a public defender

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As public defender offices across the country are cutting budgets and closing up shop, and at the same time that SCOTUS gave fresh guidance on when the right to counsel attaches, it is important to reflect on the place of the public defender in our criminal justice system today.

With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ‘06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.

That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.

The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen.  There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).

What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal - and often counterproductive - defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.

The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.

And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Justice Clark, concurring in Gideon:

That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.

To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!

SCOTUS today issued its opinion in Rothgery v. Gillespie County [pdf], which has caused some discussion in the blawgosphere. The prevalent theme in this discussion is a sense of being unfulfilled. A sort of “that’s it?”

There’s also some confusion as to what the decision really means.

Only one thing is clear: It is narrow. Very, very, narrow.

Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

So the decision was on a small, technical issue and the case will be sent back to the Fifth Circuit to determine whether any of Rothgery’s rights were actually violated (remember, this is a 1983 case).

So if they’d left it at that, it’d be fine. But then there’s this other business (from J. Alito’s concurrence):

As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.” The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right . . . to have the Assistance of Counsel for  his defence”). It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching”.

Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the  defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177–178

So the criminal prosecution commences for Sixth Amendment purposes when there is an arraignment (or in Rothgery’s case - a presentment to a magistrate), but that doesn’t necessarily mean that the defendant be afforded counsel?

Some put it this way:

As Justice Alito’s concurrence notes, a finding that the right to counsel has “attached” means only that counsel must be present for “critical stages,” which are events where counsel needs to be present to preserve rights related to the forthcoming trial. There is, to date, no Supreme Court precedent that requires appointment of counsel for indigent defendants to protect rights other than trial.

So, we have no concrete decision on what is that first “critical stage”. Does the right to counsel attach only for critical stages, so in between these “critical stages”, there is no right to counsel? Or is it a critical stage from that first event all the way through to trial?

Obviously, I think the answers to these are fairly simple. There is an initial stage, say the arraignment, where a criminal prosecution is commenced. Anything that happens after that is with an eye toward a trial. So after arraignment, indictment or whatever it is in your local jurisdiction, right to counsel should attach (and a substantive right, not this incomprehensible Rothgery “right”). It only makes sense.

Some argue that there is no right to counsel during pre-trial negotiations. That is a red herring. No prosecution is undertaken with the goal of resolving it via plea bargaining. Plea bargaining is something that happens (albeit very frequently) along the way to a trial. During the plea bargaining process, the defense attorney is investigating the state’s case, conducting legal research, filing motions to dismiss/suppress, etc. It’s all with an eye toward the trial. That most cases are resolved via pleas is incidental.

Further, a plea bargain still results in a conviction (mostly) or a dismissal. If there were no right to counsel to assist in the plea bargaining process, then convictions would be obtained without counsel. There would be no one to point out the weaknesses in the State’s case; the whole system would be reduced to prosecutors vs. pro-se defendants. And then if a plea bargain goes south and case proceeds to trial, a defense attorney is placed in the position of having to undo the damage done by the pro-se defendant.

The system would not function. See previous post on IAC during plea bargaining for more.

One final point on Rothgery: The decision does not mandate, as some have suggested, that Texas appoint counsel for defendants every time someone is “presented” at a bail hearing. The decision did not address what Texas (or any other state) must do when a criminal prosecution is commenced. It simply addressed the time at which a prosecution is deemed to commence.

[The Crime and Consequences post linked to above has the throwaway line: "Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, and be done with the whole appointed counsel matter." Such a statement is dangerous and possibly ignores the disastrous consequences of such an event. It merits a whole post, which will follow sometime this week.]

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend - and that voice of prosecutorial reason Joshua Marquis - in making its point.

As if child sex cases weren’t difficult enough, there are a couple of disturbing developments (at least here in CT) in this arena.

The first, covered well by Norm, is a proposed change to the Connecticut Code of Evidence. Norm explains:

Proposed Section 8-10 of the Rules would permit a statement made by a child to be admissible in lieu of live testimony if the following circumstances were met: First, the court would have to find the statement trustworthy; next, the statement was not made in preparation for litigation; third the child either testifies and is subject to cross-examination or is otherwise unavailable.

I hope the Rules Committee members were giggling when they cooked this up, at least that would show they have not altogether abandoned reason. Decoded, the rule will result in trials without child witnesses; defendants will simply have to confront a cold statement.

What is most disturbing (among a lot of other disturbing things) is that last part of the third circumstance: the unavailability of children. As anyone versed with the law knows, unvailability does not mean physically unavailable; reluctance to testify qualifies. The scary part is that this unvailability requirement essentially permits the introduction of inculpatory and incriminating statements with zero opportunity to cross-examine.

Sixth Amendment? What sixth amendment? Imagine this: There will be trials conducted in which a child can accuse someone of sexual assault and never have that assertion challenged by anyone. This is truly scary stuff, folks. Lock your doors and never, ever be in the presence of children, for one allegation is all it can take to ruin your life.

One would think this is squarely covered by Crawford. The problem, however, arises in defining what is a testimonial statement. By adding this requirement, SCOTUS has provided wiggle-room (whether intentional or not) to prosecutors to introduce statements that realistically should not be admitted.

As Norm correctly points out, any time there is an initial allegation of sexual abuse, the wheels of the criminal justice start turning. Anything after that - the interviews by doctors, social workers, forensic pathologists, are for the purpose of determing who abused the child and how, not if. There are mandatory reporting requirements and the allegations are duly conveyed to the State, which duly institutes a prosecution. But yet, there has to be a determination by a trial judge, faced with a young child and their outraged family, that these statements were made with a prosecution in mind. This is extremely subjective and almost always results in the statement being admitted.

So we end up with trials where a videotaped statement by the victim is admitted into evidence and the defendant has been forced to forfeit his right to confrontation. The word of the victim is now gold and goes unchallenged. Convictions are almost a foregone conclusion and obscene sentences the norm.

This is a very, very troublesome situation and I sincerely hope that the defense bar is fighting it tooth and nail. What do you guys do to combat these situations? What’s the best tact?

Previous posts:

• Why kids lie (and they certainly do)
• CT Senate passes harsh “Jessica’s Law” and “tender years” exception
• CT persists with “tender years” bill despite Crawford
• “tender years” and Crawford
• Tender Years II
• “tender years” exception to hearsay

Is that sometimes you end up taking jurors you have no business taking. Like the R. Kelly trial. From media accounts:

Those jurors include an African-American woman whose husband is a Baptist pastor, a black man who identified himself as a Christian and a white executive who said he thinks Kelly is guilty.

What’s that again? A juror who has made up his mind? How can this juror possibly be seated, right? Because the law is full of legal fictions. One of these fictions is that if a juror says something extreme, he can be “rehabilitated”. (Oh, the irony.)

The white juror said he believed Kelly was guilty, but that he could give him a fair trial.

“I have two little kids,” the man said. “Child pornography is about as low as it gets.”

[Judge] Gaughan asked the man to look Kelly in the eye and promise him a fair trial.

Why do we perpetuate this nonsense? Does anyone reading this believe that this juror will “give him a fair trial”? Are we that starved for jurors that we will accept venirepersons who state that they have already decided on the guilt of the accused? Does the right to a fair trial really mean the right to the appearance of a fair trial?

I can understand the defense not pushing this too much - the judge has just created an appellate issue - but the Court should know better. In a high-profile case like this, wouldn’t you want to avoid any potential problems?

Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.

The question I’m currently considering, however, is whether there is a need - or does anyone have the responsibility - to preempt habeas corpus petitions by stopping the damage while it occurs.

Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?

A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?

Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here - cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.

Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can - or should - be done during a trial?

Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.

That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.

1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.

2. Weapons focus:

The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.

This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.

However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.

3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.

4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.

5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?

So what is to be done? One method - the example used in the paper - is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.

Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.

I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.

What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.

I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.

(Courtroom sketch: Wired News/Norman Quebedeau)

SCOTUS issued its much-awaited (by me, atleast) decision in Danforth v. Minnesota [pdf] today, ruling 7-2 that Teague’s retroactivity prohibition applied to Federal courts on federal habeas corpus review. State courts are hence free to apply decisions articulating violations to cases on direct and/or collateral review.

As Justice Stevens makes clear, what the Court does, in say Crawford, for example, is state that a particular act or omission violates the Constitution. It is then left to the states to decide how to remedy that violation.

Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.

…

Our subsequent cases, which characterize the Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas.

He wraps it up very succinctly:

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts.

Whatever this means for federal habeas corpus practice, it is pretty clear that us state practitioners can now argue - with a stamp of approval - that our state courts should provide remedies for constitutional violations recently articulated.

It makes much sense, too, if you think about it in the context of the Fourth, Fifth and Sixth Amendments applied to the states through the Fourteenth. The Court has maintained that States are free to provide greater protections than afforded by the Federal Constitution. This falls in line with that quite well.

Read the whole decision - it’s very interesting. Justice Stevens conducts an in-depth analysis of Justice O’Connor’s plurality in Teague and cites Justice Scalia heavily. Then there’s this odd footnote; perhaps someone can explain:

13. That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify.

A much better in-depth analysis from Scotusblog here. More from SL & P.

H/T: SL & P.

I’ll spare you the “a person who represents himself has a fool for a lawyer” line, but someone probably should have told Daniel Riles that. After vowing to take on the legal community by himself (whatever that means), he proceeded to represent himself at trial. Not to be outdone by the twinkie defense, he decided to invoke jurors’ emotions by comparing himself to the New York Football Giants and the State as the Patriots. The trial was in Bridgeport, so he had a good shot at getting Giants fans. Didn’t work, though, as the jury convicted him of attempted bank robbery.

That’s a pretty serious charge, isn’t it? So what would possess a man to do something like this? The following might give a clue:

Riles said that he has taken on a number of cases for individuals at the Bridgeport Correctional Center.

Ah, now it all makes sense. He’s a jailhouse lawyer. I’m pretty sure those individuals are now writing to the Court asking to get their public defender back. [As Scott reminds me, he might just be trying to disprove the Dunning-Kruger effect. More on this here.]

Jailhouse lawyers are a good thing, to an extent. They help other clueless inmates file petitions, write motions and keep their legal affairs in some semblance of an order. It’s a business, a commodity in prison, and those that can do it passably should. But not when it comes to a trial. Certainly not a criminal trial where you’re facing a lot of time.

I wonder what the waiver canvass was like and if the judge had felt any pangs of doubt when this happened:

He started by asking prospective jurors what they thought of bank robberies. All said they do not support them. “Well, how about attempted bank robberies?” he asked.

Yikes. Mr. Riles, please let a public defender represent you on appeal.

Bringing a case that drew national attention to an end, the prosecutor in the “banned words” trial decided not to try the defendant for a third time.

This is the case where the judge banned the use of the words “rape”, “sexual assault” and “victim” (rightly so, in my opinion) and in which the accused later sued that same judge.

Two trials ended in mistrials and after initially indicating that he would try it a third time, the prosecutor announced that he wouldn’t.

Lancaster County Attorney Gary Lacey says he decided not to pursue a third trial in a sexual assault case because the judge barred the testimony of 2 key witnesses.

Bowen’s lawyer Wendy Murphy says Lacey’s explanation doesn’t make much sense because the judge barred testimony from those two witnesses before the second trial last summer.

Murphy says the loss of those witnesses didn’t prevent Lacey from trying to prosecute Safi last summer.

Double jeopardy isn’t a bar to retrial after a mistrial, but at some point the state has to decide whether it’s worth pursuing anymore. It seems that this prosecutor reached that point.

While all the hullabaloo surrounding SCOTUS today may have been centered around Baze, the Court also issued a minor, but nevertheless terrifically interesting decision. In Wright v. Van Patten [pdf], the Court wrote, per curiam, that the Circuit Court’s grant of a habeas was improper because the State supreme court’s decision denying the habeas was not contrary to clearly established federal law (which is one of the two grounds on which a valid State conviction can receive federal habeas corpus review).

Mr. Wright sough habeas review in the first place because at his plea hearing, his lawyer phoned it in. Not phoned it in in the colloquial sense (or even the widely used “he was crappy” sense that forms the basis of most habeas petitions), but rather in the literal sense. He appeared for the plea hearing via telephone.

In a state as small as CT, that is unheard of. Perhaps in them larger jurisdikshuns where theys gots lots of open land and such, it may be common practice (what was I going for there? I have no clue). Still, the idea seems very…dirty. If my client is pleading guilty, I want to be there to stand by him - if for nothing else than to offer support. It’s not only my client’s case, it is my case as well and having been through the whole process side by side, I’d rather not end it speaker to ear.

Anyway, the Court reserved for another day the substantive question of whether appearing by telephone is legally adequate (maybe that answers your question, Scott?). This case was reversed on purely procedural grounds.

Image license info here.

A very faithful reader sent along this humorous decision from the Court of Appeals of Texas, Seventh District. It’s not from today, or yesterday, but a day almost 4 years ago. Yet, it is funny enough for me to pass along.

Here’s the excerpt from Lexis:

Assistance of court-appointed counsel was not rendered ineffective by the fact that counsel was on the indicting grand jury. Apart from bald assertion of conflict, defendant failed to show how attorney could have represented him more effectively.

As they say, only in Texas. At least it wasn’t a death case.

When do police officers have the power to carry a weapon, patrol the streets and make arrests, but yet cannot be questioned for their actions? When they’re University Police. Back in May, a 16-yr old boy was arrested for riding his bike on a sidewalk. He was then charged with breach of peace and briefly held in jail.

When his public defender sought disciplinary records for the officers making the arrest, she was told that the records were private and did not have to be disclosed.

While some elite liberal arts schools are nestled amid woods and cow pastures, Yale occupies the heart of a city racked by poverty and crime. Its police department was founded in 1894 when two New Haven cops, assigned to campus, resigned and became special constables for Yale. Today the department has 80sworn officers — roughly a fifth the size of New Haven’s. Its officers have a visible presence downtown and members of the bike patrol are frequently seen, it turns out, pedaling on city sidewalks.

As a private police force, Yale argues, it is exempt from open-records laws. In 1992, New Haven formally relinquished any oversight it may have had. Today, Yale hires, fires, promotes and disciplines its own officers and neither city nor state provides retirement benefits.

Despite that independence in hiring, Yale Police is almost identical to New Haven police in all other aspects. They drive similar cars, wear similar uniforms, have the power to make felony arrests all over the State, receive similar training, follow the same state regulations and even take the same oath.

Yet, they are private and their records are not subject to release. Similar challenges have occurred in other parts of the country, almost always resulting in no success:

The courts, so far, have taken a narrower view. In Georgia, Virginia and Massachusetts, attempts to gain access to campus crime records have failed, but legislatures in all three states have since introduced sunshine laws to bring more transparency.

By hiding behind the shield of student privacy, the schools are jeopardizing public safety, says S. Daniel Carter, vice president of Security on Campus, a national watchdog group. “Our concern lies with making sure communities are informed about crime and what’s being done to protect them,” he said.

This matter has been appealed to the FOI Commission. The mighty power of Yale is being tested.

“Falling on the sword”. This is a phrase you will hear often if you are a criminal defense lawyer. What it generally refers to is owning up to your mistakes during your representation of a client, at a later habeas corpus proceeding. In other words, take responsibility for any errors you made during trial - big or small.

Unfortunately, the only ones you ever hear use this phrase are the good ones; the ones that hardly make mistakes and if they do, they’re minor and don’t really affect the outcome of a trial. The hacks - the ones that routinely plead clients out without investigating, or give bad advice or are just plain clueless never use this phrase. Perhaps their guilty conscience pricks them.

Skelly seems to be one of the good guys. He writes here at length about the inner turmoil he experienced when called to testify at a former client’s federal habeas.

He wanted to help; he really did. The problem was he didn’t do what the client said he did and like any ethical lawyer, he couldn’t lie.

My former client’s federal petition claimed that back in 2002, prior to his guilty plea, I told him that he did have a particular plea bargain, and that I lied when I told the trial judge that he did not. I testified that I did not tell him that he had a plea bargain. I testified that once he and I rejected the state’s first offer, there was no other plea bargain. Offer, counter-offer, and second counter-offer, sure, but no acceptance from the state, no meeting of the minds, no deal. I testified today just I said in open court that day in 2002, at the moment when my old client’s words turned from “not guilty” to “guilty,” there was no plea bargain. His current counsel referred to that statement as my “perception.” I replied that the state appellate courts also had reached the same perception. And I had tried so to stay pleasant! When the insinuation was that I lied either to my client, to the state trial judge, or to both, well, maybe I bristled just a bit more than I intended to.

Scott points out an obvious mistake here - calling him a “liar”. That certainly is not the way to get a former attorney to help.  Scott also asks: why don’t habeas attorneys try to contact the trial attorney in advance? Talk to them?

It’s a darn good question. In all the habeas cases I’ve handled, I’ve made it a point to try and contact the trial attorney before filing the Amended Petition for Writ of Habeas Corpus, so as to weed out any frivolous claims (or claims that there is just no support for). Unfortunately, not all attorneys do that and on the flip side, not all trial counsel are willing to co-operate. There are some that just won’t return phone calls. Why they don’t get that if they do return the phone calls, there’s a good chance the habeas will go away, I don’t understand.

Anyway, habeas is an extremely uphill battle and in only the right circumstances - in the rarest of rare cases - does a petition get granted. It isn’t the State that the defendant is battling, it is the standard. Strickland sets the standard so high, that in most ineffective cases, it is almost impossible to meet, unless the error is so blatant and glaring that even a judge cannot ignore.

But in those cases, don’t count on help from counsel. They don’t know what “falling on the sword” means.

Intriguing news out of SCOTUS today. The IAC during plea bargaining case, Arave v. Hoffman, reported with much fanfare here, may not go forward after all. Per Scotusblog (via SL&P), attorneys for both sides have asked the Justices to vacate the Ninth Circuit opinion and dismiss the case as moot. Defendant’s motion is here [pdf] and the State’s response is here [pdf]. It really is curious. It seems that the defendant wants the relief imposed by the federal habeas court: vacate the death sentence and impose life.

Hoffman was convicted of first degree murder in 1993 and sentenced to death in an Idaho court. Almost a decade later, a federal habeas court vacated the death sentence for ineffective assistance of counsel during the penalty phase of the trial. The habeas court rejected a separate ineffective assistance claim relating to pre-trial negotiations, when Hoffman’s attorney advised him not to accept the state’s offer of a life sentence on the mistaken theory that Idaho’s death penalty scheme would later be found unconstitutional. A Ninth Circuit panel reversed on the pre-trial claim in mid-2006, requiring the state to release Hoffman unless officials offered him the original plea bargain. Idaho appealed, and the Court granted certiorari on November 5.

In the motion to vacate and dismiss, Hoffman’s lawyers say the inmate wished to withdraw the pre-trial ineffective assistance claim in order to proceed with the resentencing originally ordered by the federal habeas court for the penalty phase ineffective assistance claim. According to the motion, a status conference is set for December 13 before an Idaho state judge. Joan Fisher of the Federal Public Defender’s office in Idaho wrote that Hoffman made his decision “[a]fter extensive consultations with counsel,” and that his “trial and habeas counsel fully concur with his decision.”

I wonder what made him decide to do this. It’s not like the State was arguing that the death penalty should be re-imposed. Anyone have any ideas?

It’s disappointing that this may not be heard. The issue was truly interesting and I would have liked to see what today’s justices had to say about it.