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.
Recently in Counsel Category
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 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.
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.
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.
The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."
Shamekia Chambers said Friday that she launched the online effort to help her cousin Shawn Beckford, father of 14-month-old Cameron Beckford [the toddler who was killed]....His mother, Dainesha Stevens, has been charged with endangering children and tampering with evidence. Her attorney says Stevens made up a story about leaving Cameron on a doorstep because she couldn't care for him and that was her way of asking for help.
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.