Who needs merit when you’re in habeas
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As has been pointed out to me by several readers, I missed a troubling portion of an opinion earlier this week when I recapped the latest Appellate Court opinions. In Kaddah v. Comm’r, which I summarily dismissed, I ignored habeas counsel’s shocking admission that he intentionally pled a meritless claim just to please his client.
Perhaps I was subconsciously taking a cue from the Appellate Court who also let it pass without a reprimand.
The story goes thusly: Petitioner, represented by Attorney A, claimed in his first habeas that his appellate counsel, Attorney B was ineffective. However, at the habeas trial, Attorney A did not call Attorney B to testify and seemingly abandoned that claim. So petitioner filed another habeas, this time against Attorney A, alleging IAC for failing to establish his claim the first time around by not calling Attorney B.
At that second habeas:
[Attorney A] testified that the inclusion of the ineffective assistance allegation against [Attorney B] in the first habeas petition was done merely to placate his client—[Attorney A] did not believe the claim had any merit. On the basis of his assessment that the claim was meritless and would fail, [Attorney A] decided it would not be prudent to call [Attorney B] to testify.
Whaaaaaa? Did I just go through a worm-hole and end up in BizarroConnecticut where the rules of professional conduct no longer apply? Let me check. No, Rule 3.1 still exists. For those not in the know, it states:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
So how does the court get around it? By changing Attorney A’s characterization of the claim as “meritless” to “weak”.
In light of this uncontradicted testimony, [Attorney A]’s abandonment of the claim against [Attorney B] was a strategic decision that merely eliminated a weaker argument from the petition.
Weaker? It’s frivolous! Weak is when the only support for your claim is your client’s testimony. Frivolous is when you have no support for a claim.
They can’t make up their mind, apparently. For, a sentence later, they say:
The petitioner has set forth no persuasive arguments as to why [Attorney A]’s failure to pursue a meritless claim amounts to deficient performance.
At a time when courts openly question why habeas cases take so long to prosecute, you’d think the Court would want to stamp down on those that plead meritless claims just to please their clients.
Oh, and I’ve said this before, but if you’re an attorney whose former client has filed a habeas petition, why don’t you just co-operate and talk about your representation? It would make things so much easier for the habeas attorney. You talk to them; they can better determine if there actually is a claim - then we don’t end up clogging the courts with frivolous weak claims.
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Why the correction at the end from “frivolous” to “weak”?
Even if a claim is “weak” because, by your definition, the only evidence supporting it is my client’s testimony, I don’t think it’s my place to worry about clogging the court system by bringing the claim. Once I’ve explained the realities to my client, i.e., IAC claims are very difficult to win and the court will likely credit your attorney’s version over yours, if my client wants to proceed because he/she maintains that it went down the way he/she says it did, then I think it is my obligation to raise the claim and put my client on the stand. (This is obviously assuming I have no reason to believe my client would present false testimony).
I see your point about how cooperating attorneys can eliminate claims from ever being litigated, but in my view, that isn’t because a claim is “weak.” Rather, it’s because a claim is “frivolous.” It’s because whatever information the attorney provides kills my claim in a way that I can’t fix, or offer evidence to rebut.
Oh you…
It was more of a play on the Court’s use of the words.
Oh c’mon! Frivolous ineffective assistance claims are brought in habeas proceedings ALL THE TIME!! Its why ineffective assistance is one of the most litigated issues ever. Especially when it comes to capital appeals and collateral proceedings, it seems to me the vast majority of claims are pretty frivolous. Feigning outrage at the Rule 3.1 implications is a little much, don’t you think? Practicing law is an ethical minefield, and a gratuitous ineffective assistance claim seems relatively minor!
A) They don’t have to be
2) Even if they are, I think it’s quite something for an appellate court to not say something about an attorney that admits to filing frivolous claims.
III) How do you know I’m “feigning”? It surely was dramatic, but not in the least fake.