Recently in Counsel Category

The U.S. Supreme Court announced its decision in Maryland v. Shatzer (08-680) today.  The opinion is available here.  Our brief in the case is available here. 

The decision recognizes an exception to the requirement in Edwards v. Arizona that an officer must cease interrogation once a suspect invoked his right to counsel, and established that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.  Seven members of the Court agreed that if the "break in custody" lasts more than 14 days between interrogations, Edwards did not require suppression of the confession.  Justices Thomas and Stevens did not join the 14-day rule.

Update: Tony Mauro has this story for the NLJ: "'Miranda' dealt one-two punch by high court"

Today, the U.S. Supreme Court announced its decision in Florida v. Powell, and held that Miranda does not require that a suspect be told that he has a right to an attorney during questioning.  In an opinion authored by Justice Ginsburg, the Court held that police warnings satisfy requirements outlined in Miranda v. Arizona if they advise that a suspect has the right to talk to a lawyer before answering any questions, and inform the suspect that he may invoke his right to an attorney at any time during questioning. 

In 2008, the Florida Supreme Court held that Florida law, and Miranda v. Arizona, required that a suspect be clearly informed of his right to have an attorney present during questioning.  It found that Florida's warnings were inadequate and misleading, because Florida's warnings only informed of "the right to talk to a lawyer before answering any of our questions[,]" and of "the right to use any of these rights at any time you want during this interview."  The Supreme Court overturned the lower court's holding.  It reasoned that because Miranda had not dictated the words by which essential information must be conveyed, police warnings could be satisfactory if they "reasonably convey to a suspect his rights as required by Miranda."

Justice Stevens authored a dissenting opinion, which Justice Breyer joined in part.

Much is made of prosecutorial misconduct.  For the most part, there can be little legitimate objection to that.  Prosecutors are public servants wielding considerable power, and should expect and receive scrutiny.  Unlike others involved in litigation, prosecutors cannot view the case as a "game" with "moves."  It should be a search for truth, period.

But where is the scrutiny of the ethics of criminal defense?  Where does the truth fit in?  I was recently debating this topic on Doug Berman's Sentencing Law and Policy.  I posed this hypothetical:

Mr. Jones robbed the bank of a bag full of dough, using a pistol, which he fired past a teller's head to make sure everyone was paying attention.  He employs defense counsel to represent him. In preparation for trial, he tells counsel that, in fact, he did it (he needed the money to pay off his coke dealer, who otherwise had threatened to shoot him).
 
One of the government's important witnesses is Mrs. Smith, a slightly slow 70 year-old lady with glasses. Mrs. Smith testifies that she saw Jones running from the bank with a sack full of loot in one hand and a pistol in the other. Defense counsel knows this is true (his client told him), but starts a rapid-fire cross examination of Mrs. Smith about whether she was sure she was wearing her glasses, whether she's sure it was a pistol and not a cell phone, whether she was really close enough to be certain of her identification (she was across the street), whether she gets home care in light of her occasional forgetfulness, etc., etc. By the time all this finishes 45 minutes later, the poor old woman looks and sounds confused, hardly someone the jury could put a lot of trust in. This is exactly what counsel wanted.
 
Only one thing: Her memory was correct and her testimony truthful, and he knows it.

I'm pretty sure that under existing canons of ethics, counsel's behavior, though knowingly and intentionally misleading, was proper.  My question, upon which I hope commenters will shed some light, is:  Should it be?  To what extent should standards of honesty with the tribunal supersede the client's interest?

The general rule that character evidence is inadmissible in criminal proceedings is always subject to exceptions.  One of those exceptions is when the prosecution "opens the door" by introducing evidence of the victim's virtuous life during the penalty phase.  But in a murder trial, is evidence that the victim possessed child pornography enough to sully his good character?  And if defense counsel fails to introduce that evidence, is it reversible error under Strickland v. Washington? 

Yes, says the Supreme Court of Missouri in the recent case of Gill v. State:

When the State introduced evidence regarding the victim's good character, Gill's counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal character evidence because they failed to discover it. They saw the names of the sexually explicit files on the report but were not diligent in investigating further. Defense counsel testified at the Rule 29.15 hearing that after more carefully reviewing the report, they noticed entries that should have alerted them to the presence of pornography on the computer. They had the opportunity to discover the child pornography, bestiality content, and instant message conversations on the victim's computer but neglected to do so.

By failing to discover those files on the victim's computer, Gill's counsel's performance was deficient.

The California Supreme Court today decided an issue on the constitutional right to be a fool created in Faretta v. California, 422 U.S. 806 (1975). See id., at 852 (Blackmun, J., dissenting). In today's case of People v. Butler, S068230 , Justice Chin wrote:

The question before us is whether the Sixth Amendment requires the trial court to allow a defendant who has already killed a jail inmate (and clearly intends more jail violence) to represent himself, with the obvious danger to jail inmates and staff and other difficulties inherent in such self-representation. The majority holds that the trial court violated defendant's Sixth Amendment right to represent himself when it revoked his self-representation status shortly before trial. (See Faretta v. California (1975) 422 U.S. 806 (Faretta).) In my view, the trial court properly refused to let defendant represent himself under the extreme circumstances the case presents.

The bad news is that is the dissent.

Most states limit the defendant's ability to appeal when he pleads guilty. Yesterday, the California Supreme Court addressed one aspect of this limitation in People v. Johnson, S166894:

We granted review to resolve a conflict among appellate court decisions addressing the issue whether a defendant who desires to appeal from a criminal judgment on the ground that counsel rendered ineffective assistance regarding the defendant's request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause. The Court of Appeal below, concluding that a certificate of probable cause was required, dismissed defendant's appeal. We affirm the judgment rendered by that court.

As predicted, the Supreme Court has summarily reversed the decision of the Ninth Circuit in the latter court's third attempt to defeat justice for the murder of Steacy McConnell. The per curiam opinion in Wong v. Belmontes is here.

After having its decisions vacated by the high court twice before, the Ninth Circuit fell back on the old reliable ineffective assistance of counsel in the penalty phase claim.  On round 2, when it thought it had another basis for overturning the death sentence, the Ninth characterized the mitigation case that trial counsel put on as "substantial." On round 3, with no change the facts but only a change in whether it enabled overturning the death sentence, the Ninth labeled the very same case "cursory." See page 7 of the slip opinion.

There was no dissent. Justice Stevens kvetched separately to reiterate his disagreement on an earlier decision in the case.

This case illustrates clearly and obviously that the Ninth Circuit cannot be trusted to review the penalty phase of capital cases. There are rogue judges on that court who will find a reason to reverse every death sentence, and the court en banc is unwilling to rein them in. The jurisdiction should simply be removed from them.

The U.S. Supreme Court today summarily reversed the Sixth Circuit for relying too much on ABA Guidelines when deciding a capital ineffective assistance case. There was no dissent. Justice Alito wrote separately to say he didn't think the Court had devalued the ABA Guidelines quite enough.

The opinion in Bobby v. Van Hook, No. 09-144, is here. The lower federal courts dithered with this case so long that it actually predates the provisions of the Antiterrorism and Effective Death Penalty Act of 1996. Yes, this case is a habeas petition filed 14 years ago.* 

What's the proper discipline for an attorney who commingles funds, accepts settlement agreements without consent of his client, converts an hourly fee agreement to a contingent fee agreement without credit for the $30,000 in fees already paid, constructs a client agreement giving the attorney the exclusive right to settle all cases without client consent, withdraws from representation without giving notice to his client, and engages in conduct prejudicial to the administration of justice?    If you're the Supreme Court of Missouri, the answer is one year of probation.   This is so, even when this is the fourth disciplinary matter for this attorney since 1977. 

Hat tip: Legal Profession Blog     

Illinois "Gov. Pat Quinn has signed a measure to overhaul the state's death penalty defense fund after a [St. Louis] Post-Dispatch report last year revealed widespread waste and abuse," reports Kevin McDermott for the P-D.

The U.S. Supreme Court has published its argument calendar for the beginning of the new term in October. The first case out of the box on the First Monday in October is an "original jurisdiction" case which, as usual, is a state suing another state, South Carolina v. North Carolina. (Yawn.)

Next up is Maryland v. Shatzer, on whether the don't-ask-again interrogation rule of Edwards v. Arizona has any time or place limits. CJLF's brief in that case is here.

The next day is federal criminal case day: US v. Stevens, Johnson v. US, and Bloate v. US.

The following Tuesday, October 13, features three state criminal cases (two of them on federal habeas): McDaniel v. Brown, Padilla v. Kentucky, and Smith v. Spisak.

Brown involves an exceptionally bad (even for the Ninth Circuit) sufficiency of the evidence decision, discussed here. Spisak involves an exceptionally bad (even for the Sixth Circuit) extension of existing precedent to overturn a reasonable state court decision, discussed here. Nineteen years after Teague and 12 after AEDPA, they still didn't get it. Padilla involves ineffective assistance of counsel, guilty pleas, and advising of immigration consequences.

As expected, the Supreme Court this morning overruled Michigan v. Jackson, 475 U.S. 625 (1986), in Montejo v. Louisiana, No. 07-1529.  The vote was 5-4, with Justice Scalia writing the opinion and Justice Stevens writing the main dissent.

The notion that the police deprive a person of his right to counsel simply by talking with him has always been odd. Coerced statements are, of course, unconstitutional, but that comes under the Fifth Amendment, not the Sixth. The Jackson rule took an already strained concept and stretched it a step further, presuming that a waiver of the dubious right was presumed involuntary without a valid basis for such a presumption.

Today's decision shows that a majority of the Court, albeit a slim one, is willing to drop old rules that never had a valid basis and that cause continuing problems. In particular, rules that exclude evidence for reasons with little or no bearing on the reliability of that evidence are contrary to justice and will be closely examined by this Court. Stay tuned for Maryland v. Shatzer, next term.

Tomorrow (Thursday), the California Supreme Court will announce decisions in two criminal cases.

People v. Gaines, S157008: "The court limited review to the following issue: Is outright reversal or a remand for a showing of prejudice the appropriate remedy for a trial court's erroneous denial of a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531)?"

Pitchess motions seek discovery of police officers' personnel records.

People v. Lawrence, S160736: "This case presents the following issues: (1) Did the trial court abuse its discretion by denying a self-represented defendant's requests for appointment of counsel prior to opening argument? (2) Is the erroneous denial of a motion for reappointment of counsel made after the commencement of trial automatically reversible as structural error?"

Update: The opinions are out in Gaines and Lawrence. No surprises. The list of errors reversible per se is short and not growing.

The Supreme Court today decided the case of Kansas v. Ventris. The issue was whether a statement of the defendant is admissible for impeachment of the defendant's trial testimony when it is excluded from the prosecution's case in chief under the rule of Massiah v. United States, 377 U.S. 201 (1964). The Court continued its three-decade practice of limiting the damage caused by anti-truth Warren Court precedents without overruling them, in particular by allowing supposedly "tainted" evidence to impeach the defendant when he gets on the stand and tells a story different from a statement he made voluntarily but contrary to some court-created rule.

In its 1964 decision in the case of that oddly named thug, the Warren Court decided that when a jailhouse informant asks questions of a cellmate after formal charges have been filed, that is a violation of the Sixth Amendment right to counsel, even though the same procedure is perfectly legal if (1) the D.A. just holds off filing the formal charges, or (2) the informant just listens and doesn't ask. So the difference between perfectly legal investigation and a violation of our fundamental law turns on the splitting of hairs.