Recently in Counsel Category

Andrew Hamm at SCOTUSblog reports on a panel discussion at the Supreme Court Historical Society and the reminiscence of Timothy Dyk, who in 1962 was a law clerk to Chief Justice Earl Warren.
Eugene Volokh of UCLA has this video for the Federalist Society on proposed ABA Model Rule of Professional Conduct 8.4(g).  The web page caption states the question as, "Is it a violation of the first amendment for the American Bar Association to impose a nationwide speech code for lawyers?"  But of course (as Prof. Volokh makes clear in the video), the ABA has no government power, so it can neither impose its rules nationwide nor violate the First Amendment.  The problem is that too many state rulemaking entities that do have government power tend to go along with whatever the ABA says.

This deference to the ABA is based on a view of the nature of the organization that was obsolete long ago.  The ABA today is a left-wing, political, ideological organization.  It does not represent the profession as a whole, and its views are not entitled to any deference whatever.  That is why the ABA now has a special position in vetting judicial nominees only in Democratic administrations; previously it had that special position in administrations of both parties.  The previous and current Republican administrations both showed the ABA the door and appropriately informed them, in essence, that they are just another interest group, nothing special.

If the the ABA wants to be special again, it needs to purge itself of its heavy political and ideological bias.  Don't hold your breath.  In the meantime, states should write their own rules, considering the ABA's position to be just one opinion of many.

Holding the Line On Finality?

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U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.
It will come as no surprise to readers that I continue to have doubts about the "ethical standards" of the legal profession, and particularly criminal defense.  I've discussed this at length before.  For present purposes, it can be summarized by saying that resolute honesty is not what you can expect, and not what you're going to get, when professional "ethics" always put the client first and everything else  -- like truthfulness  --  somewhere toward the back of the lawyering bus.

An entry on Sentencing Law and Policy today served as a reminder.  The gist of it is that one of the most vile criminals in decades, Dylann Roof, appeared to be more honest about how to present his case than his lawyers.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

The Gorsuch Scandal

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The ever-reliable New York Times has unearthed documents showing that, twelve years ago, Supreme Court nominee Neil Gorsuch supported the harsh interrogation policies of the Bush Administration.

The Times' article has a breathless quality to it, but there's a problem with its outrage: At the time, Gorsuch was Principal Deputy Associate Attorney General.  In other words, as one-time Acting AG Peter Keisler notes  --  in a quotation placed far down the article  --  Gorsuch, "helped shape arguments and litigation strategy but not the underlying national security policy decisions, which 'had already been made'...These are cases he was working on as an attorney for [his client] and advancing its positions."

Readers should correct me if I'm wrong, but, when a lawyer takes on the defense of a child killer, or some gruesome sex-torture murderer, doesn't the Times, together with its defense bar friends, say that the attorney is "fulfilling the highest and most honorable calling of the legal profession"?  Advancing the government's case for effectively extracting intelligence from terrorists, however, gives you dirty hands?

Welcome to the case against Judge Gorsuch.

A Story Hot off the Press

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The way to convince the jury that your client's behavior wasn't arson, just an accident, is to commit arson yourself while addressing the jury and claim it was an accident.

Liar, liar, pants on.............well, you have to read it for yourself.  This goes beyond the "You Can't Make This Up" category.

The criminal defense bar continues to be the most creative entity in the history of civilization.
You cannot make this up:

WARREN, Ohio (WKBN) - The man accused of killing two people in Howland during a shooting on his property butted heads with the prosecutor during his arraignment on Thursday.

Nasser Hamad is facing two counts of capital murder and six counts of attempted murder charges with gun specifications.

During a hearing Thursday, Hamad questioned whether Prosecutor Chris Becker was Jewish and then accused him of threatening his son.

But it gets better.  The defense lawyer also chimed in.

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

Client Control and Conceding Guilt

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Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.
Although this CBS story refers to Dylann Roof as the "suspect" in the Charleston church massacre, I'm not sure why.  No sane person I've ever heard of has any doubt that Roof is the killer.  Saying that he's the "suspect" in the murders is like saying Fidel Castro was "suspected" of being the dictator of Cuba.

But I digress.  Roof asked for, and today was granted, the right to represent himself. I of course have no idea what the defense will be but, like the judge, I think this is a strategically poor decision.  It's unlikely that Roof will be anywhere near as creative, or as smooth a talker, as an experienced criminal defense lawyer would have been.

Roof's choice does have at least one advantage for those of us who think the death penalty should be imposed, without manufactured delay, on defendants unquestionably guilty of grotesque murders:  The knowing choice to represent one's self after having been frankly warned by the court of its perils is a waiver of an ineffective assistance of counsel claim on appeal.  When you buy the package knowing the defects of what's inside, you give up the right to complain that the merchandise was rotten. 

I can't say there's a lot I admire about Dylann Roof, but I respect his decision to take on his own defense.  In its own odd and revolting way, it's likely to be more truthful than the slicker version he put aside.
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office.  See also the excerpt from the Supreme Court of Washington in the follow-up post.
The defense bar is attempting to spin the narrative about the lenient sentence given Stanford rapist Brock Turner.

The problem, it tells us, was mostly a well-meaning but white tribalist judge.  The problem decidedly was not the defense-friendly sentencing submissions made in Turner's behalf  -- or, if they were a problem, it's because they were strategically inapt and tone-deaf. That they were morally bankrupt and odious plays second fiddle in the defense view, see, e.g., here and here (if they even get a seat in the orchestra). 

Still less of a problem is defense counsel's work.  This is notwithstanding that the entire purpose of that work was to get the rapist off with a trickster acquittal  --  or, failing that, to get a non-incarceration sentence.  In the latter, the defense very nearly succeeded. Yippee!

But rather than take a victory lap for this rare, chipper outcome, the defense bar  -- politically shrewd as ever  --  smells trouble and has commenced damage control. The public might, for once, show significant interest in, and concern about, how the victim got treated in court.. Thus, while much is said about the judge, the system, white privilege, class bias, jocks, drinking, fraternities, etc., etc., next to nothing is getting said about defense counsel's treatment of the victim.

Q:  Now why would that be?
I would say that criminal defense reached a new low when part of the sentencing package for a convicted rapist characterized his unusually demeaning and ugly sexual assault as "20 minutes of action."

The problem is that it's nether new nor a low.  It is, however, a rare public window into what goes on with the "client-uber-alles" mentality of criminal defense.

Let's just say it out loud:  To the defense side, victims are human garbage.  Their rights count for zip.  Their humanity counts for zip.  And the legal profession tolerates it.

But we don't have to tolerate the judge, Aaron Persky, who then cheerfully gave the rapist  --  a college athlete who could easily have overpowered the victim even if she had been conscious, which she was not  --  six months in the county jail (of which he is likely to serve just three).  The voters can get Judge Persky removed.

It should not take a politically incorrect crime like rape to awaken us to how degraded legal "ethics" have become, and how much judges need reining in with mandatory minimum sentencing statutes.  But we need to start where starting is possible, and we need to start now.

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