Eleventh Circuit Denies Ineffective Assistance of Counsel Claim Based on Jury Irregularities – Castillo v. State of Florida

July 24, 2013 by David S. Seltzer

Misconduct by and around juries can be a very big deal in a criminal case, sometimes requiring a retrial. That’s because people charged with serious crimes have a right to a jury that has not been tampered with, and the right to effective assistance of counsel when jury-related issues arise. Complex jury issues informed the case of Anna Castillo in Castillo v. State of Florida, a petition she made to the federal courts for a writ of habeas corpus, based on ineffective assistance of counsel. Castillo was charged with attempted armed robbery, but her trial was marred by the fact that one juror may have missed the second day of the three-day trial, yet was still allowed to deliberate and vote for the outcome, without Castillo’s attorney noticing. The Eleventh U.S. Circuit Court of Appeals ultimately reversed the grant of the writ, finding no actual prejudice.

Castillo was convicted by a six-person jury of three counts of attempted armed robbery that took place in Miami Beach. The jury had to be unanimous to convict. Juror Ingrid Caldwell was absent on the second day of the trial, when most of the testimony took place. Castillo argued that Caldwell was nonetheless permitted to deliberate and vote with other jurors, who sent Castillo to prison for 15 years. The Eleventh Circuit noted that prosecutors for the state of Florida have changed their story on this issue, but assumed that Castillo was correct. In her habeas petition, Castillo argued that her attorney was ineffective because he or she failed to notice that Caldwell was participating in jury deliberations. The South Florida district court agreed with Castillo and granted the writ, saying the deficiency of her attorney was “per se prejudicial.”

The Eleventh Circuit disagreed. It assumed without deciding that Caldwell had been absent but permitted to vote, and that this represented a deficiency in her attorney’s representation. But even so, it said, Castillo couldn’t show that this created actual prejudice as required under Strickland v. Washington, because testimony presented on the second day largely weighed against Castillo. (Indeed, the court suggested that Castillo’s attorney might have thought it was better for the juror to miss this testimony.) Castillo argued that prejudice should be presumed under the Supreme Court’s U.S. v. Cronic, but the Eleventh Circuit said Cronic doesn’t apply when the counsel fails to object to just one important error; the failure must be systematic. Nor did the 2000 case Roe v. Flores-Ortega get Castollo around the prejudice requirement, the court said, because Castillo was not obliged to forfeit a proceeding. It reversed the grant of the writ of habeas corpus.

It’s tough to get a writ of habeas corpus, but the conduct described in this opinion is disturbing to me as a criminal defense lawyer. The prosecution apparently argued in Florida state court that Caldwell had not been absent, but argued in federal court that she had indeed been absent, but also not deliberated or voted. Under those confusing circumstances, it’s difficult to feel confident that Castillo’s state-court appeals were adequately considered. Unfortunately, remedies after the fact like state-court appeals or a federal writ petition—even when they work—are slow and tough to win, which is why it’s best to have a sharp, experienced attorney on your side from the beginning. At Seltzer Law, P.A., our goal is to raise important issues as they happen, so they are addressed or at least adequately preserved for appeal.

Based in downtown Miami, Seltzer Law represents clients across South Florida who are facing serious criminal charges. We answer the phone 24 hours a day and seven days a week, because we know police don’t go home after 5 p.m. To tell us your story and discuss your legal rights, send us an email or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333) today.

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