Recently in Counsel Category
John Christoffersen reports for AP:
Kennedy cousin Michael Skakel launched a barrage of criticism Thursday against the attorney who represented him at his murder trial, saying he failed to track down key witnesses while having fun and basking in the limelight.
Skakel was convicted in 2002 of killing his Greenwich neighbor in 1975 after a trial in which he did not testify. He testified Thursday in his latest appeal, arguing that trial attorney Michael Sherman failed to competently defend him.
Skakel's current attorney says Sherman got caught up in the limelight of the case and failed to prepare. Sherman rejects that claim and says he did all he could to prevent Skakel's conviction.
In his trial, which began in January, prosecutors were permitted to play recorded conversations between Mr. Bergrin and a former gang member who had worn a wire for months to record conversations as Mr. Bergrin tried to hire him to kill a witness.
"We've got to make it look like a robbery," Mr. Bergrin was heard saying on grainy tapes. "It cannot under any circumstances look like a hit."
Mr. Bergrin argued that prosecutors were corrupt and that the witnesses against him were seeking -- and had received -- shorter sentences for their crimes. He explained the recordings by saying he had known all along that the "hit man" was an impostor and had gone along in the hopes of extracting legal fees from him.
In his three-and-a-half-hour closing statement last week, Mr. Bergrin pleaded with the jury for forgiveness, insisting that he was ashamed of the things he had been heard saying but that he was merely defending his clients.
"I get caught up in them, their families, their anguish," he said. "You try to work tirelessly and endlessly, as if they're your own children, as if they're your own family. I tried to be there for the downtrodden, for the underdog, for the destitute, to show the client and the people that they have somebody who is willing to stand up for them."
What is remarkable about these last few paragraphs is not how different they are from what you see every day on defense blogs, but how stunningly similar. It is nothing short of "Paul Bergrin: The Defense Lawyer's Creed."
[The first judge on the case, later removed by the Third Circuit] refused to allow the authorities to try him on any of the charges other than two murder counts, for allegedly ordering members of a Newark gang to kill Kemo DeShawn McCray, a confidential F.B.I. informant who was to serve as a crucial witness in a case against one of Mr. Bergrin's clients.
In Marshall v. Rogers, 12-382, the Ninth Circuit was reversed for failure to observe Congress's limitation on habeas corpus in the so-called "deference" provision. The high court once again has reversed the Ninth summarily and unanimously, meaning not a single justice thought the Ninth was right, and this conclusion is so obvious as to not require full briefing or oral argument. Here is the first paragraph:
Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent's petition, and he appealed to the Court of Appeals for the Ninth Circuit, which granted habeas relief. 678 F. 3d 1149, 1163 (2012). Because the Court of Appeals erred in concluding that respondent's claim is supported by "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), its judgment must be reversed.When Congress enacted §2254(d), it specifically provided that the reasonableness of the state court's resolution of an issue will be judged only by its conformity with U.S. Supreme Court precedents, not federal court of appeals precedents. The federal courts of appeals are not "higher" courts over the state courts in the sense that their precedents are binding, and Congress acted decisively to prevent them from making their precedents binding in practice by granting habeas relief whenever a state court disagrees. A study I did shortly before the law passed showed that, in capital cases in the Ninth Circuit, the Supreme Court ultimately resolved these disagreements in favor of the state court's decision most of the time.
But many federal judges still don't get it:
Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.
We are appalled that a colleague would involve himself in a fraud on the court. Public respect for the integrity of the criminal justice system cannot survive if any of its practitioners, prosecutors or defenders, engages in conduct of this sort. It is a stain on the legal profession. As members of an honorable calling, criminal defense, we unequivocally condemn it.
[Some] lawyers read the indictment as a warning to aggressive defense lawyers. Betty M. Ballester, head of the Superior Court Trial Lawyers Association, said defense lawyers worry that prosecutors are "targeting high-profile attorneys and investigators."
But lawyers seem most troubled that unsatisfied clients might make charges against them in exchange for the government's favor. Gladys Weatherspoon...thinks White and Robertson [Daum's drug dealing clients] framed Daum for that reason. "Every defense attorney is one client away from being Mr. Daum," she said.
And there you have it. The problem here is not that a defense lawyer was engaged in breathtaking dishonesty. The problem is that thuggish prosecutors are "targeting" -- obviously in order to intimidate -- blameless, but "high-profile," defense lawyers. Either that or that defense lawyers are being set up by their clients to have something to offer those same rapacious prosecutors.
No wonder Daum refused to speak a word of regret at sentencing. Why should he? His defense colleagues see nothing he should regret. The only thing the public should be worried about are the prosecutors -- the ones who decline to be bullied into giving a free pass to this sort of behavior.
Calling a defense lawyer's crime "truly unconscionable," a federal judge in Washington today sentenced a longtime Washington attorney to more than five years in prison for his role in a scheme to manufacture evidence to dupe jurors in a drug trial.
The defense lawyer, Charles Daum, who had practiced law in the District of Columbia for three decades, will serve 63 months behind bars for a plot that included staged photographs and perjured testimony.
Daum's lawyer, David Schertler, insisted that Daum was "remorseful," but apparently not remorseful enough to say so, as he refused to speak at his sentencing.
Mr. Schertler, however,was at no loss for words, quickly changing the subject from his crooked client to -- guess what? Right you are!
Schertler presented Daum as an honest man, a good person, who made a mistake. Schertler dedicated part of his time in court today assessing unethical police officers and prosecutors and the public perception that neither is regularly held accountable for lapses in judgment. "When was the last time you saw a prosecutor prosecuted?" Schertler asked at one point. "It doesn't happen."
That's it! The thing to do when your client is caught staging photos and suborning perjury is......blame the prosecutor!!
Do these people even hear themselves?
Money for federal defender organizations would be reduced by $53 million, which "could compromise the integrity of the defender function," [AOUSC Director Thomas] Hogan wrote. Allocations for defender salaries would be reduced by 4 percent, non-salary funds by 25 percent and training funds by 50 percent. Payment of Criminal Justice Act panel attorney vouchers could be deferred for almost three weeks at the end of the fiscal year.Well, the first thing to cut is representation not authorized by law at all. The second thing to cut is representation authorized only by Joe Biden's drafting error.
In Cook v. FDA, presently pending in the D.C. Circuit, the Federal Public Defender for Arizona is representing murderers from several states in a suit against the Food and Drug Administration for allowing importation of thiopental. The cases federal defenders are authorized to take on at public expense are listed in 18 U.S.C. §3006A(a)(1)&(2), and civil suits against the FDA do not come remotely within any of the categories. It's hard to have much sympathy with an office complaining of budget cuts when that office has been making patently illegal expenditures from its existing budget.
Many years ago, then-Sen. Biden snuck a provision into a drug bill, 21 U.S.C. §848(q)(4), to provide representation in capital cases for both federal defendants and state prisoners on habeas corpus. A provision for continued representation in such things as successive petitions and executive clemency, which only makes sense for federal defendants, was misdrafted so that it applies to state prisoners as well. (As a matter of code maintenance, the language was later moved without substantial change to title 18, where it belongs, as 18 U.S.C. §3599.) Now we have federal taxpayer dollars paying for representation in purely state proceedings that follow the appointment in federal habeas, including representation in state collateral reviews and clemency petitions. Congress needs to fix this so that the continuing representation provision only applies to federal defendants.
Number 2 got him in trouble. He was convicted of soliciting a crime of violence and obstructing justice. The Seventh Circuit affirmed on direct appeal in 2006, 448 F.3d 971.
He's back on collateral review. Among his claims are, you guessed it, ineffective assistance of counsel. The Seventh Circuit was unimpressed again. "Hale's other principal contention is that, before taking over his own defense, he received ineffective assistance of counsel. He complains about almost everything counsel did or did not do."
Among the failings of counsel was not challenging all the black people off the jury. Of course there is the minor problem that doing so is unconstitutional, see Georgia v.
McCollum, 505 U.S. 42 (1992), and possibly a criminal offense. See 18 U.S.C. §243. In addition, Judge Easterbrook points out that the Creativity Movement hates such a wide variety of people that it would not be possible to challenge them all.
Sheri Qualters has this story at NLJ (registration required). The case is Hale v. United States, No. 11-3868 (Mar. 5, 2013).
Martinez v. Ryan made an exception for states, including Arizona, which have rules forbidding ineffectiveness claims to be raised on direct appeal. The Court described the exception it was creating as narrow.
Trevino was argued yesterday. The transcript is here. There is a lot of discussion about variations among states in how an ineffectiveness claim may be raised, how they may be raised in Texas, and what difference any of these variations should make in the federal rule.
There is a corollary to Murphy's Law: "Once you open a can of worms, the only way to get them back in is to use a larger can." The Court opened a can of worms in Martinez. It decided to make an exception to Coleman's straightforward rule based on the workings of a state's review process and is now faced with complex task of deciding how to apply that to every variation that comes down the pike. They are not looking forward to that. See p. 13.
I hope their decision is to reseal the can. Something like this: "The Martinez exception applies only to its specific limits in that decision, and we are not expanding this exception or making any new ones. Coleman is still the law everywhere else."