Recently in Counsel Category

Is There Anything They Won't Say?

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I really don't mean to be taking after defense lawyers (well, not any more than I usually do), but sometimes a story just grabs you.  This one is a real peach.

The general context is familiar.  A thug gets mad at his wife/girlfriend because she's had enough and wants to break up.  This is not acceptable, so she must be punished.  The punishment consists of killing their kid.  I have used stories like this when I debate the death penalty at law schools, see, e.g., this and this.

Today's story is neat, in the sick sort of way these stories tend to be, because of defense counsel's "argument."  It was a difficult case, since apparently no one contested the fact that Mr. Nicey ushered his two year-old into icy water weighted down with a tire iron.  

On the one hand, you have to commend counsel's unusual honesty:

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.

Need a Defense Lawyer?

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I have no idea whether this is real.  It's bad enough that it could be.
Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

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.

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.
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.

Ineffective Assistance and Experts

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The US Supreme Court today sent a capital case back to the Alabama courts to reevaluate the petitioner's ineffective assistance claim.  The case is Hinton v. Alabama, No. 13-6440.

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:

They'll Say Anything

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The Associated Press has a story about a man who was sentenced to five years' imprisonment for starving his daughter to the vanishing point.  The article begins:

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?


AP has this story on allegations that an attorney for recently executed inmate Dennis McGuire urged him "to fake symptoms of suffocation" during his execution.

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.

Broken Glass in Cal. Supreme, Part II

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Prior post was November 6, oral argument. The opinion came down today.

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.

Free Choice of Defense Counsel

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My friend Tim Lynch of the libertarian Cato Institute brings to my attention what strikes me as an excellent idea:  Allowing indigent defendants to choose their own counsel, using what amount to "lawyer vouchers."  This would track the idea of allowing poor parents to escape failing public schools through education vouchers.

The story is here.

My experience is that public defenders are, by-and-large, quite good, and at least as energetic, competent and committed as privately-retained counsel.  But we often hear that defendants distrust their public defenders, and view them as just another appendage of The Big, Bad System, and thus never fully trust them no matter how good a job they do.

Better to let them select their own lawyers.  I don't expect them to understand that it's the evidence, not the lawyer, that drives the result, but there's a better chance that this will eventually get understood when, after a few years of free choice, the conviction rate stays exactly what it is now.

Disciplining Ineffective Lawyers

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We often hear complaints that convictions and sentences may be overturned on the ground that the trial lawyer provided ineffective assistance, but the bar never disciplines the lawyers.

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.

Let's Talk About Something Else

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Last spring, a Jihadist mass killer, Dzohhar Tsarnaev, and his older brother (now deceased after a gun battle with police) planted two bombs near the finish line of the Boston Marathon, killing three people, including an eight year-old boy, and wounding more than 260 others.  

To my knowledge, no sensate person doubts that Tsarnaev did the deed, did it intentionally out of hatred for the West and America in particular, and was of sound mind (at least to the extent anyone can be of sound mind and still decide to kill complete strangers).

So in a rational world, this should be an easy case, right?  We know we have the right guy, and we know he was sane.

However, we no longer live in a rational world, at least as respects capital cases (Eric Holder has not yet indicated he will seek the death penalty, although most informed people believe he will).

The killer's multiple lawyers, taking full advantage of our loss of rationality, want to change the focus of the case to talk about something else.  This is the latest:

Broken Glass in Cal. Supreme

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Yesterday and today, the California Supreme Court heard oral arguments for the first time in the newly restored Stanley Mosk Library and Courts Building in Sacramento.*  Howard Mintz reports  for the San Jose Mercury News on a bar admission case with a notorious background.

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."

When Burt v. Titlow was argued October 8, most observers had little doubt the state would prevail.  That is, the Supreme Court would reverse the Sixth Circuit's grant of habeas relief and reinstate Vonlee Titlow's conviction for murdering Don Rogers.  See, e.g., this post by Rory Little at SCOTUSblog.

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.

SCOTUS This Week

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The US Supreme Court has a two-day calendar this week, rather than the usual three-day, due to the Columbus Day holiday.  The orders list from Friday's conference will be issued Tuesday.

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.
Federal public defenders are screaming loudly across the country that the sequester has cut their budgets below what is necessary to perform their essential functions.  Yet some FPDs continue to squander public funds filing claims they should not be filing.

Edward Schad's long-overdue execution is scheduled for tomorrow in Arizona.  The US Supreme Court opinion affirming the judgment on direct appeal 22 years ago is here.

In addition to all the challenges to the court proceedings, the federal public defender filed an action attacking the executive clemency proceedings.  The primary US Supreme Court precedent on such an attack is Ohio Adult Parole Authority v. Woodard (1998).  This is a 4-4-1 split opinion, so we have to pick our way through two opinions to decide what has been decided and what is open.  Judicial review of executive clemency, a core function of a coordinate branch of government, is allowed either (1) never, or (2) only under extreme circumstances, such as decision by flipping a coin or cases of bribery.  Which of these alternatives is correct is unresolved, but the law is certainly no more favorable to the inmate than (2).

As is evident from the Ninth Circuit's opinion in Schad's case, nothing remotely close to alternative (2) is involved in this case.

So why were scarce resources, needed to perform the FPD's core functions, squandered on this patently meritless action? 

Bringing Dishonor to an Honorable Calling

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Being a prosecutor is in some ways easy and in some ways hard.  It's easy because just about all your defendants are guilty as sin, and there's plenty of evidence to prove it.  It's also easy because, when you go home at night, you do NOT have to explain to your 12-year-old why you did your darndest to fox the jury into acquitting a child molester so he could go home and do it again to someone else's 12-year-old.

It's hard because, as a result of your efforts, you'll get branded in academia, the ACLU, the NACDL and NAMBLA  —to name several dissimilar organizations united in their contempt for prosecutors— as a sleazy, heartless thug without a wisp of compassion.  It's also hard because there is the occasional very, very bad apple in the barrel.

One obvious case we've discussed is Mike Nifong, a politically-motivated, anti-white thug (not to put too fine a point on it).  Another is Bill Killian, an Obama-appointed U.S. Attorney who all but threatened to jail anyone who had something unpleasant to say about Muslims (although trashing Christians and Jews seemed to be OK).

Today, Scott Johnson at Powerline tells the story of yet another Obama-appointed U.S. Attorney, James Letten, who either oversaw, or turned a blind eye toward, long-running, scandalous misconduct by his First Assistant and another high ranking AUSA during a very high-profile trial.  Fortunately, their shenanigans were discovered by some alert defense lawyers, brought to the court's attention, and now there will be, as there should be, hell to pay.

Letten, I should note, resigned shortly after the story broke and has become a dean at Tulane Law School.  He has also apparently become unhinged, as you'll see if you play the tape in Scott's story.

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