Recently in Counsel Category

A federal judge ruled Wednesday that David Boies' law firm can't represent an alleged victim of Jeffrey Epstein in her defamation suit against Alan Dershowitz, escalating a feud between two of the country's most prominent attorneys.

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Except for punishment for outright perjury or planning to kill government witnesses, there is no penalty known to me against the defense side's engaging in perverse or deceitful behavior in order to advance the ball.  Indeed, such behavior is not merely condoned but commended:  The client is presumed innocent; actual innocence (or guilt) is all but irrelevant; the state employs politically ambitious and morally tone-deaf prosecutors; the cops cheat; and criminal punishment is per se the outcropping of a backward, racist American culture that needs stiff blowback in order even to start to straighten out.  So if this particular client is guilty or even worse than guilty, hey, look, this is not my problem.  The state has all the resources, and we need to wake up  --  have a "national conversation" about justice, that is.

Campbell argues that poor health is one reason he shouldn't be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

The U.S. Supreme Court opens its new term on a particularly somber First Monday, with a horrific crime in Las Vegas in everyone's thoughts.  The long orders list from the Long Conference is here with few surprises.  The Court turned down Florida murderer Cary Lambrix, who should have been executed many years ago, on his request to review the Eleventh Circuit's decision in his case.  He has another petition to review a Florida Supreme Court decision pending. 

Regrettably, the Court also turned down Florida's petition in Florida v. Franklin, No. 16-1170, the state's latest attempt to get the high court to review the Florida Supreme Court's excessively expansive interpretation of Hurst v. Florida.  The split with neighboring Alabama remains unresolved.

Sheriff Joe's now-moot mandamus petition is denied, of course.

Anthony Elonis, who tried to excuse his blood-curdling threats on Facebook as merely imitating his favorite rap "artist," was denied a second trip to SCOTUS.  The primary post on the earlier decision is here.  Type "Elonis" in the search box for many others.

Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.

Nicole Hong reports for the WSJ, "Joaquín 'El Chapo' Guzmán, the Mexican drug lord awaiting trial in New York, wants to hire private lawyers. But they may have to join the case without any assurance of getting paid."

Guzmán is presently represented by the federal defender.  His potential private lawyers want "blanket, prospective assurance" from the government that the money he uses to pay them won't be forfeited.  The government, unsurprisingly, said "fuggedaboudit," or something to that effect.

See this post from last year on the Supreme Court's fractured decision in Luis v. United States and Dean Mazzone's article that I linked to yesterday.  Continuing with the WSJ article:

Mr. Guzmán wants to hire a team led by Jeffrey Lichtman, most well-known for securing an acquittal for John A. Gotti, son of the notorious mob boss. The team also includes A. Eduardo Balarezo, William Purpura and Marc Fernich, all of whom have had experience defending mobsters or drug traffickers.

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"This is still America. The man deserves not only his choice of counsel, but he deserves a fair trial," Mr. Lichtman said.

Um, yes, this is still America, but a defendant does not have, and never has had in this country, a choice of counsel he does not have the money to pay for.  Indigent defendants get the counsel they are appointed.  Is the rule any different for a defendant who has money obtained illegally and forfeitable to the government?  No, but tracing the money can get complicated.

As for the right to a fair trial, is every trial in which the defendant is represented by a public defender inherently unfair?  I don't think so.

The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

We've often heard, including among the comments on this blog, that defense counsel is not merely entitled but obligated to be all in for the client.  It's the natural outcropping of our adversarial system, we are told.  Against the massive power of the state, the Champion of Liberty should be able to pull out all the stops.  If this entails pushing the envelope of truthfulness  --  as defense deceit is euphemistically called  -- well, this is the price we pay.  Get over it. 

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.