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.

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:

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

too soon?

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

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

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

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

In Cronic, SCOTUS said:

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

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

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

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

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

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

Cronic becomes useless.

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

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

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

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

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

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

—-

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

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.

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:

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).

—

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

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

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

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

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

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

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

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

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

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

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

Serenity now.

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

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

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

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

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

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

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

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

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

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

Suspension of the Writ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bottom line

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

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

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

My version of a “habeas reform” bill

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

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

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

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

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

Fin.

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

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

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:

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.]