Recently in Counsel Category
During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."The word "inexplicably" is just plain ignorant. There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame. The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense. Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself." In Panetti's case, make that a crazy fool.
The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit. As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial. If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus. The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself. In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.
The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute.
In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220. That case has to do with disclosure and compounded pentobarbital.
In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court. The Eighth Circuit denied a stay in case 14-3389.
This case presents issues of representation of prisoners. The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court. If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness? But how many new lawyers are we going to appoint for one defendant? We already say that trial counsel can't continue into habeas for this reason. Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed? That could be some time, given how complex capital cases can be.
Note that this problem is not entirely limited to capital cases. Martinez was not a capital case. The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.
The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.
See this post regarding the Ballard case in Pennsylvania last August.
A victim of the Aurora theater massacre said he believes defense lawyers and anti-death penalty groups have tried to use him like a pawn.
On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on. If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one. See pages 9 and 14 of CJLF's brief. He seeks to assure the Supreme Court this scenario would be rare. I don't know about Texas, but it is certainly not rare in capital cases in California. Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno. It's all part of the strategy to throw as much sand in the gears as possible.
Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court. The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial. The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.
The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal. This is called issue preclusion or collateral estoppel. A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus. In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others. The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period. Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them. Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.
Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel. I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case. That would simplify things considerably, and Justice Breyer notes our brief to that effect at pages 48-49.
Update, 10/17: Rory Little has this analysis of the argument at SCOTUSblog.
The rich and famous Phil Spector is also a permanent guest of California taxpayers. In Delaware, big time political mover and shaker Thomas Capano was sentenced to death. He got off death row the same way thousands of others have -- the Supreme Court changed the rules after the trial was over.
What about O.J. Simpson? His acquittal was mainly the result of racial dynamics in the wake of the Rodney King riots. The dream team wasn't all that dreamy. The prosecution proved his guilt sufficiently to convince an unbiased jury beyond a reasonable doubt; the problem was the jury.
That is not to say that a better lawyer will never make the difference in a close case. But most cases are not close. The difference is at the margins.
In today's orders list, we find this gem from Ballard v. Pennsylvania, No. 13-9364: "The letters of June 2, July 8, July 14, and July 16, 2014, received in this case, are referred to the Disciplinary Board of the Supreme Court of Pennsylvania for any investigation or action it finds appropriate." Hmmm. What's that about?
This is a capital case. Ballard is a so-called "volunteer," a death-sentenced inmate who doesn't want his sentenced reversed or even delayed. Marc Bookman of the Atlantic Center for Capital Representation, claiming to be Ballard's lawyer, filed a certiorari petition asking the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court affirming the judgment. Ballard himself had a thing or two to say about that.
PHOENIX (AP) -- A judge ruled Monday that Jodi Arias can represent herself in the upcoming penalty phase of her murder trial, where jurors will decide whether she is put to death for killing her ex-boyfriend.
Arias, 34, was convicted of first-degree murder last year in the 2008 killing of Travis Alexander, but jurors couldn't reach a decision on sentencing. Under Arizona law, while Arias' murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury in an effort to secure the death penalty.
Arias, who has long clashed with her defense lawyers and tried to fire them previously, asked Judge Sherry Stephens to let her serve as her own lawyer during the second penalty phase set for Sept. 8. Stephens granted the request but said there would be no delays.
"I do not believe it is in your best interest ... I strongly urge you to reconsider," Stephens told Arias before granting the motion.
As a criminal defense attorney with four capital cases, I agree with Skelton that the death penalty system is broken. Here's a radical idea: Fix it.
Skelton is right that Gov. Jerry Brown and Atty. Gen. Kamala Harris, both lifelong death penalty foes, will do nothing to fix the system. It is unethical for them not to zealously enforce the law just because they don't like it. Unable to win at the ballot box, the opponents win by obstruction and refusing to do the job they are obligated to do.
Someday a governor may be in office who does not like certain environmental protections or civil rights statutes. If that happens, I hope it is remembered where the precedent arose that the executive need not do the public's bidding.
We need more with attitudes like Goodwin's. Specifically, we need capital defense lawyers who will do their duty as advocates to make the best case for their assigned client but who will not delay, obstruct, or bury the courts with patently meritless pleadings. (See In re Reno, 55 Cal. 4th 428 (2012).) Capital cases should be just like noncapital cases in this regard. A lawyer assigned an appeal for a rapist sentenced to prison is not on a crusade to abolish imprisonment. He just makes the case that his particular client shouldn't have been convicted or shouldn't have been sentenced to as much time as he got.
Retired prosecutors might be good candidates to step up and take capital appeals and state habeas petitions. Any takers?
Some capital defense lawyers seem to think that there is a "death is different" exception for capital cases. There is not. If the client directs his attorney not to offer mitigating evidence in the penalty phase, he has no ineffective assistance claim if the attorney follows his direction. See Schriro v. Landrigan, 550 U.S. 465, 475 (2007). (See also CJLF's brief in that case.)
Yet they never give up. As noted in today's News Scan, the California Supreme Court today affirmed the conviction and death sentence of Steven Brown for the sodomy and murder of 11-year-old April Holley. Brown decided he would rather be sentenced to death than life in prison and instructed his lawyer to present no mitigating evidence. His lawyer and the trial judge made sure this was a competent decision. No, that is not ineffective assistance. Quoting earlier decisions, "an attorney‟s duty of loyalty to the client means the attorney should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ."
Now, California Supreme Court, it is high time to recognize that what is true at trial is equally true on appeal. Sometimes death row clients say, "Get my appeal done promptly; don't stall" or "Only challenge the guilt verdict, not penalty; 'give me liberty or give me death' " or "Don't challenge the judgment at all; I'm good with it." If the client is mentally competent, the lawyer can advise against these decisions, but if push comes to shove, it is the client's decision to make. And, no, the lawyer cannot decide on his own that the client is incompetent to make the decision. Only a judge can appoint a conservator to make these decisions for an incompetent client.
I have letters from death row inmates whose lawyers have ignored their instructions, and the California Supreme Court ignores their protests. That's not right, for the reasons you just said.
In his opening statement, defense attorney Ryan Moriarty told the jurors their task is to decide "what form of homicide applies to this defendant...."We're not asking you to presume Arthur Morgan innocent of responsibility," he said. "It is our contention that he did not act knowingly and purposefully on that day but, rather, recklessly.
OK, fair enough. Unfortunately, Mr. Moriarty added:
"Was Tierra thrown off a bridge, or was she placed there, still alive, for God to determine the outcome?"
Yes, well, when you throw a two year-old in icy water weighted down, you can take a pretty good guess how "God is going to determine the outcome." But we appreciate counsel's insight.