too soon?

Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.

Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.

I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.

But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?

In Cronic, SCOTUS said:

Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U. S. 308 (1974), because the petitioner had been “denied the right of effective cross-examination” which ” `would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Id., at 318 (citing Smith v. Illinois, 390 U. S. 129, 131 (1968), and Brookhart v. Janis, 384 U. S. 1, 3 (1966)).

Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U. S. 45 (1932), was such a case.

That the cross-examination of the defendant during a trial is a “critical stage” in the proceedings cannot be denied. It can thus also not be denied that during that cross-examination, the defendant must have the assistance of counsel. It surely would not suffice to say that the defendant must have the assistance of counsel during some periods of the critical stage, but not all. The second paragraph certainly illustrates that: Muniz’s lawyer was technically “available”, so it isn’t a situation where there is an actual denial of counsel, but rather an effective denial of counsel. But can any lawyer provide effective assistance when asleep? Obviously not. So why don’t Cronic and Powell apply? Why is it okay, then, for a lawyer to be asleep during the cross-examination of his client, the defendant?

Cronic nowhere mentions the “substantial portion” requirement. That comes from further caselaw from the circuits interpreting and applying Cronic:

The Ninth, Fifth, and Second Circuits have all considered the question of when sleeping by trial counsel becomes the effective denial of counsel and “so likely .. .prejudice[s] the accused” that Cronic applies and prejudice is presumed. All of these circuits have held that the denial of counsel with presumed prejudice only occurs once counsel sleeps through a “substantial portion of [defendant’s] trial.” Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984); see also Burdine v. Johnson, 262 F.3d 336, 340-41 (5th Cir. 2001) (en banc) (concluding a defendant’s right to counsel was violated where defense counsel was “repeatedly unconscious through not insubstantial portions of the defendant’s capital murder trial”); Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996) (holding the defendant’s right to counsel was violated where defense counsel was asleep for “numerous extended periods of time”).

This still doesn’t answer the question, of course. The answer is, I suppose, that the Court makes a judgment that there are periods of a trial that are inconsequential. That if, for example, the lawyer falls asleep between witnesses, it clearly doesn’t affect the trial itself (now some might rightly argue that it does, but let’s assume that it doesn’t). But what about during the cross-examination of the defendant itself? The court, is in essence, applying a harmless error analysis to the lawyer’s actions. They’re condoning it because it really wouldn’t have made a difference whether the lawyer was awake or asleep. In doing so, in my opinion, the court conflates both Cronic and Strickland. Cronic, as noted above, says that whether it would have made a difference or not is irrelevant. What’s relevant is merely the fact that the defendant did not have access to counsel during a critical stage and that in those situations, because there is a paramount need to preserve the integrity of the system, we will assume prejudice. Strickland, on the other hand, says that where it is the performance of counsel that is under fire, we will see whether that performance made any difference in the outcome.

Cronic becomes useless.

Reading this opinion and its narration of the meaning and import of Cronic and Cronic‘s application, one is left with the distinct impression that it really is okay for lawyers to take brief naps during a criminal trial. That Cronic‘s language about the effective denial of counsel is meaningless and unenforceable.

Coupled with the very low bar of Strickland that one needs to skip over, it sends the message that we are willing to tolerate everything but the most outrageous instances of misrepresentation of clients.

That we do not require of those among the bar who take it upon themselves to protect and defending the liberties of others to be awake during one of the most crucial acts of the criminal trial. Is it too much to ask that lawyers stay awake when their clients are on the stand? Even if the prosecutor is droning ona and on and it’s after lunch and you’re slipping into that food coma?

Is the message a wink and a nod that those who are prosecuted are really guilty, so attorney performance doesn’t really matter?

Here’s a thought experiment: if you were the attorney, would you sign an affidavit saying you were asleep? Would you testify at an evidentiary hearing and admit that you were asleep during your client’s cross-examination?

That this is condoned is only further evidence of the fact that the purpose of the system is no longer to protect individuals, their liberties or their rights, and there is nary a regard for the appearance of justice, but rather the focus is on ensuring that those who go to trial are convicted and remain convicted.

—-

On a similar note, thanks to a commenter at Volokh, I stumbled across these four videos recording a very odd, disturbing and sad courtroom interaction between an allegedly drunk lawyer and a judge trying to make sense of it all and protect the hapless individual seated at the defendant’s table. I’ve embedded Part 4 of the series below, because it gives the most flavor, but be sure the check out Parts 1, 2 and 3 as well.

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

We’ve all been there: the trial has just concluded, you’ve delivered the closing argument that you spent many nights working on and frankly, you’re exhausted. The judge starts giving the long, boring instructions to the jury – you know what I mean – which they’ll rely on to analyze the evidence and apply it to the law of the land. You tune out, your eyes glaze over, you just want a damn drink.

And in the midst of your reverie, the judge instructs the jury that the defendant has the burden of proof beyond a reasonable doubt to prove his innocence. Since you were preoccupied with visions of a drunken sleep, you didn’t notice. The jury, obviously, convicts, since there was no defense case in chief. You are upset, the client is led away and you go home to curl up in the fetal position and bemoan juries predisposition to convict.

Then your client appeals and the sharp, astute, awake appellate attorney notices the erroneous instruction. Oh no! This was instructional error! The judge gave the jury incorrect instructions! But you didn’t object! And so the error wasn’t preserved! Are we doomed?

Recognizing the problems that would arise with turning a blind eye to this obvious mistake of Constitutional magnitude that impacted the right to due process and a fair trial, the appellate courts in Connecticut issued a decision back in 1989: State v. Golding. The Golding decision created a 4-pronged test to deal with scenarios like these:

1. The record is adequate to review the alleged claim of error;
2. The claim is of constitutional magnitude alleging the violation of a fundamental right;
3. The alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
4. If subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

(note that Golding applied to all errors of constitutional magnitude, not just jury instructions). This test worked – albeit not perfectly – but it worked. Obvious errors that implicated constitutional rights received the appellate review they deserved. But the State, cloaked in its self-righteous veneer of finality over justice, was unhappy. It fought for years to reverse Golding, because dammit any trial is a fair trial. And if your lawyer is asleep at the wheel, or just plain misses something, you must pay for it.

Most defense lawyers weren’t that worried about the Court overturning Golding because, well, how could they? How could they justify punishing a defendant for an obvious Constitutional error? How could they justify depriving a defendant of his/her right to due process and a fair trial?

Blame the lawyer, that’s how. This year, in a trio of cases – State v. Kitchens, State v. Akande and State v. Mungroo – the Connecticut Supreme Court made jaws drop by holding that if a lawyer fails to object to the exact same language of a jury instruction that is later challenged on appeal, the defendant is deemed to have waived the right to appeal that error. Part of the reasoning is that it will be considered a tactic on the part of the lawyer to not object to that erroneous instruction. Like we’re all that smart.

Yes. So under my scenario above, the appellate lawyer cannot argue that the defendant’s right to a fair trial was violated, because the lawyer did not object to the incorrect reasonable doubt instruction. Think of it as that portion of a wedding vow where the officiant looks at the crowd and asks if anyone objects to the union and warns them to speak now or forever hold their peace.

Now, the example I gave is an extreme one – hopefully no matter how asleep you are, you would notice that the defendant doesn’t have to prove a damn thing. But what of other less noticeable errors? What of erroneous instructions that a particular lawyer just wasn’t aware of? But that’s apparently a tactical decision.

The burden this places on the defense lawyer is tremendous – and misplaced. The court has an independent obligation to ensure that the jury is instructed correctly. This removes that obligation on the trial court, which, after all, is in charge of courtroom procedure, evidence and instructions, and places it on the shoulders of the defense lawyer. And what if the lawyer is just plain wrong and incorrectly agrees to the erroneous instruction? How do you make a defendant pay for that lawyer’s mistake? And why must that defendant wait years and years for vindication that may never come? Why has the Supreme Court abrogated its basic function: to ensure that justice is delivered in Connecticut courtrooms and to preserve the Constitutional right to due process and fair trials? The Court seems more interested in arguing that defense lawyers will choose to knowingly ignore Constitutional errors so as to set up appellate claims – something that is highly unethical and detrimental to the client.

I refuse to cite from the majority opinion because it is just so vile. But, in the interest of making this post somewhat productive and instructive, I will cite only this one paragraph that provides some sort of guideline:

We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.

As far as I can see, here’s what we need to do:

1. File a motion with the trial judge for a written copy of the proposed jury instructions prior to the start of jury selection. In fact, demand them. Cite Kitchens over and over again.
2. Make a record every time you ask the Court for the written instructions.
3. Ask for a continuance of at least 48 hours if you receive the instructions during the evidence portion of the trial. Realistically, you need that much time to absorb, understand and critique the instructions.
4. Make a record of what else you have to do in the midst of trial and why you need that time.
5. Demand the time. Make a record and use the words “I will not have had a meaningful opportunity to review the instructions if you do not grant this continuance, Your Honor”.
6. The court will not usually grant you this time; expect that.
7. Share the instructions with other lawyers. Ask them to read them and provide feedback.
8. Start keeping a repository of your own instructions.
9. Always submit your own proposed instructions in writing.
10. Always ask the Court to give your version of the instructions, no matter how closely they track the Court’s.
11. Always object to the Court’s instructions and suggest that the Court give yours instead.
12. Make sure you don’t have something stupid or wrong in your proposed instructions.
13. Make a record that you have not shared your proposed instructions with your client, that he is not trained in the law and he is relying on you to get it right.
14. State on the record that your client is not waiving any right to review of errors contained in the jury instructions.
15. State on the record that you have perused the Court’s proposed instructions to the best of your ability and that there are no errors that you are intentionally not bringing to the Court’s attention.
16. Pray that the Court gets it right.

The State and the courts of this State don’t seem to give a damn about its citizens Constitutional rights. Now, more than ever, we defense lawyers are the only ones that stand between the individual who has all the might of a government thrown against him and a summary, lawless judgment being pronounced. This is not the time to tuck our tails between our legs and scamper off. Fight. Stand up and assert our rights. Your rights. My rights. Because if we don’t, soon, there won’t be any left.

———-

And because every post of this length needs a video, here’s a song about rhymes (language decidedly adult):

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding  it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead.  He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in  the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner  must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable  fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]

—

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:

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.

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

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

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

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

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

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

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

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

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

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

And footnote 4 gives us a little more insight:

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

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

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

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

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

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

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

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

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

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

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

State v. Williams. And:

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

State v. Stevenson.

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

The most irksome and often repeated testimony during post-conviction proceedings starts “I don’t recall the specifics of this case, but my general practice is…” followed by a lengthy statement of how the lawyer never does what it is alleged that he did.

And most post-conviction proceedings are nothing more than credibility battles between the trial attorney and the defendant. We all know who loses in that scenario. No longer protected by the cloak of innocence, every allegation made by a sentenced prisoner – a convict, a felon – is viewed with the most extreme skepticism and that distrust of his claims is further deepened when a seasoned trial attorney takes the stand with only goal in mind: saving his own pride hide.

Which is why it is heartwarming (in addition to being a great learning experience) to read opinions like this recent one from the 6th Circuit, where the court finds ineffective assistance of counsel for affirmative misadvice given to the client during the plea negotiation process:

First, petitioner’s attorney provided deficient performance. Counsel advised petitioner that he could not be convicted of assault with intent to commit  murder because the bullets entered the victim’s body below the waist. “The elements of assault with intent to commit murder are: (1) an assault, (2) with an  actual intent to kill, (3) which, if successful, would make the killing murder.” People v. Brown, 267 Mich. App. 141, 147, 703 N.W.2d 230, 236 (2005)  (quotations and footnote omitted). Thus, “in order to find a defendant guilty of this crime, it is necessary to find that there was an actual intent to kill.”  People v. Taylor, 422 Mich. 554, 567, 375 N.W.2d 1, 7 (1985) (citations omitted). Petitioner’s counsel advised him that because the victim was injured below  the waist, the prosecution could not establish the element of intent. Counsel was wrong. The nature of the victim’s wounds are not a dispositive  consideration in determining whether the accused possessed an intent to kill.

The court recounts this advice from counsel to the petitioner as if it were accepted. The Michigan Court of Appeals decision does not describe the testimony presented, but whether it was by way of an affidavit signed by trial counsel or live testimony from him, it is clear that no court would simply have accepted petitioner’s word that this is what his lawyer advised him. The 6th circuit goes on to find that this was deficient performance and then, relying on Padilla v. Kentucky, finds that this did indeed prejudice the petitioner because it caused him to reject a great offer from the State:

The Strickland framework for evaluating counsel ineffectiveness applies to advice regarding whether to plead guilty. Padilla v. Kentucky, — S. Ct. —-, 2010  WL 1222274 (2010); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The deficiency portion of the test remains unchanged. Instead of focusing on the fairness of  the trial, the prejudice component “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id. at  59. If petitioner pleaded guilty, then petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded  guilty and would have insisted on going to trial.” Id. If petitioner chooses to reject a plea offer, on the other hand, he must show a “reasonable probability  that, but for his counsel’s erroneous advice . . . he would have accepted the state’s plea offer.” Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001).

Clearly, a defendant who is erroneously advised by his lawyer that he should reject the offer because the State cannot prove the elements of the crime against him is prejudiced when in fact they can and do. The petitioner’s conviction is vacated and the matter remanded to the trial court with directions that he be given the opportunity to accept the offer anew – basic contract principles and Santobello v. New York reasoning.

But the lesson here is that this Constitutional violation would not have been remedied were it not for trial counsel stepping up to the plate and admitting his mistake (yes, technically I’m assuming this occurred, but realistically I see no other way for it to have happened). In the end, that should always be our goal: to assist our clients in any way possible and to remedy any constitutional violation that occurs due to our mishandling of a case.

After all, we don’t spend the decades in prison. Our clients do. They deserve our honesty.

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.

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.

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.

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:

1. That they are a party to the habeas corpus proceeding;
2. That counsel for the actual party, the Respondent, is their lawyer;
3. That they must give the State dirt on the client;
4. That they must turn over their file to the State;
5. That they must not co-operate with counsel for the former client;
6. 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.

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:

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.

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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”.

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:

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?