clients

Free-ish

Jan 12th

Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.

Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:

whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.

Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.

The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.

Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).

How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.

Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.

Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?

The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.

Wrong time, wrong battle

Mar 28th

Posted by Gideon in clients

5 comments

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

__________________________________________________

¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

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Deluding yourself is deluding the client

Mar 15th

Posted by Gideon in clients

9 comments

Sometimes I wonder what practicing as a criminal defense lawyer would be like if the State only arrested innocent people; if all my clients were, indeed, not guilty. It would be a burdensome practice, for sure. And exceedingly infuriating. As every criminal defense lawyer will tell you, one inevitably comes to believe in the not-guilt of a client with whom you are preparing to go to trial. Every inconsistency in the State’s case becomes magnified, every weakness exaggerated, every defense rock-solid. There is no way to lose, we say to ourselves.

But the reality is, unless you can pick and choose your clients, you will lose. More often than not. Frequently, even. Which is why the inevitable “how many trials have you won” question from an antagonistic client gets under my skin. None, I often respond. But what I really want to add is “that’s because I haven’t had an innocent client yet”. Recognizing that that is nothing more than a hurt ego lashing out, I resist.

But maybe there is something to be learned. Perspective, after all, matters. As defense attorneys, we regularly complain that the state and the man wearing the robes commence discussions and negotiations with the presumption of guilt. Due process, the burden of proof and all the rest of it are fine concepts, in principle and need to be upheld on a daily basis, for without them we would be left with a terrifying shambles of a system.

The reality, though, is that they’re right, for the most part. The system doesn’t just go about arresting perfectly innocent people willy-nilly. And the blind faith in the innocence of each and every client does them a disservice. Clients come to us – or we are thrust upon them – for our expertise, our knowledge and our advice. It is imperative that we consider every possibility and assess it accurately before suggesting the most prudent course of action.

Our job isn’t to “win” or to put on a great trial or to take on the State. It’s to protect the client’s ass, which, most of the times, they have no interest in doing. We fail miserably at our jobs if we adopt the same reckless abandon that they have to their future. We are in the mitigation business, unfortunately and even more so for others, we are akin to actuaries.

What is the most likely outcome, we are required to advise, and what is the best way to minimize negative consequences? Crunch the numbers and viola, we have a recommendation.

Do not, for a second, mistake this to be a growing disinterest or disillusionment with the role of the defense attorney, but the opposite: an expanding awareness of the pragmatism that is needed – required, even – to perform this job well. In the end, I do not sleep in a jail cell; the client does. And if that outcome is more likely than not, is it not my job to ensure that such an undesirable circumstance occurs for the least amount of time possible? And what, then, is the most certain way to achieve that outcome?

Prepare every case as if it were going to trial, because that meticulous preparation will inevitably lead to better offers from the State. But recognize that the plea deal is more often than not the sounder of the two choices. Because, in the end, experience tells us that the defendant almost always gets screwed. How badly he gets screwed is up to us.

Cf: Why I hate guilty pleas

Clowning around in Georgia

Nov 12th

Posted by Gideon in clients

8 comments

Why is it always Georgia? The latest, via Volokh, from the Georgia Peach State:

The record in this case establishes that the prosecutor, in the final moments of her concluding argument on behalf of the State, “clicked” her fingers at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor “popped out a cake out of a grocery bag” complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory words to “Happy Birthday.”

This was during the closing arguments of a murder trial, where a couple were charged with the death of their son Josef. The defense lawyer, apparently one of the “top 5 defense attorneys in Georgia” didn’t object. Sorry, Manny “Top 5 defense attorney in Georgia” Arora, but you’re an idiot. How any defense attorney worth the paper his degree was printed on could restrain himself from jumping up from his seat, and protesting the blatant appeal to jurors’ sympathies is beyond me. But maybe I don’t think this way:

Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the “Happy Birthday” song during closing argument. Specifically, Arora thought that the “Happy Brithday” song was so “preposterous,” “absurd,” and “over the top” that “it would turn the jurors off,” and that he should not call any more attention to it by objecting to it.

“Strategic decision” is the language that full-of-themselves lawyers hide behind when they realize that they’ve – to put it simply – royally screwed up, but don’t want to take the hit to their reputation. It’s also the language that courts use to coddle these lawyers. Anyone who’s ever honestly practiced criminal law and who puts the client’s interests before their own will see this for what it is: bullshit. But then again, I guess one doesn’t get invited to be “a legal analyst for Atlanta’s ESPN radio affiliate 680 The Fan and regional television show Sports Nite” and “a frequent guest on CNN, Fox News, ESPN” and be “quoted as a legal expert in the New York Times and USA Today” by admitting that they screwed the pooch while defending the liberty and freedom of two individuals. If you were a real lawyer, Manny “Top 5″ Arora, you’d admit your mistake and not hide behind a legal fiction.

What’s more disturbing is that the court approval of this argument is undermined by the instructions given to the jury by the trial court:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Nor was counsel’s concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that “you should not be prejudice[d] in any way against a lawyer who makes objections for the party he or she represents.”

But let’s put the defense lawyer aside for a moment. Shouldn’t the prosecutor’s outrageous behavior by itself be deemed a violation of Due Process, requiring a reversal? The dissent sure seems to think so:

There was no legitimate reason for what the prosecutor did. It was neither argument nor rebuttal, because there is nothing at all in the record about birthdays and birthday cakes to raise even the slightest possibility that the prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary restrictions, that eliminated the possibility of the victim experiencing the type of birthday event dramatized by the prosecutor.3

The prosecutor’s birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury’s passions and divert the jury from the evidence.4

And footnote 4 gives us a little more insight:

4I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV. See defense counsel’s testimony at the hearing on appellants’ motion for new trial (“I understand the cameras were rolling and everybody wants to be Nancy Grace’s friend”).

Oh. There were TV cameras rolling and people were watching live. And what of the trial court’s duty to maintain decorum in the Court and ensure an orderly application of the rules?

It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom. Moreover, after observing this “‘preposterous’” performance, the trial court took no steps of any kind to minimize the prejudice. There was no rebuke to counsel; there was no direction to the jury to ignore the spectacle they had just witnessed; there was no charge to the jury that sympathy for the victim was to play no role in their verdict. See Div. 1 (C), infra.

The record is clear that the trial judge violated his duty to maintain order and decorum in his courtroom. Although he told the jurors in his pre-trial instructions that he was “going to make sure that the decorum of the court — that the decorum of the courtroom stays intact,” he took no action to stop an out-of-control prosecutor from turning his courtroom into a theater stage for her unprofessional behavior, which could only have left the jury with the impression that what she did was perfectly acceptable.

It is beyond question in this exceptional circumstance that the trial judge’s failure to maintain the decorum of his courtroom was an error that seriously affected the fairness, integrity and public reputation of these criminal proceedings, such that “the plain error rule should be applied” to this case, Paul v. State, supra, 272 Ga. at 848 (3), and these convictions reversed.

So, just to be clear: the prosecutor performed this outrageous stunt, defense counsel sat silent because of some made-up reason and the trial court didn’t as much cough uncomfortably. The defendants were found guilty and now the Georgia Supreme Court has affirmed, despite the recognition that the behavior was outrageous. The majority’s reasoning simply was that the lawyer didn’t object, so the issue wasn’t properly preserved for appeal and “plain error” doesn’t apply because this isn’t a death penalty case (which the dissent points out is an incorrect interpretation of prior decisions).

Folks, the lesson here is that if ever a prosecutor unveils a cake during closing argument and starts singing happy birthday to the decedent, jury be damned, you object. Because if you don’t, it’s going to be your fault that your client was convicted in violation of the Constitution. And isn’t that why you’re doing the job in the first place? To protect Constitutional rights?*

Apropos of the discussion of prosecutors and their ethics the last few days, it is indeed notable that the decision – neither the majority nor the dissent – does not bother to name the offending prosecutor.

*Luckily, even in CT, defense counsel need not object in order to preserve the issue of prosecutorial misconduct impropriety for appeal:

“Or to put it another way `while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). `A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.’ Viereck v. United States, 318 U.S. 236, 253, 63 S. Ct. 561, 87 L. Ed. 734 (1942) (Black, J., dissenting).

In this connection, we recognize that primarily it is the responsibility of the defense counsel to protect the rights of his client by taking appropriate action to alert the trial court to claims that those rights are being jeopardized. In this case, the defense counsel’s sporadic objections to the improper cross-examinations and his lack of objection to the impermissible closing argument fell short of that responsibility. Nonetheless, in a case of serious and repeated prosecutorial misconduct such as this, the trial court has an independent responsibility to intervene, even in the absence of an objection or motion by defense counsel. See Harris v. United States, supra, 657. Although the timing and degree of that intervention will depend upon the facts of each case; id., 657 n.1; the court’s reaction should be proportionate to the seriousness of the misconduct. Berger v. United States, supra, 85; Harris v. United States, supra. 550*550 We cannot say that the court’s cautions to the jury in this case adequately dealt with the severity of the prosecutorial misconduct.

State v. Williams. And:

Due to continued confusion, we also take this opportunity to clarify our due process analysis in cases involving incidents of prosecutorial misconduct that were not objected to at trial. In doing so, we conclude that, in cases like the present one, it is unnecessary for the defendant to seek to prevail under the specific requirements of [preservation of issues for appeal] State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),[10] and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test.

State v. Stevenson.

And as if that wasn’t enough craziness for one day, watch this:

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Sometimes a fool is just a fool

Jul 12th

Posted by Gideon in clients

4 comments

A client who represents himself has a fool for a lawyer. And fools are, by their very description, entitled to make foolish decisions. As those in the legal profession know well, just because a client makes a foolish decision, it doesn’t mean that he’s incompetent. Well, not always anyway.

So recognized the Ninth Circuit in a recent decision in United States v. Johnson. The defendants were tried on a bunch of boring fraud type stuff and they represented themselves, putting for a defense that was gibberish. No, that’s not my characterization, it’s the Ninth Circuit’s:

Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish.

It always tickles me to read words like “gibberish” in appellate opinions.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The district court found that the defendants were competent to represent themselves and that such was their constitutional right. Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to stand trial but not to represent themselves. The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and go down in flames if they wished, a right the district court was required to respect.

It is a pity that the court does not recite the various nonsensical pleadings and antics undertaken by the defendants. The case does make an interesting read for several reasons, though. It highlights the difference between Faretta and Edwards and also Illinois v. Allen, ultimately holding that the defendants did nothing to disrupt the trial, were not incompetent and were merely foolish.

But here’s what intrigues me: during the course of the Faretta hearings conducted by the district court and in reaching its conclusion that the defendants were competent to represent themselves, the court relied on the expert testimony of a psychiatrist who evaluated both defendants:

Because the defendants were considering representing themselves and because they had made some strange comments in court, the district judge ordered that the defendants undergo mental examinations. James R. Missett, M.D., Ph.D., evaluated the defendants separately at the Federal Corrections Institute in Dublin, California. Both defendants were less than cooperative during their evaluations, but Dr. Missett engaged them for approximately one hour each and filed written reports in which he opined that neither defendant was suffering from any mental disorder. The court held a competency hearing at which Dr. Missett testified in person. The court found the defendants competent to represent themselves based on Dr. Missett’s reports and testimony and based on the court’s own observations.

I wasn’t there. I’m not in the defendant’s head (but I may be a figment of your imagination) and they very well may believe in this “absurd legal theory”, but spending an hour with uncooperative subjects doesn’t seem enough to reach a conclusion about the absence of any psychiatric disability. But what do I know, I’m just a lawyer. On the other hand, one might argue that if you’re a lawyer, you can’t be entirely sane.

No matter the relative levels of sanity, the fact remains that a trial is damn hard work and there a thousand small things that need to be paid attention to before you even get to the testimony itself. Lawyers are trained in this; laypersons are not.

So to those of you non-lawyers reading this, or who might be searching for the phrase “should I hire a lawyer or should I represent myself?”, take heed. You may be sane, you may be competent, but in the end, you’ll probably get convicted without counsel and then appeal and lose and regret it and then end up in a blog post here.

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Life without possibility of redemption

Jun 17th

Posted by Gideon in clients

21 comments

I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.

There was a bed – a small bed – that was the length of the room. At the foot of the bed a metal toilet, with no cover. Just beyond that the heavy metal door, with a slit for a window. The door was maybe 3 feet wide, if that. At the head of the bed, if you were laying on your right side, you’d be about half a foot away from an ugly metal desk with holes that pretended to be drawers. This could not have been more than a foot long. The bed was flush with one wall. The desk with the opposite.

The bed looked hard, cold and dirty. And that’s it. This particular cell happened to have a window at the head of the bed. A window looking out onto nothing. Any future inhabitant of this particular cell would have it good. It was a single. Across the narrow passageway from this cell was another, identical in every respect except two: it was a double cell and there was no window. (Here’s a post I wrote a while ago about a different take on prisons in a foreign country.)

I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.

I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.

I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Would I survive? How does anyone? Would I give up and stop bathing, shaving, eating? Would I maintain my sanity or would I quickly decompensate? How long would it be before I’d want to kill myself?

Luckily, my stint in a jail cell ended rather quickly. As I stepped out and waited for my escort to guide me to the next location, I peeked into the cell across the way – the double – and it was occupied. Two men, sleeping ramrod straight (for these “beds” are as wide as the human body and no more), in a dark, dingy cell. One lifted his head as I was spying and looked at me. I looked away. I didn’t want to see his lifeless eyes.

People in cells are lucky, though. The next portion of the tour took me to the dorm-style housing. Which is nothing like any dorm you’ve ever lived in. Imagine instead the makeshift MASH hospitals, or perhaps the busiest train station in your neighborhood at rush hour, except instead of standing, people are milling about a hundred bunk beds on that tiny platform.

There is no privacy, there is no solitude, there is no being left alone. You are part of a large crowd. You are in someone’s face and they are in yours. You are a collective. Day in and day out. You share your bedroom with 125 other people.

Leaving the prison, I asked my colleague: cell or dorm? There’s no debate. Cell. I’d rather lose my sanity by myself.

—

Parole has got to be a sham. There’s no way that a group of 3 or 4 “regular folks” can decide whether one inmate is worthy of release over another. How can anyone better themselves in those conditions? Is there any choice but to give in to the atmosphere? The aura of despair, rejection and failure? How can we reasonably expect a person to prove to us on the outside that they’re worthy of a shot, when we give them no chance at redemption?

Parole hearings last 30-40 minutes. In that time, the board will try to determine who the person is that is sitting before them, what they’ve done to “change” and whether they’ll reoffend. It’s a crock of shit. It has to be. We spend our lifetime trying to figure out who we are and yet we ask others to perform this act and convince us of the goodness of their hearts and the errors of their ways in the time it takes for me to absent-mindedly watch the latest episode of crappy sitcom after crappy sitcom. They don’t stand a chance. Parole is a guessing game, much like poker. There’s a lot of bluster and bluffing and saying the right things and avoiding doing the wrong things.

It’s like locking a man in a room for 5 years with only a bicycle tire and asking him to manufacture the Bugatti Veyron in that time period and then punishing him when he is unable to. Why are we surprised? Why do we blame them?

How can one fault the inmate who, having served 30 years of his 40 year sentence, has done close to nothing, when it is we who have taken the tools from him. We, who have told him in no uncertain terms that his life, his potential, his talents, mean nothing, who have sucked the spirit out of him and confined him into submission, cannot then turn around and hold that man responsible for his failure to meet our arbitrary standards of rehabilitation.

Time slows down in prison. A minute seemed like an hour to me. I bet an hour seems like a year and a week like a decade. What of sentences of 5, 10 and 40 years? I can’t imagine what that must feel like. Hearing an imaginary clock tick every second of every day in your head, loud and unstoppable. Thinking about it is agonizing. Living it must be unbearable.

Why are we surprised that the lifer has given up? That he sleeps on the floor and not the bed, that he doesn’t eat or exercise or bathe or cut his hair? That he’s resigned himself to dying in prison? Because that’s what will happen. We’ve made that decision for him.

I do not believe that there is anyone who will not change, who will not repent or grow out of their childish bravado. Yet we send scores upon scores of our fellow human beings to these warehouses with no meaningful review of their development and growth for decades and decades.

Maybe it’s a self-fulfilling prophesy. They cannot change because we don’t let them. Because if we did give them the tools to “better” themselves and they did, our draconian system of punishment would seem barbaric.

We cannot be wrong. We are never wrong. We are not them.

—

There is so much wrong with our criminal justice system: the way we treat inmates, the disparate sentencing of minorities and whites, the witchhunts of sex offenders. Yet there is nothing that you or I can change about this. And that’s a pity. Fear has won and will always win. Stereotyping still rules the day and will do so for eons to come. We are wonderful at recognizing the heterogeneity of those close to us and the homogeneity of everyone else.

Lots of people have lost faith in the goodness of the human spirit and have forgotten that man, at his core, is a fallible being. But he is not his actions; rather he is how he responds to them.

I could be snarky and say that visiting a prison cell should be required for all prosecutors and judges. Or I could be honest and say that it should be required for all defense counsel. We need to see where the people we represent live and how they live. We need to understand that they are unhappy when they come to court and we forget to see them. That our failure to do our absolute best eliminates any chance another human being has to escape these horrid conditions.

It is a sobering reminder of the consequences of our work. We must all place ourselves in our clients’ position and be aware of the awesome burden that is placed upon our shoulders. Prosecutors and judges may not care. We must.

No doubt those in jail have transgressed against our social and moral code. But we, on the outside, have abused that code and disfigured it beyond recognition. Just as those in jail may be responsible for pain and suffering and loss of human life, so are we.

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That bus is not for your client

Jun 8th

Posted by Gideon in clients

4 comments

The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.

Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.

And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:

What if a former client writes: “My lawyer was terrible. He never returned my calls or e-mails. I had a million-dollar case, and she blew it!”

Some prospective clients might read that blog entry, and thus never call the lawyer. Current clients might get nervous. Other lawyers might decline to refer a case to the bad lawyer.

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day. He asked the same questions over and over again. After evaluating his case through discovery, we realized his case was marginal. We told him to settle the case for $25,000 – nuisance value. He refused. The trial court dismissed the case on summary judgment. Now he’s angry. By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

Does that Rule make sense? A lawyer can lose business. Online reputation matters – not for a lawyer’s ego – but for his business. The law offers trademark protection. A brand matters. A lawyer is only as good as her name. Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?

First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.

Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.

But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?

Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:

[In response to Mike's hypothetical] I’m not entirely clear that’s accurate. Waiver of privilege is an all or nothing proposition. Once a client discloses confidential communications to others, it constitutes a waiver. It’s the client’s to waive, and there’s nothing to prevent her from doing so. It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship. Once waived, however, the privilege is extinguished. Like pregnancy, it’s not just a little waived. It’s waived. End of privilege.

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process. While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.

I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In my fleeting dalliance with the post-conviction world, I noticed many odd behaviors by defense attorneys and a marked change in attitude toward the client. For some reason even the most experienced criminal defense attorneys never seemed to grasp the simple fact that the claim of ineffective assistance of counsel was not – and never will be – a personal attack. It is yet another of those Constitutional rights afforded the defendant that we seek to so zealously uphold when we are representing them on the front end.

In the post-conviction context, there is plenty of case law that makes clear that the filing of a habeas corpus petition does not constitute a “full waiver” of attorney-client privilege and regardless of any other duty that the lawyer may have to his former client, the waiver is a limited waiver:

Claims of ineffective assistance of counsel are routinely raised in felony cases, particularly when a sentence of death has been imposed. If the federal courts were to require habeas petitioners to give up the privilege categorically and for all purposes, attorneys representing criminal defendants in state court would have to worry constantly about whether their casefiles and client conversations would someday fall into the hands of the prosecution. In addition, they would have to consider the very real possibility that they might be called to testify against their clients, not merely to defend their own professional conduct, but to help secure a conviction on retrial. A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote.

Were such a broad waiver necessary to satisfy federal interests, the state’s interest in protecting lawyer-client confidences might have to yield. But we can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests. See Laughner, 373 F.2d at 327. At the same time, a narrow waiver rule — one limited to the rationale undergirding it — will best preserve the state’s vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state’s criminal lawyers continue to represent their clients zealously.

A narrow waiver rule is also consistent with the interests of the habeas petitioner in obtaining a fair adjudication of his petition and securing a retrial untainted by constitutional errors.

Bittaker v. Woodford (9th Cir. 2003). And yet this simple, yet powerful rationale is completely wasted on scores of lawyers. Lawyers “defending” against claims of IAC seem to think:

That they are a party to the habeas corpus proceeding;
That counsel for the actual party, the Respondent, is their lawyer;
That they must give the State dirt on the client;
That they must turn over their file to the State;
That they must not co-operate with counsel for the former client;
The file belongs to the lawyer, not the client.

This is not a test. All 6 are wrong. Utterly, completely wrong. It is very revealing when a lawyer maintains a poor file during his representation of the client, but even more so when that same lawyer takes affirmative steps to hinder the prosecution of a habeas corpus petition. There is nothing more aggravating, disappointing and disgusting than when trial counsel takes the stand in a habeas hearing and suddenly cannot remember details he’d previously disclosed to the habeas attorney or somehow can miraculously remember in excruciating detail conversations that he’d minutes ago, off the record, confessed to habeas counsel of having no memory of.

One of the worst things you can do as a criminal defense attorney is make an error that may have contributed to the conviction of a client. Compounding that by standing on the sidelines as that conviction is affirmed will not help you sleep better at night.

There are some very simple rules for ethical behavior in the post-conviction context [read this Champion article (HTML version) for some in-depth counseling]. Remember that the right to effective assistance of counsel is a Constitutionally afford right to the client who is spending his days and nights in jail. Also remember that it is not for you to decide whether you provided effective assistance of counsel. Don’t reveal more than is required by the scope of the IAC allegations. Don’t offer up your client on a platter.

Worried about your reputation? The lawyer who doesn’t get in the way of his client in the post-conviction arena almost always has a better reputation than the lawyer who does, at least in the legal community, if not among the clientele. That’s because it conveys one very important fact: that you are going to put the client’s interests ahead of your own.

Heed the advice we give our clients about cops: “they’re not your friend”. The respondent? Not your client’s friend.

That bus? It’s not for you to throw your client under.

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iac

The blind leading the blind?

Jun 7th

Posted by Gideon in clients

1 comment

We are counselors, which is a term that is broader than attorney or lawyer. Counseling implies so much more than merely representing someone in court in a criminal or civil matter. It is our job to counsel, to advise. We are not cheerleaders and we are not enablers. I often tell clients that they may not like what they hear from me, but that I will not lie to them or blow smoke up their ass, because it is my responsibility to give them all the information so that they make the best decision for them.

Flowing from that duty – and particularly important in criminal cases – is the ability to accurately assess the strengths and weaknesses of the State’s case against the client and analyzing the risks and benefits of going to trial. Everything we do leads up to that. Some others have written (Bennett I can remember for sure, but I can’t find the post) that their focus from the first court date is preparing for trial. It is through that preparation for an eventual trial that we as counselors can fully understand the intricacies of the matter. Investigate fully and discover that there exist no defenses? Your advice to the client reflects that. Realize that their witnesses are shaky and the evidence questionable but the offer is good enough to hedge against any “wild card” eventuality? The advice varies accordingly.

But a new paper [pdf] suggests that perhaps we’re all a little full of ourselves and overestimate the strength of our case.

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.

There’s no need for me to get into the paper in detail. You can read it for yourself; it isn’t very long. Striking is the fact that there wasn’t much of a difference between civil lawyers and criminal lawyers. Also notable is that attorneys were overconfident regardless of their experience. This sample tended to overestimate their chances of success at the same rate.

There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.

The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.

It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.

When relaying an offer, or advising a client to reject one, I ask myself: “would I do what I am recommending the client do?” Because if I can’t follow my own advice, I have no business suggesting it to someone else.

Of course, the client is free to do as he pleases. It’s his liberty on the line, after all.

If you’re not ready, neither is your client

Jun 3rd

Posted by Gideon in clients

2 comments

War stories are a great way of passing time. It’s a slow day in the office and you end up in a long conversation with a colleague who’s been there and seen that. While mostly entertaining, the stories are also useful for one other thing: they’re a training tool. A veritable what’s what of what not to do.

I won’t bother you with this particular story, but there’s something to share, something that seems so obvious yet is often neglected by lawyers either because they don’t give a damn or don’t have the damn time.

If you’re not ready to plead, neither is your client.

Simple, isn’t it? Yet in the high-volume courts across the country, offers are routinely made and accepted or rejected on initial court dates or before investigation can be started or before you have the time to learn your client’s name and tell him from a hole in the wall.

If you wouldn’t know enough to take the offer, your client doesn’t either.

It’s difficult to do, resisting the tide that builds up, demanding swift disposition. It gets embarrassing, asking for continuance after continuance because the investigation isn’t complete. The caseload keeps piling up, the numbers look astronomical and ugly. I get it. There just isn’t enough time.

But this is non-negotiable, folks. Would you listen to a lawyer who said: “take this offer. I’m sure it’s a good one, but I can’t tell you why because I don’t know enough”? Obviously not. Yet we ask our clients to place their trust in us, to rely on our judgment and our opinion. The least we can do is take the time to make sure that we are in a position to recommend acceptance or rejection of that offer.

I’ve said it on occasion: “Sorry, judge. I need more time. I’m not ready to convey this offer to my client.” If I haven’t been dilatory in my handling of the case, what’s the judge going to say? After all, no one likes a habeas.

More than that, no one likes a client who’s forced into doing something because his lawyer didn’t take the time to make sure it was the right thing to do.

So the next time you’re being pushed into conveying an offer to a client or have a client who’s being rushed into accepting or rejecting, ask yourself: do you want to become a war story of the instructional kind?

Institutional coddling

Apr 27th

Posted by Gideon in clients

26 comments

Lawyers are coddled, writes Rick Casey of the Houston Chronicle, because they can’t be sued unless a client’s conviction is overturned. They’re coddled because they’re not monetarily liable for any errors they make that result in a conviction.

Bennett takes a bite at the apple, which in turn causes Greenfield to jump in. Bennett first:

The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.

A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.

So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.

Bennett mentions the problem I have with coddled lawyers, but only in passing. Greenfield places the blame squarely on our shoulders:

The mistake is a problem, but not the most significant problem. The one that undermines our integrity, and gives rise to Rick Casey’s complaint, is our inability to admit our error and correct it. Rather than concede error, lawyers try to bury it. [...]

Rick Casey’s issue is real, and it’s getting worse rather than better. It was a problem before, and is more of a problem today. We are coddled, and we coddle ourselves. No amount of lip service paid to the defendant we failed, who sits in a prison cell while lawyers ingratiate themselves with others to get more twitter love, cares how many followers we have. This mutual admiration society with people we don’t even know is not a substitute for having the guts to own up to mistakes so that human beings don’t spend a second longer suffering for them than they should.

The answer isn’t disclosing whether we possess malpractice insurance. The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang. Do the hard work that minimizes the potential for mistakes. But when a screw-up happens, as it invariably will, make it right.

They’re both right. We are coddled. But they don’t focus on the other “third prong”, as it were, of the coddling. It doesn’t just come from the fraternity of lawyers, but from on high. The coddling of lawyers is institutionalized in our jurisprudence. From the collective mistrust and offhand dismissal of allegations of ineffective assistance that pervades the criminal bar to the vast legal opinions that ridicule such claims to the institutional roadblocks to even getting judicial review of the mistakes made by lawyers in their handling of cases.

Ask anyone who’s tried an ineffective assistance of counsel case. The coddling begins at the beginning. First, the community of habeas corpus lawyers are treated as lepers; outsiders on the lunatic fringes of the criminal defense bar. Trial lawyers are dismissive and uncooperative. Clients seeking redress via The Great Writ are viewed as whiners, their lawyers are traitors. Files aren’t turned over, communication is non-existent and the defenses are raised to maximum alert.

Habeas petitioners then have to jump through unmanageable hoops to actually get the merits of their claims heard by courts. Procedural default, deliberate bypass, cause and prejudice are institutional tools designed to protect the “finality” of convictions and to punish the defendant for failing to do that which a lawyer should have done and didn’t: provide effective assistance and own up to mistakes. The jurisprudence places the onus on the pro-se defendant to recognize that a) his lawyer has messed up and b) that he has an avenue for redress.

And if this defendant is somehow able to surmount the gargantuan task of getting a court to consider the merits, he is faced with the three-headed monster: an uncooperative trial lawyer, a skeptical, cynical and weary judge and a veritable landfill of caselaw that is designed to thwart his every effort to ensure that “justice” is done in his case.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

Strickland v. Washington, 466 U.S. 668 (1984). Courts are even given the power to deny the petitioner relief on either prong of Strickland:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504[...] (1998). We therefore need not decide whether the petitioner was denied the effective assistance of either his trial or habeas counsel because he has failed to demonstrate that he was prejudiced by his counsels’ assistance, whether or not it was deficient.

Denby v. Comm’r, 66 Conn. App. 809 (2001). Everywhere he turns, there are untameable lions guarding the exits. The collective ego of the profession prevents the one person whose life is altered by a brush with the justice system from every seeking and gaining redress. This is not surprising. Judges, after all, were also once lawyers. And the conventional wisdom, shared by most judges and prosecutors and defense lawyers, is that habeas is nothing but hogwash; another lame attempt by a clearly guilty man at escaping blame for his own evil and immoral actions.

If this is to change, if we are to truly care about the people that are processed like cogs on an assembly line, then the first step is to view ourselves not as entities distinct and separate from the people we represent, but as a manifestation of them. An incarnation, if you will.

If the conviction of the client is a conviction of the lawyer; if the days spent in jail by the client are days that the lawyer will have to also suffer, then and only then will the interests align. To be sure, there are few who already possess this view. The vast majority do not. To them, the attempt by the convicted client to shave a few years off his sentence, because of something the lawyer missed (or not), or the attempt to seek a new trial or to withdraw the plea of guilty are nothing more and nothing less than personal insults that impugn the reputation of the lawyer who goshdarnit did his best for the cretin that happened to walk through his door.

Us and them. While this divide exists, we cannot truly be counselor and representatives of our clients. We cannot change the system that views “them” differently. We cannot fulfill our duties and responsibilities to ensure that our clients’ rights are paid more than lip service.

This doesn’t happen overnight, there will be no sudden realization. It takes small steps. One lawyer here, one lawyer there who refuses to laugh along with the crowd at the ridicule of the defendant. Two lawyers who recognize the importance and value of The Great Writ, who have the courage to admit their errors even where they may be negligible. To realize that they have the comfort of going to their own homes at night, while the client will suffer in isolation. Whether this be by letting go of our egos as Scott writes or some sort of penalty as Mark considers and rejects or a change in the jurisprudence, it must be done for the sake of the client.

This is not an issue of “just desserts” or blame or punishment. This is about the ability to sleep at night, peacefully, knowing that you have done everything in your power to uphold the awesome responsibility of your profession: speak for another man when no one will.

We fight the institution. Why stop when the client is convicted?

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How hard is too hard?

Apr 25th

Posted by Gideon in clients

6 comments

In response to my previous post on lawyer misadvice, a longtime PD and friend of the blog asks: when does counseling end and coercion begin? How hard can you push the client to make a certain decision before it crosses the line? To be sure, it is an important question and a difficult one.

The choices that have to be made about all the “big stuff” – whether to take an offer, whether to testify, whether to waive a jury trial – are the client’s domain. We get to unilaterally handle the “other stuff” – what witnesses to call, what questions to ask, what tact to take.

The reality, however, is that most clients will do what their lawyers tell them to. Clients want this and lawyers recognize this: “Ultimately, you have to decide whether to take this deal or not, but…”

This is an awesome power in our hands – which is why I argue that we must exercise it with the greatest care and in the most informed manner possible – that can easily corrupt us and blur the lines between giving advice and making decisions.

There’s a reason that we wield this power: we are the ones trained in the ways of the system, we have the experience and most importantly, the client can never seem to get out of his own way.

So how hard do we push to convince the client to do A when he seems set on doing B, which is detrimental to him?

Clearly, the outer limits of the spectrum are set: one should not take a hands-off approach and merely lay out the alternatives for the client and one cannot make unilateral decisions on the client’s behalf, either by lying or obfuscating or keeping the client in the dark.

It’s the vast expanse in between that’s tricky. When does forceful and repeated advocacy cross the line into impermissible arm-twisting? In true lawyerspeak, I think the answer depends.

It depends on the client himself, the event that you’re counseling the client about and the level of confidence you have in the conclusion you’ve reached.

Take, for example, the decision to testify. It is indisputably the client’s. Yet, most lawyers will tell you that unless the client is compelling, it is usually a bad idea. Clients, on the other hand, will usually have very strong feelings about whether they want to testify. I’ve yet to encounter one who is ambivalent. They either are adamant that they have to take the stand and present their “side” of things, or are experienced enough to know that, in their case, it would be a terrible idea.

If their conclusion is the same as yours, great. If it isn’t, can you do anything to get the client to change his/her mind? Apprising them of the obvious downsides to testifying is a start: their record, lack of any concrete testimony, demeanor, etc. But what if the client is oblivious to these problems or chooses to ignore them? Do you persist? Do you try a different tact?

I don’t know the answer to that question. I believe that if I am convinced it would be a terrible idea for the client to testify, I would state it in no uncertain terms. I would probably have another lawyer in my office talk to the client to provide a second opinion. I may even do a mock direct/cross of the client to demonstrate the pitfalls. Is that pushing too hard? I don’t know. I don’t think so, but others may disagree.

If, after all of that, the client still persists, well, the only thing you can do is damage control.

Getting back to the original question in this post: how hard is too hard? Put another way, how do you know when to stop?

The answer, I think, is this: when you’re convinced that the client fully understands everything that you understand. Only when you are confident that you have explained all the things that led to you to the opposite conclusion, can you let the client make the “wrong” decision.

Again this depends on the client. For some, it may take one meeting. For others, it may take 5. But this is the only way I can put into words the elusive and shifting requirement of effective representation.

You may have a different view. Tell me about it in the comments.

Effective misadvice is ineffective

Apr 23rd

Posted by Gideon in clients

2 comments

[Or: Leave your ego in law school]

When Ahmed Kenyatta Ebron was told by his lawyer that he should reject the State’s offer and instead plead guilty without an agreement because “he couldn’t do much worse or words to that effect”, he did what all of us usually hope our clients do: take our advice.

At this open plea, armed with the client’s record and an unfavorable pre-sentence investigation report, the judge imposed a sentence of 11 years to serve, 5 more than the State’s offer of 6.

Mr. Ebron, relying on counsel’s advice, is serving 5 more years than he should be. For now, at least. His conviction has been reversed, based on ineffective assistance of counsel, and that reversal has survived the Appellate Court (I’m not optimistic about its chances at the Supreme Court).

The events leading up to Mr. Ebron’s conviction, the habeas itself and the aftermath raise several points.

First, it is easy to forget that at the end of the day, we are in a service industry. As criminal defense lawyers, our job description is limited to the service of another. We are protecting the rights of others, we are helping others make important decisions about their lives and we are, ultimately, representatives of other people.

That this is easy to forget should come as no surprise. Lawyers have famously large egos. But there is a danger in letting the sense of self overwhelm the duty and responsibility that we have.

It is that duty to the client that compels us to treat each case with the attention that we would give to it were we the defendant. There is no greater sin that can be committed by the defense lawyer than misadvising the client.

Clients rely on us to show them the way, to spell out the alternatives and to recommend one over the other, based on our knowledge, skill and experience, keeping their best interests in mind.

It is imperative that we fully inform ourselves of the facts and circumstances of the client’s case and then, and only then, recommend a final course of action.

I am not suggesting that we must force a client to take our advice; the client remains free to make stupid decisions. But the advice that we give clients must be sound. There are some that take the view that our job is to present the alternatives to the client and then accept whatever decision the client makes. I am not of that view. I believe – and certainly I may take some flak for this – that it is our responsibility to do our best to convince the client to choose the course of action that is in his/her best interests, despite the client’s seeming disapproval of that path.

This, however, can only be done if the advice we give is informed. We can only stand behind the advice we give if we are convinced that it is the best alternative and that decision can only be made with a full understanding of all the circumstances and an awareness of the pitfalls of that and every other course of action. If someone else, years down the road, decides that the advice was unreasonable, so be it. No one gets hurt by that and it only helps the client.

Ebron’s lawyer didn’t do that (and to his credit, took responsibility for it). The standard for effective assistance of counsel is woefully low. To scrape by and meet Constitutional scrutiny, a lawyer needn’t do much. But if you’re aiming for the standard, then you’re not really fulfilling your duty. If you truly believe it is sufficient to perform at a minimum level, then there are other areas of law that might be better suited for you. Stop meddling with the liberties and freedoms of fellow men and women.

…

Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.

IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.

At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.

The local listserve erupted with comments after the release of the Ebron decision: there were voices from both sides – those that praised the decision and those that lamented the additional burdens it seemingly placed on the defense lawyer (based, it seems to me, on a misreading of the case and the responsibilities it underlines).

Why does IAC evoke such polarized reactions among us? Are we that sensitive? Or is it because we view ourselves as separate and distinct from our clients? Do we believe that the players in the criminal justice system are the State, the judge, the defendant and the defense lawyer? If so, that is a terribly misbegotten view.

This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.

I will not lie to help a client, but I will not add my name to the list of those that violate his Constitutional rights.

Padilla: It’s not that complicated, really

Apr 11th

Posted by Gideon in clients

6 comments

[Yes, another Padilla v. Kentucky post. Sorry, suck it up.]

Padilla is what some might call a “landmark” case; altering the landscape at least for the defense practitioner. So, with reason, it has generated much discussion among those of us who’ve chosen to make our views and opinions public. And with any such new “landmark” decision, there’s a difference of opinion as to the impact and specifically in this case, the impact on the duties and responsibilities of the defense lawyer.

Scott has written several posts bemoaning the lack of clarity in immigration law and warning us all that we now have this awesome burden that really isn’t one we can bear. In his latest missive, he enlists the help of Darth Vader Justin Bieber Ken “I used to be a defense lawyer” Lammers at KrimLaw.

There’s nothing better than the simple life, where a handy “cheat sheet” gives a laundry list of everything you need to know. Print it out. Carry it to court. Be brilliant. Except…that’s not really the problem. The problem is that the Padilla duty is largely a no brainer at the extremes, where the immigrant defendant pleads to possession of 457 kilos of cocaine with intent to sell (it’s a little large for personal use anyway), or doing 37 in a 35 mile per hour zone, with or without your windows excessively tinted. The problem is toward the middle of the spectrum, where all this mushy information does little to inform.

[That link is inserted by me.] If I understand Scott’s point correctly, he’s saying that the decision places an unfair burden on us to investigate, learn and give advice about a really complicated area of law, in the mushy in-the-middle circumstances of immigration consequences.

I’m not sure that’s what Padilla requires. Let’s go back to the decision and see what Justice Stevens said:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.

This is exactly the scenario that Scott writes about. So what does the Court have to say about it?:

The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

I’m not sure there’s anything complicated about that. Now, one might turn around and argue that it’s difficult to know in which situations the consequences are “truly clear”. Perhaps. But those situations aren’t tough to figure out. Unless you’re saying “hey, I don’t really want to figure out in what circumstances my client will be deported”.

Ken writes:

I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, “Yes, the feds can deport, but they don’t want to be bothered unless there is a violent felony.” Of course, it wasn’t always phrased quite so blandly. So, the attorney in Padilla’s case may have been giving what was basically reality based advice based upon experience. I haven’t seen the feds swoop in and deport people therefore, they shan’t do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla’s case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

There’s quite the difference between “this is a deportable crime” and “yeah, sure you can be deported, but you won’t be, really”. The former is Constitutionally sound advice; the latter is not. Just because the Feds may or may not deport your client doesn’t absolve you of the duty to inform your client that he is subject to deportation.

And that’s all Padilla requires you to do (which makes it seem more and more like an empty decision, the more I think about it): tell the client there’s a chance he will be deported. It does not impose a duty on you to try and figure out how to prevent him from being deported, but certainly no one will complain if you do.

In the comments to Scott’s post, another blogger writes:

The real problem is that none of the cheat sheets are state specific – criminal law is state specific – immigration law is not – and it is here where these two intersect. You’ve got to know the specifics of the state law and most immigration practicioners do not. And the answer is always, it depends.

Personal experience with immigration lawyers varies and the range of skill within the immigration law bar varies just as much as it does in the criminal law field. But any immigration lawyer worth his degree and reputation will absolutely know the intricacies of the law of the state in which he practices. He has to. After all, most people are deported based on state convictions. So find a good one, talk to him or her. Every reputable immigration lawyer I’ve called has been more than happy to not only give me an educated guess on whether the client is deportable but also on how to avoid that deportation and what the client should plead to.

The bottom line, as far as I can see, is this: If the consequences are clear (and they usually are, save for the myriad drug offenses), then tell your client that he will be subject to deportation. If the consequences aren’t clear, then tell your client that he may be subject to deportation. If he wants to know more, find out. Call an immigration lawyer, go to a CLE. Unless you’ve been catering solely to clients who are citizens, this is going to come up again and again. Spending a day or so learning about the immigration consequences or picking up a phone and talking to someone knows will only make you a better lawyer. Maybe some of you can leverage that into a niche practice.

But remember that the obligation is to the client and the client only. The more you know, the better you serve the client.

[What I think will really end up happening here is that courts will start including an "immigration consequences" portion to their plea canvasses, much like that which is required here in CT by statute: "do you understand that this plea may result in deportation or removal?". Which would - and does - satisfy Padilla and everyone's obligation.]

Guilty of being poor

Apr 5th

Posted by Gideon in bail

6 comments

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

What with the concept of bail being a joke and no one really having any clue what a reasonable amount is anymore, the choices available to the average defendant are stark and bleak: pray for a promise to appear, sit in jail or do whatever it takes to get the hell out.

Some judges and most prosecutors are acutely aware of this dilemma and a fair percentage of them are not above leveraging it into a conviction.

Offer a deal – any deal – that involves no jail time and the incarcerated defendant will jump on it faster than you can say “suspended sentence”. Guilt or innocence be damned. As long as he can get out today, he’s taking it.

For the public defender, this is quite the conundrum. On one hand, the client’s interests are paramount and whatever is the client’s paramount interest is yours. The ability to investigate, to challenge the State’s case, to force a dismissal if the facts align themselves are all tertiary.

“I want to get out” is an argument against which there is no satisfactory response. Ethically, we must convey every offer to the client. And, at times, they’re not bad deals. They’re just not as good as they should be. When the State offers a suspended sentence, it’s patently obvious that there weaknesses in their case, sometimes even fatal ones.

If only we could convince the client to hold out longer, while we finish that investigation, while we round up those witnesses and get those statements, while we beat the State into submission with the glaring holes in their case, while three months have elapsed.

To the poor, incarcerated client, this is just not a convincing strategy. It’s hard to argue with the allure of immediate freedom and escape from the shitholes that are our prisons.

The reality is that our clients are poor. They want out. We stand by, often with nothing more than a police report and counsel them as best we can that we can’t really tell them whether to take the promise of immediate freedom because we haven’t had time to do any research or investigation. They look at us as nothing more than a warm body and decide that they’d rather take the abstract notion of an unjust conviction and the attendant liberty over the potential of no conviction and the fact of more time spent behind bars.

If only they had money to fight the case “from the outside”. If only they weren’t poor and the system didn’t take advantage of that.

That’s a difficult pill to swallow.

*small sample size

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Padilla v. Kentucky: If it is clear, it is clearly your duty

Apr 1st

Posted by Gideon in clients

4 comments

Yesterday, in Padilla v. Kentucky, the United States Supreme Court finally got around to affirming and acknowledging that which most of us in the field already knew: immigration consequences matter.

Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when the immigration consequences of a plea are clear, it is Constitutionally deficient for a defense attorney to neglect to inform the defendant of those consequences. Well, duh.

As SCOTUS itself recognized in INS v. St. Cyr, for the non-citizen defendant, the fact of deportation may be the single most important factor in deciding whether to plead guilty. We’ve known this forever.

Moreover, several states, including Connecticut, require courts, by statute, to inform defendants during the plea canvass that their plea might have immigration consequences. In cases where the immigration consequences are unclear, Justice Stevens writes, the defense attorney must meet at least that threshold.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.

I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.

It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?

And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).

The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.

Finally, just a reminder of the ethical responsibilities. The Rules of Professional Conduct states:

Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

The commentary to and analysis of Rule 1.1 also provides handy guidance.

clients

Free-ish

Wrong time, wrong battle

Deluding yourself is deluding the client

Clowning around in Georgia

Sometimes a fool is just a fool

Life without possibility of redemption

That bus is not for your client

The blind leading the blind?

If you’re not ready, neither is your client

Institutional coddling

How hard is too hard?

Effective misadvice is ineffective

Padilla: It’s not that complicated, really

Guilty of being poor

Padilla v. Kentucky: If it is clear, it is clearly your duty

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