The second [client] also knew Benavides from a previous relationship, said the affidavit. During one of her court cases, Benavides approached her and said he knew the judge and could get her an attorney's bond and a fair deal. She hired him, and after she bonded out of jail, Benavides asked her to meet him at a friend's office. Whenever they met there, they would have sex. Once, they had sex in a jury room in the courthouse.
Recently in Counsel Category
Holiday [the petitioner] was convicted of intentionally setting fire to his wife's home near College Station in September 2000, killing her three little girls. He forced the children's grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday's case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless....
The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office. As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."
No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly. That is how it was intended, but that is not how it is applied in practice. Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.
Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms. "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."
A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until as she was given a lethal injection, witnesses said.
Kelly Renee Gissendaner was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.
Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me."
Particularly noteworthy was this paragraph later in the article:
In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison.
I must be missing the argument there that could not have been made many years before last night. It strikes me that the time has long since come to sanction lawyers who intentionally clog the courts and make a spectacle of legal process by bad faith, last-minute, kitchen-sink appeals.
Washington, DC (Sept. 9, 2015) - After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report -- Federal Indigent Defense 2015: The Independence Imperative. The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.
[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.
Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred.
I practiced in federal court for many years, and it never occurred to me that I could advance the ball by citing anyone's dog. For that matter, it still hasn't.
"He is dumbfounded that his action is being characterized as terrorism," said [Ms.] David, a lawyer in Arras, where the train was rerouted to arrest El-Khazzani -- now being questioned outside Paris by anti-terrorism police.
He described himself as homeless and David said she had "no doubt" this was true, saying he was "very, very thin" as if suffering from malnutrition and "with a very wild look in his eyes."
But wait, there's more.
Texas inmate Daniel Lee Lopez got his wish Wednesday when he was executed for striking and killing a police lieutenant with an SUV during a chase more than six years ago.
The lethal injection was carried out after the U.S. Supreme Court rejected appeals from his attorneys who disregarded both his desire to die and lower court rulings that Lopez was competent to make that decision.
In April, the Fifth Circuit noted, while dismissing the appeal:
Lopez is as resolute that Texas should carry out his capital sentence as he is that no counsel deprive him of that choice. The district court, after ascertaining competency, nonetheless granted Lopez's "motion to dismiss counsel, effective on the conclusion of any appeal." (Emphasis added). This court does not address, because the State did not raise, the appropriateness of our considering this appeal by counsel who were appointed for petitioner by the district court against his will, and who have filed this appeal despite his wishes and despite the court's resolution of the Rees v. Payton, 384 U.S. 312 (1966) issue. Cf. Sanchez-Velasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).
The general rule is that the client sets the goals of representation and the lawyer makes the tactical decisions on how to achieve them. Can a lawyer ethically decide on his own that the client is mentally incompetent and take it upon himself to set the goals of representation? I don't think so, but it's an issue that needs to be settled.
I also do not think that the court can pass on the issue merely because the state did not raise it. Does a court have jurisdiction to overturn, or even stay, a judgment that neither party to the original case wants disturbed? No one else has standing, the Supreme Court has said, and standing is a jurisdictional requirement.
It seems to me that unless and until a court has determined that the inmate is mentally incapable of making the decisions that belong to the client in the attorney-client relationship, and appointed someone to make them on his behalf, nobody including the lawyer can legally take it upon himself to make those decisions.
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.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 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.
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.
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.
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 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.
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.
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.