The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.

————-

A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.

• In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?

That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.

• Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:

Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.

Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:

The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.

Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.

Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.

• Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.

The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

• Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:

Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.

In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.

In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.

Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.

• An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.

And you say I don’t post anymore.

mom ran you over in a car? dad beat you? GTFO

[Yes, I'm mixing my children's stories here in order to come up with this creative title, but 'Justice Thomas is an effing hypocrite' just doesn't have the same oomph.]

On the twentieth anniversary of Justice Thomas’ confirmation to the highest court in the United States, USA Today has this “retrospective” piece on the work of the Silent Assassin. Focusing primarily on his work in criminal justice cases, the article lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes. And no story of this ilk is complete without a quote that makes you groan and your eyes roll so far into the back of your head that you’re not quite sure if you’re awake or dreaming:

Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, “But for the grace of God, there go I.”

During his confirmation hearing, Thomas explained that he would identify with defendants: “So I can walk in their shoes and I could bring something different to the court.”

It’s okay. Gagging on whatever you’re eating/drinking/throwing a fist through your monitor is an acceptable reaction. I’ll wait till you call 911/poison control/customer service. Back? Feel better? Didn’t think so.

That the same man could utter the words quoted above during his confirmation hearings and then spend 20 years on the bench imposing his morality and punishing others for not being as stoic as he is reflects two things: 1) a truly distorted view of himself as a hero figure; and 2) the utter uselessness of confirmation hearings.

The USA Today piece focuses on Thomas’ opinions in recent cases like Connick v. Thompson and Cullen v. Pinholster. On Pinholster:

Thomas wrote: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

In her rendition of the facts, Sotomayor noted that it was Pinholster’s mother who ran him over as child. Regarding the stepfather, Sotomayor offered no “nearly so” caveat: “Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board,” she wrote. “There was so much violence in the home that Pinholster’s brother dreaded coming home each day. Pinholster’s half-sister was removed from the home as a result of a beating by his stepfather.”

Thomas allegedly has this on his office wall: “If you do the crime, I’ll damn well make sure you do the time. Constitution? What Constitution?”* The article collects quotes from legal beagles like Jeffery Fisher and the inimitable Orin Kerr, who, due to the possibility of appearing before said Justice have to employ the use of euphemisms in describing his “jurisprudence”:

“When he steps in the shoes of people,” says Stanford University law professor Jeffrey Fisher, “he’s more likely to say tough-love is necessary and you have to take responsibility.”

…

“He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them,” says George Washington University law professor Orin Kerr [...]. “The themes you see in his criminal law cases are the themes that you see elsewhere. He says, ‘If you do wrong, you have to take the consequences.’”

Delicately put. In other words (my own): he just doesn’t give a fuck. He thinks he’s better than you and is not afraid to tell you so. He’s on the Supreme Court and you’re just a convicted murderer-scum-of-the-earth. It’s not that Thomas exhibits a failure to understand the nuances and circumstances of individuals’ lives or to appreciate the different shades of gray that make up each human. He’s too smart not to get that. He just intentionally disregards them. Quoth Gamso:

Suck it up is his mantra. Whether you deserve it or not. Them’s the breaks. If your life sucks, live with it. If someone hurts you, too bad. No remedies. No relief. No comfort. No apologies.

So what if you spent decades in prison for a crime you didn’t commit, almost got executed for it? That’s life. Why should the people who cheated to put you there have to pay for what they did? Some people are winners, others losers.

And who cares about the losers?

Not Justice Thomas.

*That’s not a direct quote. In fact, I may have made it all up. Actually, I’m pretty sure I did.

You can thank me later.

Maybe there’s nothing more than coincidence at work here and maybe I have my understanding of the philosophies of Supreme Court justices all wrong, but I find it noteworthy that on the first day in 35 (!!!) years that SCOTUS opened a term without a justice named Stevens sitting in one of the 9 chairs, and on the eve of the release of the biography of Justice Brennan, they also denied cert to Jamie Ryan Weis, that most unfortunate of Georgia defendants. Weis, of course, is the poster boy for the failed public defender system in Georgia, which was once heralded, but then crippled by, among other things, the unsuccessful capital prosecution of Brian Nichols.

Georgia’s Supreme Court, by a 4-3 vote, did not find any problem with Georgia’s public defender system or the lack of funding or the fact that his lawyers withdrew and a new set of lawyers asked not to be appointed or….sigh.

And now a system that provides little to no adequate representation to those charged with and convicted of the most serious crimes with the most serious attendant penalty receives no Federal review. SCOTUS just denied cert. No explanation, no dissents, nothing.The stench has spread to Washington.

For a while now I’ve argued that these individual claims in State courts in individual cases will do little to bring the issue of systemic failure into the spotlight. That the only way to adequately challenge the failure to provide counsel is through lawsuits against the State (and maybe this latest legislation will help do just that). With this latest rejection by SCOTUS, it seems that Jamie Weis (and others) may have run out of all other options.

We haven’t yet seen what Justice Kagan will do for the everyman and I’ve been told by many, including His Presidency that she’ll be just fine. Maybe. But maybe, just maybe, if Justice Stevens were still on the bench, we’d have had someone take an honest and critical view of the mess that is Georgia:

The U.S. Supreme Court in recent years has taken a close look at Georgia’s capital punishment procedures. Now-retired Justice John Paul Stevens in 2008 slammed the state’s high court for an “utterly perfunctory” review of a death penalty case.

But we’ll never know. Sorry, Jamie Weis. It seems that when it comes to capital murder, close enough for government work is better than you deserve.

In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments.  The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.

This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?

I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.

Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual.

In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” Roper, 543 U. S., at 575. The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. Id., at 568; Kennedy, supra, at ___ (slip op., at 27–28); cf. Solem, 463 U. S., at 292. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at ___ (slip op., at 30–36); Roper, supra, at 571–572; Atkins, supra, at 318–320.

The Court then goes through all the research and data relied on in Roper on the mental development of juveniles to support its holding that LWOP serves no penological purpose for this category of defendants:

because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures,including peer pressure”; and their characters are “not as well formed.” Id., at 569–570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of-fenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Then the court ties together two threads: 1) that offenders who do not kill are categorically less deserving of the most serious punishments and 2) that LWOP is the second most serious punishment permissible. Thus, it concludes, juveniles who do not kill and are sentenced to LWOP have a “twice diminished moral culpability”.

The Court recognizes the fact that for juveniles – who have a diminished moral culpability – a sentence of LWOP is a death sentence and is unfair as it categorically denies them the opportunity to be rehabilitated and to atone for their mistakes and to prove that they are worthy of being given an opportunity to reintegrate into and contribute to society:

A sentence of life imprisonment without parole, how-ever, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community,the State makes an irrevocable judgment about that per-son’s value and place in society. This judgment is not appropriate in light of a juvenile non homicide offender’s capacity for change and limited moral culpability.

Which, if any, of the foregoing quotes excerpting the Court’s reasoning would be inapplicable to juveniles who have committed homicides? Certainly, I don’t disagree that it would be a tougher sell, but given the various rehabilitative and psychological factors underpinning the basis for the Court’s decision, one can make a strong legitimate argument that LWOP for all juveniles violates the Eighth Amendment ban on cruel and unusual punishments [and I'm not the only one to notice this potential]. The converse of that argument – that juveniles who kill are just incorrigible enough and irredeemable enough to warrant spending the rest of their natural lives in jail despite their particular characteristics and the development of their brains – doesn’t hold water, especially when viewed in light of the quote above.

Excited as I am by this historic decision, the potential for application of Graham to all juveniles has me doubly excited. Are you?

A Connecticut aside: the issue of whether LWOP for juveniles who commit a capital felony is cruel and unusual was considered and rejected by the Connecticut Supreme Court in post-Roper, pre-Graham 2008:

The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility,  necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders. We disagree.

Maybe then, but perhaps no longer? Quoth Justice Stevens:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete…Standards of decency have evolved since 1980. They will never stop doing so.

I’m going to miss him.

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders.  Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

What Comstock may very well be: the start of a line of cases that holds, one at a time, that it is perfectly okay for states and the federal government to indefinitely confine sex offenders, well beyond the expiration of their terms of incarceration.

Mixing sex offenders and public safety is a sure recipe for the evisceration of the rights guaranteed and protected by the Constitution. A court following in the footsteps of Comstock could easily hold that, as per the decisions in Alaska and Dept’ of Public Safety, civil commitment is a regulatory function undertaken for the safety of the general public, is not a punitive measure and justify it using the following language from Comstock:

2. This type of legislation is a long-standing Congressional practice: “the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.”
3. The statute is merely an extension to persons already in federal custody  (“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Of course, both of the above arguments are a smoke-screen for the real purpose: sex offenders are bad and must be put away forever, even in the face of evidence suggesting that they are the lowest to reoffend. The above argument also ignores the basic distinction between civil commitment of sex offenders and those who are “quarantined” for health reasons: that the “disease” of being a sex offender is the very reason the individual is incarcerated in the first place, thus, in a sense, making civil commitment a second punishment.

But we are talking about sex offenders, so it’s open season. For a preview, see this brief analysis of the potential interplay between Comstock and Kansas v. Hendricks.

Finally, it must be noted that there is certainly something odd about the timing of the two criminal justice decisions issued today: Comstock and Graham v. Florida.

Reading them both on the same day certainly leaves one with the sense that there is no direction on the court on criminal justice issues.

[For links to far more detailed coverage of Comstock, see this post at SexCrimes.]

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”.

Never fear. Here’s a practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

First, for the habeas practitioner, Justice Stevens delivers a powerful statement:

In [the Supreme Court of Kentucky's] view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

JACKPOT! Those who practice in the field know that courts are quick to dismiss viable claims of Constitutional defect on the grounds that the basis for that alleged defect is only a “collateral consequence” of the plea. Go forth, defense attorneys, and beat them over the heads with this quote.

In what is more evidence of the complete battiness of Scalia and Thomas, Scalia writes:

We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

I thought it needed pointing out that Scalia would only “assume the validity” of Gideon and Strickland. Nino, you crazy old man, you…