Recently in Counsel Category

I learned of this today:

An Ad Hoc Committee to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act (CJA) has begun accepting public comments at the following address: CJAStudy@ao.uscourts.gov. It also is anticipated that in the course of its work the committee will hold public hearings.

The CJA was enacted to create a system for providing defense services to financially eligible federal criminal defendants. It became effective fifty years ago this year. Judicial Conference policy supports a periodic, comprehensive, and impartial review of the CJA program.

My own view is that those who undertake CJA defense are, on the whole, quite good, and earn all they get if not more.  I also think, however, that if we can afford more for the defense of criminals, we can afford more to keep them, after conviction, incarcerated and away from the public.

The constant refrain that "we just don't have the money for prison" is tripe. The BOP budget, like every aspect of the federal government's budget, is less a description of fiscal reality than of political priorities.  If this Administration wanted to shift its priorities toward keeping the crime rate low (rather than, for example, funding its gargantuan clemency initiative), it could easily do so.  And should.

Judy Clarke, Not Quite Invincible

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I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

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. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  

Defendants' War on Black Children

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CNN (and numerous other outlets) covered today's sentencing of a number of Atlanta school teachers and administrators convicted in a huge cheating scandal that stretched back at least a decade.

The real victims of the cheating were not the taxpayers of Atlanta (although they got cheated, too).  They were thousands of children, overwhelmingly African-American, who were deprived of a fighting chance to get a decent education.

On display today was the kind of "it's-everybody-else's-fault" arrogance I saw again and again from defendants, belligerently abetted by their lawyers.

For those who say they care about children, about decent schools, about giving "the vulnerable" a chance, today was an object lesson.  Whose side was the prosecution on?  Whose side was the defense on?

See for yourself.
I reprint with little comment this beauty from NBC Connecticut:

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 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.

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