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PREJUDICE FLIES FIRST CLASS

Kay Ellison and a friend started their own airline, Direct Air. Owning an airline worked for Sir Richard Branson (Virgin Atlantic) but not for Donald Trump (Trump Shuttle). It didn’t work for Kay, either.

Under federal regulations, a charter airline like Direct Air has to keep money passengers pay for tickets in an escrow account until they take the flight. But when Direct Air’s money got tight, Kay tapped the escrow account by faking some records in order to keep the planes flying. Those things seldom work, and they didn’t work for Kay: she and her co-owner were charged with wire fraud and bank fraud conspiracy.

At trial, Kay did not present a defense, and the jury obligingly convicted her on all counts.

In a 28 USC § 2255 post-conviction motion, Kay claimed her lawyer had rendered ineffective assistance, a 6th Amendment violation and a first-class ticket to a new trial. Kay said her lawyer wrongly told her that if she declined to testify, she could not present other witnesses or evidence. Ellison believed him, and did not put witnesses and records before the jury. She argued this advice prejudiced her defense by depriving her of the opportunity to contest key portions of the Government’s case – she had lobster thermidor to serve the jury, but they got a little packet of peanuts instead.

The District Court concluded that even assuming Kay could prove her attorney told her something as wrong-headed as what she claimed he said, she could not show prejudice.

An argument of ineffective assistance made on a § 2255 motion has two components. First, the attorney must have performed deficiently. Second, the § 2255 movant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Here, the District Court focused on prejudice first. Assuming the lawyer told her such a bone-headed thing, the court asked “whether there is a reasonable probability… that if Kay had testified herself and presented the testimony of her proposed witnesses, the jury would have acquitted” her. The judge concluded that “with or without the proposed witness testimony… evidence of Kay’s involvement in running Direct Air makes it unlikely the jury would conclude she was not involved” in the withdrawal scheme.

Kay argued that her right to testify was so fundamental that the correct prejudice test was not whether the jury would have acquitted her. Instead, the test should be a “process-based” inquiry. She likened her case to § 2255 motions alleging lawyer ineffectiveness in counseling a defendant of accepting a plea offer: In such cases, the courts have judged prejudice by asking whether or not the defendant would have taken or rejected a plea deal, not whether the defendant could have prevailed at trial. Kay argued the proper test here should be a similar one, whether – if her lawyer had given her good advice – she would have exercised her right to testify.

Last week, the 3rd Circuit grounded Kay’s process-based prejudice flight of fancy. In a decision that is a must-read primer on prejudice, the Circuit explained that “actual prejudice” – proof that the outcome is reasonably likely to have been different – “is required where the alleged error occurs within a judicial proceeding that is otherwise presumptively reliable. That must include right-to-testify claims like [Kay’s], because the error in those cases (i.e., failing to present testimony from the defendant or other defense witnesses) occurs during the presentation of the case to the jury and may therefore be quantitatively assessed in the context of other evidence presented in order to determine what effect, if any, it had on the jury’s verdict.”

Kay, the 3rd ruled, “needed to show a reasonable probability that, but for counsel’s errors, she would have exercised her trial rights, and that doing so would have changed the result.” She could not, leaving her § 2255 stranded at the gate.

Ellison v. United States, Case No. 22-2169, 2024 U.S. App. LEXIS 27494 (3d Cir., October 30, 2024)

– Thomas L. Root