Recently in Counsel Category

The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.

In capital cases, it has been common practice for years to intentionally bog down the system by briefing every conceivable issue, with a few inconceivable ones tossed in for good measure.  This disease seems to be spreading to noncapital cases as well.  Judge Aldisert of USCA3 lets appellate defense counsel have it with both barrels in United States v. Bansal, No. 06-1370, a drug-trafficking case.  (Hat tip, Orin Kerr at VC.)

The Federalist Society has this podcast on the Cooper and Frey cases, argued last week, by CJLF Legal Director Kent Scheidegger.

A guilty plea waives most of the rights that go with a trial -- trial by jury, proof beyond a reasonable doubt, privilege against self-incrimination, etc.  So of course for such a grave decision to be valid it must be knowing and voluntary.

What makes a plea involuntary?  Well, the Godfather method of "either your signature or your brains are going to be on that paper" would do it.  But voluntariness has been watered down below that.  The "knowing" part includes a knowledge of what the defendant is pleading to and the sentence (or range of possible sentences) that will follow.  Last year the Court added immigration consequences as well in Padilla v. Kentucky.  This inquiry is wrapped up with the right to effective counsel, as counsel is supposed to explain all this before the defendant pleads.

But is a plea unknowing or involuntary when the defendant knows everything the Court has said he is supposed to know and voluntarily chooses to accept the deal, but unknown to him he could have gotten a better deal earlier under a now-expired offer that his lawyer failed to tell him about?  That was the question argued before the US Supreme Court today in Missouri v. Frye.

The title of this post is a question by Justice Kennedy in oral argument today in Lafler v. Cooper, and it pretty much says it all. 

Cooper's claim is that a better lawyer would have advised him to take an offered plea bargain.  He rejected it, on his lawyer's advice.  He went to trial and was convicted of the crime of which he is very plainly guilty.  He got a sentence appropriate for that crime.

So where's the beef?  Thousands of defendants petition the Supreme Court every year claiming they were denied a fair trial or received an excessive sentence.  Cooper's complaint is that he got a fair trial and an appropriate sentence.

Steve Vladeck has this Martinez v. Ryan argument recap at SCOTUSblog.  Vladek has the same impression I did that counsel for Martinez will not get a rule as broad as he was asking for.  He asks whether the Court might create a narrower rule.

At bottom, there seemed to be virtually no support among the Justices for any general rule supporting the right of defendants to counsel in collateral post-conviction proceedings for all claims that they were unable to raise at trial.*  Whether there might be five votes for a narrower rule requiring effective assistance of post-conviction counsel because of the fortuities of Arizona state law -- which mandates both the appointment of collateral post-conviction counsel and the funneling of ineffective assistance of trial counsel claims into those collateral proceedings -- remains to be seen.

* I think he means "raise on appeal" or "raise on the trial record."

The alternative rule would be a strange one.  It would be perverse to saddle Arizona with litigating in federal court the effectiveness of the lawyers it chose to provide to indigent prisoners.  The state has no obligation to provide counsel for these collateral proceedings.  Faced with the added burden, it could just scrap the state-law right to counsel and make appointment discretionary, as it is for federal prisoners.  (See 18 U.S.C. §3006A(a)(2)(B).)

If the added burden comes from Arizona's rule that it will not consider ineffective assistance claims on direct appeal, the state could easily scrap that rule as well.  The practical reality is that it is almost never possible to actually make a meritorious case of ineffective assistance on the trial record.  Scrapping the rule would just make extra work for the court of appeals judges to say so in every case where it is raised.

Marc Lacey reports in the NYT:

Jared L. Loughner's grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.

And who is paying for that?  You are, if you pay US federal taxes.

Why?  Family history of mental illness is, of course, a risk factor.  But the probative value of such a history in diagnosis is minimal compared to direct observation and testing and the person's history of behavior.  Why do we pay for such extensive and expensive investigation of material with such limited probative value?

The defendant has a right to effective assistance, but he does not have a right to a blank check.  We need some reasonable limits on defense expenditures.  This is way beyond any reasonable limit.

Thanks to SL&P for the link.

Capital habeas lawyers regularly denigrate trial counsel for not introducing some item of marginally mitigating evidence or other.  But more is not always better.  Sometimes the evidence can backfire.  Thomas Sheeran of AP reports from Cleveland:

Marine veteran Nolan Coleman testified Wednesday at the sentencing phase of the trial of 51-year-old Anthony Sowell (SOH'-wehl). The jury must decide whether to recommend death or life in prison without parole for Sowell, who killed 11 women.

Coleman testified to highlight Sowell's military service for jurors when they decide whether to spare his life. Coleman testified that a boot camp promotion like Sowell's would mean he was a top recruit.

But under cross-examination, Coleman said Marine training would include how to kill or immobilize with the hands, including pressure points and choking. Most of Sowell's victims were strangled.

If trial counsel had not put Coleman on the stand, habeas counsel would have claimed ineffective assistance for not introducing mitigating evidence.  Now that they did put him on and it backfired, you can bet your bottom dollar that (if Sowell is sentenced to death) they will claim ineffective assistance for opening the door to the backfire evidence.

The US Supreme Court's next term does not formally begin until October, but we can already see a major theme shaping up.  There are five cases on the right to counsel, and none of them directly involves counsel's representation in a criminal trial.

Q:  Who picks up the tab for criminal defense in this country?

A:  You do.

One of the innovations of the Warren Court was its 1963 decision in Gideon v. Wainwright that accused felons have a right to counsel provided by the state.  Nine years later, in Argersinger v. Hamlin, the Court held that counsel must be provided whenever a criminal charge, whether or not denominated a felony, might result in imprisonment.

So who pays the bill?  I have not been able to find very recent statistics, but according to the PBS program "Presumed Guilty," using figures provided by the Bureau of Justice Statistics, in 1998, roughly 66 percent of all federal felony defendants were represented by public defenders or other publicly funded counsel. At the county level, in 1996, 82 percent of felony defendants in the 75 most populous counties used public defenders.

OK, next issue:

Q:  Does the criminal defense for which you're shelling out millions emphasize candid, straightforward, unvarnished truth telling?

A:  Don't get me started.  

The defense bar is forever riding its high horse about its devotion to compassion, while prosecutors continue their cold, callous and mean-spirited ways.

But every now and again the mask slips, as it did in some defense lawyer comments to the press about a client who is facing execution.

Courtesy of a tip from reader federalist, here's the story (emphasis added):

On April 29, the Pennsylvania Supreme Court decided a fairly typical state postconviction capital case in Commonwealth v. Spotz, No. 576 CAP.  Spotz is a spree killer, and he is clearly guilty of multiple homicides.  The majority opinion is 131 pages long, and it slogs through numerous arguments, finding them all without merit.

The remarkable opinion here is the concurrence of Chief Justice Castille.  He is severely critical of the Federal Defender in this case and other capital cases.  There are two themes here.  One is the institutional question of why the Federal Defender is representing clients on state collateral review at all.  The second is a problem with capital appeal/habeas representation culture generally throughout the country, although the Chief Justice's criticism is directed specifically at the Federal Defender.  Many, perhaps most, of the people doing this work have come to believe that it is not only ethically permitted but even required that they spam the courts with a blizzard of paper raising every conceivable claim.

But that is not correct.  As I noted in my recent report to the Connecticut General Assembly,

It is now the evening of Law Day, Pacific Time, a day on which the ABA chose to showcase the importance of lawyers representing unpopular causes.  Yet as of today we have not heard a peep from the ABA condemning the boycott of King & Spalding for defending the Defense of Marriage Act or the abrupt dropping of representation by that firm in response.  See my prior posts here and here and Bill's here.  I returned to their site today and could find nothing.

The importance of this, and the reason I bring it up on blog that is about criminal law and takes no position on DOMA, is what it says about the ABA.  The ABA's pronouncements on the duties of lawyers are sometimes treated by courts as if they were law.  The Supreme Court fell into this trap in Wiggins v. Smith and Rompilla v. Beard, but it backed off somewhat in Bobby v. Van Hook.

So let's do a little thought experiment.  Suppose a victims' rights group called for a boycott of the blue chip firms that take on representation of murderers, some big companies responded, and some of the firms announced they were dropping the cases.  How fast and how furious would the ABA's response be?  They would immediately and vigorously (and correctly) denounce the action, saying that no matter how repugnant the clients and their crimes may be, the duty of lawyers to represent even the most unpopular of causes must prevail.

So why do we hear nothing today?  First, the organization that called for the boycott is a Politically Correct sacred cow.  Second, and most importantly, at the ABA Political Correctness trumps principle.  Today's deafening silence confirms this.

That is the most important point to keep in mind whenever the ABA says anything about the death penalty.  Nothing is more politically correct than obstructing the operation of the death penalty with the ultimate goal of bringing it down.  The ABA's claim to take no position on the death penalty itself is hogwash.  They are full-bore opposed, and their claims of what is required of defense counsel are made for the purposes of (1) overturning as many judgments for supposedly ineffective assistance as they possibly can, (2) convincing the people that they cannot afford justice.

The Supreme Court in Van Hook has taken the first step toward disestablishing the ABA Standards as having any official standing.  Let us hope that they continue in this direction, toward the end that those standards will be recognized as the statement of an advocate for one side, entitled to little or no weight.

The ABA's theme for Law Day, May 1, is representing unpopular causes.  This article by Ed Finkel in ABA Journal notes that theme features John Adams and his defense of the British soldiers tried for murder after the Boston Massacre.  Adams got acquittals for six and got two off with manslaughter rather than murder.  Under the odd and soon-to-be-scrapped sentencing law of the time, that meant the difference between light punishment and hanging.  See G. Dalzell, Benefit of Clergy in America 204 (1955).  (For a brief summary of this early sentencing law, see Part I of our brief in Ring v. Arizona.)

The article's dateline says it was posted May 1, 2011, but unless I have stumbled into a time warp that is not correct.

Representation of detainees at Guantanamo Bay is mentioned as the modern equivalent of Adams' stand.  The DOMA kerfuffle is not mentioned.

In a surprise move, the head of the NACDL (National Association of Criminal Defense Lawyers) submitted his resignation last night.  The press release issued this morning says, in part:

After years of working to achieve justice for the many people wrongly accused and harshly sentenced, I have decided to move on.  I believe a younger generation should take the helm to deal with clients who constantly lie to them.  As champions of the downtrodden, I hope that those who must now step up bear in mind that, even though our clients are guilty as hell, the only truly American thing to do is flumox the jury and/or judge to put them back on the street to do it again.  To the future crime victims this will create, I would say  --  deal with it.  Look, boys gotta have fun.  And to the many charged with drug crimes under authoritarian statutes that deny a free people the right to put into their own bodies what they wish, I would say:  Meth is good for you.  Don't believe all that DEA tripe.