Recently in Counsel Category

The United States Supreme Court has denied a stay of execution to Missouri murderer Walter Storey.

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.

Can the Right to Counsel Be Forfeited?

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When discussing questions of right, the issues of waiver and forfeiture often come up.

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.

Arguing One's Own Screw-Ups

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One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

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 White Collar Crime Prof Blog has this entry, from the Ninth Circuit of all things:

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."

Knowing When to Shut Up

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This sort of sadistic child murder has become commonplace in a country that devalues parenting and honors self-indulgence  --  the latter being exactly what parenting does not allow.

I paid attention to the story, not because I have any desire to, but because it keeps popping up on the news station I listen to in my car.  Just now I heard this follow-up tidbit (not included in the main story linked above) (emphasis added):

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.

My point here is not that the defense lawyer is vile, but that he's brain-dead.  If his client knew enough to make up a story that she left her kid on a doorstep "as her way of asking for help," it's 100% obvious that she knew enough to actually leave him on a doorstep rather than kill him.

P.S.  Obligatory disclaimer:  Most defense lawyers are nowhere near either this vile or this stupid.  But even one is enough.

For Appointment of Counsel: Get Moving

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Kent may have more to say about one of the cert. denials this morning, that being in Redd v. Chappell, No. 14-6264.

Justice Sotomayor, joined by Justice Breyer, wrote a statement respecting denial of cert. The State of California has not appointed counsel to represent this capital inmate in his state habeas proceedings seventeen years after he was sentenced to death and four years after the completion of his direct appeal. This is so notwithstanding a state statute that requires such appointment.  (The state court prohibits pro se submissions when the inmate has a continuing right to representation).

I will leave it to others to decide whether there should be a right to a lawyer to pursue collateral relief after the defendant has received one comprehensive and fair review of his claims.  But when California by statute provides for such a right, it's obvious that the state needs one more statute  --  one that provides for appointment to be made within 90 days of the time direct review becomes final, and that the habeas brief be filed a maximum of six months after that.  The penalty for any lawyer who refuses court appointment or misses the deadline will be suspension from practice for one year.

There might be good reasons for some aspects of the delay in capital cases. There is none for appointing counsel and getting your work done.  Abolitionists live off the delay they egg on.  It is time for this game to stop.


Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

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. 

Ineffective Assistance of Thomas Jefferson

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Most claims of ineffective assistance of counsel are baloney.  They're simply a way to deflect attention from the client's behavior to that of his supposedly all-important lawyer.  What gets lost in the hubbub is that what wins and loses cases is seldom the lawyer.  It's the evidence.

Still, there are exceptions.

SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

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.

Another Unauthorized Filing?

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Here we go again.  Mark Christeson has a well deserved date with the Missouri execution team tomorrow.  See description of the crime here.  The usual last minute applications have been filed with the Supreme Court, but do the lawyers filing them really represent Christeson?  Justice Alito, the assigned Circuit Justice for the Eighth Circuit, including Missouri, wants to know.

See this post regarding the Ballard case in Pennsylvania last August.
CBS4 in Denver has this story with the above title.

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.

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

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.

Rich People in Prison

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One gripe we hear all the time is that defendants with money invariably get away with their crimes or at least get off easy.  It's not true.  R. Scott Moxley at O.C. Weekly reports on the background of the murder conviction reinstated by the U.S. Supreme Court on Monday and noted in this post.  It turns out that defendant Marvin Smith was a multimillionaire. 

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.

There's Only So Much You Can Do

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I've done my share of criticizing the defense bar.  As I see the world, the problem is (1) the client is almost always factually guilty, therefore (2) the only way to an acquittal on the merits is through some sort of sleight-of-hand, but (3) doing sleight-of-hand day after day doesn't seem to be a real wholesome way to conduct one's career.

That said, most defense lawyers I know are good human beings, and sometimes they really are the heroes of civil liberties they claim.  Even when doing the routine case, however, the heart of the problem isn't the lawyer.  It's the client.

I mean, what exactly are you supposed to do when the fellow who shows up in your office is this guy?
Today the U.S. Supreme Court issued one of its midsummer orders lists.  These are usually just routine administrative orders, but occasionally you get something interesting. 

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.

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