Unethical for lawyers to make clients forgo claims against them

From the “You Don’t Say” chronicles, a still-groundbreaking opinion1 [PDF] from the KY Supreme Court this week has ruled it unethical for plea agreements between the prosecution and the defense to include “waiver of ineffective assistance of counsel (IAC) claims” clauses.

For those who don’t know, everyone is guaranteed the effective assistance of counsel, pursuant to the Sixth Amendment to the US Constitution. This means that every time you have a lawyer in a criminal case, that lawyer must perform to a reasonably competent standard. He doesn’t have to be perfect, but has to be competent.

A method of challenging convictions is to claim that the lawyer did not provide effective assistance: whether by performing poorly at trial, not conducting an adequate investigation or forcing a client to take a plea agreement without explaining everything properly or making sure it was in the client’s best interests.

An IAC claim is the final Constitutional check against illegal convictions. In Federal court, prosecutors routinely require defendants to give up that check in order to have a favorable plea bargain.

This KY opinion doesn’t say that an individual cannot voluntarily give up his right to IAC, but rather says that it is unethical for prosecutors to offer this and for defense lawyers to advise clients about it.

There are two primary reasons for this, both of which are valid: first, if a lawyer counsels his client to waive IAC against himself, it’s the fox guarding the henhouse. He has an inherent conflict in that situation. “Here, take this deal, but you have to agree not to challenge my performance in representing you”. That sounds like a scam from the get-go.

Second, Federal plea bargains are less “negotiations” and more “take-it-or-leave-it”:

Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or-leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform   unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules.

This decision is sure to make US Attorneys very unhappy, but it’s a small step in ensuring that lawyers are always acting in their own clients’ best interests and are not worried about being found incompetent.

H/T: Legal Ethics Forum

Anything you don’t say will be used against you

Everyone knows the familiar refrain: “you have the right to remain silent, anything you say can and will be used against you…” Now, if you’re in California, you might have to add a new phrase to that: “Anything you don’t say will also be used against you”.

Last year, in Salinas v. Texas, the United States Supreme Court held that if the police ask you an incriminating question (“did you kill X?”) before they arrest you and you simply keep silent, the prosecution can argue that your silence means you are guilty.

The really flawed rationale was that you have to expressly say that you are invoking your right to remain silent.

The God-Awful logic of Salinas is already giving birth to convoluted children. In California, in the case of the People vs. Richard Tom [PDF], Mr. Tom was involved in a car accident in which a child was killed. He was taken to the police department to give blood and when they couldn’t draw his blood there, they took him to the hospital. Once they determined that they thought he was drunk, they arrested him and then he was eventually Mirandized.

The consequences of a “confrontation” with cops

maherThat’s Mark Maher, a resident of Windsor, CT. Well, that’s him after Enfield Police Officer Matthew Worden got done teaching him a lesson. Naturally, Maher was then charged with interfering with an officer, because his face got in the way of the officer’s energetic fist-bumps with the ground. I guess Officer Worden learned from the Sunil Dutta school of policing, whose core philosophy is ‘Obey me at all costs or I will break your face’.

Lucky for Maher, there were dashcams. Two of them. I can’t embed them because screw you Hartford Courant. But here’s dashcam one, which shows you just how annoyingly Maher kept getting in the way of Worden’s colloquial greeting to the pavement and here’s dashcam two, which prominently features “stop resisting”, today’s version of “stop hitting yourself”.

Ferguson: the no-Constitution zone

[The following is my latest column for the CT Law Tribune, to be published this week.]

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime.

So concluded Mr. Justice Douglas in his dissent – the lone dissent – to Terry v. Ohio, perhaps with greater prescience than even he would have envisioned. Today, some 46 years later, the fruits of that unwise policy have ripened and come to bear in America, presenting us with a country that seems unrecognizable.

Impossibility is not a defense

The law, you will have guessed by now, is not concerned much with the English language and its precise definitions. A fall-back answer that’s almost always right, when it comes to the law, is that everything “depends”.

Even something as simple as ‘impossibility’. When you, laypersons, think about the word “impossible”, you usually think of something that’s not possible. But the law isn’t that easy.

There are different categories of impossibility, each with its own definition and applicability: mistake of law, mistake of fact, legal impossibility and factual impossibility. Legal impossibility is where, no matter how evil your intentions are, your acts do not constitute a crime. Factual impossibility is where it is impossible for you to have committed a crime because you misunderstood the facts. A classic example used in law school hypotheticals is that of Sydney Barringer, the guy who died in a most tragic fashion.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

Things from Ferguson that even you can’t ignore (updated)


A picture of Officer Friendly in Ferguson:


My, what a big gun you have. Now here’s what happens if you want to record Officer Friendly:


(via @rdevro) What happens to people who try to record the police in Ferguson, like Intercept reporter Ryan Deveraux? He gets detained, for no reason, held overnight and then released in the morning. I know some of you find paying attention hard, so here’s the relevant portion:



But certainly they must allow press and protests, right? I mean, it’s the most well-known part of the First Amendment! It’s not like the law allows them to detain anyone without reas-oh. And within designated areas? And only walking protests? Oh.


But what about that unprecedented action by Amnesty International to send independent observers? That certainly made sure that police were on their best behavi-oh:



Well, this is the America you got when you decided not to give a crap about what didn’t happen in your cocoon. I blame you. Because for a large percentage of the population, this shit doesn’t end. It is constant and ever-lasting. Please, read this and get your head out of the sand.




The BS PC project

Spurred by the latest happenings in America vis-a-vis police officers and the stunning amounts of statism on display, I was reminded that we in the field know that officers are full of crap and most of the people in the world think officers are the second coming of Jim Carrey in “Liar, Liar”.

One of the many ways in which officers’ BS is on display is in their reports and their claims of probable cause or reasonable suspicion. The classic “furtive movement” or “clutching the waistband”.

So I figured why not just collect these nonsense pretexts and put them on display for the world to see? So send me screencaps of the reports that you find – with identifying information redacted, of course – and I’ll post them over at bspcproject.tumblr.com (there’s nothing there yet).