Recently in Counsel Category

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

Client Control and Conceding Guilt

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Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.
Although this CBS story refers to Dylann Roof as the "suspect" in the Charleston church massacre, I'm not sure why.  No sane person I've ever heard of has any doubt that Roof is the killer.  Saying that he's the "suspect" in the murders is like saying Fidel Castro was "suspected" of being the dictator of Cuba.

But I digress.  Roof asked for, and today was granted, the right to represent himself. I of course have no idea what the defense will be but, like the judge, I think this is a strategically poor decision.  It's unlikely that Roof will be anywhere near as creative, or as smooth a talker, as an experienced criminal defense lawyer would have been.

Roof's choice does have at least one advantage for those of us who think the death penalty should be imposed, without manufactured delay, on defendants unquestionably guilty of grotesque murders:  The knowing choice to represent one's self after having been frankly warned by the court of its perils is a waiver of an ineffective assistance of counsel claim on appeal.  When you buy the package knowing the defects of what's inside, you give up the right to complain that the merchandise was rotten. 

I can't say there's a lot I admire about Dylann Roof, but I respect his decision to take on his own defense.  In its own odd and revolting way, it's likely to be more truthful than the slicker version he put aside.
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office.  See also the excerpt from the Supreme Court of Washington in the follow-up post.
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

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

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

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.

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