sixth amendment

Free-ish

Jan 12th

Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.

Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:

whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.

Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.

The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.

Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).

How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.

Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.

Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?

The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.

Conviction by cuteness

Aug 10th

Posted by Gideon in criminal law principles

3 comments

Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).

It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

…

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.

There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:

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

Avoid using the term “therapy dog” because the use of this term may create grounds for a mistrial or raise an issue on appeal. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. A defense attorney could argue that the use of the term “therapy dog” by the judge or the prosecutor implies to the jury that the witness is in fact a victim in need of therapy and could be construed as a comment on the evidence. It is up to the jury to decide if the witness was victimized by the defendant. You don’t want to retry a case and put the witness/victim through this ordeal a second time.

Martin hits it right on the head, by the way. Anytime the proponent of a new technique strongly (the above paragraph is in bold on their website) advises you to avoid the use of a term so that it can be admitted in court, you can safely bet that the discouraged description fits precisely.

The trial judge, in permitting the use of this therapy dog, draws an analogy to the use of a doll by a child witness by testifying. The analogy rings hollow, to me. A doll is inanimate and moves only when the person holding the doll gives it energy to move. A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?

Scott, in his post on this, highlights the problems with dog-aided-testimony:

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted. Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question.

But we must feel similarly bad for the person convicted on erroneous testimony. We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised. Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

…

As wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem. We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

Defendants, on the other hand, are only permitted completely shaved cats.

no self-respecting dog would nuzzle up to him

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A Cronic problem

Aug 1st

Posted by Gideon in criminal law principles

3 comments

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:

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

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.

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Florida’s death penalty is unconstitutional

Jun 22nd

Posted by Gideon in criminal law principles

No comments

In a fascinating decision from the United States District Court for the Southern District of Florida, Judge Jose Martinez has ruled that Florida’s capital sentencing statute violates Ring v. Arizona. In Paul Evans v. McNeil [pdf] (scroll to page 78 of the document), the district judge considers – and rejects – 16 claims for relief before finally getting to the Ring claim. For those who don’t know, in Ring v. Arizona, SCOTUS held:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.

Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.

Florida’s capital sentencing statute (see also) permits exactly that:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.

But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.

All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!

This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.

What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.

In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 - heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:

The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.

Perhaps the good judge missed this from footnote 33:

Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.

Don’t even think about asking me what this means for the Casey Anthony trial.

Wrong time, wrong battle

Mar 28th

Posted by Gideon in clients

5 comments

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

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

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

__________________________________________________

¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

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The Limp Writ Redux

Mar 4th

Posted by Gideon in ct state law

3 comments

Because the State of Connecticut has nothing else to worry about *cough3billiondollardeficitcough*, it’s time for the legislature to entertain bills on all sorts of nonsensical subjects, including one that’s every “dumb on crime” legislator’s favorite whipping boy: Habeas Corpus reform. The bill is exactly the same as the one proposed last year (no, I haven’t done an actual word-by-word comparison, but it looks pretty damn identical to me), so instead of wasting my time crafting an entirely new response, I’m going to follow the learned legislators’ lead and copy and paste my detailed response from last year. But don’t be fooled into skipping past it. It’s awesome and I’m pretty sure I put a lot of hard work into writing it a year ago. That this bill has once again been presented to the legislature is not any indication of the need for habeas reform; rather it is a testament to the improbably short-sighted and bull-headed nature of our elected representatives for whom it is more important to appear as if they’re doing something worthwhile than to actually do it.

—

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

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

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

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

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

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

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

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

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

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

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

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

Serenity now.

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

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

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

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

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

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

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

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

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

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

Suspension of the Writ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bottom line

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

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

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

My version of a “habeas reform” bill

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

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

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

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

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

Fin.

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

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

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The stupid; it hurts the brain

Nov 18th

Posted by Gideon in sixth amendment

10 comments

no caption needed

There are few topics in the criminal justice arena that get the masses’ blood boiling as much as sexual assault and the “rights” of those accused of these horrible crimes. When it comes to rape, people generally don’t care about the rules or the Constitution or the fact that no matter how awful and hideous the crime, the procedures must be followed. Which is why we end up with stories like the one I linked to yesterday from the State of Washington:

Of course, even those accused of horrible crimes are entitled to a defense. And just because someone is accused of being a rapist doesn’t make it so. But victims also have rights, and asking them to relive the trauma of a sexual assault via a cross-examination by the perpetrator sure seems to be a violation of them.

Thankfully, there have been efforts to address the situation. Last year, a bill was introduced that would appear to protect defendants’ and victims’ rights alike by allowing the former to question the latter via closed-circuit television or through a surrogate attorney. And while the bill stalled in the state legislature, a similar proposal is expected to be reintroduced in the next legislative session — and recent events ought to persuade previously skeptical politicians.

This is stupid in so many ways, it hurts the brain. How? Let me count the ways. First, as I’ve written extensively, there’s the Constitution:

In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.

That right of confrontation is “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

The reasoning is explicit and clear: to have the person making the allegation face the defendant and the jury and look them in the eye. After all, if you’re going to accuse someone of a crime, at least have the conviction to do it face to face:

As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

But in almost all cases, this confrontation is had between the accuser and the defendant’s lawyer. The lawyer, who is trained and well-versed in the rules of evidence and who will keep the questioning relevant and professional. The concern in the story that’s the focus of the post is pro-se questioning by defendants, who tend to go off the rails and sometimes seek to bully, embarrass and badger witnesses. Or ask completely irrelevant questions and upset the whole trial. Sure, that’s a concern. But that’s a concern with anything a pro-se defendant does. And here, yet again, there’s that pesky constitution:

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

The Sixth Amendment includes a compact statement of the rights necessary to a full defense:

“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Because these rights are basic to our adversary system of criminal justice, they are part of the “due process of law” that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice— through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U. S. 149, 176 (Harlan, J., concurring).

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Faretta v. California. As Justice Scalia put it, concurring in Maryland v. Craig, there are few rights that are this explicitly stated in the Constitution: that the defendant has the right to represent himself and he has the right to confront his accuser face to face.

In fact, as regular readers and criminal defense attorneys are aware, the only circumstance in which courts have upheld barring a defendant from the physical presence of the complaining witness is in cases of child sexual abuse. And even in those cases, it is only because the defendant’s representative – his attorney – is physically present in the same room as the complainant and thus able to satisfy the Constitutional mandate.

What’s more disturbing about this – or perhaps just an item of curiosity to others – is that the link above is to Change.org, an organization that, up to now, has been seemingly dedicated to sensible and practical reform to the criminal justice system. It’s a site that I’ve had in my feed reader for a long time now and I’ve linked to them before, with approval. Maybe this is an aberration, reflecting the view of the individual contributor. Maybe, as Scott says, we should be careful of the Change we might get (I’ve lost all hope of getting any Hope):

So where do we find this thing called “common sense?” Is there a book, a list maybe, where all the people are surveyed and someone writes down the things we agree upon? Of course, “common sense” is that game we all play with ourselves, justifying why things we believe in are right when others, who act, behave, believe differently are wrong, and we can’t explain why.

Many folks here, from criminal defense lawyers to those who have suffered at the hands of the criminal justice system, have some very clear, very strong, views that change is needed. They are incredibly good, as am I, at tearing down the things we feel are wrong.

The problem, however, is what we build to replace it, and that’s a problem not easily solved. Stop screaming for Justice, or arguing that it’s just common sense. There’s a possibility you may get what you ask for, and you’re not going to like it.

But what’s clear is this: if there is a problem of abuse of the system by pro-se defendants and harassment of complainant’s in the courtroom, this is not the way to put an end to it. Trial judges have absolute authority to maintain order and decorum in the courtroom. If the pro-se defendant gets out of hand, they have the ability to put an end to it and I’m pretty sure almost every appellate court will agree with them.

But to trample core – and plainly stated – Constitutional rights just because the complainant doesn’t want to face the accused? That’s a change in the wrong direction.

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That bus is not for your client

Jun 8th

Posted by Gideon in clients

4 comments

The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.

Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.

And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:

What if a former client writes: “My lawyer was terrible. He never returned my calls or e-mails. I had a million-dollar case, and she blew it!”

Some prospective clients might read that blog entry, and thus never call the lawyer. Current clients might get nervous. Other lawyers might decline to refer a case to the bad lawyer.

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day. He asked the same questions over and over again. After evaluating his case through discovery, we realized his case was marginal. We told him to settle the case for $25,000 – nuisance value. He refused. The trial court dismissed the case on summary judgment. Now he’s angry. By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

Does that Rule make sense? A lawyer can lose business. Online reputation matters – not for a lawyer’s ego – but for his business. The law offers trademark protection. A brand matters. A lawyer is only as good as her name. Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?

First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.

Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.

But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?

Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:

[In response to Mike's hypothetical] I’m not entirely clear that’s accurate. Waiver of privilege is an all or nothing proposition. Once a client discloses confidential communications to others, it constitutes a waiver. It’s the client’s to waive, and there’s nothing to prevent her from doing so. It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship. Once waived, however, the privilege is extinguished. Like pregnancy, it’s not just a little waived. It’s waived. End of privilege.

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process. While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.

I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.

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

In my fleeting dalliance with the post-conviction world, I noticed many odd behaviors by defense attorneys and a marked change in attitude toward the client. For some reason even the most experienced criminal defense attorneys never seemed to grasp the simple fact that the claim of ineffective assistance of counsel was not – and never will be – a personal attack. It is yet another of those Constitutional rights afforded the defendant that we seek to so zealously uphold when we are representing them on the front end.

In the post-conviction context, there is plenty of case law that makes clear that the filing of a habeas corpus petition does not constitute a “full waiver” of attorney-client privilege and regardless of any other duty that the lawyer may have to his former client, the waiver is a limited waiver:

Claims of ineffective assistance of counsel are routinely raised in felony cases, particularly when a sentence of death has been imposed. If the federal courts were to require habeas petitioners to give up the privilege categorically and for all purposes, attorneys representing criminal defendants in state court would have to worry constantly about whether their casefiles and client conversations would someday fall into the hands of the prosecution. In addition, they would have to consider the very real possibility that they might be called to testify against their clients, not merely to defend their own professional conduct, but to help secure a conviction on retrial. A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote.

Were such a broad waiver necessary to satisfy federal interests, the state’s interest in protecting lawyer-client confidences might have to yield. But we can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests. See Laughner, 373 F.2d at 327. At the same time, a narrow waiver rule — one limited to the rationale undergirding it — will best preserve the state’s vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state’s criminal lawyers continue to represent their clients zealously.

A narrow waiver rule is also consistent with the interests of the habeas petitioner in obtaining a fair adjudication of his petition and securing a retrial untainted by constitutional errors.

Bittaker v. Woodford (9th Cir. 2003). And yet this simple, yet powerful rationale is completely wasted on scores of lawyers. Lawyers “defending” against claims of IAC seem to think:

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

This is not a test. All 6 are wrong. Utterly, completely wrong. It is very revealing when a lawyer maintains a poor file during his representation of the client, but even more so when that same lawyer takes affirmative steps to hinder the prosecution of a habeas corpus petition. There is nothing more aggravating, disappointing and disgusting than when trial counsel takes the stand in a habeas hearing and suddenly cannot remember details he’d previously disclosed to the habeas attorney or somehow can miraculously remember in excruciating detail conversations that he’d minutes ago, off the record, confessed to habeas counsel of having no memory of.

One of the worst things you can do as a criminal defense attorney is make an error that may have contributed to the conviction of a client. Compounding that by standing on the sidelines as that conviction is affirmed will not help you sleep better at night.

There are some very simple rules for ethical behavior in the post-conviction context [read this Champion article (HTML version) for some in-depth counseling]. Remember that the right to effective assistance of counsel is a Constitutionally afford right to the client who is spending his days and nights in jail. Also remember that it is not for you to decide whether you provided effective assistance of counsel. Don’t reveal more than is required by the scope of the IAC allegations. Don’t offer up your client on a platter.

Worried about your reputation? The lawyer who doesn’t get in the way of his client in the post-conviction arena almost always has a better reputation than the lawyer who does, at least in the legal community, if not among the clientele. That’s because it conveys one very important fact: that you are going to put the client’s interests ahead of your own.

Heed the advice we give our clients about cops: “they’re not your friend”. The respondent? Not your client’s friend.

That bus? It’s not for you to throw your client under.

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iac

Preempting Strickland

May 9th

Posted by Gideon in criminal law principles

4 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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iac

The defendant’s right to trial by jury

May 4th

Posted by Gideon in criminal law principles

16 comments

Article III, Section 2, Clause 3 of the Constitution of the United States states:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .

The Sixth Amendment was made applicable to the various states through the Fourteenth Amendment to the Constitution of the United States. The Connecticut Constitution, in Article I, Section 8 states:

In all criminal prosecutions, the accused shall have a right … in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury.

This is further codified in Connecticut law in both the practice book and the general statutes. C.G.S. 54-82b provides:

(a) The party accused in a criminal action in the Superior Court may demand a trial by jury of issues which are triable of right by a jury. [...]

(b) In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.

Practice Book Section 42-1 provides:

The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.

The reason I mention all of this is that the other day, I was reading Mark Bennett’s series of interesting posts on jury selection in Texas. He was in the courtroom, not as a participant in the process, and reported the entire voir dire conducted by the prosecutor and pro-se defendant. In his final post, I noted this (which is Mark’s narration of the pro-se defendant speaking to the venirepersons):

AP [prosecutor] is new here, and I had agreed to have case before the judge (objection overruled). I was comfortable with the court system. The court called me a week later . . . (objection sustained). (State refused to waive jury? WTF, AP?)

That got me thinking. As evidenced by the Constitutional provisions listed above, I’ve always believed that the right to trial by jury is the defendant’s and defendant’s alone. Was I mistaken? So I tried to locate the relevant jury waiver provision in Texas’ criminal code. This is what I found:

Art. 1.13. WAIVER OF TRIAL BY JURY. (a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.

(b) In a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty, the defendant may waive the right to trial by jury but only if the attorney representing the State, in writing and in open court, consents to the waiver.

That’s certainly a little strange. What confounds the matter further is the very next provision:

Art. 1.14. WAIVER OF RIGHTS. (a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code.

But what of Article 1.13(a), which lays out the procedure for waiving a jury in a non-capital case? All the language I could find in constitutional jurisprudence assigned the right to a trial by jury to the defendant only. Take, for example, Patton v. United States, a case in which the defense and prosecution agreed to have the defendant tried by 11 instead of 12, after one juror fell sick. Justice Sutherland, for the majority, wrote:

We come, then, to the crucial inquiry: Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guaranty to the accused the right to such a trial? If the former, the question certified by the lower court must, without more, be answered in the negative.

…

In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative. That this was the purpose of the Third Article is rendered highly probable by a consideration of the form of expression used in the Sixth Amendment.

The Court then concludes:

Upon this view of the constitutional provisions we conclude that Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.

Lending further support to the argument that the right is the defendant’s alone is the court’s discussion of the ability of the defendant to waive any damn right he pleases:

A defendant is supposed to understand his rights, and may be aided, if he so desires, by counsel to advise him. There are many legal provisions for his security and benefit which he may dispense with absolutely, as, for instance, his right to plead guilty and submit to sentence without any trial whatsoever.

So how does one square this core Constitutional right, which by all accounts, seems to be confer the benefit solely on the defendant along with the ability to waive this right if he so chooses, with what appears to be a prohibition in Texas on the waiver of this right without the permission of the State? Have I misread Texas’ statute? Perhaps Mark can chime in here and clarify things. Do other states have a similar requirement?

[Note: I know that caselaw establishes there is no fundamental right to trial by jury where the punishment does not exceed six months and yes, death is different and in capital cases, the consent of all parties is required to waive a jury.]

[Note 2: If nothing else, the Patton case and State v. Gannon - a 1902 Connecticut case - make for fascinating reading. They both explore the deep and rich history of the Constitution and their underpinnings of the right to a jury trial and the process by which that right came to be recognized.]

Institutional coddling

Apr 27th

Posted by Gideon in clients

26 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Effective misadvice is ineffective

Apr 23rd

Posted by Gideon in clients

2 comments

[Or: Leave your ego in law school]

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

The other Michigan bailout

Apr 21st

Posted by Gideon in pd system

2 comments

Much has been written over the last two years or so about bailouts: bailouts of Wall Street, banks and of course the auto-industry, formerly of Detroit, Michigan. This blog has also focused on bailouts, but those of a different kind: the bailouts of public defender systems which are not forthcoming.

As I’ve mentioned before, we are approaching a tipping point in the fight against constitutionally inadequate public defender systems across the country. The ‘sphere has been atwitter over the news that 14 public defenders in Minnesota have filed a labor grievance over excessive caseloads.

Yet the internet has been oddly silent about a battle on another front in nearby Michigan. In 2007, the ACLU of Michigan filed suit against three counties and sought to have their indigent defense systems declared unconstitutional and to have the state provide funding.

On April 14, 2010, the Michigan Supreme Court heard oral argument in an expedited appeal on the state’s motion to dismiss the lawsuit.You can view the oral argument here [and really, even if you ignore this entire post, make sure you watch the oral argument], and the briefs and other related documents are available here.

The oral argument, despite its premature stage, beautifully frames the core issues at play here: can defendants sue the State to ensure that they receive constitutionally adequate representation; whose duty is it to provide that representation; and just how difficult a task is it to prove that there is a systemic 6th Amendment failure?

[The oral argument is also noteworthy for other things, such as the Attorney General's complete butchering of Cronic and the conflation of the Strickland standard with the civil "injury" and of course, the proffer of the idea that any and all 6th Amendment violations can only be asserted after a conviction.]

The idea of a systemic failure, of course, is not difficult to grasp. States that leave the funding to individual local counties are bound to have an indigent defense system that is arbitrary and inconsistent.

It must be the State’s obligation to provide effective assistance of counsel to all defendants at all stages of a criminal proceeding. That is the only way to ensure that Gideon’s mandate is fulfilled.

Whether this lawsuit will achieve that goal remains to be seen. I suspect, however, that the ACLU and those bringing suit have another motive in mind: to force the state to legislate more funding, as has been done in other states and is currently being done in others still.

It seems that the strategy may be paying off already, at least in Michigan.

Going back to what I wrote earlier, it doesn’t matter what the mechanism employed is, as long as states are forced to confront the reality that their public defender systems are woefully inadequate and that the first step to fixing them is greater funding.

The battle has begun, the war will be won.

Skakel loses the battle, but the war looms?

Apr 15th

Posted by Gideon in ct legal news

No comments

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

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

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

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

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

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

and:

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

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

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

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

and finally:

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

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

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

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

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

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

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michael skakel

Equal justice for all

Feb 15th

Posted by Gideon in pd system

6 comments

On a cold day in January, 1963, 9 men sat atop a perch and listened, for hours, to three other men argue for and against the means to dispense equal justice for all citizens of these United States. A short two months later, in March, Gideon v. Wainwright was born, mandating that States were required to provide attorneys for those who could not afford them to assist with the defense of criminal accusations.

At the time of the decision, public defender systems and counsel for the indigent wasn’t a novel concept: almost 45 states already had either full-fledged public defender systems or court rules that provided for the appointment of counsel. Gideon just provided a Constitutional basis for the widespread notion that all defendants should have access to counsel, in spite of their financial abilities.

Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.

Without adequate funding, the reality of Gideon‘s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.

A new idea has been tossed around these parts (and by that I mean the blawgosphere) over the past few days: that perhaps the best way to ensure equal justice, and for defendants to stand on equal footing with the frightening power of the States, is to have a universal public defender system. “Lawyers for all” is the call, and at first blush it seems like a good idea.

State legislatures these days have criminalized all human actions but breathing. If they are so inclined, goes the argument, then they must also be forced to provide the resources to defend against the zealous overprosecutions. Why must the defendant be left to his own devices and his own resources, when the State has its entire treasury at its disposal? Even the footing, goes the argument, and more prosecutions will fall by the wayside. Perhaps, if they are forced to provide the same resources to both sides, the staggering costs along with the piling “losses” for the State will knock some sense into the “tough on crime” legislators and force a rethinking of the penal code.

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

It is a fine idea and one that I stand behind in principle. But I’m not entirely sure what “universal public defenders” actually means. Scott raises the concern that to conscript all criminal defense lawyers into this army would be to place the power of defense in the hands of the State, and the resources at their whim and fancy. 9 different men and women may one day decide that the 6th Amendment never did mean all defendants. And then what?

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence. One day, somebody gets it into their heads that they don’t like us anymore and, poof, we’re done. One bad Supreme Court decision and Gideon is toast. A vital private bar, beyond the reach of the government, must continue to exist if we’re going to be positioned to fight for the accused. If our children’s next meal depends on government largesse, we have sold our independence for good. We’re just another cog in the government wheel.

Put us on the government payroll and we work for the Man. Do we really want to serve the Man? Not me. I serve my client, no one else.

In response to Scott, Norm Pattis of the one-man-army-on-revolutionary-ideas further explains the concept of the UPD:

Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.

Not all lawyers will seek such appointment. Those who don’t want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won’t be facing the resources of the state armed only with the wits of the lawyer they could afford.

And so we come to the crux of it and thus to a tune that I have long trumpeted (GET IT!?). There are three classes of criminal defendants: the very poor, the rich and those in between. The first two we need not worry about: they will always have counsel and will always have the resources to fight their prosecutions. Indeed, the concept of the ‘UPD’ already does exist in some form. First, there is the public defender system for those who are “indigent”. For the overflow cases, i.e. the cases above and beyond that which the normal person can and should handle, there is the conflict attorney or special public defender (or your local variation thereon). This covers a very, very large percentage of the criminal docket. For example, here in CT, the latest statistics show that the public defender system will represent over 80% of the criminal defendants in the State.

We are fortunate enough to have vast resources at our disposal. I need an expert? I got an expert. I need to send my investigator to Florida to contact a witness? The investigator is on a plane/train/automobile. The same applies to our Special Public Defenders, although it may take slightly longer.

Then we have the really rich. They hire private counsel, have some sums of money at their disposal and can generally adequately fund their own defense. And what if they no longer have any money? Well, there’s a mechanism to provide the tools of their defense there too. Ake v. Oklahoma provides for the State to pay for the necessary tools to conduct a defense, if someone who wasn’t indigent at the time of the institution of the prosecution now becomes indigent. Mr. Rich Client has burned through the sums of money in his bank account and has already mortgaged his house and yet needs to hire the forensic expert? The State will pay for it.

Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-elses-standards-but-not-poor-enough-to-get-a-pd.

This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.

[Second thought: this also raises the uncomfortable specter of the private attorney who charges very little to get this business and the attendant problems. Now, I've never had to quote a price for a case and I hope never to have to do that. I don't know how all private lawyers operate, but it would seem that, given the glut of lawyers, there is a fair percentage that will take cases for the lowest possible fee and provide proportional representation. Do these lawyers know of Ake? Do they care? Does that defendant get equal justice? This, of course, is a very touchy issue with the private bar, just as the "overworked and underqualified" public defender is a touchy issue with me. But the reality is that there are attorneys on both sides of the money divide who are half-assing it for various reasons.]

Perhaps that is what is meant by a universal public defender system. Income eligibility should not be determined by gross income, but rather by disposable income. People should not be asked to make the difficult choices of paying for insurance, rent and utilities at the expense of hiring a lawyer. That is the unacceptable reality of the public defender system today.

Increase the guidelines, thus making more people eligible for public defenders. All but the very rich should have access to our services. And the very rich, if they were to ever run out of money, should also have the ability to have the State pay for their defense. And it has indeed happened: private counsel file motions seeking to be appointed as special public defenders once the client runs out of money and work still needs to be done.

I realize that I write this from a State of relative comfort. In CT, we get most of the funding we seek and we are rarely ever left wanting. I could not name a single case where I needed to do something for the defense and was unable to pay for it. Other states, I know, are far worse. But a universal public defender system without the funding is no different from what we have today.

And if there is greater funding, then the problems that currently exist no longer are a concern.

So the question, then, is: how do we get states to adequately fund the defense of criminal prosecutions? That requires a shift in thinking.

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sixth amendment

Free-ish

Conviction by cuteness

A Cronic problem

Florida’s death penalty is unconstitutional

Wrong time, wrong battle

The Limp Writ Redux

The stupid; it hurts the brain

That bus is not for your client

Preempting Strickland

The defendant’s right to trial by jury

Institutional coddling

Effective misadvice is ineffective

The other Michigan bailout

Skakel loses the battle, but the war looms?

Equal justice for all

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