ethics

The ideal ideal

Jul 27th

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A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”

“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”

It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.

But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.

Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

Indigent defense on trial

Jul 12th

Posted by Gideon in death penalty

No comments

The stereotype of the over-worked, under-paid public defender exists for a reason. Even though I’ve personally fought against the stereotype here on the blog and in real life, I must necessarily admit that in a lot of States, the caricature is not a caricature at all, but an accurate representation of the state of indigent defense. Often, the public defender is only as good as the resources and time available to her. The best lawyer may seem incompetent if overburdened and underfunded.

I noted a while ago that a battle was brewing on the state of indigent defense and two recent news items seem to validate that observation. First, via CrimProf, a troubling decision out of Florida, where the intermediate appellate court reversed a trial court’s ruling granting a public defender’s motion to withdraw from one particular case because he could not adequately represent the defendant due to his high caseload. Then, on July 7, the Third District Court of Appeal reversed the trial court, holding that the mere word of a public defender that he was unable to provide constitutionally adequate representation was not enough to establish that the defendant would suffer prejudice:

Our analysis of the record in this case, however, leads us to conclude that there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights. If the trial court’s order stands, all that the PD11 must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights. This “prejudice” is not the type of prejudice that this Court referred to in State v. Public Defender. Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated. And this is the critical fact — the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.

This conclusion is on the back of Florida statute that explicitly prohibits public defenders from withdrawing from cases because of excessive caseloads or inadequate funding:

(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.

Here’s a statute that so blatantly conflicts with the professional and ethical responsibility of a lawyer to withdraw from the representation of a client if he feels he is unable to provide adequate and competent representation. Court, making the determination of whether to permit counsel to withdraw, do so on a case-by-case basis, but to exclude a very real and prevalent reason for that inability to provide adequate representation seems to be problematic on many levels, not the least of which a violation of the separation of powers.

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

The problem with the standard articulated by the appeals court is further highlighted when viewed against the backdrop of the facts as found by the trial court:

Mr. Kolsky had between 105 and 164 pending felony cases during 2009. In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.

In essence, the appeals court is saying that we cannot say whether the defendant’s rights have been prejudiced because he hasn’t gone to trial yet and the sub-text is: “who knows, he may be really guilty and the lawyer can’t do anything about it even if he spent all year working on the case”. That the prejudice required for arguments such as these is the fact of conviction, it is a duplicitous and misleading argument, as I’ve argued before. From the appeals court’s perspective, there is nothing constitutionally deficient or problematic about a defendant going to trial for a case which could result in a life sentence, assisted by a lawyer who’s met him once over 2 yeas and that too for 30 minutes at arraignment.

The idea that a lawyer’s crippling workload renders him unable to spend any time focusing on a particular defendant and that this in turn renders his representation per se ineffective (because, well, he hasn’t done anything!) and prejudices the defendant, is not a difficult one to grasp at all and shouldn’t be outside the reach of the august minds on appellate courts.

But that they choose to ignore this reflects a dangerous attitude that underscores how deep the “guilty until proven innocent” culture runs in the justice system. There may be some hope, though. The appeals court did certify the question of whether the statute is unconstitutional to the Supreme Court of Florida, which accepted that question. It’s up to the court of last resort in Florida to restore a semblance of dignity to the Constitution and the criminal justice system.

[Here's a collection of excessive workload litigation links and filings from the Miami PD.]

The second story comes from the Constitutionally Confused State of Georgia, whose Supreme Court has remanded a case to the trial court to determine whether there has been a systemic breakdown of the public defender system. In Phan v. State, the GA Supreme Court remanded a capital case to the trial court to determine whether a systematic breakdown exists and if that breakdown deprived Mr. Phan, now on his 6th year of incarceration awaiting trial, of his constitutional right to a speedy trial. The deprivation of Phan’s rights here is caused primarily by the lack of adequate funding:

The defense attorneys had wanted funding to go to Vietnam and search for mitigating factors, the lawyers said in court documents. The sole witness identifying Phan as the shooter, Hoangoah Thai, the wife and mother of the victims, returned to her village there after awakening from a seven-week coma caused by her injuries in the shooting, they said. Also, all of defendant Phan’s family remains there.

Those allegations, the state Supreme Court majority wrote, “are based on the notion that budgetary shortfalls and the lack of funding have caused a systemic breakdown of the public defender system.”

Nor have Harvey and Adams been paid for their work. Adams said he last was paid in August 2008, and is owed about $45,000. Harvey, who the court record indicates has not been paid for his four years on the case, was in court and could not be reached for comment. Adams, noting that the state’s public defender system has a $22 million funding shortfall, said he thought his co-counsel was owed about the same amount.

Adams, who is co-chairman of the death penalty committee for the National Association of Criminal Defense Lawyers, said nationwide data from his group shows capital cases are about 10 times as expensive as non-capital cases. He said the average cost of a Georgia death penalty defense is about $360,000, not factoring in prosecution and court costs, and that the Phan case likely would cost more because of factors such as the sole witness being in Vietnam.

In July 2009, Adams and Harvey filed two motions to dismiss the charges against Phan, who has remained in jail since his arrest more than five years ago. They said that the state failed to fund Phan’s defense against the death penalty, and alleged that his speedy trial rights were violated.

Gwinnett Superior Court Judge Ronnie K. Batchelor denied those motions, agreeing that there was a “systemic failure” and noting that the district attorney had agreed as well.

The dissent argues that the evidentiary hearing before the trial court already determined that there was a systemic breakdown, so let’s get on to Barker already. And then there’s the concurrence, which cuts right to the heart of it:

The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation … and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case.

Of course, when a prosecutor gets called out in an appellate opinion, said prosecutor has to respond:

When the portion of Nahmias’ concurrence noting the DA’s authority to dismiss the death penalty notice was read to him, [District Attorney] Porter said, “It’s been suggested at several points along the way, and … I’ve considered it but I have not agreed to it … because I’ve always had more or less the feeling that at that point, it’s a capitulation which I’m not prepared to make. If that’s the solution, then why not just do away with the death penalty? The public defenders at that point have managed to win the war of attrition.

I guess it’s easier to stick your fingers in your ears when faced with an increasingly defeaning chorus that the obstinate desire to stick with a barbaric and expensive mode of punishment is contributing to current and future economic ruin of the State and the wholesale trampling of core Constitutional rights. You’re right, Mr. Porter. Just do away with the damn thing already.

The third story is just an update of sorts on the rotten Georgia peach. Jamie Ryan Weis, whom the Georgia Supreme Court told to “fcuk off, coz it’s all ur fault, u crim1nal” (exact quotes, btw) back in March, is seeking cert. from the Supreme Court.

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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.

Tonya Craft teaches us all

May 11th

Posted by Gideon in ethics

15 comments

Tonya Craft, a former kindergarten teacher, charged with 22 counts of various sexual offenses involving 3 minor girls, was acquitted today. You may or may not have heard of her. I wrote a post recently about the trial and some of the outrageous antics engaged in by the prosecutors.

She was represented by Demosthenes Lorandos, who apparently has made a habit of successfully defending child sex cases across the country, and who hilariously said at the post-verdict press conference: “I do not lose”.

The media has been all over this trial, bringing it much needed attention. At first, the attention focused on the misbehavior of the prosecutors [see this for some very questionable comments during closing] and later the complete lack of qualification and training of the so-called “child sex experts”.

Twitter was set ablaze today as the jury was deliberating and the tweets of joy were abundant when the verdict was announced. Parties have been planned, interviews being given on the news and Ms. Craft will now fight to regain custody of her children.

All’s well that ends well. But this is not a happy post, nor is it a merely celebratory one. While Ms. Craft has the opportunity to return to her life, there are lessons for all of us. A fellow defense lawyer asked on Twitter: “Who is #tonyacraft and why [is she] any different from all of our other human tragedies?”

She is not. There are hundreds of Tonya Crafts out there in the criminal justice system, every single day, pleading to charges to avoid lengthy sentences or attempting to fight the false allegations and losing.

Any criminal defense lawyer (like yours truly) saw a stream of familiarity in the continuing coverage by news reporters of the direct and cross-examinations of the witnesses. The dissection of the forensic interviews by the defense experts was a veritable checklist of the problems associated with such after-the-fact divining: repeated questions, leading questions, suggestive questions. Pressuring children to answer a certain way; the worst form of confirmation bias. The prosecutors attempting to cast the defendant in general terms as a bad person, a person of loose moral character, thus equating foibles in their character with child molestation.

This. Happens. Every. Day.

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

Child sex assault allegations are the scariest of them all. The power to believe a child is overwhelming and the fear of disbelieving a child is even greater.

Will the media be there tomorrow when yet another Tonya Craft is hung out to dry by our criminal justice system and our courts that are so quick to label anyone merely accused of such a crime as a heinous monster? Will the public rise up in support every time there is a trial with questionable evidence and even shadier tactics employed by prosecutors and experts?

Or did Tonya Craft get attention because she’s white and she’s a woman?

There’s a well documented disparity between male and female sex offenders and the treatment they receive in our courts. Women are more likely to receive probation and less jail time than men. Women are more likely to have websites created which count down the “hottest” sex offenders.

Men are vilified and universally regarded as creepy and generally guilty.

Imagine if it weren’t Tonya Craft on trial, but Tony Craft. Would there be the same hubbub? Would anyone even bat an eyelid? Would the media’s treatment of the trial have been the same or diametrically opposed?

I don’t mean to demean the victory here, but this is a great opportunity for those who aren’t “in the know” in the system to realize several things:

1. People are falsely accused of crimes

2. Child Sex cases are the most difficult to defend against

3. Prosecutors routinely rely on questionable “experts” to get convictions

4. Just because a man is accused of molesting a child, doesn’t mean he’s guilty.

The next time you get asked to serve on a jury, think long and hard about these things and about Tonya Craft and about the witchhunts that go on every single day in all our courtrooms across the country.

Congratulations Tonya Craft. You board a plane and given an interview to NBC, it is your right. There will be some noise made about grieving the judge and the prosecutors, but if history is any guide, nothing will come of it. The town in Northwestern GA will return to normal and soon this will be talked about as a fairy-tale. But tomorrow, another Tony(a) Craft will be arrested and charged and will go on trial. Will he/she get justice? Will you be there to cover it? Will you know the difference? Will you turn a skeptical eye? Or will you join the mad rush of hysteria that has swept the nation in condemning the despicable child molester?

Your eyes have been opened. Whether to keep them open is up to you.

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tonya craft

A witchhunt by men who molest the law

Apr 29th

Posted by Gideon in ethics

10 comments

[Update: She's been acquitted.] Raise your hand if you’ve never heard of Tonya Craft. I hadn’t either, until I stumbled across this post at change.org. Tonya Craft is the latest lightning rod in that modern day witch-hunt: the sex offender.

But, from all accounts, this isn’t a normal case. This is a shining example of the lengths people will go to, in order to brand someone a villain. The word sham is inadequate to describe the sheer rape of the law that is currently underway in Northwest Georgia at Craft’s trial.

There’s little doubt that a guilty verdict will fail on appeal. Yet Arnt and his fellow prosecutor Len Gregor seem intent on achieving one anyway, no matter the cost. They’ve badgered witnesses with questions about Craft’s exercise and lawn-mowing habits, of all things. They’ve asked whether Craft is a narcissist, and if Craft ever passed out in a girlfriend’s bed after a night of drinking. These so-called “sordid revelations” that the kind that only a puritan (or an unhinged prosecutor) would connect to evidence of child molestation.

The case has gotten weirder and weirder. One defense witness, who let Craft watch her children every day for almost two years without incident, testified that one of Craft’s accusers — who is also a child actress — was “worldly for her age.” “Does that mean she’s a slut?” asked Gregor. When the witness uncomfortably denied the charge, Gregor wondered whether the child might be a “pre-slut.”

While change.org has two posts on the subject, much of the coverage is being done by this man (and this newspaper). The transgressions of the prosecutors in this case are numerous: from claiming that they didn’t have to obey the law, to employing the worst “experts”, to seeking to introduce dubious “prior bad acts”. I could really go on, but that wouldn’t do the story any justice. Instead, follow the yellow brick road from the ridiculous:

Craft’s trial has also seen a parade of so-called forensics experts act as effective cheerleaders for the prosecution. One expert who made an appearance, Holly Nave Kittle of the Children’s Advocacy Center, was openly hostile to questions about her lack of credentials and was unfamiliar with any relevant child abuse literature. Neither did she help her credibility as a witness after she “liked” a public Facebook post by Arnt, in which he wondered “if Tonya Craft’s Defense [sic] lawyers are really insane of [sic] just trying to jack up her defense bill?” (Both Arnt and Kittle’s conduct likely violate Georgia’s ethical rules.)

Another prosecution “expert” involved, Suzie Thorne, lacks a college degree, and her testimony seems highly suspect. When Thorne interviewed one of the children involved during a videotaped session, she asked the girl a whopping 16 times whether “anything else happened.” Each time, the child said no. However, Thorne testified that after she shut off the camera, the child left the room and then returned — suddenly remembering that yes, Craft had sexually abused her.

Fair enough. But then why didn’t Thorne record this statement, or press the child for more information on camera?

to the “what the fuck are you talking about?”:

“Do you know anything about a time that Ms. Craft came to the door of her home dressed only in a towel to meet a first-time date?” “No, I do not,” said the witness.

Mr. Gregor asked, “Do you know any narcissists?” “No, I do not.”

“Would a good person molest a child?” “No.” “Would a good person insert a finger or thumb in a vagina or rectum?” “No.”

As Noah Arenstein at Change puts it: the prosecutors were becoming increasingly unhinged. At least until the media showed up. But that’s not the worst of it. The man who seems to have defiled the purity and sanctity of the law the most is the judge presiding over the trial: Judge Brian House. Starting with declining (without explanation) to recuse himself from the trial, despite having represented Craft’s ex-husband in his divorce from her, to permitting completely irrelevant testimony about the defendant’s alleged affairs with adults, to not permitting the defense to present any character evidence of the defendant, after permitting irrelevant character-assassination testimony from the prosecution.

We all are aware that allegations of child sexual abuse inflame the passions of most people. But when a woman is so horribly being railroaded in a trial, where the singular aim seems to be to obtain a conviction in the face of damning evidence suggesting the contrary, where all independent observes agree that even if a conviction is obtained, it is sure to be reversed on appeal, do we know that we’ve crossed the line from hysteria into madness.

Prosecutors so abusing their power and a judge sanctioning the farce is a damning indictment of the lengths we will go to to demonize those that may be innocent so long as a child is involved. Whether Tonya Craft is guilty or not is irrelevant. That the trial is being permitted to be conducted in such an egregious manner casts a dark pall over all of us that hold the criminal justice system here in such high regard.

While this is the first I’ve read about Tonya Craft, this won’t be the last. I hope it’s the same for you.

[You can follow coverage of the trial by reporters on Twitter and use the #TonyaCraft hashtag.]

tonya craft

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.

Padilla: It’s not that complicated, really

Apr 11th

Posted by Gideon in clients

5 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.

Does the client have a right to discovery?

Jan 19th

Posted by Gideon in ct state law

21 comments

A number of changes to the Practice Book went into effect on January 1, 2010 here in CT. Of particular importance to this blog and criminal defense practitioners in the State are the changes to the discovery rules.

The regular discovery section was amended to add the following language:

Without the prior approval of the prosecuting authority or the court, defense counsel and his or her agents shall not provide copies of materials disclosed pursuant to Section 40 -13A to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.

Note the use of the very specific “defense counsel”. Most criminal practice book provisions use the phrase “the defendant” as a substitute for either the defendant himself or his lawyer. But the use of “defense counsel” is particularly notable. The section seeks to exclude the defendant himself from possession copies of police reports, statements, affidavits, etc.

The only way for the defendant himself to get copies is through the permission of the prosecutor or the court. And even then, I suspect (as is the practice for many defense lawyers) they would require that names and addresses be redacted.

The changes to the section were actually agreed upon by a joint task force, comprising prosecutors and defense attorneys. The “compromise” was a much expanded discovery provision, making disclosure of all statements, affidavits and reports mandatory upon written request by the defense.

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

This, in my opinion, is a major victory. Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The brand new Section 40-13A provides:

Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.

This is a tremendous improvement, making uniform discovery provisions across the State.

But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.

There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.

Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.

The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.

An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.

I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.

There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.

The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.

But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.

For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.

This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.

Do the benefits outweigh the costs? How is it done in your state?

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discovery

From the ass’s mouth

Dec 2nd

Posted by Gideon in clients

2 comments

Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.

Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”

This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:

Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.

But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:

[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]

I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).

As Scott summed it up:

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong. David Martin’s comments are a disgrace of the lowest order. And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer. Never, but never, smear your own client.

I’m glad to say that no one I know would act like Martin did (although one has come close).

Eeny, Meeny, Miny NO SOUP FOR YOU (and other tales of justice)

Nov 29th

Posted by Gideon in criminal law principles

3 comments

You want bread? Three dollars!

Eeny, meeny, miny, moe, goes the counting rhyme, the primary use of which is to select someone random to be “it” in a game. As anyone who’s ever used this rhyme knows, it’s rather easy to manipulate the rhyme (or where you start it) to “randomly” select a predetermined person.

The prosecutor’s office in San Diego is rather more blatant about its singling out of a judge to be “it”:

San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, [...] is under a boycott from the District Attorney’s Office.

For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.

If this happened in Texas, I’d shrug it off as another installment of “It only happens in Texas”, but this is California, the land of the free and the home of the Governator. Maybe some of our California brethren can inform us what this “peremptory challenge” is. Is it a device of state law or just state procedural rules? Regardless, the fact that the prosecutor’s office has employed this tactic against a solitary judge for two months straight should raise some eyebrows and concerns about their motivation and their role, aka “justice”. When asked for comment, this is all the prosecutor’s office could muster:

“This decision was made after careful consideration and thoughtful review over an extended period of time,” she said. “It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”

Normally, one would replace those sentences with something like this: “This decision was made after some anecdotal evidence that this Judge doesn’t accede to our every demand and seems to have some sympathy for criminals who rape and murder your children and those illegals who cross over the border to steal our jobs. Thus, since he has respect for the Constitution and there is no place for such liberal namby-pambying in the criminal justice system, which means we can’t bully our way into raising our conviction numbers which is all we really care about, we’re going to throw a hissy fit and say to him: NO SOUP FOR YOU!”

Okay, maybe not that last bit. But here, there seems to be no reason for the prosecutor’s office to be disenchanted with Judge Einhorn:

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

Over the past year, Einhorn has been at the center of two of the higher profile cases in San Diego. Sommer was convicted of murdering her husband, Todd, in 2007 by poisoning him with arsenic. She was granted a new trial in November of that year. Then in April 2008, new evidence was discovered — tissue samples of Todd Sommer that showed no traces of arsenic — and that led to prosecutors dismissing the case.

The retrial had been assigned to Einhorn. Allen Bloom, Sommer’s lawyer, pressed for the case to be dismissed in a way that would preclude prosecutors from ever charging Sommer again.

That turned into a pissing match between the State and the judge (the state accusing him of a lack of jurisdiction), but he eventually ruled in favor of the State. In another case, he interpreted a statute in a way the state disagreed. Unless the judges of San Diego are really prosecutors-not-in-disguise, this sort of stuff happens every day. So, what then, caused them to hate him so? No one knows, except the prosecutor’s office, which isn’t talking. The Judge himself doesn’t know.

It’s only natural, however, when prosecutors make decisions in a clandestine manner that seem contrary to the administration of justice, to ascribe nefarious motivations to such actions. Perhaps we will be proven wrong at some point down the line, but now, as it stands, it seems they do not like this judge and are using some procedural mechanism to prevent him presiding over any cases.

Not only is this extremely inefficient (one judge sitting idle in these days of tremendous workload?), but is also casts an ugly shadow on the rest of the courthouse. In our criminal justice system, a judge is supposed to be an impartial presence: someone who ensures that a trial proceeds smoothly and makes rulings of law. The nuts and bolts of the criminal case – the facts – are left to the parties. Is it fair to draw an inference that the prosecutor’s office expects judges only to side with them and a judge who shows a hint of independence is thus an obstacle to the administration of “justice”? Are the other judges in San Diego merely lemmings who follow the prosecutor’s office with nary an independent thought? It would certainly seem that way.

Now, I’m not saying that “judge shopping” doesn’t occur. It does, but in more subtle and less ugly ways. You have a complex legal issue? You might want to try and get it before an eminent jurist. You have an uppity prosecutor? You might want to try and have the trial before a no-nonsense judge. These, usually, are not done to subvert the administration of justice, but rather to ensure the smooth and fair administration of the process of the trial.

To completely block one judge from sitting on any cases whatsoever for some undisclosed reason smacks of subterfuge and arrogance.

As a criminal defense lawyer, would I want to have a trial before a pro-defense judge (if there is such a beast)? Absolutely. Do I think that fact by itself would make a difference in the outcome of the case? Probably not. It might net me a favorable jury instruction or a helpful ruling on some questionable evidence, but the facts are the facts. And this is the key distinction: It is not my job to ensure the administration of justice or the appearance of a fair system. I have no obligation other than that to my clients. The prosecutor’s office, on the other hand (as appropriately stated in the press release quote above) represents “the people” as a whole and is obliged to not only prosecute crime, but to provide a fair and just system, which includes the appearance of propriety. [For a lengthy discussion of "justice" vis-a-vis the role of the defense lawyer, see the discussion that's been making the rounds of the blogosphere here, complete with links to all the posts.]

And, since the title of this posts teases it, here’s the Soup Nazi:

[youtube]http://www.youtube.com/watch?v=M2lfZg-apSA[/youtube]

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You know you’re screwed when… (Texas edition)

Apr 21st

Posted by Gideon in death penalty

2 comments

Here. Let’s play a game. I give you a sentence, you fill in the blanks. Everyone wins.

You know you’re _____ when you’re an ______ on _____ _____ in _______ and your _______ misses _______. ___ ____ ____.

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys

Because getting that appeal heard may be the best thing that can happen to you. The worst, of course, is getting executed. But there’s so much middle ground: important middle ground that these people are losing out on. Specifically the Constitutionally mandated review of their claims.

Yes, I know, everyone is human and we all miss deadlines. But if you’re in the capital defense business, you better damn well make sure that you make every date you’re supposed to. If you don’t, the worst can happen:

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

Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

That’s just the worst thing one could imagine happening. So it necessarily begs the question: How? Read on, and the answer will become clear:

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.

That’s just insanely mind boggling. He represented defendants in 1638 cases in a span of three years?! Including a whopping TWENTY-ONE capital cases? No wonder he missed a deadline or two and had a client executed.

Death is different, they say. Which is why the ABA has published separate guidelines [pdf] for the representation of defendants in capital cases. From to commentary to Guideline 6.1 (page 40):

Studies have consistently found that defending capital cases requires vastly more time and effort by counsel than noncapital matters. For example, a study of the California State Public Defender revealed that attorneys there spent, on average, four times as much time on capital representation as on cases with any other penalty, including those involving a maximum possible sentence of life imprisonment without parole. In terms of actual numbers of hours invested in the defense of capital cases, recent studies indicate that several thousand hours are typically required to provide appropriate representation. For example, an in-depth examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.

One lawyer, with 21 capital cases, which may on average take 1889 hours each. You do the math, even if half the cases go to trial, or even 1/10th. Add in all those other non-capital clients and a lot of people are receiving substandard representation.

The ABA guidelines mandate that the “responsible agency” monitor the workload of capital attorneys and help manage them. The guidelines also call for specific support staff and mitigation specialists. A quick review of the internets reveals that this particular attorney (and I don’t mean to harp on him, but he’s a good example) is a private attorney who probably gets assigned these cases. So there is no “responsible agency” such as the public defender’s office.

So whose responsibility is it? From what I’ve read and heard, in Texas, these appointments are made by the judges, who is some instances continue to appoint these attorneys over the objection of the public defenders office (who want to be assigned to these defendants).

Jack V. Strickland Jr., a Fort Worth lawyer who specializes in capital case law, also has repeatedly missed death row deadlines. However, judges accepted his explanations and allowed late filings for four of five appeals.

Being overwhelmed on capital cases was the excuse for two late 2008 filings.

Strickland told the court that he’d been hospitalized several months before the appeals were due, then “began a new death penalty trial right after his recuperation period, was in the process of preparing another death penalty writ application which was due mid-September, was preparing for trial in another case, and had presented five lectures and papers in the previous sixty days,” according to a CCA opinion.

So while Attorneys Godinich and Strickland may well have engaged in unethical behavior in accepting these cases and missing deadlines, surely some of the blame must fall on the courts for continuing to appoint him. Is it that it’s cheaper to keep assigning cases to contract attorneys rather than the public defender’s office? I don’t know the answer to that, but it’s something to think about. Are we sacrificing Constitutional standards of representation for cost-saving?

Grits has more on this.

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This is a stickup!

Apr 2nd

Posted by Gideon in ct legal news

4 comments

you so cute...now gimme your money!

Times are tough. Everyone is going through an economic crunch and we all need money. The State needs money, you need money and I most certainly need money (what, you think this blog comes for free?).

So it was surprising when almost $2 million was stolen a few weeks ago, without many batting as much as a single eyelid. To make it worse, the money was stolen from victims! Victims of theft and fraud, I might add.

So who is this criminal with such audacity? Who is this person or entity that engaged in such a daring daylight heist? Why, the State of CT of course.

Last week, the CT legislature, as part of the Governor’s budget bill, passed legislation co-opting $2million from the Client Security Fund. The client security fund is a fund into which all 36,000 lawyers are required to pay $110 per year. There’s also a proposal to alter the Attorney Occupation Tax to remove the exemption for state employees. More after the jump.

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

The Client Security Fund money is held in a trust to reimburse victims of lawyer fraud and embezzlement. The fund has $7.8million currently, but approximately $5.8million of that is currently tied up in claims. That leaves the $2million that the State just “took”.

I’ll let minds greater than I explain. Associate Justice of the CT Supreme Court wrote an op-ed on this a few weeks ago, but apparently no one in the legislature gave a damn:

The transfer also will leave the fund with no cushion against pending claims. At the end of 2008, the fund had a balance of about $7.8 million available against $5.8 million in pending claims. The actions of the governor and legislature place the fund at risk of being unable to fully pay claims if there is a large scale defalcation or an appreciable number of defalcations in the future.

In addition to reducing reserves, the governor and legislature have also violated the trust of members of the bar, who have paid the annual fee with the expectation that it would be used, as noted in the Superior Court rules, “to promote public confidence in the judicial system and the integrity of the legal profession” by reimbursing clients in rare instances when an attorney has violated the trust established within the attorney-client relationship.

The fact that a theft or embezzlement of funds by an attorney is, however, a rare event is of little comfort to a client who learns that he has been the victim of such an act. It will be even less comfort for the client to learn that his losses may not be reimbursed fully because the governor and legislature have seen fit to use those funds for purposes that were never intended.

Norm Pattis (who apparently thinks this blog isn’t good enough to link to) wrote about this weeks ago, and recently made a call to arms:

I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.

It looks like Norm’s plea has been heard…by lawyers. The Connecticut Bar Association and a bunch of who’s who of CT lawyers sued the Governor on Monday seeking a return of that money.

The lawyers claim that it’s illegal to take the $2 million because it is generated by fees for the specific purpose of aiding clients — and was not collected via general taxation for use in the overall budget.

As worded in the suit, the plaintiffs claim that taking the $2 million violates the “constitutional separation of powers” among the three branches of government. “The payments made to the fund by [lawyers] were not levied or collected by the Legislative Department, were not assessed, paid or collected as a tax, and cannot retroactively be expropriated as tax revenues for deposit in the general fund,” the suit claims.

“We think it’s absolutely unconscionable” to take money from “this segregated fund for people who are victimized by that small minority of lawyers,” said Ernest F. Teitell, a favorite of Scott Greenfield.

The outrage has been sufficiently expressed elsewhere, so I’ll spare you the anger. But, for those in CT, there’s more. A little prosecutor birdie told me yesterday that the legislature is now considering increasing the Attorney Occupation Tax to $640 and removing the exemption for State employees. Until now, people like me and those on the other side of the courtroom were exempt from paying this silly tax (I mean, is there a neurosurgeon’s tax? A dentist’s tax? C’mon people..) because we don’t get hired by clients.

Now the plan is to exempt us from the exemption and make us all pay it. There is no way to defray this cost or to pass it on to our hundreds of clients. There’s no offsetting for us in the public sector. I know that people in the private sector have been complaining about this tax for years. But don’t some (if not most) firms pay the tax on their associates’ behalf? I certainly can’t go to my supervisor and ask him/her to pay it for me.

This certainly seems like kicking a group when it’s down. I fully expect that the prosecutor’s union will make several concessions when it renogotiates its contract in the coming year (and that applies to all public defenders pursuant to the parity statute). Maybe we’ll go back to 35 hours; maybe we will be forgoing raises for the next 3 years. Whatever it is, I know there will be a loss that we will have to absorb. On top of that you’re going to make me pay $640 per year?

Maybe we should start collecting that $25 per indigent client and use it to pay for our Attorney Occupation Tax. Unless the legislature gets to that first.

[Note that I received this tip on April Fool's Day, so it might be an elaborate joke by some prosecutor, but it does sound plausible.]

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ethics

The ideal ideal

Indigent defense on trial

That bus is not for your client

The blind leading the blind?

Tonya Craft teaches us all

A witchhunt by men who molest the law

How hard is too hard?

Padilla: It’s not that complicated, really

Guilty of being poor

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

Does the client have a right to discovery?

From the ass’s mouth

Eeny, Meeny, Miny NO SOUP FOR YOU (and other tales of justice)

You know you’re screwed when… (Texas edition)

This is a stickup!

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