Once upon a time, there was a juror in an attempted robbery trial. The defendant, Anna Castillo, allegedly accosted a handful of people with a pistol, tried to rob them, and somehow failed. She robbed a couple others as well, but that case was handled separately.

In short, a typo is to blame for all of this litigation.

In any case, due to the inconsistent positions of the state, and the muddled mess of a record replete with mistakes, the majority decided to err on the side of the convicted, and take all assumptions in her favor.

Assuming that the worst-case scenario was true, and the phantom juror did disappear, yet deliberate, Castillo’s counsel hypothetically should have objected. Failure to do so would be ineffective assistance of counsel per Strickland v. Washington. However, both the District Court and the Eleventh Circuit agree – Castillo can’t show actual prejudice.

There were three days of testimony, all of it by the prosecution. If a juror can convict based on days one and three, that missing day of testimony would only make a conviction more likely, right? “Chances for acquittal vary inversely with the amount of incriminating evidence … "

(Sidebar: We beg to differ. A truly awful witness can make or break a case. Then again, such a hypothetical witness probably would have convinced the present jurors of innocence as well.)

Strickland’s actual prejudice test isn’t met here. The district court relied on Cronic to hold that the failure to object to in-and-out jurors was per se prejudicial. Alas, it didn’t read Cronic closely enough, as its exceptions to Strickland’s actual prejudice only apply in three very narrow instances:

  • there is a “complete denial of counsel” at a “critical stage” of the trial,
  • “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or
  • under the “circumstances the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.”

Castillo’s attorney was present during the entirety of the trial. He made good arguments, cross-examined witnesses, had a case strategy, and even delivered opening and closing statements. He also showed no signs of total impairment per the third instance.

No Cronic exception, no Strickland actual prejudice, no ineffective assistance claim, even if we believed the phantom juror nonsense.

Related Resources:

  • Anna Castillo v. State of Florida (Eleventh Circuit Court of Appeals)
  • Case Remanded for Sentencing; ‘He Did it’ Isn’t Good Enough (FindLaw’s Eleventh Circuit Blog)
  • Death Row Habeas Petition Doomed by Laziness, Counsel (FindLaw’s Eleventh Circuit Blog)

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