11th Circuit Denies Habeas Even Though Murder Victim's Pastor Opened Voir Dire With Prayer

Bates v. Secretary, Florida Department of Corrections, (11 Cir., Sept. 5, 2014), is a habeas corpus action brought by a death row inmate who was convicted of murder, kidnapping, sexual battery and armed robbery.  At issue in this proceeding was a challenge to the trial judge's action at the beginning of the jury selection process in which he asked a Baptist minister-- pastor of the church at which the victim's funeral took place-- to open the proceedings with a prayer. Petitioner claims ineffective assistance of counsel at trial because of his lawyer's failre to object to the prayer. The court unanimously rejected his claim, but with a shaarp split on the reason for the result:

In a 2-1 decision, the majority held that:

Bates’s lawyer could not be ineffective for failing to raise an Establishment Clause claim, because an Establishment Clause claim, by itself, would not help his client anyway....

More generally on the lawyer's failure to object, the majority said:

Good lawyers, knowing that judges and juries have limited time and limited patience, serve their clients best when they are judicious in making objections. In any trial, a lawyer will leave some objections on the table. Some of those objections might even be meritorious, but the competent lawyer nonetheless leaves them unmade because he considers them distractive or incompatible with his trial strategy.

Judge Wilson concurred, only because there was a "dearth of clearly established law" on the issue, so that the previous Florida Supreme Court ruling on the issue was not an unreasonable application of clearly established federal law (the requiement for habeas relief). However, he argued that if he were deciding the case de novo, he would have found a substanital problem:

Bates’s murder trial began with a prayer in the presence of the jury, and the victim’s husband subsequently gave testimony informing the jury that the prayer was delivered by none other than the victim’s own minister. This testimony had no probative value, but it had great potential to prejudice the jury against Bates. The prayer inserted God into Bates’s trial, and the husband’s testimony made clear whose side God was on.