In Harvey v. Warden, No. 08-15868 (Jan. 6, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1985 murders.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.
