Recently in Counsel Category

In United States v. Graf, No. 07-50100, the Ninth Circuit addresses some of the thorny issues that arise when a business executive is prosecuted and corporate counsel is called to testify.

Marcia Coyle has this article in the NLJ regarding the number of Supreme Court cases this term that dealt with "lawyering."  Broadly defining that term, she counts 16. However, it is hard to see a trend other than the greater number of cases.  The ineffective assistance cases are "a mixed bag."

In the summer of 1987, Thurgood Marshall's clerk Elena Kagan wrote a cert. memo in the case of Pughsley v.O'Leary. The scanned image can be found at SCOTUSReport. Here is the text:

Petr filed for a writ of habeas corpus, raising both fourth amendment and sixth amendment (ineffective assistance of counsel) claims. The DC denied the petition and declined to issue a certificate of probable cause. The CA7 also declined to issue a certificate of probable cause, stating that the petr had failed to make a substantial showing of the denial of a federal right.  In his petition for cert, petr attacks the standard set forth in Strickland v. Washinqton to govern ineffective assistance claims. I 'd like to reverse Strickland too, but something tells me this court won't buy the idea. Petr also claims that the DC ignored this court's holding in Kimmelman v. Morrison, 106 S. Ct. 2574, that Stone v. Powell's restriction on habeas review of fourth amendment claims does not extend to ineffective assistance claims founded on incompetent representation with respect to a fourth amendment issue. This argument does not fly. The DC found only that petr was precluded from raising a fourth amendment claim in habeas proceedings when he had raised this claim, within the context of a sixth amendment claim, on direct appeal. In addition, the DC found that petrns fourth amendment claim had no merit.
DENY

The comment "I'd like to reverse Strickland too" requires explanation. I wouldn't make too much of it until we get the explanation. I don't necessarily believe everything I wrote in 1987. Still, it's an issue that requires examination.

The notion that the Strickland rule leans too far in the prosecution's favor, if she really still believes that, could be a huge problem. The rule is sufficiently loose that it enables the Ninth Circuit to adopt something pretty close to a de facto rule that every capital trial lawyer whose client is sentenced to death is per se ineffective. The Supreme Court itself completely blew it in the murderer's favor in Rompilla v. Beard, 545 U.S. 374 (2005). A desire to shift this law even further in the direction of overturning judgments for a reason completely beyond the state's control would be a valid ground for opposition of her confirmation.

A University of Virginia hockey player was killed by her ex-boyfriend in a fit of rage.  The AP story, carried here, relates this:

CHARLOTTESVILLE, Va. - Describing a scene of violent rage, the Virginia lacrosse player accused of killing a member of the women's team told police he kicked in her bedroom door, shook her, and her head repeatedly hit the wall, according to a court document....

An affidavit for a search warrant said two people found Love, of Cockeysville, Md., face down in her bedroom early Monday morning, with a pool of blood on her pillow. There was a large bruise on her face and one eye was swollen shut, police said, and she was pronounced dead at the scene after attempts to revive her.

 The suspect, 22-year-old George Huguely, of Chevy Chase, Md., has been arrested and charged with first-degree murder in the death of Yeardly Love, also 22.

The article includes this paragraph describing the response of Mr. Huguely's lawyer:

Huguely...appeared via videoconference from Albemarle-Charlottesville Regional Jail, wearing a gray-striped uniform. Afterward, his lawyer, Francis Lawrence, told reporters that Love's "death was not intended, but an accident with a tragic outcome."

So your girlfriend breaks up with you, your response is to kick down her door and bash her head in, and this is "an accident."

Seriously, could someone here tell me how defense lawyers manage this stuff?

The Supreme Court decided Padilla v. Kentucky today.

It is our responsibility under the Constitution to ensure that no criminal defendant--whether a citizen or not--is left to the "mercies of incompetent counsel." Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Criminal law practitioners, both prosecution and defense, are going to have to learn some immigration law, if they haven't already.

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