Thursday, February 12, 2009

Judge does not know the law; neither do appellate lawyers

What do you get when you have a lawyer who does not know the law appealing a decision of a judge who does not know the law either? You get US v Beltran Moreno a decision issued two days ago by the Court of Appeals for the Ninth Circuit.

In this case, two defendants pleaded guilty to a multiple-count indictment. Because the district court judge was not familiar with the law regarding sentencing, he calculated a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute. What’s more, the district judge then exercised his discretion to depart downward from the US Sentencing Guidelines recommendation, sentencing the defendants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest.

The defendants’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally mandated — was certainly better than they could have possibly imagined. But, their appellate counsel, remarkably, decided to appeal their sentences and, even more remarkably, did so based on an argument that the court of appeals describes as "squarely foreclosed by decades-old circuit precedents." The court also noted that "counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law."

Why in the world would anyone seek to appeal if there was only one direction in which the defendants' sentences could go, and that was up — by at least five years?

The only thing that saved the defendants from their own lawyers was the fact that the government surprisingly did not appeal (didn't they know the law?) and that a year after they filed their notices of appeal, the Supreme Court held in another case that an appellate court cannot raise a defendant’s sentence if the government has not appealed.

The conduct of appellate counsel is just another example of how not to practice law and they were very lucky the court did not impose sanctions. They filed an appeal that, given the law at the time, could only have resulted in a higher sentence for their clients and did so based on a frivolous argument. Only because of the subsequent decision of the Supreme Court were the clients spared the consequences of their attorneys poor judgment.

As the court of appeals concludes:

"We hope that this case will serve as a strong warning for the defendants’ appellate counsel." . . .

. . . We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’."

The opinion is available here.

Thanks to Lou Gasperec for pointing me to this little jewel.

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