habeas

Innocence on a clock

Jul 7th

Posted by Gideon in criminal law principles

When I first turned my eye toward law school and the criminal justice system, the echoing refrain was that we, in this country, were the best. The criminal justice system, the jury system, the resources, the level of intelligence on both sides of the aisle on the bench all combined to create the best that the world had to offer. Law school, immersing us in the vagaries and nuances of Constitutional and criminal law, making us read and learn awe-inspiring quotes from Justices past, only served to reinforce that notion.

We were fooled. Years later, with years of practice and actual experience under my belt, I’ve come to the conclusion that while the system may still be the “best” in the world, it is only so by comparison to the others that are currently in existence (and even that I doubt, but since I’m no comparative law scholar, what do I know?). That makes me sad, both for the systems of other countries and our own.

There are two indelible truths about the system here in the US: it is the criminal conviction system and finality is king (an idea that deserves a fuller post; upcoming).

And when you combine those two inescapable conclusions, you get Lee v. Lampert (pdf). Lee, you see, got stuck in that quagmire that is AEDPA. Lee, you may also see, has proven that he is actually innocent of the crimes of which he stands convicted. And yet, because he missed the statutory, non-jurisdictional, arbitrary deadline for filing a federal habeas corpus petition, he will get no justice.

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

The case is troubling for several reasons, but mostly it serves as an example of the ridiculous and arbitrary nature of filing deadlines. Lee, who filed his first Federal habeas petition, will not get the benefit of the “innocence exception” to the statute of limitations.

On the other hand, if Lee had filed a successive or second Federal petition and could show that he was actually innocent, the missed deadline would be forgiven. If Lee had procedurally defaulted in State court, he could avail himself of the actual innocence exception and receive review and relief.

But since Lee timely filed a State petition and this was only his first Federal petition, his actual innocence means nothing to the judges on the Ninth Circuit.

AEDPA is poor legislation at its finest. When courts can rely on flimsy statutes of limitations and even flimsier rationales to look an innocent man straight in the eye and say “sorry, you didn’t make your innocence argument before end of business today, so you’re SOL”, something’s gone horribly wrong.

A distaste for those caught elastic arms of the law, a false reliance on notions of “finality” and a “conviction at all costs” culture has brought us to this nauseating point.

the actual innocence exception arises from the judiciary’s equitable discretion, not the Constitution. Murray v. Carrier, 477 U.S. 478, 496 (1986) (“Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”) (emphasis added); Schlup, 513 U.S. at 314-17 (not mentioning constitutional concerns while formulating exception); id. 324-27 (not mentioning constitutional concerns in holding that Sawyer standard was too strict for actual innocence inquiry); House, 547 U.S. at 536-38 (not mentioning constitutional concerns while formulating exception). We decline to rule otherwise and instead follow Ferguson: AEDPA’s statute of limitations without an actual innocence exception does not violate the Suspension Clause. Consequently, we conclude that there is no Schlup actual innocence exception to override AEDPA’s statute of limitations. Lee’s habeas petition is thus time-barred and must be dismissed.

Since there now seems to be a Circuit split, one can only hope that SCOTUS has the courage to look an innocent man in the eye and say “finality be damned, justice shall be served”.

Via C&F, Gamso too.

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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

Preempting Strickland

May 9th

Posted by Gideon in criminal law principles

4 comments

The Sixth Amendment right of the “accused” to assistance of counsel in “all criminal prosecutions” is limited by its terms: “it does not attach until a prosecution is commenced.” McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for purposes of the right to counsel, pegged commencement to “‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’” United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not “mere formalism,” but a recognition of the point at which “the government has committed itself to prosecute,” “the adverse positions of government and defendant have solidified,” and the accused “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689.

Rothgery v. Gillespie County (my prior post on Rothgery here). The importance of the Sixth Amendment right to counsel was underscored by the Supreme Court in United States v. Cronic:

Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.

In McMann v. Richardson, the Court recognize the right to counsel to mean “the right to effective assistance of counsel”. Drawing on the mandate of this most excellent quote from Marbury v. Madison (“every right, when withheld, must have a remedy, and every injury its proper redress”), the Court, in Strickland, gave teeth (however blunt) to that right, requiring a new trial for a defendant whose conviction was obtained in violation of the Sixth Amendment.

But all of this – Strickland, Cronic, even the quote in Marbury – is somewhat contradictory and rather backward looking. On one hand, these rights attach at the very institution of a criminal proceeding and counsel has tremendous duties and responsibilities to ensure that the defendant has a fair trial:

Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan. From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See Powell v. Alabama.

On the other hand, any vindication of this Sixth Amendment right must come after a conviction is obtained. Thus, the “two-pronged” approach to deciding ineffectiveness claims:

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

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

There may be an acknowledgment that the Sixth Amendment right to counsel has been violated due to sub-par performance on the part of the lawyer, but there doesn’t need to be any remedy because there was no harm – or, in other words, the “he’s guilty as hell so what difference does it make?” legal principle. What sort of a right is a right without any redress?

Certainly, the vast majority of trials will fall on two points on the spectrum: those with no errors and those with errors so debatable that one cannot know, during the pendency of the trial, whether they will have any impact on the outcome at all. Perhaps these are best reserved for review after the outcome.

But there are some errors, in the pre-trial context or even during a trial, that are so glaring, so immediate a denial of counsel that to proceed to a sham verdict and then “allow” the defendant to challenge his “conviction” would indeed be a manifest injustice. And yet the courts provide for no remedy for such a violation.

I’ve observed many trials and read just as many transcripts of trials. In a very small percentage of these, it was obvious to all present that counsel had absolutely no idea what he/she was doing. And yet, apart from the judge’s few feeble attempts to “assist” the attorney, the mockery was allowed to continue. For what can one do? Per the mandate of Strickland, there is no harm until there is a conviction, even though there will be one is abundantly apparent to all.

And even when the conviction is obtained and the challenge commenced, the institutional roadblocks to meaningful review of counsel’s performance are ever present. First, we must give high deference to the reasonableness of counsel’s performance:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101.

Then, when we’re done ticking that box, we must view counsel’s performance through his/her eyes at the time of that performance:

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

And finally, the defendant has to overcome the “it didn’t matter anyway” stonewall:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U. S. 361, 364-365 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

Even in the “denial of counsel” cases, the determination is always made ex post facto. Never has there been a case, to my knowledge, where a trial has been stopped midway and the parties have said: “this cannot proceed; this defendant must have adequate counsel”. Yet, the caselaw is littered with examples of poor lawyering and convictions being reversed. Why must we wait until a defendant has been convicted, spent years in jail, endured countless rounds of litigation to have a right vindicated that everyone knew was denied him in the first place?

the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. See United States v. Frady; Engle v. Isaac.

Oh. That’s why. Granted, I am talking about a very small universe of cases, but the fact that this occurs and there is no remedy begs the question.

The Sixth Amendment right is not – and cannot – be limited to a trial alone. Indeed, it is clear that “to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself”. Maine v Moulton. I suppose that there are some options available to defendants who feel like they are receiving ineffective assistance of counsel pre-trial: they can file a motion to fire the lawyer or they can file a motion to withdraw their plea based on ineffective assistance of counsel (here, in CT, pursuant to Practice Book section 39-27). We know, though, how these arguments are viewed by the establishment: “oh, he’s just being difficult” or “he’s trying to game the system”. In Connecticut, the 39-27 IAC claim is a joke. I’ve never seen it granted. Judges routinely deny the motion to withdraw the plea without so much as appointing new counsel to investigate the claim and almost always without an evidentiary hearing. In both those instances, it’s the word of the defendant against, well, the system. The lawyer is put in a terrible position of having to defend himself, while still representing the interests of the client.

It’s the juggernaut of the conviction and it keeps rolling, rolling.

And of what of the defendant who jumps up during a trial because he can’t take it anymore, who can see that his lawyer has so badly messed things up that his conviction is a foregone conclusion? What redress does he have? Is he entitled to any? Or does he just have to take his lumps and hope that down the road, someone will see it his way and give him a new trial with a competent lawyer?

One way to assuage some of the doubts is to ensure that states provide adequate and competent public defenders, with resources necessary to effectively represent clients. But, then again, these systemic claims do not implicate Strickland.

Strickland was a mutant born of a half-hearted attempt to give meaning to a core Constitutional right. It is time for it to die and to be replaced by a better, more effective standard that actually means something to those whose confidence in their convictions has been undermined.

—————————————————————————————————————————

1. As an aside, I found the following passages from Justice O’Connor’s opinion in Strickland to be rather interesting. I’ll have to give it some more thought, but perhaps the habeas practitioner could find some meaning in the attempted explanation of the prejudice prong.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. Cf. United States v. Johnson, 327 U. S. 106, 112 (1946). An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U. S., at 104, 112-113, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, at 872-874. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

2. Another aside: While writing this post, I had the nagging feeling that I’d touched upon this topic before. Turns out, I have. With a very similar title. Two years ago. Just goes to show that I’ve been blogging for a really long time and that there is such a thing as “dearth of topics”.

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iac

Institutional coddling

Apr 27th

Posted by Gideon in clients

26 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Effective misadvice is ineffective

Apr 23rd

Posted by Gideon in clients

2 comments

[Or: Leave your ego in law school]

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

Skakel loses the battle, but the war looms?

Apr 15th

Posted by Gideon in ct legal news

No comments

In a mind bogglingly long opinion released earlier this week, CT’s Supreme Court upheld the denial of Kennedy cousin Michael Skakel‘s motion for new trial. There is a concurrence and a dissent as well.

The decision is long and I don’t care enough to dissect it. Except to state that despite the court shooting down all his claims, there is still hope for Skakel. And that rests entirely on the claim that Mickey Sherman, celebrity lawyer extraordinaire, rendered ineffective assistance of counsel.

Normally, our appellate courts are quick to shoot down future hypothetical claims of ineffective assistance. Not so in this case:

The trial court concluded that efforts to locate the three witnesses prior to and during trial did not satisfy due diligence. The court further concluded that these witnesses could have been located using the same methods that ultimately were used after trial to locate them. Therefore, the court concluded that the evidence was not newly discovered within the meaning of § 52-270. We agree.

It is highly significant that this evidence is not newly discovered in the sense that the petitioner did not know of the existence of these witnesses prior to trial. Coleman had identified these witnesses years before trial. Moreover, the petitioner should have known that Coleman’s testimony, if credited, could be a key piece of evidence in the state’s case.

Sherman apparently concluded, however, that cross-examination of Coleman at trial would be sufficient to discredit him, as he justified his lack of direction to Colucci about locating these witnesses by the fact that he ‘‘didn’t anticipate that . . . Coleman would be dead at the [time of] trial . . . [and] believed that the jury would see [him].’’ Sherman had James’ contact information in the spring of 2002, but could not ‘‘connect’’ with him. No effort was made to locate Simpson or Grubin prior to or during the trial. Therefore, we fully agree with the trial court’s conclusion that Sherman had failed to exercise due diligence to locate the three witnesses.

and:

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

We concluded that ‘‘the trial court acted within its discretion in rejecting the [petitioner’s] claim on the ground that the [petitioner] had failed to raise it in a timely manner under Practice Book § 42-54. Even though the [petitioner] became aware of the two reports during trial, he did not raise a Brady challenge to the state’s failure to provide him with the reports until two and one-half months after the five day limitation period [for filing a motion for a new trial under] . . . § 42-54 had expired.’’ (Emphasis added.) Id., 710.

In addition to the aforementioned facts and conclusions set forth in Skakel, the trial court in the present case pointed to the following testimony. Garr had offered testimony to establish that the composite drawing had been in the state’s files, which always were accessible to the petitioner. Sherman admitted that, shortly before trial, Solomon had told him about the profile reports.

Although Sherman had filed a discovery request almost one year before trial, he acknowledged that he had not renewed this discovery request specifically to request the profile reports. In light of this testimony and this court’s conclusions in the petitioner’s previous appeal, we conclude that the trial court did not abuse its discretion in concluding that this evidence was not newly discovered.

and finally:

We are mindful that we have disposed of two of the petitioner’s claims solely on the ground that the trial court did not abuse its discretion in concluding that the evidence was not newly discovered because the petitioner did not meet his burden of proving that this evidence would not have been available for use at trial if due diligence had been exercised. Because this conclusion is dispositive of those claims; Costello v. Costello, 139 Conn. 690, 695, 96 A.2d 755 (1953); Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 80; we express no opinion on the possible effect that this evidence could have in a new trial.

Undoubtedly, the prerequisites for obtaining a new trial at this stage are stringent. ‘‘This strict standard is meant to effectuate the underlying ‘equitable principle that once a judgment is rendered it is to be considered final,’ and should not be disturbed by posttrial motions except for a compelling reason.’’ Asherman v. State, supra, 202 Conn. 434. To the extent, however, that the petitioner believes that this evidence would have changed the outcome of his trial, habeas relief is the appropriate avenue to pursue such a claim.

Now that kind of language is certainly unprecedented. If the Court didn’t believe that the evidence would, indeed, have an effect on the outcome of the trial, it would likely have reached the issue and said so, like it does in every other damn case not involving a famous person other cases.

So the question becomes: what will Mickey Sherman do? What will a habeas court do? That’s where the real fight is, in my opinion. Expect long hearings, big pronouncements and pointed and repeated references to this decision of Skakel v. State. If, as the court seems to suggest, the fault lies with Sherman, then how difficult will it be to deny relief on ineffective assistance grounds? And then there’s that matter of the odd filing of the federal habeas. I still don’t know why that occurred.

Ultimately, though, Skakel might have the luxury of fighting the conviction “from the outside”. Because of good time laws in effect at the time of the offense, he’s eligible for parole in a few years.

Whether he is innocent or guilty, the Skakel case has already resulted in two tragedies: the death of Martha Moxley and the abomination that is the Supreme Court’s decision on direct appeal, affirming his conviction in State v. Skakel [oddly, the author of State v. Skakel, Justice Palmer, is the lone dissenter in Skakel v. State]. I’ve never seen such judicial gymnastics. If you get me drunk enough, I’ll tell you why.

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michael skakel

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.]

Dealing with Padilla v. Kentucky

Apr 9th

Posted by Gideon in habeas

2 comments

SCOTUS’ decision in Padilla v. Kentucky has generated a lot of discussion and rightly so. As I noted in one post, some are concerned about the additional burden being placed on defense lawyers to learn and be informed of the highly complex area of immigration law.

Never fear. Here’s a practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

Choice quotes from Padilla v. Kentucky

Apr 1st

Posted by Gideon in habeas

1 comment

Here are a few things that I noted in Padilla v. Kentucky that I left out of my last post, which I wanted to focus mainly on the immigration issue itself. But these are worth mentioning.

First, for the habeas practitioner, Justice Stevens delivers a powerful statement:

In [the Supreme Court of Kentucky's] view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

JACKPOT! Those who practice in the field know that courts are quick to dismiss viable claims of Constitutional defect on the grounds that the basis for that alleged defect is only a “collateral consequence” of the plea. Go forth, defense attorneys, and beat them over the heads with this quote.

In what is more evidence of the complete battiness of Scalia and Thomas, Scalia writes:

We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

I thought it needed pointing out that Scalia would only “assume the validity” of Gideon and Strickland. Nino, you crazy old man, you…

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.

It’s 5 p.m. Do you know where your bills are?

Mar 29th

Posted by Gideon in ct legal news

1 comment

Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.

There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).

Good news:

The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.

In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)

Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.

For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.

The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.

An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.

Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.

The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.

Bad news:

I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).

The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.

A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.

For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.

I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?

A few stray thoughts

Mar 23rd

Posted by Gideon in ct legal news

3 comments

the metaphor, stupid

Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.

[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]

The habeas corpus effective suspension and evisceration bill

Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.

Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.

But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.

The second premise of the state’s position is all the more confusing and confounding.

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

To allay the fears of the few who rightly questioned the evisceration of such an important and time-honored Constitutional right, the state has inserted several “exceptions” into the bill that would apparently provide a mechanism whereby petitioners can get review of meritorious claims despite missing the statute of limitations and/or having filed prior habeas corpus petitions.

But the onus in all of those exceptions falls squarely on the shoulders of indigent, incarcerated inmates. When asked, for example, how the inmate could make a showing that there were facts that would lead a court to believe there was a chance that the petition was meritorious, the CSA replied that the petitioner could submit an affidavit of facts, that a court would then consider.

And just how is an inmate to do that? Counsel would not be appointed at that stage, so the petitioner would have no access to resources to effectuate such an affidavit. How is he to send people out into the community to investigate the merit to his claims? How is he to present them in a legally effective manner to a judge? Courts routinely insist that defendants and petitioners should not represent themselves and yet here we place this onerous burden, even in cases alleging actual innocence on an incarcerated inmate.

Not one legislator pointed out, much to my dismay, that the Courts would have the same amount of work, just clothed in a different garb. Instead of ruling on the merits of the petitioner’s claims, the court would rule on the merits to decide if there was merit. And then presumably rule again? The fact that this will only lead to more litigation should be obvious to everyone.

Also to my dismay, not one legislator challenged the sound-bite claim that victims are routinely dragged out to habeas corpus hearings, many years later and forced to face a retrial of sorts. In fact, at around 1:03:00 on the video, Judiciary Committee Co-Chair Mike Lawlor parrots the State’s position that “we can trot thousands of victims in here” who are notified that there is a habeas pending and they may be called to testify. Does it sound terrible? Yes. Does it happen? Almost rarely.

In fact, I can’t think of any case that I know of where the victim was called to testify at the habeas trial. There is maybe one scenario in which a victim may be called to testify. Perhaps this is something for which statistics cannot be kept. Still, someone should challenge this fearmongering argument, because it will quickly fall apart, instead of blindly accepting it as true. It simply is not true.

And as an aside, even if a victim is called to testify at a habeas trial, we should not use that as an excuse to curtail the basic Constitutional right to challenge the legality of one’s conviction. The slight inconvenience experienced by any such victim should necessarily take a back seat to the monumental interest in determining whether a person has been unlawfully and illegally deprived of his liberty.

The residency “you hate children or you love terrorists” restrictions bill

The testimony on this bill starts at around 03:14:10 on the video. The main testimony in support of the bill comes from State Rep. Rebimbas. Now, she does not represent my district, I hadn’t heard of her existence prior to Monday and I’ve never, ever spoken to the woman. I’m sure she does a fine job representing her district.

But.

Either she’s horribly assisted by aides who gave her incorrect information, or she misspoke or she intentionally fudged so many things to the committee that it made my head spin.

Two big points here as well: 1) The 2000 feet residency restriction zone is not overly restrictive; and 2) Sex offender recidivism is the highest.

Those who are regular readers of this blog know that residency restrictions are a pet peeve of mine (I even have a category dedicated to it). They are ineffective, useless and only tend to drive sex offenders underground.

At 3:41:00 (approx.) she says that 2000 feet is not overly restrictive “because it’s less than half a mile”. Putting aside the fact that 2000 feet is not less than half a mile, 2000 feet would put Connecticut into the group of most restrictive states. Per this 2007 OLR report, most states have residency restriction zones less than 2000 feet. The only states with a restriction of 2000 feet are Alabama, Arkansas, Iowa (whose County Attorneys issued this statement in 2006 against residency restrictions) and Oklahoma. So 2000 feet would be the most restrictive legislation in the country.

At approx 03:47:00, a legislator hits upon the biggest problem with the residency restrictions in urban cities. There’s a map of places covered by a 1500 feet restriction in the city of New Haven. The only place in the entire city of New Haven that is not within 1500 feet of a school or daycare is in the middle of the Yale golf course. Increase that radius to 2000 feet and there’s nowhere in any of CT’s large cities where sex offenders could reside. (See this post for another map and more on this.)

You should also listen to her evasive bullshit response to Rep. Holder-Winfield at approx 03:53:02 on the question of which, if any, states had restrictions greater than 2000 feet.

What’s the upshot of that? Sex offenders move into rural areas. Mike Lawlor joked at one point that he’s not sure how the rural legislators would feel about that. We all know how Southbury crapped the bed when one sex offender moved in. Imagine a whole busload of them.

In her long winded and vacuous answer to the question about where these sex offenders would go, the Rep. responded by repeating the easily refuted claim that sex offenders are very likely to reoffend and that “we’re protecting the children”. I’m not sure how many times I’m going to have to cite to the studies that show 1) that 95% of sex crimes are committed by people known to the victim and 2) that sex offenders have very low recidivism rates.

When pushed (at 03:55:03) about her numbers on recidivism, she didn’t have any handy, but “her numbers show that there are high recidivism rates”.

Look, I’m not sure if she knows all the answers or what. The point here is that this is dangerous legislation and should only be discussed, much less voted upon, with the full knowledge of the facts. Legislators needs to read all the studies in this area, arm themselves with accurate and reliable facts and then have a long and honest discussion about whether residency restrictions are needed in Connecticut.

The reality is that there already do exist residency restrictions and those are in the form of conditions of probation. When a defendant is on probation, they own him. They control what he wears, what he breathes and more importantly where he lives. Every client that I have, who is convicted of a sex offense, has some form of residency restriction built into his conditions.

Poorly thought out laws should have no place in our penal code, much less ones proposed based on knee-jerk fearmongering. Trotting out the children to pass terrible legislation is akin to the “if you’re against the war, you’re for the terrorists” mantra.

We must refuse to cower blindly to imaginary fears.

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The Limp Writ

Mar 18th

Posted by Gideon in ct legal news

3 comments

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:

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

Section 1. (NEW) (Effective October 1, 2010) The provisions of sections 2 to 6, inclusive, of this act apply to any application for a writ of habeas corpus filed on or after the effective date of this section that is brought by or on behalf of a person who (1) claims to be illegally confined or deprived of his or her liberty as a result of a conviction of an offense, as defined in section 53a-24 of the general statutes, or a motor vehicle violation for which a term of imprisonment may be imposed, and is challenging the validity of the conviction or sentence imposed, [...]

Yes, this bill would be effective immediately and apply to all new habeas petitions and apply retroactively. So if an inmate decides to file a petition tomorrow for a conviction obtained in 2004, the SOL would apply. Is the concept of notice so novel to the legislature that they cannot grasp the implications of this? Increase litigation 10-fold.

Sec. 2. (NEW) (Effective October 1, 2010) Except for the remedies of appeal, petition for a new trial, sentence review in accordance with section 51-196 of the general statutes or sentence reduction or discharge in accordance with section 53a-39 of the general statutes and the authority of the sentencing court at common law to correct an illegal sentence, the remedy of habeas corpus as provided in sections 1 to 6, inclusive, of this act shall be used exclusively in lieu of all common law, statutory or other remedies available prior to the effective date of this section for challenging the validity of a conviction, sentence or commitment.

This is a frightening provision. Perhaps unintentionally so. What it does, immediately, is eliminate the Writ of Error Coram Nobis. WECN (I made up that abbreviation; you are free to use it) is an extraordinary remedy to be applied only when no other avenue is available. Combine that with the forthcoming section on the statute of limitations for the Great Writ and the effect is that for some people, there will be absolutely no avenue to seek redress for a Constitutional violation.

In addition to that, this section also seeks to eliminate the statutory Motion for New Trial (not to be confused with the Petition for New Trial), which must be filed shortly after a verdict of guilt. This gets a +5 on the “more litigation” scale.

Serenity now.

Sec. 3. (NEW) (Effective October 1, 2010) (a) No application for a writ of habeas corpus challenging the validity of a conviction, sentence or commitment shall be brought except within: (1) Three years after the date that the sentence was imposed or the commitment ordered, or (2) one year after the date of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the denial of a petition for a writ of certiorari to the Supreme Court of the United States or issuance of said court’s final order following the granting of such petition; whichever is later.

This is the big kahuna. The SOL is introduced into state habeas corpus petitions, where none existed before. But note the end of that provision: the SOL is one year from the denial or granting of cert by SCOTUS. So if the United States Supreme Court grants an inmate’s petition for certiorari, the SOL still continues to run! Bueller?! Bueller!???!? What. The. Fuck.?

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if the applicant establishes due diligence in presenting the claim and:

(1) The applicant establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) The applicant alleges the existence of newly discovered evidence, including scientific evidence, that could not have been discovered by the exercise of due diligence by the applicant or the applicant’s counsel prior to the expiration of the three-year period for the filing of an application for a writ of habeas corpus, is not for impeachment purposes and would establish that the applicant is actually innocent of the offense or offenses for which the applicant was convicted or committed;

(3) The applicant’s claim for relief is based upon a new interpretation of federal or state constitutional law by either the Supreme Court of the United States or the Supreme Court of this state that is retroactively applicable to cases on collateral review; or

(4) The applicant establishes that the evidence on which the claim is based was in the exclusive possession of the state and not otherwise available to the applicant, was not disclosed prior to the expiration of the time periods set forth in subsection (a) of this section, is favorable to the applicant and is material to the applicant’s guilt or punishment.

Due Diligence. I don’t know what that means. Do you? cough*morelitigation*cough. Subsection (2) is so mind-numbingly stupid that I can only fairly criticize the “not for impeachment purposes” clause. The legislature is purporting to tell a court of equity what types of evidence it may consider? The litigation meter just went to 100.

Subsection (3) is also evidence that this bill was drafted by a prosecutor non-lawyer. The United States Supreme Court has, on several occasions, applied new interpretations of criminal statutes retroactively [I once wrote a brief on that damn issue].

On the more litigation front: Who decides all this anyway? Does a Court? If a court decides this, is it prior to the filing of the Great Writ, or after? Or is it in purgatory? Is counsel appointed? Is counsel appointed provisionally? Can this be appealed? If it is appealed, is counsel provided? There is a right to counsel, after all. Oh yay!

Suspension of the Writ

Read the following section and tell me how this is not a suspension* of the Great Writ for some:

Sec. 4. (NEW) (Effective October 1, 2010) (a) A claim for relief raised in an application for a writ of habeas corpus, or in an amended application, shall be barred and no court may decide the claim if:

(1) It was raised and decided, either on the merits or on procedural grounds, in any earlier proceeding; or

(2) It could have been raised but was not raised:

(A) At any time prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment;

(B) In a direct appeal from the proceeding that resulted in the applicant’s sentence or commitment; or

(C) In a previous habeas corpus proceeding challenging the same sentence or commitment.

I’ll give you an example of the idiocy of 4(1): an inmate files a sentence modification and his grounds for the modification are that his conviction is illegal and thus he should have no sentence at all. A trial court, rightly, says, “sir, you are crazy, go file a habeas”.

Mr. Not-So-Smart-Inmate goes to habeas court where it is barred because it was decided on procedural grounds in a prior proceeding. This is so flatly contrary to mountains of state and federal Constitutional law that I have half a mind to go to the public hearing on Monday and just scream into the microphone, following the advice of Anouilh.

You want even more litigation? I’ll give you more litigation:

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if:

(1) The applicant demonstrates good cause for his or her failure to raise the specific claim in the earlier proceedings and sets forth sufficient facts to demonstrate a reasonable likelihood that, if the facts are viewed in a light most favorable to the applicant, the claim or claims will succeed on the merits. For purposes of this subdivision, an applicant demonstrates good cause by identifying an objective factor external to the defense that impeded his or her ability to raise the specific claim during the earlier proceedings, or by proving the ineffectiveness of counsel in failing to raise the specific claim prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment, or on direct appeal;

A) Who is going to decide, prior to deciding the merits of the claim, whether there is a “reasonable likelihood that the claim will succeed on the merits”? A judge, that’s who. So…why…I mean…umm…what?

B) Is counsel going to be appointed? Or is this going to be pro-se? And what if a judge decides that the claim can proceed because there’s a reasonable likelihood that it will succeed and then denies it?

C) Demonstration of good cause that there was an objective factor: who decides this? A judge – repeat A and B above. Make sure you lather well.

D) Ineffective assistance of counsel is good cause to proceed, but who decide – oh what the hell, I can’t play this game anymore.

Sec. 5. (NEW) (Effective October 1, 2010)

(b) The ineffectiveness of any counsel who represented the applicant in an earlier habeas corpus proceeding shall not be a ground for relief in a second or subsequent application.

100 magic brownies to whoever points out how unconstitutional and stupid this is in the funniest way possible. To those that may not understand it, I provide a big hint: Right to Counsel = Right to Effective Assistance of Counsel. Quod Erat Demonstrandum .

This post has gone on long enough so I won’t reproduce Section 6, but I will tell you that it is merely another “gatekeeping” provision. That makes it, what, the 3rd? We screen the screen that screens the claim, deciding whether to get to a full hearing. Each stage is appealable (and believe me, it will be appealed). Wouldn’t it be simpler to just have the damn hearing?

The bottom line

Yes, there’s a bottom line. And that is this: this bill “streamlines” habeas corpus procedures in the State of Connecticut in the same way Mount Everest placed atop the Space Shuttle would streamline it. Which is to say, not at all.

I wouldn’t be surprised, if this bill passed, that the State would have to provide greater resources to the State’s Attorney’s office and the Public Defender’s office to litigate every step of the process. And at the end of that litigation, most of this garbage bill would be struck down as unconstitutional anyway.

Many of the “provisions” of this bill are already law: procedural default, cause and prejudice, motions to dismiss, motions for summary judgment. Moving these restrictions from their proper place – during the pendency of the proceedings – to a newly created space prior to the institution of proceedings is nothing but another way to increase litigation and create backlogs and nightmares where none exist.

My version of a “habeas reform” bill

What? You thought I didn’t have an idea of my own? I thought you knew me better than that.

Section 1. The right of access to the Great Writ shall be inviolate.

Section 2. All State’s Attorneys charged with defending against petitions for writs of habeas corpus are required to file Motions to Dismiss and Motions for Summary Judgment in all applicable cases.

Section 3. All Special Public Defenders, appointed to represent inmates in petitions for writ of habeas corpus, shall be paid a flat fee per case, regardless of whether a hearing is conducted on the merits of the petition or not.

Section 4. A second or subsequent petition challenging the same conviction that was challenged in a prior habeas petition adjudicated on the merits shall be automatically subject to a motion to dismiss. If the petitioner, through counsel, can establish that there exists good cause for raising new claims challenging the same conviction, then the petition shall be permitted to proceed. Otherwise, it shall be dismissed.

Fin.

[The opening paragraphs of this post have been lifted, word for word, from this law review article. The principles are articulated so well there, that it would be a shame for me to try and reproduce them in my meandering style.]

*Yes, I realize I’m being a bit dramatic here. But.

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An idle thought on the Boykin canvass

Feb 12th

Posted by Gideon in criminal law principles

9 comments

Much as been written and said about Boykin v. Alabama since Justice Douglas wrote the decision in 1969. At best, it is a necessary safeguard to ensure that guily pleas, the bulk of the resolutions in the criminal justice system, are made voluntarily. At worst, it is a prophylactic.

A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 (1973).

State v. Groppi. The Boykin canvas is limited to three Constitutional aspects: First, is the privilege against compulsory self-incrimination.. . [s]econd, is the right to trial by jury… [t]hird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra].

In fact, the Boykin canvass is now part of most state statutes or rules of court. Here, in CT, it is codified in Conn. Prac. Bk. S. 39-19, which provides:

The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:

The nature of the charge to which the plea is offered;
The mandatory minimum sentence, if any;
The fact that the statute for the particular offense does not permit the sentence to be suspended;
The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

But even there, strict compliance is not required:

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

While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin, it does not require that the trial court go beyond these “constitutional minima.” United States v. Dayton, 604 F.2d 931, 935 n.2 (5th Cir. 1979) (en banc). A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712. Therefore, although the Practice Book provisions were designed to reflect the principles embodied in Boykin; State v. Godek, 182 Conn. 353, 357 (1980), cert. denied, 450 U.S. 1031 (1981); Blue v. Robinson, 173 Conn. 360, 373 (1977); precise compliance with the provisions is not constitutionally required. Thus, our analysis will focus on whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book.

State v. Badgett. But enough with the primer and onto my idle thought. Here, as part of the plea canvass, a judge will routinely ask defendants the following question: “Are you satisfied with your attorney’s representation of you?” This question, to me, is distinctly different from the practice book requirement that the defendant be aware that he is entitled to the effective assistance of counsel. The latter is directed at informing the defendant that if he proceeds to trial, he will have available an attorney to conduct the trial for him.

The question of satisfaction, on the other hand, seems to have no basis in any Constitutional requirement (at least none that I can see on this idle Friday afternoon).

You can imagine the gamut of responses to this question: A perfunctory “yes”; a begruding or resigned “yes”; a hesitant “yes”; some hemming and hawing followed by “yes” and the rare “no”.

Most defendants view this as asking whether they are satisfied with the outcome of the case, rather than the performance of the specific attorney (in fact, some judges will follow up with that clarifying statement, if they notice any hesitation in the defendant). Their thought process is obvious: “I’m not thrilled with this deal, so how can I be satisfied that my attorney did the best job?”

Which brings me to my question(s): What, exactly, is the point of this question? It certainly cannot be to prevent any future habeas corpus litigation alleging ineffective assistance of counsel. The administration of a Boykin canvass hardly precludes future arguments that the plea was not voluntary. I’ve seen prosecutors attempt to question habeas petitioners whether they answered the question in question in the affirmative, as if it were evidence of a lack of IAC. But they are not serious arguments and don’t hold much weight in the eyes of even the most pro-state judges.

Everyone realizes that most defendants are aware of the dance. They know the questions to be asked and they know the pat responses. Some are truly satisfied with the sentences they are receiving; most are resigned to them. After all, who wants to go to jail?

So, why then, do we ask this question at all? Is it habit? Is it really designed to truly determine if the plea is voluntary? If that is the case, there would be no need for the follow up clarification that judges tend to employ. Rather, we would see a judge exploring the basis for any hesitation on the part of the defendant. But that’s rare.

Now, I’m not saying that we need to do away with this question, or re-work the Boykin canvass (at least not in this post); I’m merely following a train of thought out loud, as is my wont.

Those of you in other states: do your judges ask this question? If so, any insight on why it is necessary?

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guilty plea

Rest in Peace, good bill, your time will come

Apr 10th

Posted by Gideon in ct state law

2 comments

It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

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

habeas

Innocence on a clock

That bus is not for your client

Preempting Strickland

Institutional coddling

Effective misadvice is ineffective

Skakel loses the battle, but the war looms?

Padilla: It’s not that complicated, really

Dealing with Padilla v. Kentucky

Choice quotes from Padilla v. Kentucky

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

It’s 5 p.m. Do you know where your bills are?

A few stray thoughts

The Limp Writ

An idle thought on the Boykin canvass

Rest in Peace, good bill, your time will come

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