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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?"

Ask Not What Your Dog Can Do for You...

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I've done my share of criticizing the criminal defense bar, but I understand that it's indispensable to justice.

Most of the time, in my experience, when the defense chooses to go to trial, what you're going to see is a dust storm designed to obscure the defendant's, shall we say, unfortunate behavior.  But make no mistake, there are times when defense counsel does heroic work in exposing gutter-level tactics by the prosecution.  I posted about one recently, and of course I noted (who didn't?) defense counsel's spectacular work dismantling the government's fake and, frankly, racist case against several members of the Duke lacrosse team.

Still, I had to laugh when I saw the story of one defense lawyer up to the old tricks. The case was about Martha Shoffner, one time Arkansas State Treasurer, who had her hand out for bribes from those who wanted a piece of the state's bond business. She made off with a paltry $36,000 for her trouble.

At sentencing:

[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.

Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred.

I practiced in federal court for many years, and it never occurred to me that I could advance the ball by citing anyone's dog.  For that matter, it still hasn't.

Homeless, Therefore Start Shooting

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While decent people are outraged by prosecutorial lying, no one even bats an eyelash when defense counsel spin their yarns.  It's what they do.  The basics are easy:  The client is almost always guilty; telling the truth is thus the fast road to jail; therefore make something up.  That's how it works.  Whether it should work that way is another matter, but that is for a different entry.

This is by way of introducing today's AP story about the Jihadist who attempted, but was foiled at, mass murder on a French train. Kent wrote about it here and here.  The would-be killer, Ayoub El-Khazzani, has now lawyered up.  Counsel's name is Sophie David, and this is what she has to say:

"He is dumbfounded that his action is being characterized as terrorism," said [Ms.] David, a lawyer in Arras, where the train was rerouted to arrest El-Khazzani -- now being questioned outside Paris by anti-terrorism police.
He described himself as homeless and David said she had "no doubt" this was true, saying he was "very, very thin" as if suffering from malnutrition and "with a very wild look in his eyes."

For sure.  When you're homeless, the thing to do is grab an assault rifle and go to town.  Why would anyone think otherwise?

But wait, there's more.

Texas Executes "Volunteer"

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Michael Graczyk reports for AP:

Texas inmate Daniel Lee Lopez got his wish Wednesday when he was executed for striking and killing a police lieutenant with an SUV during a chase more than six years ago.

The lethal injection was carried out after the U.S. Supreme Court rejected appeals from his attorneys who disregarded both his desire to die and lower court rulings that Lopez was competent to make that decision.

In April, the Fifth Circuit noted, while dismissing the appeal:

Lopez is as resolute that Texas should carry out his capital sentence as he is that no counsel deprive him of that choice. The district court, after ascertaining competency, nonetheless granted Lopez's "motion to dismiss counsel, effective on the conclusion of any appeal." (Emphasis added). This court does not address, because the State did not raise, the appropriateness of our considering this appeal by counsel who were appointed for petitioner by the district court against his will, and who have filed this appeal despite his wishes and despite the court's resolution of the Rees v. Payton, 384 U.S. 312 (1966) issue. Cf. Sanchez-Velasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).

The general rule is that the client sets the goals of representation and the lawyer makes the tactical decisions on how to achieve them.  Can a lawyer ethically decide on his own that the client is mentally incompetent and take it upon himself to set the goals of representation?  I don't think so, but it's an issue that needs to be settled.

I also do not think that the court can pass on the issue merely because the state did not raise it.  Does a court have jurisdiction to overturn, or even stay, a judgment that neither party to the original case wants disturbed?  No one else has standing, the Supreme Court has said, and standing is a jurisdictional requirement. 

It seems to me that unless and until a court has determined that the inmate is mentally incapable of making the decisions that belong to the client in the attorney-client relationship, and appointed someone to make them on his behalf, nobody including the lawyer can legally take it upon himself to make those decisions.

I learned of this today:

An Ad Hoc Committee to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act (CJA) has begun accepting public comments at the following address: It also is anticipated that in the course of its work the committee will hold public hearings.

The CJA was enacted to create a system for providing defense services to financially eligible federal criminal defendants. It became effective fifty years ago this year. Judicial Conference policy supports a periodic, comprehensive, and impartial review of the CJA program.

My own view is that those who undertake CJA defense are, on the whole, quite good, and earn all they get if not more.  I also think, however, that if we can afford more for the defense of criminals, we can afford more to keep them, after conviction, incarcerated and away from the public.

The constant refrain that "we just don't have the money for prison" is tripe. The BOP budget, like every aspect of the federal government's budget, is less a description of fiscal reality than of political priorities.  If this Administration wanted to shift its priorities toward keeping the crime rate low (rather than, for example, funding its gargantuan clemency initiative), it could easily do so.  And should.

Judy Clarke, Not Quite Invincible

I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  

Defendants' War on Black Children

CNN (and numerous other outlets) covered today's sentencing of a number of Atlanta school teachers and administrators convicted in a huge cheating scandal that stretched back at least a decade.

The real victims of the cheating were not the taxpayers of Atlanta (although they got cheated, too).  They were thousands of children, overwhelmingly African-American, who were deprived of a fighting chance to get a decent education.

On display today was the kind of "it's-everybody-else's-fault" arrogance I saw again and again from defendants, belligerently abetted by their lawyers.

For those who say they care about children, about decent schools, about giving "the vulnerable" a chance, today was an object lesson.  Whose side was the prosecution on?  Whose side was the defense on?

See for yourself.
I reprint with little comment this beauty from NBC Connecticut:

A defense attorney was cited Tuesday after a bag of marijuana fell out of his pocket in front of the judge, according to Connecticut state police.

Police said Vincent Fazzone, 46, dropped a plastic bag containing about 2 ounces of pot inside the New London courthouse late Tuesday morning.  He was cited for possession of less than four ounces of marijuana.

The Hartford Courant reports that Fazzone took the marijuana from a client's son before court Tuesday morning. According to the Courant, Fazzone planned to sit down with the boy and have a conversation about the pot after he got home from school.

Fazzone, who is listed online as practicing at 39 State Road in Uncasville, could not be reached for comment Tuesday evening.

I wonder whether the "conversation" with the boy was going to be about where Mr. Fazzone could get a continuing supply.  Somehow, I doubt we'll find out.

The United States Supreme Court has denied a stay of execution to Missouri murderer Walter Storey.

The Ethics Bureau at Yale filed an amicus brief claiming that counsel cannot ethically suggest a better method of execution while arguing against the one the state plans to use.  I think that is nonsense, and it is likely that five Justices of the Supreme Court think so also.  I plan to post a longer explanation later.

"Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application for stay of execution."

Update:  I may not get to this for a while, so I will upload it and let interested readers read it for themselves. This is wrong in so many ways I hardly know where to start.

Can the Right to Counsel Be Forfeited?

When discussing questions of right, the issues of waiver and forfeiture often come up.

A defendant facing jail time has a constitutional right to counsel, but, if he is mentally competent to do so, he also has right to waive that right and represent himself.  Justice Blackmun, in dissent, called that a constitutional right to make of fool of himself, but that's the law.  A defendant also has a right not to testify at his own trial, but he can waive that right and take the stand if he chooses.

A waiver is voluntary relinquishment of a known right.  A forfeiture is the loss of a right by failure to assert it or by wrongdoing of some sort.  A defendant has a right to confront witnesses and to exclude out-of-court testimonial statements, but he can forfeit the right by murdering the witness for the purpose of keeping his testimony out.

The right to counsel can be waived, we know, but can it be forfeited?  The Utah Supreme Court says it can:

This matter is before the court on a motion to withdraw filed by the appellant's appellate counsel. We grant the motion and conclude that the appellant has repeatedly engaged in extreme dilatory, disruptive, and threatening conduct that constitutes a forfeiture of his right to counsel for the limited remainder of the proceedings on appeal.
The case is State v. Allgier, No. 071904711, Jan. 23, 2015.

Note that this is on appeal, not trial.  The constitutional footing of the right to counsel on appeal has always been shakier than the trial right.

Jack Healy has this story in the NYT.

Arguing One's Own Screw-Ups

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.

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