Recently in Counsel Category
There is, of course, more to the story. After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office. See also the excerpt from the Supreme Court of Washington in the follow-up post.
In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts. Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors. Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether. The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement. If the issue is arguable, the state court decision stands.
Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law. The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.
A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.Justice Thomas concurred in this result, making the decision 5-3.
The U.S. 2nd Circuit Court of Appeals upheld Simels' 2009 convictions on attempted obstruction of justice and bribery, and the 14-year-prison sentence given to him by U.S. District Judge John Gleeson in Brooklyn, but vacated his conviction on two counts relating to importation and possession of electronic surveillance equipment.
Simels' lawyers didn't respond to requests for comment. A spokesman for federal prosecutors in Brooklyn said they were still reviewing the decision and would not comment.
Simels...was convicted in connection with an attempt to tamper with a witness against his client Shaheed Khan, a cocaine trafficker from Guyana who ultimately pleaded guilty to charges in the U.S. Prosecutors in Brooklyn made a case against Simels, who was retained by Khan for $1.4 million, in part with help from a federal informant connected to the drug trafficker, who taped meetings with the attorney.
There are two points to be remembered from this story. One is the criminal defense bar is not the uniformly pristine, Knight-on-a-White-Horse, Constitution-shielding sentinel its PR machine portrays. There are bad actors among defense lawyers, just as there are among Brady-hiding prosecutors and gun-happy cops. Every profession has its bad apples, and defense lawyers, notwithstanding their gentle treatment in the press, are right in there with everyone else. It's just more popular, and politically more rewarding, to bash cops and prosecutors, which is why it gets done more often and more loudly. By contrast, no one ever got a piece in Salon, or tenure for that matter, doing a dissertation about the wonderfulness of cops.
The second point is this Simels story, like the Mike Nifong story, is easy to bullhorn all over town to drive whatever one's agenda might be. If you take the worst one-half of one percent of ANY profession's behavior and repeat it in 30 blogs, 10 op-ed's and 5 network broadcasts, you can make that profession out to be a cesspool. It's my impression that Radley Balko does exactly that in his obsession with the police.
But it's cheap and misleading. If you want to know what defense lawyers, prosecutors and cops act like, it's easy to find out: Go to your local court and sit there for a week watching random cases.
It's possible you'll see people who left good faith far behind, and put out every slick argument they think they might get away with. But I doubt it. I suspect you'll see what I did for about 20 years -- able and almost always honest advocacy. Counsel see cases from different angles, sure; our system is designed so that they will. But only through a dark, tiny and distorted lens will you see any segment of the legal profession in the light in which Mr. Balko, for example, presents the police.
I am not an optimist by nature, but I can tell you from long experience in litigation that the grim picture of competing thugs and cheaters we see painted in so many places simply is not true.
Find out for yourself -- visit that courtroom.
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.
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."