Recently in Counsel Category

There's Only So Much You Can Do

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I've done my share of criticizing the defense bar.  As I see the world, the problem is (1) the client is almost always factually guilty, therefore (2) the only way to an acquittal on the merits is through some sort of sleight-of-hand, but (3) doing sleight-of-hand day after day doesn't seem to be a real wholesome way to conduct one's career.

That said, most defense lawyers I know are good human beings, and sometimes they really are the heroes of civil liberties they claim.  Even when doing the routine case, however, the heart of the problem isn't the lawyer.  It's the client.

I mean, what exactly are you supposed to do when the fellow who shows up in your office is this guy?
Today the U.S. Supreme Court issued one of its midsummer orders lists.  These are usually just routine administrative orders, but occasionally you get something interesting. 

In today's orders list, we find this gem from Ballard v. Pennsylvania, No. 13-9364:  "The letters of June 2, July 8, July 14, and July 16, 2014, received in this case, are referred to the Disciplinary Board of the Supreme Court of Pennsylvania for any investigation or action it finds appropriate."  Hmmm.  What's that about?

This is a capital case.  Ballard is a so-called "volunteer," a death-sentenced inmate who doesn't want his sentenced reversed or even delayed.  Marc Bookman of the Atlantic Center for Capital Representation, claiming to be Ballard's lawyer, filed a certiorari petition asking the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court affirming the judgment.  Ballard himself had a thing or two to say about that.

A Fool for a Client

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Meanwhile, back in Arizona, Jodi Arias has exercised her "constitutional right ... to make a fool of [her]self."  Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting).

AP reports:

PHOENIX (AP) -- A judge ruled Monday that Jodi Arias can represent herself in the upcoming penalty phase of her murder trial, where jurors will decide whether she is put to death for killing her ex-boyfriend.

Arias, 34, was convicted of first-degree murder last year in the 2008 killing of Travis Alexander, but jurors couldn't reach a decision on sentencing. Under Arizona law, while Arias' murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury in an effort to secure the death penalty.

Arias, who has long clashed with her defense lawyers and tried to fire them previously, asked Judge Sherry Stephens to let her serve as her own lawyer during the second penalty phase set for Sept. 8. Stephens granted the request but said there would be no delays.

"I do not believe it is in your best interest ... I strongly urge you to reconsider," Stephens told Arias before granting the motion.
Not all capital defense attorneys see themselves as being on a crusade to abolish the death penalty or to throw sand in the gears in the meantime.  David Goodwin has a letter to the editor in the L.A. Times in reaction to a column by George Skelton:

As a criminal defense attorney with four capital cases, I agree with Skelton that the death penalty system is broken. Here's a radical idea: Fix it.

Skelton is right that Gov. Jerry Brown and Atty. Gen. Kamala Harris, both lifelong death penalty foes, will do nothing to fix the system. It is unethical for them not to zealously enforce the law just because they don't like it. Unable to win at the ballot box, the opponents win by obstruction and refusing to do the job they are obligated to do.

Someday a governor may be in office who does not like certain environmental protections or civil rights statutes. If that happens, I hope it is remembered where the precedent arose that the executive need not do the public's bidding.

We need more with attitudes like Goodwin's.  Specifically, we need capital defense lawyers who will do their duty as advocates to make the best case for their assigned client but who will not delay, obstruct, or bury the courts with patently meritless pleadings.  (See In re Reno, 55 Cal. 4th 428 (2012).)  Capital cases should be just like noncapital cases in this regard.  A lawyer assigned an appeal for a rapist sentenced to prison is not on a crusade to abolish imprisonment.  He just makes the case that his particular client shouldn't have been convicted or shouldn't have been sentenced to as much time as he got.

Retired prosecutors might be good candidates to step up and take capital appeals and state habeas petitions.  Any takers?
The first item in the News Scan notes in brief terms something that's actually quite revealing:  A cert petition ostensibly for death row inmate Micheal Ballard was filed by a Philidelphia attorney, Marc Bookman, without Ballard's knowledge and against his wishes.  Indeed, Bookman is not Ballard's attorney at all and, so far as I have been able to find out, never was.  

Question:  How many million times have defense lawyers pounded the table that their entire raison d'etre is to serve the client in his fight against the power of the state?  The need for such service, and unyielding fidelity to the client, justifies, so we have been lectured, even intentionally misleading behavior, so long as that behavior does not violate the canons of ethics or the law.  It is not up to defense counsel to serve justice; that's the prosecutor's job.  It's up to defense counsel to serve the desires of the client and let the system sort it out from there.

Given that, you would think that the usual suspects among the defense-oriented blogs would express at least some misgivings about Mr. Bookman's "I-don't-care-what-the-defendant-wants" stunt.  I've looked at a few such blogs, and I can't find a word about it.

Q:  Why not?
There is a well-established rule of professional responsibility that the client decides the goals of representation, and the lawyer decides the means of achieving the goals.  There are exceptions for persons not capable of decision, such as the mentally incompetent.

Some capital defense lawyers seem to think that there is a "death is different" exception for capital cases.  There is not.  If the client directs his attorney not to offer mitigating evidence in the penalty phase, he has no ineffective assistance claim if the attorney follows his direction.  See Schriro v. Landrigan, 550 U.S. 465, 475 (2007).  (See also CJLF's brief in that case.)

Yet they never give up.  As noted in today's News Scan, the California Supreme Court today affirmed the conviction and death sentence of Steven Brown for the sodomy and murder of 11-year-old April Holley.  Brown decided he would rather be sentenced to death than life in prison and instructed his lawyer to present no mitigating evidence.  His lawyer and the trial judge made sure this was a competent decision.  No, that is not ineffective assistance.  Quoting earlier decisions, "an attorney‟s duty of loyalty to the client means the attorney should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ."

Now, California Supreme Court, it is high time to recognize that what is true at trial is equally true on appeal.  Sometimes death row clients say, "Get my appeal done promptly; don't stall" or "Only challenge the guilt verdict, not penalty; 'give me liberty or give me death' " or "Don't challenge the judgment at all; I'm good with it."  If the client is mentally competent, the lawyer can advise against these decisions, but if push comes to shove, it is the client's decision to make.  And, no, the lawyer cannot decide on his own that the client is incompetent to make the decision.  Only a judge can appoint a conservator to make these decisions for an incompetent client.

I have letters from death row inmates whose lawyers have ignored their instructions, and the California Supreme Court ignores their protests.  That's not right, for the reasons you just said.

Is There Anything They Won't Say?

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I really don't mean to be taking after defense lawyers (well, not any more than I usually do), but sometimes a story just grabs you.  This one is a real peach.

The general context is familiar.  A thug gets mad at his wife/girlfriend because she's had enough and wants to break up.  This is not acceptable, so she must be punished.  The punishment consists of killing their kid.  I have used stories like this when I debate the death penalty at law schools, see, e.g., this and this.

Today's story is neat, in the sick sort of way these stories tend to be, because of defense counsel's "argument."  It was a difficult case, since apparently no one contested the fact that Mr. Nicey ushered his two year-old into icy water weighted down with a tire iron.  

On the one hand, you have to commend counsel's unusual honesty:

In his opening statement, defense attorney Ryan Moriarty told the jurors their task is to decide "what form of homicide applies to this defendant...."We're not asking you to presume Arthur Morgan innocent of responsibility," he said. "It is our contention that he did not act knowingly and purposefully on that day but, rather, recklessly.

OK, fair enough.  Unfortunately, Mr. Moriarty added:

"Was Tierra thrown off a bridge, or was she placed there, still alive, for God to determine the outcome?"

Yes, well, when you throw a two year-old in icy water weighted down, you can take a pretty good guess how "God is going to determine the outcome."  But we appreciate counsel's insight.

Need a Defense Lawyer?

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I have no idea whether this is real.  It's bad enough that it could be.
Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property.The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
Unusual lineup on this one.  Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.

Ineffective Assistance and Experts

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The US Supreme Court today sent a capital case back to the Alabama courts to reevaluate the petitioner's ineffective assistance claim.  The case is Hinton v. Alabama, No. 13-6440.

This case is highly unusual for a capital case in that the disputed question actually involves who committed the crime.  The trial lawyer hired a forensic expert he knew was unqualified because he mistakenly believed that state law capped the fee he could offer.  In fact, the statute had been amended to give more leeway.  The prosecutor sliced and diced the unqualified expert.  The state courts failed to correctly apply the "prejudice" prong of Strickland v. Washington, holding that there was no prejudice because the experts in the postconviction proceeding testified the same as the trial expert.  That's not the point.  A qualified expert would not have been so easily attacked by the prosecutor, and there is a reasonable probability the jury would have believed him.

The high court took this case on direct review of the state courts, rather than letting it go to federal habeas first, probably to avoid the complications of the AEDPA deference standard.

So is it open season for federal courts to second-guess the qualifications of experts in the guise of ineffective assistance claims?  No, the Court makes clear:

They'll Say Anything

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The Associated Press has a story about a man who was sentenced to five years' imprisonment for starving his daughter to the vanishing point.  The article begins:

A Wisconsin father convicted of abuse for starving his teenage daughter down to 68 pounds was sentenced Wednesday to five years in prison.

Before being sentenced by Dane County Circuit Judge Julie Genovese, the 42-year-old man read a statement insisting his daughter suffered from severe emotional and behavioral problems that he couldn't handle, that his job as a trucker kept him away from home and that he didn't notice how thin she had become.

Hard to disagree with that.  Kids who get starved can indeed develop "emotional and behavioral problems."  And how could a man be expected to notice that a 68 pound teenager was thin?  Gads, our society is sooo judgmental.

But it was this part that caught my eye:

The man's attorney, Jessa Nicholson, countered he deserved probation. He already has lost his family and his job, his wife is in prison and his reputation has been destroyed, she said.

"Apparently we are still a society that favors punishment," she told reporters after the hearing.

It's all true.  When a father starves his daughter nearly to death, "we are still a society that favors punishment."

Honestly, is there something these people won't say?


AP has this story on allegations that an attorney for recently executed inmate Dennis McGuire urged him "to fake symptoms of suffocation" during his execution.

The allegation is that McGuire told prison guards about this, but then said he would not do it.

State prison records released Monday say McGuire told guards that Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.

"He wants me to put on this big show in front of my kids, all right when I'm dying!" McGuire is reported as having told one guard. "I ain't gonna do this. It's about me and my kids, not him and his cause!"

I don't believe there was any actual faking.  In addition to McGuire's statement, there is a more basic reason.  He couldn't fake for the same reason he couldn't feel pain.  The procedure began with a massive dose of sedative.

The Office of the Public Defender lifted the attorney's suspension after "an internal review failed to substantiate the allegation."  I don't think the public should settle for that.  Public defender's offices in many places have developed a fanatical anti-death-penalty culture.  We should not trust an internal review.

Broken Glass in Cal. Supreme, Part II

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Prior post was November 6, oral argument. The opinion came down today.

Glass and the witnesses who supported his application stress his talent in the law and his commitment to the profession, and they argue that he has already paid a high enough price for his misdeeds to warrant admission to the bar. They emphasize his personal redemption, but we must recall that what is at stake is not compassion for Glass, who wishes to advance from being a supervised law clerk to enjoying a license to engage in the practice of law on an independent basis. Given our duty to protect the public and maintain the integrity and high standards of the profession (see Gossage, supra, 23 Cal.4th at p. 1105), our focus is on the applicant‟s moral fitness to practice law. On this record, the applicant failed to carry his heavy burden of establishing his rehabilitation and current fitness.

Free Choice of Defense Counsel

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My friend Tim Lynch of the libertarian Cato Institute brings to my attention what strikes me as an excellent idea:  Allowing indigent defendants to choose their own counsel, using what amount to "lawyer vouchers."  This would track the idea of allowing poor parents to escape failing public schools through education vouchers.

The story is here.

My experience is that public defenders are, by-and-large, quite good, and at least as energetic, competent and committed as privately-retained counsel.  But we often hear that defendants distrust their public defenders, and view them as just another appendage of The Big, Bad System, and thus never fully trust them no matter how good a job they do.

Better to let them select their own lawyers.  I don't expect them to understand that it's the evidence, not the lawyer, that drives the result, but there's a better chance that this will eventually get understood when, after a few years of free choice, the conviction rate stays exactly what it is now.

Disciplining Ineffective Lawyers

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We often hear complaints that convictions and sentences may be overturned on the ground that the trial lawyer provided ineffective assistance, but the bar never disciplines the lawyers.

Well, not quite never.  Steve Fry of the Topeka Capital-Journal has this story on the lawyer in the Kansas case of Phillip Cheatham.

Should we see more such proceedings?  Bear in mind that it is now considered mandatory in capital appellate defense culture to savagely attack the trial lawyer regardless of how good a job he actually did.  When was the last time you saw an initial collateral review petition in a capital case that did not allege ineffective assistance?  I can't think of any offhand.  And of course for a judge or panel itching to find an excuse to overturn the sentence, IAC makes a juicy target.  The claims are so "fact bound" that a grant of relief is less likely to be reversed on discretionary review further up the chain.

If bar discipline proceedings regularly follow IAC reversals, and if such reversals are frequently made even if the lawyer did, in fact, do a good job, then lawyers may shun capital cases at trial.

On the other hand, if bar discipline proceedings are common, lawyers would have a stronger incentive not to fall on their swords in the collateral review proceeding.  They would have an incentive to do what civil lawyers do to protect themselves from accusations of malpractice.  They would document as they go along to protect themselves from potential claims and come out with guns blazing when wrongly accused.

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