Recently in Counsel Category
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.
A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.Unusual lineup on this one. Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito. Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property.The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
This case is highly unusual for a capital case in that the disputed question actually involves who committed the crime. The trial lawyer hired a forensic expert he knew was unqualified because he mistakenly believed that state law capped the fee he could offer. In fact, the statute had been amended to give more leeway. The prosecutor sliced and diced the unqualified expert. The state courts failed to correctly apply the "prejudice" prong of Strickland v. Washington, holding that there was no prejudice because the experts in the postconviction proceeding testified the same as the trial expert. That's not the point. A qualified expert would not have been so easily attacked by the prosecutor, and there is a reasonable probability the jury would have believed him.
The high court took this case on direct review of the state courts, rather than letting it go to federal habeas first, probably to avoid the complications of the AEDPA deference standard.
So is it open season for federal courts to second-guess the qualifications of experts in the guise of ineffective assistance claims? No, the Court makes clear:
A Wisconsin father convicted of abuse for starving his teenage daughter down to 68 pounds was sentenced Wednesday to five years in prison.
Before being sentenced by Dane County Circuit Judge Julie Genovese, the 42-year-old man read a statement insisting his daughter suffered from severe emotional and behavioral problems that he couldn't handle, that his job as a trucker kept him away from home and that he didn't notice how thin she had become.
Hard to disagree with that. Kids who get starved can indeed develop "emotional and behavioral problems." And how could a man be expected to notice that a 68 pound teenager was thin? Gads, our society is sooo judgmental.
But it was this part that caught my eye:
The man's attorney, Jessa Nicholson, countered he deserved probation. He already has lost his family and his job, his wife is in prison and his reputation has been destroyed, she said.
"Apparently we are still a society that favors punishment," she told reporters after the hearing.
It's all true. When a father starves his daughter nearly to death, "we are still a society that favors punishment."
Honestly, is there something these people won't say?
The allegation is that McGuire told prison guards about this, but then said he would not do it.
State prison records released Monday say McGuire told guards that Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.
"He wants me to put on this big show in front of my kids, all right when I'm dying!" McGuire is reported as having told one guard. "I ain't gonna do this. It's about me and my kids, not him and his cause!"
I don't believe there was any actual faking. In addition to McGuire's statement, there is a more basic reason. He couldn't fake for the same reason he couldn't feel pain. The procedure began with a massive dose of sedative.
The Office of the Public Defender lifted the attorney's suspension after "an internal review failed to substantiate the allegation." I don't think the public should settle for that. Public defender's offices in many places have developed a fanatical anti-death-penalty culture. We should not trust an internal review.
Glass and the witnesses who supported his application stress his talent in the law and his commitment to the profession, and they argue that he has already paid a high enough price for his misdeeds to warrant admission to the bar. They emphasize his personal redemption, but we must recall that what is at stake is not compassion for Glass, who wishes to advance from being a supervised law clerk to enjoying a license to engage in the practice of law on an independent basis. Given our duty to protect the public and maintain the integrity and high standards of the profession (see Gossage, supra, 23 Cal.4th at p. 1105), our focus is on the applicant‟s moral fitness to practice law. On this record, the applicant failed to carry his heavy burden of establishing his rehabilitation and current fitness.
Well, not quite never. Steve Fry of the Topeka Capital-Journal has this story on the lawyer in the Kansas case of Phillip Cheatham.
Should we see more such proceedings? Bear in mind that it is now considered mandatory in capital appellate defense culture to savagely attack the trial lawyer regardless of how good a job he actually did. When was the last time you saw an initial collateral review petition in a capital case that did not allege ineffective assistance? I can't think of any offhand. And of course for a judge or panel itching to find an excuse to overturn the sentence, IAC makes a juicy target. The claims are so "fact bound" that a grant of relief is less likely to be reversed on discretionary review further up the chain.
If bar discipline proceedings regularly follow IAC reversals, and if such reversals are frequently made even if the lawyer did, in fact, do a good job, then lawyers may shun capital cases at trial.
On the other hand, if bar discipline proceedings are common, lawyers would have a stronger incentive not to fall on their swords in the collateral review proceeding. They would have an incentive to do what civil lawyers do to protect themselves from accusations of malpractice. They would document as they go along to protect themselves from potential claims and come out with guns blazing when wrongly accused.
Disgraced journalist Stephen Glass may have to choose a vocation other than the law to complete his road to redemption.
The California Supreme Court on Wednesday showed no signs of sympathy regarding Glass' bid for a license to practice law, hammering his journalistic past and suggesting his infamous history of fabricating dozens of magazine stories and public lies disqualifies him from joining the profession.
During an hour of arguments in Sacramento, all seven justices were skeptical of Glass' position that he is not the same person who tarnished the journalism world 15 years ago.
"Here is my problem," Justice Carol Corrigan told Jon Eisenberg, Glass' lawyer. "They say character is what you do when no one is looking. Mr. Glass' history ... when no one is looking has been pretty abysmal."
Added Justice Kathryn Mickle Werdegar: "Being admitted to practice law is a privilege. Our task is to certify that his moral character is such today that he can with integrity be a member of the bar."
The high court did just that today. Opinion here. The judgment is unanimous. Justice Alito's opinion is joined by all except Justice Ginsburg, who wrote a brief opinion concurring in the judgment. Here are a few notes on the opinion:
1. The Court declines to clarify the relationship between AEDPA's two provisions on state findings of fact, §2254(d)(2) and §2254(e)(1). My take is in CJLF's brief in Wood v. Allen, where the Court also ducked it.
2. On state court decisions of questions of law, Justice Alito delivers a ringing endorsement of the principle of federalism, the competence of state courts to independently decide federal questions, and the strong standard of Harrington v. Richter. By the way, federal district and circuit judges, " 'there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.' Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (internal quotation marks omitted)." So don't get too big for your britches.
The most important case on the list is the California prisoner release case, Brown v. Plata, No. 13-198, challenging the three-judge court's order to reduce California's prisoner population to a level that even the notoriously soft-on-crime Gov. Jerry Brown asserts is dangerous. This case is a mandatory direct appeal, rather than a discretionary writ of certiorari, but there is an odd jurisdictional question regarding whether the case actually falls within the high court's direct appeal jurisdiction. Earlier, the Court turned down a stay application by Brown. An amicus brief by yours truly on behalf of the four living former governors in support of that motion is here.
SCOTUSblog has other petitions to watch here. The Cert Pool has the full list, with capital cases flagged, here.
The heavy news coverage this week will be on Schuette v. Coalition to Defend Affirmative Action, argued Tuesday. It's off topic for the blog, but FWIW here are opposing opinion pieces in the New York Times and Wall Street Journal.
The two criminal cases are set for argument Wednesday. Kansas v. Cheever involves a compelled psychological examination of a defendant who makes a mental defense but does not claim he is mentally ill. CJLF's brief in support of the state is here. An earlier post written after the state court decision is here. Update: Hurst Laviana of the Wichita Eagle has this story.
Also up Wednesday is Kaley v. United States, regarding whether an indicted defendant's allegedly ill-gotten gains can be frozen when he needs them to pay his lawyer.