Recently in Counsel Category

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The problem of ineffective assistance of counsel is all about funding, some would have us believe.  See, e.g., this report from the Brennan Center. If a defendant had the kind of lawyer rich people would hire, we wouldn't have these ineffective assistance claims, right?

John Christoffersen reports for AP:

Kennedy cousin Michael Skakel launched a barrage of criticism Thursday against the attorney who represented him at his murder trial, saying he failed to track down key witnesses while having fun and basking in the limelight.

Skakel was convicted in 2002 of killing his Greenwich neighbor in 1975 after a trial in which he did not testify. He testified Thursday in his latest appeal, arguing that trial attorney Michael Sherman failed to competently defend him.

Skakel's current attorney says Sherman got caught up in the limelight of the case and failed to prepare. Sherman rejects that claim and says he did all he could to prevent Skakel's conviction.

In my previous entry, I discussed the conviction of prominent defense lawyer Paul Bergrin for zealous advocacy witness murder.  Reading over the NYT story, this part struck me as remarkably noteworthy, so much so that it deserves its own post:

In his trial, which began in January, prosecutors were permitted to play recorded conversations between Mr. Bergrin and a former gang member who had worn a wire for months to record conversations as Mr. Bergrin tried to hire him to kill a witness.

"We've got to make it look like a robbery," Mr. Bergrin was heard saying on grainy tapes. "It cannot under any circumstances look like a hit."

Mr. Bergrin argued that prosecutors were corrupt and that the witnesses against him were seeking -- and had received -- shorter sentences for their crimes. He explained the recordings by saying he had known all along that the "hit man" was an impostor and had gone along in the hopes of extracting legal fees from him.

In his three-and-a-half-hour closing statement last week, Mr. Bergrin pleaded with the jury for forgiveness, insisting that he was ashamed of the things he had been heard saying but that he was merely defending his clients.

"I get caught up in them, their families, their anguish," he said. "You try to work tirelessly and endlessly, as if they're your own children, as if they're your own family. I tried to be there for the downtrodden, for the underdog, for the destitute, to show the client and the people that they have somebody who is willing to stand up for them."

A year and a half ago, I wrote about Paul Bergrin, a prominent New Jersey defense lawyer who took seriously the creed of standing up to prosecutors' bullying and their freelance destruction of Constitutional rights.  Bergrin was having none of it.

[The first judge on the case, later removed by the Third Circuit] refused to allow the authorities to try him on any of the charges other than two murder counts, for allegedly ordering members of a Newark gang to kill Kemo DeShawn McCray, a confidential F.B.I. informant who was to serve as a crucial witness in a case against one of Mr. Bergrin's clients.

Yesterday, I wrote about a defense lawyer whose pretrial spin on his client was denial of factual guilt.  That's hardly out of the ordinary; indeed it's standard practice. It's not uniform practice, however, because there are some cases  --  James Holmes, the Aurora, Colorado shooter, for example  --  where it just makes the defense seem disconnected from reality to maintain factual innocence.  Yesterday's case was like that:  A father, furious at his wife for leaving him, drove to her new house and butchered (literally) the couples' three little girls, then called his estranged wife to say, "You can come home now because I killed the kids."  To refuse to concede factual guilt on a record like that seems not just misleading but foolish.  Are you doing the client any favors?

The orders list is here.  The Supreme Court took up one civil case.  No action on the Phillips cross-petitions from California, noted here.

In Marshall v. Rogers, 12-382, the Ninth Circuit was reversed for failure to observe Congress's limitation on habeas corpus in the so-called "deference" provision.  The high court once again has reversed the Ninth summarily and unanimously, meaning not a single justice thought the Ninth was right, and this conclusion is so obvious as to not require full briefing or oral argument.  Here is the first paragraph:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent's petition, and he appealed to the Court of Appeals for the Ninth Circuit, which granted habeas relief. 678 F. 3d 1149, 1163 (2012). Because the Court of Appeals erred in concluding that respondent's claim is supported by "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), its judgment must be reversed.

When Congress enacted §2254(d), it specifically provided that the reasonableness of the state court's resolution of an issue will be judged only by its conformity with U.S. Supreme Court precedents, not federal court of appeals precedents.  The federal courts of appeals are not "higher" courts over the state courts in the sense that their precedents are binding, and Congress acted decisively to prevent them from making their precedents binding in practice by granting habeas relief whenever a state court disagrees.  A study I did shortly before the law passed showed that, in capital cases in the Ninth Circuit, the Supreme Court ultimately resolved these disagreements in favor of the state court's decision most of the time.

But many federal judges still don't get it:

This post is devoted to venting.  Be forewarned.

The case of disgraced defense lawyer Charles Daum was the subject of my post here. There was a follow-up post, which has inspired 30 comments as of this writing.  That must be something like a record for the blog.

For those defendants who cannot hire counsel at all (in contrast to the previous post), today is the golden anniversary of Gideon v. Wainwright, the decision that extended the federal constitutional right to appointed counsel to all felony cases, state as well as federal.  As important as that decision was, and I don't mean to denigrate it, from some of the effusive praise heaped upon it one might think that 50 years and a day ago nobody had the right to appointed counsel.  Before Gideon, many states provided counsel to all indigent defendants as a matter of state law, see, e.g., B. Witkin, Cal. Criminal Procedure §137 (1st ed. 1963), and the federal constitutional right was governed by the "fluid," and ultimately unworkable, standard of Betts v. Brady.  Gideon was a large and important step, but the right to appointed counsel did not suddenly appear out of nowhere 50 years ago.

The U.S. Supreme Court today took up a criminal case involving forfeiture and the money that well-heeled defendants need to pay their retained counsel.  The case is Kaley v. United States, No. 12-464.  It is an important issue in white-collar crime cases, although it rarely comes up in the violent crime cases that we mostly discuss on this blog.  The question presented is:

Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

I noted here the case of prominent Washington, DC defense attorney Charles Daum, who recently received a 63-month prison sentence for faking evidence and suborning perjury.  I have looked a bit more into the case.  The reaction of members of the defense bar is revealing.

We are appalled that a colleague would involve himself in a fraud on the court.  Public respect for the integrity of the criminal justice system cannot survive if any of its practitioners, prosecutors or defenders, engages in conduct of this sort.  It is a stain on the legal profession.  As members of an honorable calling, criminal defense, we unequivocally condemn it.

[Some] lawyers read the indictment as a warning to aggressive defense lawyers. Betty M. Ballester, head of the Superior Court Trial Lawyers Association, said defense lawyers worry that prosecutors are "targeting high-profile attorneys and investigators."

But lawyers seem most troubled that unsatisfied clients might make charges against them in exchange for the government's favor. Gladys Weatherspoon...thinks White and Robertson [Daum's drug dealing clients] framed Daum for that reason. "Every defense attorney is one client away from being Mr. Daum," she said.

Probably the most frequently alleged misconduct on the part of prosecutors is withholding exculpatory evidence in violation of Brady.  This sort of stuff makes headlines for two reasons.  First, it's a rare but grievous violation of the prosecutor's ethical duty and public trust, and has the potential to bring about the conviction of the innocent  --  a gross injustice by any measure.  Second, it can help paint a seriously misleading, broad-brush picture of prosecutor-as-thug.  We all know there are people out there with this agenda.

Calling a defense lawyer's crime "truly unconscionable," a federal judge in Washington today sentenced a longtime Washington attorney to more than five years in prison for his role in a scheme to manufacture evidence to dupe jurors in a drug trial.

The defense lawyer, Charles Daum, who had practiced law in the District of Columbia for three decades, will serve 63 months behind bars for a plot that included staged photographs and perjured testimony.

Schertler presented Daum as an honest man, a good person, who made a mistake. Schertler dedicated part of his time in court today assessing unethical police officers and prosecutors and the public perception that neither is regularly held accountable for lapses in judgment. "When was the last time you saw a prosecutor prosecuted?" Schertler asked at one point. "It doesn't happen."

Todd Ruger has this article in the NLJ (registration required) on sequestration cuts to the judicial branch, including federal defenders.

Money for federal defender organizations would be reduced by $53 million, which "could compromise the integrity of the defender function," [AOUSC Director Thomas] Hogan wrote. Allocations for defender salaries would be reduced by 4 percent, non-salary funds by 25 percent and training funds by 50 percent. Payment of Criminal Justice Act panel attorney vouchers could be deferred for almost three weeks at the end of the fiscal year.

Well, the first thing to cut is representation not authorized by law at all.  The second thing to cut is representation authorized only by Joe Biden's drafting error.

In Cook v. FDA, presently pending in the D.C. Circuit, the Federal Public Defender for Arizona is representing murderers from several states in a suit against the Food and Drug Administration for allowing importation of thiopental.  The cases federal defenders are authorized to take on at public expense are listed in 18 U.S.C. §3006A(a)(1)&(2), and civil suits against the FDA do not come remotely within any of the categories.  It's hard to have much sympathy with an office complaining of budget cuts when that office has been making patently illegal expenditures from its existing budget.

Many years ago, then-Sen. Biden snuck a provision into a drug bill, 21 U.S.C. §848(q)(4), to provide representation in capital cases for both federal defendants and state prisoners on habeas corpus.  A provision for continued representation in such things as successive petitions and executive clemency, which only makes sense for federal defendants, was misdrafted so that it applies to state prisoners as well.  (As a matter of code maintenance, the language was later moved without substantial change to title 18, where it belongs, as 18 U.S.C. §3599.)  Now we have federal taxpayer dollars paying for representation in purely state proceedings that follow the appointment in federal habeas, including representation in state collateral reviews and clemency petitions.  Congress needs to fix this so that the continuing representation provision only applies to federal defendants.

Matthew Hale headed a profoundly racist group called the World Church of the Creator.  He lost a trademark suit with another, older group of the same name.  He had two responses:  (1) change the name of the group to the Creativity Movement, and (2) put out a contract of the life of the judge.

Number 2 got him in trouble.  He was convicted of soliciting a crime of violence and obstructing justice.  The Seventh Circuit affirmed on direct appeal in 2006, 448 F.3d 971.

He's back on collateral review.  Among his claims are, you guessed it, ineffective assistance of counsel.  The Seventh Circuit was unimpressed again.  "Hale's other principal contention is that, before taking over his own defense, he received ineffective assistance of counsel. He complains about almost everything counsel did or did not do." 

Among the failings of counsel was not challenging all the black people off the jury.  Of course there is the minor problem that doing so is unconstitutional, see Georgia v.
McCollum, 505 U.S. 42 (1992), and possibly a criminal offense.  See 18 U.S.C. §243.  In addition, Judge Easterbrook points out that the Creativity Movement hates such a wide variety of people that it would not be possible to challenge them all.

Sheri Qualters has this story at NLJ (registration required).  The case is Hale v. United States, No. 11-3868 (Mar. 5, 2013).

Last month, we had this post on the case of Trevino v. Thaler, on the question of when alleged ineffectiveness of state habeas counsel would be deemed sufficient cause for a federal court to consider a claim never made or not properly made to the state courts.  Until last year, the answer was virtually never under the landmark 1991 precedent of Coleman v. Thompson. 

Martinez v. Ryan made an exception for states, including Arizona, which have rules forbidding ineffectiveness claims to be raised on direct appeal.  The Court described the exception it was creating as narrow.

Trevino was argued yesterday.  The transcript is here.  There is a lot of discussion about variations among states in how an ineffectiveness claim may be raised, how they may be raised in Texas, and what difference any of these variations should make in the federal rule.

There is a corollary to Murphy's Law:  "Once you open a can of worms, the only way to get them back in is to use a larger can."  The Court opened a can of worms in Martinez.  It decided to make an exception to Coleman's straightforward rule based on the workings of a state's review process and is now faced with complex task of deciding how to apply that to every variation that comes down the pike.  They are not looking forward to that.  See p. 13.

I hope their decision is to reseal the can.  Something like this:  "The Martinez exception applies only to its specific limits in that decision, and we are not expanding this exception or making any new ones.  Coleman is still the law everywhere else."