Recently in Counsel Category

The defense bar is attempting to spin the narrative about the lenient sentence given Stanford rapist Brock Turner.

The problem, it tells us, was mostly a well-meaning but white tribalist judge.  The problem decidedly was not the defense-friendly sentencing submissions made in Turner's behalf  -- or, if they were a problem, it's because they were strategically inapt and tone-deaf. That they were morally bankrupt and odious plays second fiddle in the defense view, see, e.g., here and here (if they even get a seat in the orchestra). 

Still less of a problem is defense counsel's work.  This is notwithstanding that the entire purpose of that work was to get the rapist off with a trickster acquittal  --  or, failing that, to get a non-incarceration sentence.  In the latter, the defense very nearly succeeded. Yippee!

But rather than take a victory lap for this rare, chipper outcome, the defense bar  -- politically shrewd as ever  --  smells trouble and has commenced damage control. The public might, for once, show significant interest in, and concern about, how the victim got treated in court.. Thus, while much is said about the judge, the system, white privilege, class bias, jocks, drinking, fraternities, etc., etc., next to nothing is getting said about defense counsel's treatment of the victim.

Q:  Now why would that be?
I would say that criminal defense reached a new low when part of the sentencing package for a convicted rapist characterized his unusually demeaning and ugly sexual assault as "20 minutes of action."

The problem is that it's nether new nor a low.  It is, however, a rare public window into what goes on with the "client-uber-alles" mentality of criminal defense.

Let's just say it out loud:  To the defense side, victims are human garbage.  Their rights count for zip.  Their humanity counts for zip.  And the legal profession tolerates it.

But we don't have to tolerate the judge, Aaron Persky, who then cheerfully gave the rapist  --  a college athlete who could easily have overpowered the victim even if she had been conscious, which she was not  --  six months in the county jail (of which he is likely to serve just three).  The voters can get Judge Persky removed.

It should not take a politically incorrect crime like rape to awaken us to how degraded legal "ethics" have become, and how much judges need reining in with mandatory minimum sentencing statutes.  But we need to start where starting is possible, and we need to start now.
I blogged yesterday about the intentionally deceptive, callous and cruel cross-examination of a rape victim by the rapist's defense attorney, Michael Armstrong. Readers can see for themselves, from the victim's letter, just how aggressively disgusting defense counsel became with her.

The cookie-cutter, From-on-High excuse for this kind of stuff is that, look, we have an adversarial system, what do you want the lawyer to do?

I have answered that question many times.  First, I want each lawyer in the courtroom to conduct himself as a partisan of the truth. That would require (1) caring about it, (2) making at least a minimal effort to find out what it is before you start thundering, and (3) at the least, not intentionally leading the judge and jury in a different direction.

Second, I would like the lawyers to understand that civic life imposes basic obligations of decency and citizenship that come before making the client happy (and therefore more willing to pay, which is what a lot of the self-important lawyer posing is actually about).

If this is too much to ask, then the problems with the defense bar, and the culture that (in more ways than one) licenses it are more poisonous than I thought.

To see just how poisonous, read some of the defense submissions at sentencing.

The Defense Bar's War on Women

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To my anachronistic way of thinking, rape was a serious crime even before political correctness made rapists the one kind of criminal defendant the Left declines to embrace.  (Other kinds of sex offenders are still OK with them, see, e.g., any child pornography opinion by Jack Weinstein).

But, more-or-less out of sight, the defense bar is still at work bullying rape victims who have the guts to testify.  The bullying takes the form of, among other things, gutter-level misogyny that a person of normal empathy would find hard to imagine.

The defense lawyer's cross-examination of a woman raped (outdoors, behind a dumpster, while passed out, incidentally) tells you all you need, and certainly all you want, to know about the supposed compassion of the defense bar.  It's spelled out in this (unfortunately quite long) piece, "Here Is the Powerful Letter the Stanford Rape Victim Read Aloud to Her Attacker."

And please, spare me the vapid line about, "Well gosh, Bill, you just don't appreciate how our adversarial system works."  What the rape-excusing scolds who say this pretend not to understand is that a refusal on principle to engage in grotesquely callous and cruel treatment of rape victims comes before collecting your fat fee (and it was fat indeed in this case), "justified" by the rote and self-righteous invocation of, "Hey, look, that's how the system works!"

P.S.  Still, not to worry.  The rapist, a former Stanford swimmer who did not deny the act, was sentenced to six months in jail because a longer sentence would have "a severe impact on him," according to the judge.  Thus, this case has lessons about the need for mandatory minimums in addition to those about defense work.

More Resources for Indigent Defense

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One of the excuses we hear for supposedly innocent defendants' supposedly being "railroaded" into jail is that indigent defense is too resource-starved to fight off rapacious prosecutors and their fabricated charges.

All that is baloney, with one exception.  We should indeed devote more resources to indigent defense.  The country is not going get a high quality legal system without paying for it. Adults need to understand this.

But hold on:  There's a way to provide it without raising taxes or more binge borrowing. The way is to draft lawyers to fulfill their obligations to the community that gives them their licenses.

I have suggested this before, but I find that I have a new and prominent ally  -- Justice Sonia Sotomayor.  Her remarks are reported by the National Law Journal:  "Sotomayor Urges Mandatory Pro Bono for All Lawyers."
Lance Rogers of BNA Criminal Law Reporter has this article on the U.S. Supreme Court's March 30 decision in Luis v. United States regarding pretrial freezing of assets of the defendant not directly related to the crime but forfeitable in substitution for tainted but expended assets.  The court held that such assets cannot be frozen when the defendant needs them to pay her lawyer.  See also my previous post.

USCA6 Summarily Reversed Yet Again

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The "massive resistance" of some federal judges (particularly in circuits divisible by 3) continues, and today the U.S. Supreme Court found it necessary once again to summarily reverse a decision of Sixth Circuit for brazenly exceeding the limits Congress has placed on its authority.

In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts.  Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors.  Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether.  The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement.  If the issue is arguable, the state court decision stands.

Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law.  The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.
Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.
Justice Thomas concurred in this result, making the decision 5-3.
...are engaged in their own, ummmmm, zealous work, as explained in this WSJ Law Blog story concerning prominent criminal defense attorney Robert Simels:

The U.S. 2nd Circuit Court of Appeals upheld Simels' 2009 convictions on attempted obstruction of justice and bribery, and the 14-year-prison sentence given to him by U.S. District Judge John Gleeson in Brooklyn, but vacated his conviction on two counts relating to importation and possession of electronic surveillance equipment.

Simels' lawyers didn't respond to requests for comment. A spokesman for federal prosecutors in Brooklyn said they were still reviewing the decision and would not comment.

Simels...was convicted in connection with an attempt to tamper with a witness against his client Shaheed Khan, a cocaine trafficker from Guyana who ultimately pleaded guilty to charges in the U.S. Prosecutors in Brooklyn made a case against Simels, who was retained by Khan for $1.4 million, in part with help from a federal informant connected to the drug trafficker, who taped meetings with the attorney.


There are two points to be remembered from this story.  One is the criminal defense bar is not the uniformly pristine, Knight-on-a-White-Horse, Constitution-shielding sentinel its PR machine portrays.  There are bad actors among defense lawyers, just as there are among Brady-hiding prosecutors and gun-happy cops.  Every profession has its bad apples, and defense lawyers, notwithstanding their gentle treatment in the press, are right in there with everyone else.  It's just more popular, and politically more rewarding, to bash cops and prosecutors, which is why it gets done more often and more loudly.  By contrast, no one ever got a piece in Salon, or tenure for that matter, doing a dissertation about the wonderfulness of cops.

The second point is this Simels story, like the Mike Nifong story, is easy to bullhorn all over town to drive whatever one's agenda might be.  If you take the worst one-half of one percent of ANY profession's behavior and repeat it in 30 blogs, 10 op-ed's and 5 network broadcasts, you can make that profession out to be a cesspool.  It's my impression that Radley Balko does exactly that in his obsession with the police.

But it's cheap and misleading.  If you want to know what defense lawyers, prosecutors and cops act like, it's easy to find out: Go to your local court and sit there for a week watching random cases.

It's possible you'll see people who left good faith far behind, and put out every slick argument they think they might get away with.  But I doubt it.  I suspect you'll see what I did for about 20 years  --  able and almost always honest advocacy.  Counsel see cases from different angles, sure; our system is designed so that they will.   But only through a dark, tiny and distorted lens will you see any segment of the legal profession in the light in which Mr. Balko, for example, presents the police.

I am not an optimist by nature, but I can tell you from long experience in litigation that the grim picture of competing thugs and cheaters we see painted in so many places simply is not true.

Find out for yourself  --  visit that courtroom.



The Defense Bar, At It Again

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To clear out the underbrush at the outset:  No, I do not think defendants should go without counsel.  Yes, I think counsel should be zealous.  But no, being zealous does not include disrespecting the considered wishes of the client, or misleading the court or jury about the client's mental state.  

On Wednesday, Robert Dear, who murdered three people including a police officer at an abortion clinic in Colorado, "blurted out," as the press likes to put these things, the truth:  ""I am guilty, [I want] no trial. I am a warrior for the babies!"

The Denver Post story goes on to recount that Dear is a "deeply religious man" and "conflicted."  I have no doubt of this, although I wish he had been "conflicted" enough to stand down from murder and try some different "remedy," such as, for example, explaining to abortion providers why he believes they are horribly wrong and should stop.

My focus, however, is not on Dear, but on his defense lawyers, including lead public defender Daniel King.  Public defenders, like all other defense counsel, are employed to advance the interests of the client as the client sees them, not as the lawyer sees them.  Apparently this does not apply in Colorado.

More Remuneration for Defense Counsel

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I agree with the defense bar more often than it (and sometimes, I) feel comfortable about, but what can I say? The NACDL is right in believing, among other things, that custodial police questioning should be videotaped, prison conditions improved, and defense lawyers better paid.

Better paid, yes, but not like this.

And before the yelping starts, let me say up front that this is an unusual case for sure  --  but no more unusual than the prosecutor's sending some bedeviled defendant away for 50 years by hiding Brady material, something defense blogs portray as an everyday occurrence.

Yes, yes, the great majority of prosecutors and defense lawyers are honest people, so far as I have reason to believe.  But it does annoy me when the ideological element of the defense bar gets on its high horse, proclaiming that it alone defends the Constitution, while mean-spirited prosecutors come to their offices aiming to tear it up.  The main problem with this stuff is not that it's so false; it's that it's so stultifying.

It was bearing in mind this Holier-than-Thou, We-Are-the-Guardians-of-the-Law attitude that made me laugh when I came to this paragraph in the story about "how defense counsel gets paid:"

The second [client] also knew Benavides from a previous relationship, said the affidavit. During one of her court cases, Benavides approached her and said he knew the judge and could get her an attorney's bond and a fair deal. She hired him, and after she bonded out of jail, Benavides asked her to meet him at a friend's office. Whenever they met there, they would have sex. Once, they had sex in a jury room in the courthouse.






Justice Waits While Lawyers Bicker

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SL&P has this story suggesting that the main problem in a Texas multiple child murder case from more than 15 years ago is that  --  ready now?  --  the defendant's lawyers aren't being aggressive enough in pushing a last minute clemency appeal. The story's first eight paragraphs amount to a hit on the killer's present counsel for declining to push the 16th year of litigation into the 17th (and beyond, I suppose).

You will not be surprised to hear that the story does not (1) advance any claim of factual innocence; (2) detail the prior multiple efforts to reverse the sentence, or (3) explain any plausible grounds for either judicial or executive hesitation at this late date.  It's basically a hit piece on lawyers who decline to game the system out to infinity.

In that sense, it's an apt display of what's wrong with the administration of the death penalty, and of the insufferable self-importance of lawyers.  It never seems to occur to the people quoted in the article that legal outcomes should depend on the behavior of the parties, not the behavior of the attorneys.

Still, far, far down the page, we get our first glimpse into what the case is actually about:

Holiday [the petitioner] was convicted of intentionally setting fire to his wife's home near College Station in September 2000, killing her three little girls. He forced the children's grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday's case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless....

Oh, OK.  The problem is not that lawyers file absurd claims for years.  The problem is that at some point, they stop.
The Constitution guarantees counsel for defendants, but what does that mean beyond appointment of a person who is a member of the bar?  Will a hopeless incompetent who does nothing for the client do?  No.  Is an absolutely perfect performance that no one can find the slightest flaw in, even in hindsight, required?  No.  Where do we draw the line between those two extremes?  It's complicated.

The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office.  As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."

No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly.  That is how it was intended, but that is not how it is applied in practice.  Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.

Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms.   "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."

Georgia Completes Execution

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NBC News has this story, just breaking:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until as she was given a lethal injection, witnesses said.

Kelly Renee Gissendaner was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me."

Particularly noteworthy was this paragraph later in the article:

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison.

I must be missing the argument there that could not have been made many years before last night.  It strikes me that the time has long since come to sanction lawyers who intentionally clog the courts and make a spectacle of legal process by bad faith, last-minute, kitchen-sink appeals.


 

Stumbling across unconscious self-parody is one of the hazards of reading the news, and today it struck big time. The NACDL has come out with a "report" titled, "Federal Indigent Defense 2015: The Independence Imperative."  The press release (called a "news release") starts with this:

Washington, DC (Sept. 9, 2015) - After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report -- Federal Indigent Defense 2015: The Independence Imperative. The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.


You will not be shocked to learn that the "seven fundamentals" can easily be summarized in two words.  More moola.  What exactly this has to do with "independence" is not so clear, except that it's less embarrassing to say you want "more independence" than that you want "more moola" (although there is a degree of "independence" demanded, i.e., independence from much judicial supervision of how much money gets handed out).

How to put an honest assessment of this "report?"


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