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the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.”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:

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.

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:

1. The nature of the charge to which the plea is offered;
2. The mandatory minimum sentence, if any;
3. The fact that the statute for the particular offense does not permit the sentence to be suspended;
4. 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
5. 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:

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?

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”:

These Good Bills Died:

• Videotaping of custodial interrogations
• An Act Concerning Eyewitness Identifications
• An Act Concerning the Rescission of Probation

It’s Good These Bills Died:

• An Act Implementing The Adam Walsh Act
• An Act Concerning the gutting of habeas corpus reform

Of course, a straight-up abolition bill was proposed but there was no public hearing. I’ll have a post on the good bills that passed and the bills that shouldn’t have passed coming up soon.

The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.

Dunn was originally charged with a capital felony, which makes these allegations all the more troubling (although he was eventually convicted of second degree murder).

Lisa Stroup, an assistant public defender now on the case, said the trial attorneys should have called the jurors as witnesses and quizzed them about the claims. That’s what Stroup is doing now.

Earlier this month, [Judge] Bush heard testimony from the letter writer, Jennifer Thompson. Other witnesses will be called Jan. 9, when the hearing continues.

…

In her letter, Thompson accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff’s deputies assigned to the case were having sex with each other while on duty at the hotel.

“Acts of sex and insubordination were scandalous and unspeakable …” Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.

Seems like the new proceedings are state habeas corpus proceedings, in which the allegations are ineffective assistance of counsel. In addition to the sexual allegations, there were other improprieties as well. A  sheriff’s deputy overheard some jurors commencing deliberations prior to the close of evidence. They were questioned briefly but allowed to stay on the same panel. The appellate court, in reviewing the conviction, blamed the trial attorneys:

The Missouri Court of Appeals upheld the conviction. Court documents say Dunn’s original attorneys declined when given the opportunity to present additional evidence of juror misconduct.

“Because defendant failed to establish that misconduct occurred, the state was not required to show that the jurors were not improperly influenced,” the appeals court decision says.

Dunn is lucky that the appellate court left the door open in this fashion. To see such a comment in a decision in a capital case would be a source of embarassment to the capital attorneys I know. How can one represent a defendant in a death case and not push as hard as possible for a mistrial when evidence of juror misconduct surfaces is beyond me.

Whether it is okay for jurors to have sex during deliberations, in a capital case no less, is probably not a question that courts have wrestled with frequently. But what is disappointing (and troublesome) is that this question may finally be answered 8 years after it should have been.

The legal profession, despite the number of students graduating from law school every year, is small and insular. The local bar is small. The attorneys who practice in your given field are even smaller. And when you deal with the same attorneys over and over again, there is nothing more valuable than your reputation and your integrity.

Which is why it is imperative that you be honest. That you be intellectually honest. Opposing counsel and judges can see through your prevarication.

The law is not always friendly to you or your client or the position you want to take. It happens to all of us. That doesn’t give you a license to lie, or to make up arguments that ignore the law or the facts of the case. The hallmark of a good lawyer is the ability to take bad facts or bad law and still make a cogent, convincing argument.

The last thing you want to do is pretend that you’re right when you’re not. It’s hollow and transparent. Everyone sees through it and it’s sort of like the boy who cried wolf. No one will believe you again, even when you’re right.

It’s something Jennifer L. Smith, Associated Deputy Attorney General for the State of Tennessee would have been well served by, had she remembered it and followed it.

Smith represented Tennessee before SCOTUS yesterday in Cone v. Bell. At issue in Bell was some boring nonsense about procedural default in habeas corpus practice. But what it devolved into was a discussion of whether the State had intentionally misrepresented the status of a Brady claim to a state court and then made disingenuous arguments to cover it up later.

What happened was this: The defense, in attempting to prove mitigating factors in the penalty phase of Cone’s trial, argued that Cone was a drug user and in the throes of a drug induced psychotic state when he committed the murders. To that end, they provided testimony from two experts. The State, during cross-examination, took greats pains to point out that the experts’ only source of such addiction information was Cone himself and went to some lengths to prove that Cone was not addicted to drugs.

The only problem is that the State possessed a wealth of information that showed that Cone was indeed addicted to drugs and seemed to be in a drug induced state at the time of the murders. The only logical conclusion here is that the prosecutors intentionally did not turn over this evidence to the defense. This is where Ms. Smith starts to get into some trouble. She has hardly begun speaking when she gets hit with the first questions:

JUSTICE STEVENS: May I ask — let me get something on the table. Do you agree that the evidence shows that this evidence was deliberately suppressed?
MS. SMITH: Your Honor, I don’t think there’s been any — any finding about the –
JUSTICE STEVENS: But is there any explanation for — was there any explanation for it other than the tactical explanation?
MS. SMITH: There’s no explanation in the record, there has been no finding about whether the evidence has been suppressed at all in this case because both the district court and the Sixth Circuit decided as a matter of law that the materials –
JUSTICE STEVENS: It seems to be relevant because if it was suppressed for tactical reasons, it seems to me hard to say that the prosecution thought it didn’t make any difference.

It doesn’t get any better for Ms. Smith:

JUSTICE KENNEDY: Do you think the prosecutor had an ethical duty to turn over this material?
MS. SMITH: I think that the material — if the material — if the subject was immaterial –
JUSTICE STEVENS: It’s a simple question, yes or no?
MS. SMITH: I think that as a legal matter there was no — no need to turn it over because it was immaterial.
JUSTICE STEVENS: That’s not my question. Can you answer my question? Did he have an ethical duty to turn this material over?
MS. SMITH: I’m unaware of any ethical requirement that he turn it over, and I don’t think that — and certainly under Brady if it’s not material, we don’t think it was material, then it’s certainly not required as a constitutional matter. And the reason is not –
JUSTICE SOUTER: You believe that the materiality judgment is yours to make, the State’s to make as sort of a gate keeping measure? Isn’t the materiality an issue for the fact finder?
MS. SMITH: Well, I think it’s — it’s –
JUSTICE SOUTER: You exclude — do you believe that you can, in effect, suppress any piece of evidence on — on — on the State’s judgment that it will not prove to be material in the context of the whole case?

Yikes. But wait. There’s more. After this little subterfuge of hiding the Brady material, the State twice argued to post-conviction courts and appellate courts that the Brady issue had already been decided. When, in fact, no Court had ever actually ruled on the merits of the issue. So it was deemed procedurally defaulted.

Not content with doing that much damage, the State them proceeded to change its tact on subsequent appeals. Accepting that the issue had not actually been decided, the State then argued that the defendant had waived the issue, despite several paragraphs in the habeas corpus petition alleging the Brady violation.

Any time you get a Justice of a Supreme Court, be it state or federal, to utter the following words, you know you’ve made a misstep along the way:

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

…

JUSTICE BREYER: Well, “waiver,” my goodness.

Why the State feels the need to defend every action it has ever take, however wrong or contrary to the law, is beyond me. If they were being intellectually honest, they would admit previous errors and make an appropriate argument. They might lose a case or two, but they at least wouldn’t end up in the position of having their credibility questioned by Supreme Court justices.

[This is not to say that Attorney Smith herself did anything untenable. It may well be that she was handed a deck of cards that lead to this result, and had to defend the questionable actions of others. It is the institutional resistance to admitting errors that irks me.]

how did I end up back here?

One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.

Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden¹. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.

The essence is this: A lawyer must meaningfully convey a plea offer to the client and must explain the consequences and ramifications of taking the offer and rejecting it.

Plain English: Make absolutely damn sure that your client knows every reason for and against taking the offer. Double check it. Triple check it. Write him a letter and then another. Try talking to him at night. Talk to him in the morning. Leave absolutely no doubt in your mind that the client fully understands the consequences of rejecting an offer.

In both Sanders and Boria, the Courts ordered that the defendant be permitted to accept the previously rejected plea offer because, in both cases, the offers were not meaningfully explained. [All right, so in Boria the Court ordered him released because accepting the prior offer wouldn't have meant squat.]

The Court in Boria explored the underpinnings of this principle:

The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client’s wishes. Counsel cannot plead a client guilty, or not guilty, against the client’s will. But counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision.

Quoting Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal  (1988)§ 201 at 339. Indeed, SCOTUS has said something similar:

Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’

Von Moltke v. Gillies, 332 U.S. 708, 721 (1948). That counsel is you.

This is prudent for several reasons. First, it is your duty to do so. Your primary and only responsibility is to the client and the client’s interests. Explaining thoroughly the consequences of rejecting an offer will reassure you and the client that the decision the client is making is a voluntary, informed one. Let’s be honest, any pre-trial offer will usually be significantly lower than any sentence imposed after trial. Frankly, why would you want it any other way?

This also ensures that your client receives the Constitutionally mandated effective assistance of counsel and doesn’t end up doing something stupid, like going to trial when he had no business to do so, just because you believed your duty was not to tell the client what to do.

You’re correct. It isn’t your job to tell the client what to do. It is your job (and mine) to give the client all the tools the client needs in order to make a very informed decision. Clients sometimes labor under the misimpression that they are innocent or that the State doesn’t have enough to convict them. It is our job to explain the State’s evidence in realistic terms, not idealistic terms:

“Sure, it would be nice if the State could produce Witness F, but they don’t need Witness F.”

“Juries don’t like to see these types of crimes, or someone with your record.”

“The only way to defend this is for you to testify, and frankly my dear, you’ll do that over my lifeless carcass.”

Don’t half-ass it. Explain to the client everything you’d be considering if it was you making that decision.

So what about OJ?

The fallen idol’s pal Thomas Scotto said prosecutors made the offer in the last stages of his trial for armed robbery.

But Scotto added: “OJ and his sister told me the prosecution offered him a deal but he and his lawyers turned it down.”

Scotto said that Simpson had been adamant he would not serve time and made that point clear to his lawyers.

He added: “He may have given it more serious consideration if he’d known what was coming.”

The offers were confirmed by Simpson’s lawyer Yale Galanter.

He said: “There were ongoing discussions throughout the case but nothing came of them.

“If he’d known what was coming” may mean several things. It may mean “in hindsight” or it may mean “if he’d been told how realistic it was that he’d be convicted”. Really, how many of you thought he was walking out of that courtroom without a single conviction?

This is one of the things I’m confident that most of you don’t do. I’m still writing about it because it interests me and because I’ve heard stories. Oh yeah. I’ve heard things.

Some clients have odd notions of justice and what is right and wrong in their case. It is our job to bring them back to Earth.

[Please don't misconstrue this post as advocating coercing the client to plead. That's just dumb.]

1. 2003 Conn. Super. LEXIS 174

It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.

If someone has a copy of the order, please let me know. I’d like to link to it.

Tuesday’s reprieve was granted over a technical issue regarding instructions given to the original jury, and a hearing will be scheduled on that issue.

Btw, I love how instructional error is called a “technical issue”.

Now here are the asinine comments:

Earlier in the day, [attorney for Judge Holland] Mr. Boyd said Judge Holland is “saddened” and “disappointed” by the allegations of an affair at the time of the trial.

He also criticized Mr. Hood’s attorneys for filing a civil action in the case in an attempt to elicit a stay of execution from Texas Gov. Rick Perry, or to force consideration of new appeals in a criminal court.

“This is not about getting money damages for Hood or his estate,” Mr. Boyd said of the civil action. While lauding their “creativity,” Mr. Boyd noted that the case happened 20 years ago and in all those years, “nobody has filed a grievance between either of these two people.”

Right, it’s not about money, but “just the small matter of his life”.

Sorry Judge Holland, but I am “saddened” and “disappointed” by your attempts to obfuscate and to possibly deny this man a fair trial before his life is taken by the State.

Judges are supposed to recuse themselves from cases if there is even the slightest appearance of impropriety. Sleeping with the prosecutor in a capital case goes far beyond that. Everyone knows that there are some judges who are in bed with the State, but when it actually happens – literally – it should be enough to stop the trial or reverse the conviction.

The Judge that ordered the depositions of the judge and prosecutor was quite right in saying:

he was interested in preserving the integrity of the judicial system

Good to know that not all judges in Texas are like Judge Holland.

[Defense attorney] Brass and attorney Richard Mauro, who represents [the other defense attorney] Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for [defendant] Archuleta.

Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”

Makes a lot of sense. You raise every avenue of challenge, even if previous cases have decided the issue. Maybe they’ve been decided by state courts, but not by Federal courts. In all post-conviction cases, especially capital cases, it is all about preservation of issues.

But this is not surprising. Since AEDPA, State prosecutors have been on a crusade to curtail post-conviction avenues and rights of criminal defendants. Claims of “abuse” are pretty frequent. Given that courts throughout the country have repeatedly held that habeas corpus petitions are the appropriate venue for challenging trial counsel’s performance (and raising other Constitutional deficiencies), I would sincerely hope that they suggest a viable alternative or let it go.

But back to the curiosity here. What the prosecutors are, in essence, saying is that once a point of law has been decided a certain way, it can never be changed. Not only is this not what stare decisis means, but if such were indeed the case, then almost all issues would have been decided decades ago and we might as well disband all appellate courts.

Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.

Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.

I also wonder if the Utah A.G. practices what it preaches. I suspect the A.G. has not rolled over on any cases where there is “caselaw on point”. I bet they still defend post-conviction challenges and other criminal prosecutions. They may do so even in cases where the law is squarely against them. I’ve seen it happen here. It’s annoying, but it’s the way it is. It doesn’t mean that lawyers should be subject to sanctions for merely advocating strongly on behalf of their client and preserving all legal claims. Sanctions are serious – they should be thrown about willy-nilly when defendants do something that irk prosecutors. Sanctions should be reserved for the worst violators of the rules of conduct.

What this disturbing litigation has also caused, perhaps intentionally, is a declining desire on the part of Utah criminal defense lawyers to take on capital cases.

Mauro said the state’s case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they’ll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.

It’s not only those that are wrongfully convicted – those that have been convicted with the assistance of some Constitutional defect. Post-conviction isn’t about getting another shot at the apple; rather it is about making sure that when the State convicts an individual and takes away his/her liberty, it does so in a Constitutionally sufficient manner.

That is of paramount importance – and the A.G. doesn’t seem to care.

Update: The A.G. seems to be in the news for something else as well. This time, the A.G. doesn’t seem to care about the presumption of innocence. The A.G. redesigned his website and launched it anew with a video of the arrest of a sex assault suspect. [He also has a blog.]

Legal Blog Watch reports:

The video shows the Utah Internet Crimes Against Children Task Force assisting local police as they arrest a 26-year-old man suspected of arranging to have sex with an underage girl he met online. Actually all it shows is two men escorting a man in handcuffs through a parking lot. That is followed by the comments of a local sheriff’s detective, who says, “If I was someone who had a daughter, I’d be very scared about what’s going on,” and of a local police officer, who says, “It’s crazy that we have guys like this that would do this type of thing.”

No reason to let the presumption of innocence get in the way of good TV. But the local chapter of the ACLU sees it otherwise. ACLU lawyers showed up at Shurtleff’s press conference announcing the site to register their protest. “We are concerned that by posting the arrest video of an unconvicted person, the attorney general is more interested in political grandstanding than protecting the public,” ACLU lawyer Marina Lowe told the Deseret News. Added ACLU attorney William Carlson, “Guilty before charged.”

A judge in Miami ruled today that the public defender system is so overburdened and crushed by caseload that they can stop accepting some cases until the situation improves.

Circuit Judge Stanford Blake found that Public Defender Bennett Brummer’s office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.

“The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused,” Blake wrote.

“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” the judge added.

Starting mid-September, around 2000 cases a month will have to be shipped out to private counsel, because public defenders are unable to handle them.

The state (and state’s attorneys) of course hates being told what to do:

“This is a political matter that should have stayed in the political system,” Rundle said. “No one should create a constitutional crisis that jeopardizes the integrity of our criminal justice system.”

Maybe the funding of public defender systems is a political matter, but the representation of over 2000 defendants a month is certainly not. It is a legal and constitutional issue and every defendant should receive competent representation. If the political system that this prosecutor seems so fond of actually contributes to the situation that has resulted, then why should fixing this problem be left up to them? It’s like saying sentencing should be left up to defendants.

There was nowhere else for the public defenders to turn. The Court stepped in and did what it had to and what it should have.

Scoplaw, one of those hard-working public defenders in Miami, weighs in.