Category Archives: clients

A Founding Father of incompetence

This is Thomas Jefferson:

BIO_Mini-Bios_0_Thomas-Jefferson_151078_SF_HD_768x432-16x9This is Dennis Hawver, dressed at Thomas Jefferson, surrounded by people who are inexplicably not laughing their asses off at him:

Hawver-Jefferson

Hawver, a Republican and Libertarian once ran for Governor of Kansas and then attorney general and also for Congress.

Needless to say, he failed in his quest for any office.

Perhaps in keeping with his Jeffersonian obsession, he was also a criminal defense attorney. He also failed at that – and spectacularly so – but this time he wasn’t the only one who lost. His client, facing the death penalty, was duly sentenced to death, because perhaps Hawver hadn’t grasped the fact that dressing like Jefferson doesn’t mean anything if you didn’t stand for his principles either:

At trial, Hawver described his client, Phillip Cheatham Jr., as a “professional drug dealer” and a “shooter of people,” according to findings of fact cited by the state supreme court. During the sentencing phase of the trial, he said the killer should be executed. “I had a single mitigator to offer the jury in sentencing,” Hawver said in an affidavit, “and that was my argument that my client was innocent.”

Hawver didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders, the court said.

As a defense lawyer, defending his client against the death penalty, there is generally one unbreakable rule: don’t tell the jury to execute your client.

Hawver also told jurors that they should execute the killer in his closing argument.

Oh. To be fair, this might have had something to do with his unusual tactics:

Hawver had never previously tried a capital murder case and had not tried a murder case in more than 20 years, according to the opinion. He was unfamiliar with ABA guidelines for trying capital murder cases.

And when I say a spectacular failure, I mean spectacular:

Hawver had said he had no funds for a pretrial investigation and he didn’t call the indigent defense board to explore whether funding was available to support his representation. He also said he didn’t recall whether a board representative had called him with an offer to provide co-counsel, investigators, consultants and expert witnesses, but he doesn’t contest that an offer of funding was made.

During the arguments, Hawver identifies Jefferson as his hero and says he wore the outfit because he had a constitutional right to represent the client “as directed, instructed and agreed” by the client, “no matter what the ABA guidelines have to say.”

Hawver explained to the Kansas Supreme Court why he didn’t get cellphone records for an alibi defense. “I had no idea that cellphones had GPS capabilities at that time,” he said. “Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.”

Thankfully, in 2013, the Kansas Supreme Court reversed Cheatham’s conviction and just last week, spared any other individual of having to be represented by a Jefferson clone by disbarring Hawver.

The fact that Hawver showed up to the disbarment argument in Jefferson garb might have had something to do with it (A good shot of his attire is at five minutes and 17 seconds; his argument begins at 22 minutes and 38 seconds.):

 

Some lawyers in CT are also mandated reporters

That's your constitution in the middle, getting fucked over.

That’s your constitution in the middle, getting screwed over.

I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.

In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.

In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:

(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.

The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.

What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.

What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.

All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.

Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.

But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.

Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.

This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.

Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.

Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.


Unethical for lawyers to make clients forgo claims against them

From the “You Don’t Say” chronicles, a still-groundbreaking opinion1 [PDF] from the KY Supreme Court this week has ruled it unethical for plea agreements between the prosecution and the defense to include “waiver of ineffective assistance of counsel (IAC) claims” clauses.

For those who don’t know, everyone is guaranteed the effective assistance of counsel, pursuant to the Sixth Amendment to the US Constitution. This means that every time you have a lawyer in a criminal case, that lawyer must perform to a reasonably competent standard. He doesn’t have to be perfect, but has to be competent.

A method of challenging convictions is to claim that the lawyer did not provide effective assistance: whether by performing poorly at trial, not conducting an adequate investigation or forcing a client to take a plea agreement without explaining everything properly or making sure it was in the client’s best interests.

An IAC claim is the final Constitutional check against illegal convictions. In Federal court, prosecutors routinely require defendants to give up that check in order to have a favorable plea bargain.

This KY opinion doesn’t say that an individual cannot voluntarily give up his right to IAC, but rather says that it is unethical for prosecutors to offer this and for defense lawyers to advise clients about it.

There are two primary reasons for this, both of which are valid: first, if a lawyer counsels his client to waive IAC against himself, it’s the fox guarding the henhouse. He has an inherent conflict in that situation. “Here, take this deal, but you have to agree not to challenge my performance in representing you”. That sounds like a scam from the get-go.

Second, Federal plea bargains are less “negotiations” and more “take-it-or-leave-it”:

Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or-leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform   unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules.

This decision is sure to make US Attorneys very unhappy, but it’s a small step in ensuring that lawyers are always acting in their own clients’ best interests and are not worried about being found incompetent.

H/T: Legal Ethics Forum


A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

SC public defender forgets meaning of adversarial

u-think-we-share-2-much-nah.jpg

What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I’d love to see them. Further, if you’re a legislator, request updated statistics from OLR – specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Come on, we’re not even pretending anymore

whatisthisidonteven

If you for some reason start a judicial opinion with the following:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was   scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

[No. Stop. You really need to read that blockquote. Don’t skip it.] And then recite more facts like these: He worked for an hour and a half on Thursday. On Friday he worked on the case for 2 1/2 hours. Then, on Saturday:

defendant’s counsel conducted a three- to four-hour review of relevant evidence rules and suppression law to prepare himself for proceedings in adult criminal court

and on Sunday, he spent three hours reviewing discovery and preparing cross-examination. In all, he spent 10-11 hours preparing for a trial. For his first criminal trial in 7 years. For a client he’d never met.