My earlier post today, after a hiatus of quite some time, does not reflect any sort of New Years Resolution to start blogging again. The post had been sitting in my “drafts” folder for a couple months. It had originally been intended to be longer and more complete, as its last paragraph suggests. I edited it slightly for immediate consumption and hit publish. Rather than any sort of new beginning, that post and this one reflects more of a desire to wind this blog up. I have for the most part said what I wanted to say, except for a few loose ends that still irritate me, and that I’ll get around to when, if ever, the mood strikes me. Not that this is some kind of farewell post (or proto farewell post) either. If I feel called to write again on a regular or semi-regular basis in the future, I will. But writing has become harder and harder for me, because I feel more and more like it’s a waste of time. Nowadays I do it only when I have to, and not for fun. Reasoning — arguing — is so last year. I have learned this lesson from the State, which of course includes the judiciary. I may elaborate with examples in future posts. Because writing, and especially writing about the law, has become like pulling teeth for me, if I do write I expect I’ll break my subjects into little pieces, and not endeavor to produce anything complete or polished or persuasive. Just dot the i’s and cross the t’s.
I feel like I’ll have to say a little more yet about the case I wrote about in my last post, and which I’ve written about occasionally almost from the beginning of this blog. I’ll probably want to finally say something about the case I argued in front of the Indiana Supreme Court and won back in 2014. I’ve been meaning to, and may still, write about footnote 1 in the Indiana Supreme Court’s opinion in Helton v. State. Here’s what I wrote about this footnote in a petition to transfer a post-conviction case to the Indiana Supreme Court, which not surprisingly was denied:
The Indiana Supreme Court itself has left the exact nature of the inquiry unclear (although the inquiry is ultimately one of federal constitutional dimensions), writing in footnote 1 of its opinion in Helton v. State, 907 N.E.2d 1020 (Ind. 2009):
“Helton cites United States ex rel. Hampton v. Liebach, 347 F.3d 219 (7th Cir. 2003), for the proposition that “[e]ven if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible.” Id. at 246. We are not confident that this is an accurate construction of the Strickland prejudice standard. Taken at face value, the “better than negligible” Hampton test would appear to find prejudice based on a reasonable possibility that the petitioner would have prevailed at trial. But Strickland requires a reasonable “probability” that the outcome of the proceedings would have been different. In any event, we reach the same result in this case under either the traditional Strickland standard or the Hampton formulation.”
Standard dictionary definitions of “probability” do equate a “probability” with the “chance” or “possibility” of something happening, but the Court here appears to have equated it with a greater than fifty percent chance. Furthermore, the word “reasonable” in the phrase “reasonable probability” would appear to be superfluous and redundant if “probability” is already taken to mean a greater than fifty percent chance. Moreover, the Seventh Circuit in Hampton cited three United States Supreme Court decisions in support of its “formulation,” including Strickland itself, which expressly stated: “[W]e believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Hence, it was exceedingly odd for this Court, in providing guidance to lower courts, to imply that “the traditional Strickland standard” requires a defendant to show that counsel’s deficient conduct more likely than not altered the outcome in his case.
And I do feel like I should probably write at least one more post on my political philosophy, to sum things up and refine a little what I’ve said before on this subject. From the beginning this blog was unusual in that it wasn’t able to “keep its eyes in the boat.” We’ll see.