As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer. However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain. In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.
Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."
The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct. After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.
The case is called US v Kentucky Bar Association and the opinion is available here. For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.
Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!
Showing posts with label Ineffective assistance of counsel. Show all posts
Showing posts with label Ineffective assistance of counsel. Show all posts
Friday, August 22, 2014
Monday, June 3, 2013
Can an attorney waive a criminal defendant's right to a public trial without consulting the client?
Regulatory agencies and courts have often had trouble defining exactly how the authority between an attorney and her client should be allocated. It is often said that the lawyer can make decisions as to tactics while the client has the right to make decisions that relate to the objectives of the representation. This language is derived from Model Rule 1.2, which in one way or another serves as the model for most jurisdictions, which states that a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued.
As the comment to the rule explains, however, even though sometimes a lawyer and a client disagree about the means to be used to accomplish the client’s objectives, the rule does not prescribe how such disagreements are to be resolved. Thus, lawyers are left to interpret the rule as best as they can under the circumstances. This is not always easy given that sometimes what can be argued to be a tactical decision can affect a fundamental right of the client.
The rule does, however, set some limits to the lawyers authority to make decisions for the client. For example, in a criminal case a lawyer can’t take away from the client the right to decide whether to agree to a plea offer, whether to testify and whether to waive jury trial.
Thus, one would think that if the decision involves one of these fundamental rights, the attorney must consult the client (at least) and that it is the client who has the right to make the final decision.
Thanks to a recent decision of the Supreme Court of Massachusetts, however, even this is not as clear anymore - at least in that jurisdiction.
Earlier this year, in Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013), the court was asked to consider whether a Superior Court judge properly denied a criminal defendant’s motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The trial judge denied the defendant’s motion, but the Appeals Court concluded that the defendant’s right to a public trial was violated and reversed.
On appeal, the state supreme court reversed holding that counsel may waive a defendant’s right to a public trial during jury selection without his client’s express consent because the decision was tactical.
In my opinion, this decision is wrong. It contradicts the fundamental basis of the allocation of authority within the attorney-client relationship and illustrates the difficulty of explaining the proper allocation in terms of “tactics", "means" or "objectives.”
The facts of the case are relatively simple. When the jury selection for the defendant’s trial began, court officers excluded his family from the court room. The defendant’s attorney did not object. After his conviction, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the court officers closed the courtroom to the public during the voir dire.
The judge, who was not aware that the officers had excluded the defendant’s family until he filed his motion for a new trial, conducted an evidentiary hearing during which the defendant’s lawyer testified that “it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with court officers who he perceived engaged in a difficult job.” The attorney also explained that he thought the defendant’s family members “could present a distraction.”
After the hearing, the judge concluded that the two-day closure of the court room violated the defendant’s Sixth Amendment rights, but denied the motion for a new trial because “there was no miscarriage of justice” because, among other things, “defense counsel’s failure to object to the closure was a reasonable tactical decision.”
At this point, I wonder how it is that it can be a tactical decision to make a decision that belongs to the client and that is so fundamental that taking it away from the client results in a violation of the client’s constitutional rights.
But, let’s continue.
On appeal from the judge’s ruling, a divided Appeals Court reversed concluding that the defendant’s right to a public trial had been violated. (As I hinted above, I would think that is the correct view on this.)
However, the story does not end there. The case then went to the state supreme court, which agreed with the trial judge. The opinion is available here.
The court clearly understood that the decision in the case depended on an understanding of the allocation of authority to make decisions within the attorney-client relationship. The court explained that an attorney is best equipped to make choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance because they depend upon “tactical considerations.” But, as the court explains, in order to preserve the basic rights of the accused, when it comes to fundamental rights, it is the defendant who has the right decide to waive his or her rights.
Once the court cites numerous US Supreme Court cases to explain that a criminal defendant has a constitutional right to a public trial, which includes the jury selection process one would think it would conclude the decision whether to waive the constitutional right belonged to the client. Yet, it did not. It ruled that the attorney could make the decision without consulting the client because it was tactical.
What I don’t understand is how the decision to waive a constitutional right of a client without consulting the client can ever be considered to be a tactical decision. How is it that the lawyer can deprive the client of the opportunity to make a choice that the constitution (and the rules of professional conduct) clearly say belongs to the client?
Simply stated, if it is clear that it is the client who has the right to make the decision, the court should not say the lawyer can make the decision for the client. Otherwise, an attorney could always claim the decision was tactical. Isn’t it tactical to decide whether to plead guilty to avoid a trial? If so, then the attorney could decide for the client. Isn’t it a tactical decision to waive the right to a jury trial? Then why not allow the attorney to decide for the client?
The decision to waive a public trial is no more tactical than the decision to waive a jury trial. In both cases, the decision affects the client’s fundamental constitutional rights and, thus, the attorney should not be allowed to decide for the client without consultation.
According to the court, an attorney can waive a client's constitutional right without consent if the attorney does so as part of a tactical decision. In my opinion waiving a client's constitutional right should never be considered a tactical decision. It is a decision that belongs to the client.
As the comment to the rule explains, however, even though sometimes a lawyer and a client disagree about the means to be used to accomplish the client’s objectives, the rule does not prescribe how such disagreements are to be resolved. Thus, lawyers are left to interpret the rule as best as they can under the circumstances. This is not always easy given that sometimes what can be argued to be a tactical decision can affect a fundamental right of the client.
The rule does, however, set some limits to the lawyers authority to make decisions for the client. For example, in a criminal case a lawyer can’t take away from the client the right to decide whether to agree to a plea offer, whether to testify and whether to waive jury trial.
Thus, one would think that if the decision involves one of these fundamental rights, the attorney must consult the client (at least) and that it is the client who has the right to make the final decision.
Thanks to a recent decision of the Supreme Court of Massachusetts, however, even this is not as clear anymore - at least in that jurisdiction.
Earlier this year, in Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013), the court was asked to consider whether a Superior Court judge properly denied a criminal defendant’s motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The trial judge denied the defendant’s motion, but the Appeals Court concluded that the defendant’s right to a public trial was violated and reversed.
On appeal, the state supreme court reversed holding that counsel may waive a defendant’s right to a public trial during jury selection without his client’s express consent because the decision was tactical.
In my opinion, this decision is wrong. It contradicts the fundamental basis of the allocation of authority within the attorney-client relationship and illustrates the difficulty of explaining the proper allocation in terms of “tactics", "means" or "objectives.”
The facts of the case are relatively simple. When the jury selection for the defendant’s trial began, court officers excluded his family from the court room. The defendant’s attorney did not object. After his conviction, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the court officers closed the courtroom to the public during the voir dire.
The judge, who was not aware that the officers had excluded the defendant’s family until he filed his motion for a new trial, conducted an evidentiary hearing during which the defendant’s lawyer testified that “it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with court officers who he perceived engaged in a difficult job.” The attorney also explained that he thought the defendant’s family members “could present a distraction.”
After the hearing, the judge concluded that the two-day closure of the court room violated the defendant’s Sixth Amendment rights, but denied the motion for a new trial because “there was no miscarriage of justice” because, among other things, “defense counsel’s failure to object to the closure was a reasonable tactical decision.”
At this point, I wonder how it is that it can be a tactical decision to make a decision that belongs to the client and that is so fundamental that taking it away from the client results in a violation of the client’s constitutional rights.
But, let’s continue.
On appeal from the judge’s ruling, a divided Appeals Court reversed concluding that the defendant’s right to a public trial had been violated. (As I hinted above, I would think that is the correct view on this.)
However, the story does not end there. The case then went to the state supreme court, which agreed with the trial judge. The opinion is available here.
The court clearly understood that the decision in the case depended on an understanding of the allocation of authority to make decisions within the attorney-client relationship. The court explained that an attorney is best equipped to make choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance because they depend upon “tactical considerations.” But, as the court explains, in order to preserve the basic rights of the accused, when it comes to fundamental rights, it is the defendant who has the right decide to waive his or her rights.
Once the court cites numerous US Supreme Court cases to explain that a criminal defendant has a constitutional right to a public trial, which includes the jury selection process one would think it would conclude the decision whether to waive the constitutional right belonged to the client. Yet, it did not. It ruled that the attorney could make the decision without consulting the client because it was tactical.
What I don’t understand is how the decision to waive a constitutional right of a client without consulting the client can ever be considered to be a tactical decision. How is it that the lawyer can deprive the client of the opportunity to make a choice that the constitution (and the rules of professional conduct) clearly say belongs to the client?
Simply stated, if it is clear that it is the client who has the right to make the decision, the court should not say the lawyer can make the decision for the client. Otherwise, an attorney could always claim the decision was tactical. Isn’t it tactical to decide whether to plead guilty to avoid a trial? If so, then the attorney could decide for the client. Isn’t it a tactical decision to waive the right to a jury trial? Then why not allow the attorney to decide for the client?
The decision to waive a public trial is no more tactical than the decision to waive a jury trial. In both cases, the decision affects the client’s fundamental constitutional rights and, thus, the attorney should not be allowed to decide for the client without consultation.
According to the court, an attorney can waive a client's constitutional right without consent if the attorney does so as part of a tactical decision. In my opinion waiving a client's constitutional right should never be considered a tactical decision. It is a decision that belongs to the client.
Thursday, April 25, 2013
The Atlantic: "What is the most important Supreme Court case no one's ever heard of?"
The Atlantic Magazine asked a number of "experts" (law professors, lawyers, judges, authors, etc) for their opinion on the most important, yet not widely known, Supreme Court case. Their responses are very interesting and you can read them here. One author picked Strickland v. Washington, stating that
Decided in 1984, Strickland v. Washington created a procedural rule that makes it virtually impossible for a criminal defendant to successfully argue that he or she has been denied the “effective assistance” of counsel—and thus the Sixth Amendment right to a fair trial. The ruling is directly responsible for thousands of Americans’ incarceration after trials in which their lawyers drank, or were using drugs, or were sleeping, or were otherwise clearly incompetent.
Wednesday, February 13, 2013
Kansas Supreme Court holds flat fee agreement in murder case is sufficient evidence of conflict to support a finding of ineffective assistance of counsel
In a very surprising move the Kansas Supreme Court recently ruled that an overworked and inexperienced defense lawyer's flat-fee arrangement in a capital murder case created a conflict of interest that deprived the client of his Sixth Amendment right to effective assistance of counsel. The case is called State of Kansas v. Cheatham.
I have not read the opinion itself which is fairly long, but according to a report in the ABA/BNA Lawyers' Manual on Professional Responsibility, the court found that "the fee structure gave the lawyer, a solo practitioner with a high-volume practice, little incentive to put any significant effort into the case" and that "this conflict so fundamentally undermined the representation that the defendant did not need to prove how the lack of effort actually prejudiced his defense." (See 29 Law. Man. Prof. Conduct 89)
I find this to be surprising for a few reasons. First, courts are usually reluctant to grant motions based on allegations of ineffective assistance of counsel. Second, all fee agreements, in one way or another, create some level of conflict of interest between attorneys and their clients. Third, it seems to me that even if one concludes that the agreement itself was sufficient evidence of a conflict, the standard analysis for ineffective assistance of counsel requires that the defendant show the conflict resulted in deficient representation and prejudice. Here the court assumed the first and excused the defendant from proving the second.
Given all this, I have to believe that what was important here was not the fee agreement but the conduct of the lawyer. The emphasis on the fact that the lawyer charged a flat fee is misplaced. The court should emphasize the inadequacy of the representation. Otherwise, other lawyers who use flat fee agreements but who provide excellent representation may be discouraged from continuing to offer their services for a flat fee. This, in turn, could make it more difficult for some defendants to afford quality legal services.
Friday, November 2, 2012
Supreme Court hears oral argument on possible retroactive impact of Padilla v. Kentucky
After a two-day delay because of storm Sandy, the Supreme Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010) in which the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement. Kevin Johnson, a well known professor and scholar in the area of immigration law has posted a brief comment on the oral argument here.
Friday, August 24, 2012
Supreme Court hints it may expand recent ruling on ineffective assistance of counsel
Lyle Denniston of the SCotUS blog is reporting that last Wednesday the Supreme Court "strongly hinted that one of
last Term’s key rulings on the duties of criminal defense lawyers may
get a prompt new look next Term, to see if it applies to death-penalty
cases in Texas." In a brief order,
the Court put on hold an execution in Texas in a case that appears to be a major test of
the impact of the Court’s 7-2 ruling last March in Martinez v. Ryan. Go here for the full article (with links to the cases).
In Martinez, the Court created an exception to prior rulings that had strictly limited a convicted individual’s right to complain that a defense lawyer had not performed effectively at the trial holding that if a state did not allow an individual to raise that kind of claim until after the conviction has become final, a federal court can still decide the claim. The new case will test whether and how Martinez applies to capital cases.
In Martinez, the Court created an exception to prior rulings that had strictly limited a convicted individual’s right to complain that a defense lawyer had not performed effectively at the trial holding that if a state did not allow an individual to raise that kind of claim until after the conviction has become final, a federal court can still decide the claim. The new case will test whether and how Martinez applies to capital cases.
Wednesday, August 8, 2012
Illinois appellate court finds failure to communicate plea offer supports claim of ineffective assistance of counsel
A couple of months ago, the Illinois appellate court found that an attorney's failure to communicate a plea offer can be the basis of a claim of ineffective assistance of counsel. Seems obvious to me. The case is called People v Trujillo and it is available here.
Wednesday, July 25, 2012
Sixth Circuit enters circuit split on ineffective assitance of counsel
Last week the Sixth Circuit joined a circuit split over whether an
attorney's failure to file a notice of appeal despite receiving explicit
instruction to do so from their client constitutes ineffective
assistance of counsel. The case, Campbell v. United States, is available here. For more on the story go to Circuit Splits.
Wednesday, June 13, 2012
Op-ed on right to effective assistance of counsel at the plea bargaining stage
In a recent Op-ed piece in the ABA Journal, Erwin Chemerinsky (dean of the Univ of California - Irvine law school) writes that "it is important to not lose sight of two [Supreme Court] cases that
are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper,
the Supreme Court held that the Sixth Amendment right to effective
assistance of counsel applies at the plea bargaining stage. Because
about 95 percent of all criminal convictions are gained via guilty
pleas, these cases will have a significant effect on the practice of law
and also likely will lead to a large number of challenges by
individuals seeking to have their pleas overturned." You can read the full article here.
Thanks to the Legal Ethics Forum for the link.
Thanks to the Legal Ethics Forum for the link.
Tuesday, May 1, 2012
Supreme Court to decide whether its ruling in Padilla should be applied retroactively
Last Monday the Supreme Court granted certiorari in Chaidez v. United States, which will give the Court the chance to settle a dispute among lower
courts on whether its 2010 ruling in Padilla v. Kentucky should apply retroactively. The case will be heard heard and decided in the new Term (which starts next October)
In Padilla v. Kentucky, the Court held that attorneys for criminal defendants have a duty to inform their clients of the possibility of deportation as a consequence of a conviction. Failure to provide this information would constitute ineffective assistance of counsel under the Sixth Amendment.
For more on the issue, go to crImmigration, Google News, UPI, Reuters, the Associated Press, Courthouse News, and JURIST.
Thank you to the SCotUS blog for the update and all the links.
In Padilla v. Kentucky, the Court held that attorneys for criminal defendants have a duty to inform their clients of the possibility of deportation as a consequence of a conviction. Failure to provide this information would constitute ineffective assistance of counsel under the Sixth Amendment.
For more on the issue, go to crImmigration, Google News, UPI, Reuters, the Associated Press, Courthouse News, and JURIST.
Thank you to the SCotUS blog for the update and all the links.
Sunday, March 25, 2012
More comments on Supreme Court's decision on ineffective assistance of counsel
Three new articles in the New York Times discuss the importance of the Supreme Court's decisions on ineffective assistance of counsel. The articles can be found here, here and here. As one of the articles explains "[t]he Court's decisions affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. . . . Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with . . . little oversight . . ." In addition, the SCotUS blog has detailed analysis of the opinions here.
Thursday, March 22, 2012
Comments on yesterday's Supreme Court's decisions on ineffective assistance of counsel
The SCotUS blog is listing the following articles on yesterday's Supreme Court decisions on ineffective assistance of counsel:
Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.
Also, Orin Kerr has a comment at The Volokh Conspiracy.
Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.
Also, Orin Kerr has a comment at The Volokh Conspiracy.
Wednesday, March 21, 2012
Supreme Court decides two cases on ineffective assistance of counsel
In the first opinion, Missouri v. Frye, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito. The oral argument for this case is available here.
In the second opinion, Lafler v. Cooper the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion. The oral argument is available here.
The New York Times has more the story here.
Monday, March 12, 2012
IL court of appeals issues two opinions on ineffective assistance of counsel
Earlier today, the Illinois court of appeals issued two opinions on ineffective assistance of counsel. In the first one, People v. Watson, the court reversed the defendant's conviction for residential burglary because the defendant’s trial counsel was ineffective in failing to cross-examine the State’s DNA expert or present evidence that the partial profile should be considered a “nonmatch,” failing to present expert testimony that the statistical calculations relied on by the State were flawed, and failing to understand the DNA evidence or ensure that it was properly explained to the jury. Interestingly, (and sadly) the court also noted that the defendant's posttrial counsel was also ineffective in only filing a notice of appeal without filing any postsentencing motions. The court remanded for a new trial with new counsel.
In the second case, People v. Remsik-Miller, the defendant was convicted and sentenced to 22 years in prison.The defendant then filed and argued a post conviction motion pro se in which she argued that her attorney "did not represent her to his fullestability during [her] trial.” The motion was denied, but the court of appeals remanded. The court decided that before deciding the motion it would have to be determined whether defendant’s comment —that defense counsel did not represent her “to his fullest ability during [her] trial”—amounted to an allegation of ineffective assistance of counsel which would have triggered the lower court’s duty to inquire. For this reason, the court of appeals remanded "for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant’s allegation."
In the second case, People v. Remsik-Miller, the defendant was convicted and sentenced to 22 years in prison.The defendant then filed and argued a post conviction motion pro se in which she argued that her attorney "did not represent her to his fullestability during [her] trial.” The motion was denied, but the court of appeals remanded. The court decided that before deciding the motion it would have to be determined whether defendant’s comment —that defense counsel did not represent her “to his fullest ability during [her] trial”—amounted to an allegation of ineffective assistance of counsel which would have triggered the lower court’s duty to inquire. For this reason, the court of appeals remanded "for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant’s allegation."
Thursday, January 12, 2012
Does the Constitution guarantee effective assistance of counsel to aliens during removal proceedings
Thanks to my friends over at the Legal Ethics Forum, I have discovered yet another blog to add to my subscription list. This new blog (well, new for me at least) is all about issues over which the federal appeals courts are split. Presumably, this makes these issues "ripe for review."
Today, they have posted a short comment (with lots of links) on the fact that circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings. You can find it here.
Today, they have posted a short comment (with lots of links) on the fact that circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings. You can find it here.
Monday, December 12, 2011
Spectacular incompetence
I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here). Then a similar case came along and I again questioned the competence of those involved (here). Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
Wednesday, November 16, 2011
Be careful what you wish for
Here is an interesting recent case out of the Illinois Appellate Court. In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice. According to the agreement, he received a sentence of 27 years in prison. Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more. So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence. So he got what he wanted but now he is much worse off.
So what happened here? I don't know why or how the negotiated plea was obtained. Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law. And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law? Or, again, was it a case where the lawyer simply did not know the law? And then there's defendant's counsel on appeal. Why would he recommend to appeal a sentence when the result could ONLY be worse for the client? Did he inform the client of this and let the client decide or did the lawyer not realize it? The case is called People v McRae and it is available here.
Interestingly, this is not the first time I've heard of something like this. Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.
So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.
The rest of the decision in McRae is also interesting. The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail." In the letter, the defendant essentially confessed to committing the crime. Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal. On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it. Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.
So what happened here? I don't know why or how the negotiated plea was obtained. Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law. And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law? Or, again, was it a case where the lawyer simply did not know the law? And then there's defendant's counsel on appeal. Why would he recommend to appeal a sentence when the result could ONLY be worse for the client? Did he inform the client of this and let the client decide or did the lawyer not realize it? The case is called People v McRae and it is available here.
Interestingly, this is not the first time I've heard of something like this. Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.
So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.
The rest of the decision in McRae is also interesting. The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail." In the letter, the defendant essentially confessed to committing the crime. Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal. On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it. Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.
Monday, November 14, 2011
Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest
Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest. This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month. The case is called Illinois v Dopson and it is available here. My comment on the other case decided that month is here.
In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases. The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client. When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state. He continued to represent the other client, though, and that client was convicted.
On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest. The court agreed.
The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test. Operating under a per se conflict is such a serious error there is no need to show prejudice. Reversal is automatic.
Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.
The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.
Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.
Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.
In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases. The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client. When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state. He continued to represent the other client, though, and that client was convicted.
On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest. The court agreed.
The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test. Operating under a per se conflict is such a serious error there is no need to show prejudice. Reversal is automatic.
Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.
The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.
Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.
Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.
Illinois Appellate Court reverses conviction (based on a negotiated plea) because of ineffective assistance of counsel
Convicted defendants often argue ineffective assistance of counsel on appeal, but the argument is not successful most of the time. Last September, however, the Illinois Appellate Court decide two cases in favor of defendants claiming ineffective assistance of counsel. I will comment briefly on both of them in separate posts. Here is the first one.
In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance. In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.
The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses. The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.
Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).
The case is called People v Clark and it is available here.
In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance. In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.
The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses. The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.
Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).
The case is called People v Clark and it is available here.
Friday, November 4, 2011
Audio of Supreme Court oral arguments is now available
A few days ago, I wrote about two cases before the Supreme Court on ineffective assistance of counsel. See here. Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct. You can now listen to the oral arguments here and here.
Subscribe to:
Posts (Atom)