mitigating evidence, even if credible, adds too little, to create a reasonable probability of
a different outcome. Rhoades v. Arave, 2007 WL 1550441 (D. Idaho 2007).
Another example of mitigating factors that could have possibly made a difference in the
outcome of a trial is in the Rompilla case. In Rompilla, the Court weighed the mitigating and
aggravating factors and found that the attorney for Rompilla had made many errors that
prejudiced the outcome of the trial. On gathering new evidence, the case stated, Judge Sloviter

summarized this evidence: Rompillas parents were both severe alcoholics who drank constantly.
His mother drank during her pregnancy with RompillaHis father, who had a vicious temper,
frequently beat on Rompillas motherand bragged about his cheating on herHe was abused
by his father who beat him when he was young with his hands, fists, leather straps, belts and
sticksHis father locked Rompilla and his brother Richard in a small wire mesh dog pen that
was filthy and excrement filledhe slept in the attic with no heat, and the children were not
given clothes and attended school in rags. Rompilla v. Beard, 545 U.S. 374 (2005). The attorney
of the case had not done a thorough mitigation case. When Rompilla did not make any
contributions to his own mitigation case, the attorney decided not to put much effort into the
search, too. Rompillas attorney did not look for evidence of a history of dependence on alcohol
with Rompilla or any of his other family members, childhood abuse, unfit living conditions,
domestic violence, and financial troubles. The attorney hadnt even read Rompillas prior
conviction file or the transcript.
In our case, Ms. Advocates errors, if any, were minor. She had failed to recover
Petitioners murder case files because the attorney of that trial was on vacation, obtaining a copy
of the personal records in his old case file, and preparing her witness before the sentencing trial.
Still, she made an attempt to obtain all and gather more witnesses, but either no one returned her
calls or bad timing was involved. Much of the evidence wouldnt have made a difference in the
outcome of the trial anyway. Compared to the efforts made by the attorney in the Rhoades case,
Ms. Advocate had put n more time and thought to how she would handle the matters of
Petitioners case. Also, compared to the Rompilla case, Petitioner had few mitigating factors that
weren't as effective as Rompillas. When balancing the aggravating factors v. the mitigating
factors, the aggravating factors weighed more. Overall, there was very little mitigating, and even
if they were strong, the jury still would have decided that Charles Thomas be sentenced to death
for all three counts of capital murder.

Policy Argument
Attorneys are held to a professional standard of conduct. Setting such a precedent is
dangerous because attorneys may be fearful of taking on pro bono matters and opening up the
chance to be charged with an ineffective assistance of counsel lawsuit. We want attorneys to take
on these important matters. If the Court finds Annie Advocates performance deficient, setting
such a low standard would deter attorneys from taking on these cases. We shouldnt question an
attorneys strategic decision because it could affect their professional handling of the matter.

Conclusion
For the foregoing reasons, this Court should deny overturning the Petitioners conviction.

Respectfully Submitted,

X
Cecelia Chollette-Dickson
Attorney for the Respondent