Sunday, September 18, 2016

Mr. Bumble Proved Right. Again.

There was a guy I went to law school with who had a problem in the ethics class we had to take.*  He couldn't understand why it would be a bad move to represent both husband and wife in a divorce. Lest you be confused, it's 'cause they have different interests.  Who gets what?  What about the kids? Maybe they're open and fair minded and not hostile.  Maybe they can work it all out smoothly.  Fine, then work out an amicable settlement.  

But each spouse should be advised of what the possibilities are.  A single lawyer can't do that because the lawyer has a duty of undivided loyalty to the interests of her client.  And if the interests of the clients might be antithetical, well, one lawyer just can't do it all.**

To wit (as the lawyers say):  

Russell Haugabrook and his wife weren't getting a divorce.  Instead, at least according to the indictment, they were growing and selling marijuana.***  The two of them hired a lawyer - one lawyer - to represent them.  I don't know why they did that or how the lawyer explained that it was a good idea (if the lawyer did).  I'd guess something about a twofer discount, but that's only a guess.

What I know is that the lawyer and the prosecutor worked out a package plea bargain where they'd both plead guilty to some lesser charges but both had to agree.  

The judge, wanted to know if the two of them understood that they could have different lawyers. "Sure," said the lawyer.  "Um, well, uh, hmm," said Huagabrook.  (I'm paraphrasing.)  The court took a recess so the lawyer could explain that the correct answer was not "Um, well, uh, hmm," but 
Yes, I happily accept the fact that my lawyer works for both of us and fully understand that there are potential problems with that, but I don't care.
Or something. 

So Haugabrook and his wife entered their guilty pleas (the wife seemed, the judge said, "pretty nervous") and the judge scheduled a date for sentencing.

Maybe you see a problem here.  Maybe they finally did.  After all, they fired their lawyer. And then HIRED A NEW LAWYER WHO'D ALSO REPRESENT THE TWO OF THEM. Because?  Damned if I know.  (Of course, if they were really good at making decisions, they might not have been charged with crimes in the first place.)

New lawyer filed motions, for each of them, asking to withdraw their guilty pleas.  Not, of course, because having a single lawyer for both of them was a problem.  The new single lawyer might have had a problem making that argument.

She wanted to withdraw her plea because she was innocent and didn't know what she was doing.  
It appears that her only crime is being married to Mr. Haugabrook.
He wanted to withdraw his plea because he had legal defenses and anyway
He insists that his wife had nothing to do with this situation.
The judge turned 'em both down.

Let's recap.  First lawyer cuts a deal for both of them to admit guilt, apparently without explaining that they could go to trial or one of them could blame the other.  Second lawyer explains that she can represent the wife in blaming the husband and the husband in taking the blame.  And thereby each of them will fully and completely represent the interests of both parties. 

Of course, defendants can waive that conflict.  As long as their waiver is, the law says,

  • Knowing
  • Intelligent
  • Voluntary 

Haugabrook appealed.  (His wife didn't.)  I had ineffective assistance of counsel because my lawyer had a conflict of interest, he said.  He couldn't fairly represent both me and my wife.  And nobody ever clearly explained that to me.  I want to withdraw my guilty plea, please undo my conviction. Which the court of appeals did.
Under the circumstances of the instant case, where Haugabrook represented to the court that he had reservations with defense counsel representing both him and his wife because his wife was innocent and they were both subject to a package deal, the trial court erred by not explaining to Haugabrook the risks of dual representation, as well as the fact that he had a constitutional right to effective representation free of conflicts. If it had done so, the court could have ensured that Haugabrook fully understood his rights, and that Haugabrook was waiving the potential conflict of interest voluntarily, knowingly, and intelligently. 
Got that.  The trial judge fucked up by not clearly determining that Haugabrook understood what all he was giving up when he said he waived any conflict of interest.

And so, the court of appeals sent the case back for a new trial. 

Wait, no.  That's not what they did.

Oh, they undid the conviction, they said his plea was no good because the judge didn't determine, etc.

Oh, they sent it back.  They undid (vacated is the legal term) the conviction.   And - Oh, hell, here's what the court said.
Accordingly, the judgment is vacated and the matter is remanded for the trial court to fulfill its affirmative duty to obtain a voluntary, knowing, and intelligent waiver of the conflict of interest.
Of course.  They ordered the judge to get Haugabrook to voluntarily waive the conflict so that his lawyer will have properly pleaded him guilty and so that . . . .  

Well, it's not entirely clear what.   His plea has been undone.  So whether or not he now concedes that he was really happy to have the same lawyer represent him and his wife despite the fact that he argued on appeal that he wasn't happy about it . . . .  The plea that lawyer rammed down Haugabrook's throat carefully negotiated is gone.  Maybe it could be reentered - if he and the prosecutor agree.  But maybe they wouldn't agree.  Either way, an after-the-fact waiver of the conflict won't reinstate it.

Put that aside.  After all, the immediate question is how the judge satisfies the order from the court of appeals.  You know, the order 
to obtain a voluntary, knowing, and intelligent waiver of the conflict of interest.
Perhaps this way?
Court: Mr. Haugabrook, I've brought you back because I'm required to have you volunteer to waive any conflict of interest after I explain to you in detail why the conflict is a problem for you. You are now required to voluntarily waive the conflict so that the plea you previously entered and wanted to withdraw can be enforced against you even though it's been vacated at your request and is no longer in effect. But since the court of appeals ordered me to get you to voluntarily waive, I hereby order you to do it.
Haugabrook: Huh?
Court:  Excellent.  I find that your "Huh?" was a knowing, intelligent, and voluntary waiver of your right to a lawyer who did not have a conflict of interest and is also a guilty plea.
I've quoted Dickens before.
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot."
Case closed.

*Yes, lawyers are supposed to be ethical.  They even have rules.  And in most, maybe all states these days one has to pass an ethics test to become a lawyer.  Of course, it's an easy test.  And it doesn't actually test whether the person is ethical - just whether the person knows the rules.  Still

** If the lawyer tries, it can end up like this.
Lawyer:              George, maybe you don't want to, but, if you tell the judge X, you can take her for everything she's got.
George:              Really?  Hmmm.
Lawyer:             Mary, I know you maybe don't want to, but if George did that and you can prove it, we'll nail his ass to the wall.
Mary:                Really?  Hmmm.
Lawyer:            Judge, the evidence I present will show you that he should lose and the house and the kids to her.  And it will prove that she's a wholly unfit mother and he's a saint who should get everything - including permanent custody of the kids.
***Along with another guy who has nothing to do with either the story or this post.

Thursday, September 8, 2016

If all lives mattered, we wouldn't have to say black lives matter

Walter Scott.  Unarmed.  Shot in the back.  Killed.  

Samuel DuBose.  Unarmed.  Shot in his car.  Killed.

Errol Garner. Unarmed.  Allegedly selling loosies. Put in a chokehold.  Killed.  

In case you forgot.  If you somehow missed the video.

And that's before the black screen, the title in white, underlined in red.  The colors telling the story: Black.  White.  Blood.

Michael Brown.  Tamir Rice.  Trayvon Martin.  Freddie Gray.

The first chapter, "Unarmed," focuses on those cases as exemplars.  Here.  Watch the video.  Listen to Michael Brown's mother and Tamir Rice's father.  See the confusion.  The anguish.  

Listen to Benjamin Crump.
There's this notion that the laws and legal proceedings have to be fair.
Yeah a notion.  Lovely idea that.  But as civil rights attorney Lisa Bloom says, 
There has to be accountability.
You know how much of that there's been.

The second chapter, "Black on Black Crime," looks at efforts in the communities.  Not by the cops, not by the government, by the people.  Women of Watts, for instance.

And the good cop, the African American Deputy Police Chief in LA who wants to work with the people, and to investigate what's been ignored.  He promises.  He takes notes.  He seems sincere. And then . . . ?  

Yeah, I don't know, either.

The third chapter, "Legal System," starts with Tom Mesereau and his Free Legal Clinic.  Mostly, there's US District Judge Otis Wright, II.  He's giving a talk, explaining how the feds work, how the DEA runs their scams which is how the prisons get filled with the wrong people.
So these doofuses who thought they were gonna get rich are gonna do 15 years. 
Not because there were any drugs.  Nothing's taken off the street.  Nobody's safer.  But the feds know that they can make it work by targeting. . . .
You've accomplished nothing.  Except to demonstrate that poor people, stupid poor people, will jump at the chance of making some easy money.
It's realpolitic.  

The film's not perfect.  The second chapter lacks focus and feels too much like an interruption, a sop to those who'd see the whole as too political, too polemical.  And yeah, it oversimplifies and probably assumes too much, believes too much.  

But is political.  It is polemical.  It's intended to be.  Those are features, not flaws.

Dr. Melina Abdullah, an organizer of Black Lives Matter, serves to frame the film.  If there's a moral center, it's she.  Near the beginning she cuts to the chase.
If all lives mattered, we wouldn't have to say black lives matter. 
When Justice Isn't Just may not be perfect, but it's got real force.

WHEN JUSTICE ISN'T JUST - OFFICIAL TRAILER from First Run Features on Vimeo.

My thanks to First Run Features for providing me with a screener.

Wednesday, September 7, 2016

He Held Her. They Both Cried.

It was 1983.

She was 19.  He was 22.  She was white.  He was black.  She was raped.  He wasn't the guy who did it.

But she identified him.  In a photo array.  In a courtroom before a jury.  In another courtroom before another jury.  Guilty!

60 years,  Four times what he'd have gotten from the plea offer he turned down even though his lawyer urged him to take it.  After all, he was factually innocent and the truth would surely come out and set him free.  Because God or the American way or just blind faith.

But no.  The trial lasted one day.  The jury was out for one hour.  Guilty!  

And 60 fucking years.  Which might as well have been a lifetime.

He appealed.  You know how that went.
His appeals failed, and he grew to accept that he would die behind bars. He shut himself off to the outside world — an adjustment exacerbated by the fact that, other than a visit from a friend in the first year, no one, not even his family, came to see him. He began to doubt his own innocence. 
There are, of course, two stories here.  

While he was losing his life, the woman he didn't rape* was working on hers.  She was comforted because the guy who'd raped her wouldn't get to do it again.  To her or anyone.  60 damn years.  And he deserved every one of them.

This was Oklahoma, so it's maybe no surprise (it shouldn't be anyway, but hey, this is my storytelling) that a church choir came to the prison for a Christmas musical.  One of the women from the choir noticed him.  She was impressed.  She followed up.  She believed.  They got married.  

When they learned about DNA she cashed out her retirement and used the money to hire a lawyer who managed to get the samples and have them tested. (I keep saying they should test the fucking DNA - this time they did.) 

And of course, since he didn't rape anyone, including the woman who'd repeatedly said he was her rapist, well . . . .  Damn!  He was the first person in Oklahoma to be cleared by DNA.  And after only 13 years.
“There’s nothing I can do to correct the 13 years of injustice that he has endured in this case,” the district attorney at the time, Tim Kuykendall, said in court.
Kuykendall also stressed that blame did not lie with the victim. “I do not believe she lied,” he said. “I think she truly believed [he] was the perpetrator.”
And so he went home, with his wife.  And he found a job and was getting his life together.  Which is maybe a whole lot tougher than you'd think, because really, innocence isn't enough.

Oh, it looked like things were going well.  He had a job.  He had a home.  But it's not that easy.
“I went from 14 years in prison to the streets in less than eight months. No halfway house. No integration. No nothing,” he said.
He also had no opportunities to explore the trauma of having been locked up and treated as a criminal for nearly half his life.
He was maybe ready to howl a little.  His wife, the church lady, not so much.  Still.

They worked together and Oklahoma passed a law to compensate exonerees for their years in prison. 

Well, some exonerees.  They didn't make the law retroactive.  Fucked again.  And then there was the drinking and the drugs and he lost his job and his marriage.  He ended up homeless.
“I had expected that all I needed to do was just get out, and then I can pick up where I started off,” he said. “But what I didn’t understand was that I didn’t know how to live life. I had lost the ability to cope.”
Of course, there was still the woman he didn't rape.  She'd known about the DNA testing, 
but she’d thought little of it, because she was sure there’d been no mistake — she’d even traveled to prison to fight his parole. So the disclosure was hard to accept. It brought back terrifying memories of the attack — and the realization that [he] was not the one responsible. 
And that, of course, in another way, she was. The day he was exonerated and set free
She knocked on the door of a church, weeping, and asked to see a pastor. “I told him I just needed God’s mercy,” she said. “I needed forgiveness and mercy.”

About 6 years later, the woman he hadn't raped called the wife he no longer had.  They spoke for a while.  How is he?  How is he doing?  She wanted to know.  And the ex-wife, How did you do that to him?  How could you?

In the fall of 2012, some 30 years after he was accused and tried and convicted of the rape of the woman he didn't rape, some 7 years after he was exonerated, he bottomed out.  He started to reclaim his life.  He got housing.  He got disability payments.  He went into recovery in a 12-step program.  

Last year, he was to speak at high school with a bunch of other exonerees.  The woman he didn't rape was an alumna.  She saw reference to the program, saw his name as one of the panelists.  She screwed up her courage.  

She tapped him on the shoulder.  Some 33 years after the fact.  After they'd last seen each other - her glaring and him mystified - across a courtroom.
“Could I talk to you for a minute, please?” she asked.
He followed her into a hallway, where she told him her name. His gut skipped.
She stepped back, afraid of how he’d react.
“I’ve been waiting so long to say this: I’m so sorry,” she said. She crumpled into tears. “I’m so, so sorry.”
[He] listened in amazement. It was the first time anyone had apologized for what had happened to him. “It’s OK,” he told her. “I forgive you. I forgave you a long time ago.” He put his arms around her. He began to cry, too.
It is one of the myths lies they tell people who've been victimized.  You'll only feel better if the monster is destroyed.  Or at least kept away.  But they learned otherwise.  Her apology freed him. His forgiveness cleansed her.  They'd both been victims.

His name is Thomas Webb.  At her request, the NBC News team that put this story together refers to her, at  as K.  I don't know how she picked that.  I assume it's her initial.  Or maybe she'd been reading Kafka and sensed - if only subliminally - a connection to Joseph K.
Every so often, he and K meet on lunch breaks. They check up on each other. He calls her sis. She says she loves him like a brother.
Their friendship has brought each of them a level of peace that neither thought possible.
“She’s able to move on with her life now instead of being stuck in fear and guilt because of me, and I’m able to be free from the resentment, the anger, the disappointment,” Webb said.

* Don't be a smartass.  Yes, There are actually millions of women, billions of women he didn't rape.  But you know what I mean.

Tuesday, September 6, 2016

We the People

September 17, 1787.  Philadelphia.  Delegates to the Constitutional Convention signed their proposed constitution.*

September 17, every year (since 2004).  The United States.  Constitution Day and Citizenship Day.**

September 17, 2020.  Lucasville, Ohio.  John Drummond to be executed.***

Because what better way is there to honor the Constitution than by killing someone?

Drummond was convicted and sentenced to die for the aggravated murder of Jiyen Dent, Jr., a three-month-old child on March 24, 2003.  A drive-by shooting.  Tragic.  And so.

I've several times here quoted Camus:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.
And I've noted that Camus was wrong.  There are worse monsters.  But it's not supposed to be a competition.  

John Drummond has been on death row now for some 13 years.  He's had at least two previous execution dates, though his lawyers, at least, knew they weren't real dates.  Whether he knew? Whether he understood?  

This one, though, is real.  In a little over four years a group of prison guards will tie him to a table, stick needles in his arms, and pump some drug into his body that will kill him.  

They'll do it in front of witnesses who will carefully watch the murder.  Some will likely cry.  Others grimace.  Perhaps one will throw up.  A couple will take notes.  Perhaps others will smile.  Maybe a fist bump. Really, there's no telling how folks will react to watching a man be put to death.

There will be, outside the prison in Lucasville, a handful of protestors.  They will hold signs.  They will hold hands.  There will be prayer.  Perhaps song.

Or, of course, maybe not. 

Here in Ohio we haven't actually executed anyone since Dennis McGuire in January 2014.  And although there are we others with dates sooner than Drummond's, it's not clear what will happen to any of them.

For one thing, we don't have the drugs.  And can't seem to find them.  The General Assembly passed a special law so that compounding pharmacies could make the drugs and keep it a secret.  That would encourage them, the legislature said.  Turns out that wasn't so.  For whatever odd reasons, Ohio's druggists - even the ones who manufacture to order - don't want to be in the business of abetting state murder.  Damn!

And then there's the problem that Ohio's death penalty law is unconstitutional.  One common pleas judge said so.  Others are being asked to weigh in on the question.  There's a case in an appellate court now.  Will we kill while waiting for a definitive ruling?  At least one of the men with a serious execution date has asked the Ohio Supreme Court to call a halt until the question is resolved - which makes sense, but who knows.

Because four years is a long time.  And Drummond may yet have issues.  He will have a clemency hearing before the Parole Board.  And then the Governor - whoever that will be - will get to decide whether to stop the killing.

After four more years.

Drummond was 26 when he arrived on death row.  He's 39 now.  They plan to kill him when he's 43.

Whether they do or not, it won't bring Jiyen Dent, Jr. back.  That tragedy will remain no matter what.

Constitution Day and Citizenship Day.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

* It didn't actually become The Constitution of the United States until it was ratified.
** By law.  Title 36 of the United States Code, Section 106.

Friday, September 2, 2016

Pay Attention to the Monkey

When Shrub was elected was appointed anointed became President, lots of people said he was stupid. Not so, I argued.  Dumb as post in some ways, perhaps, but you don't accomplish what he did (and yeah, I know, but still) without some smarts.  Thing is, he was by many admired for a kind of thoughtlessness.   

Introspection?  Serious investigation to learn stuff?  Actual and careful consideration of opposing views?  Nah.

Is that a good thing in a President?  Shrub claimed to be The Decider.  Replaced by Kenyan Muslim America-hating former constitutional-law professor (whatever you think of how he understands the document or adheres to its strictures).

Enter the Trumpster who simply disdains the truth claiming whatever and refusing to back down when he is demonstrably wrong on the facts.  (No comment on Hillary, this is a set up, not a political diatribe, and yes, I know all politicians dissemble lie.)

Anyhow, back in 2009, the National Academy of Sciences issued a major report, Strengthening Forensic Science in the United States: A Path Forward.  The short of it is that pretty much all of forensics, the whole CSI thing, was hocus pocus.  

  • Fingerprints?  Nah.  
  • Ballistics?  Nope.  
  • Bite mark comparisons?  You gotta be kidding.  

And so on.
Cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) had been buying into this bullshit for years, decades.  And it had all the scientific validity of phlogiston.

It's not that every so-called match was wrong, of course.  Hell a stopped clock is right twice a day (once in military time).  But which two times?  Aye, there's the rub (which is from Hamlet, which given enough time and enough monkeys and typewriters would get written out).  But you know, random chance isn't - or at least shouldn't - be proof beyond a reasonable doubt.

So now we know it's junk and worthless and nobody relies on it anymore cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) still buy into this bullshit. Because, well, what's the point of actually knowing shit?  

I mean, scientists with their little experiments and fancy laboratories and they think they know better than the rest of us.  Nobody cares about that.  Or believes in it.  Hell, we had a snowstorm in January, so you know global warming is bullshit.
Much of the forensic analysis used in criminal trials isn’t scientifically valid, according to a draft report by the President’s Council of Advisors on Science and Technology.
That's the opening of an article in the Wall Street Journal (which, unfortunately, is hidden behind a paywall).  

And the report ?
"It has become increasingly clear in recent years that lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system,” said the draft review by the advisory council of scientists and engineers.
Which means?
“What they’ve done is turn the accepted reliability of expert witnesses and their evidence on their heads,” said Jim Pasco, executive director of the Fraternal Order of Police. “As a result there will be people who are not going to go to jail who should be incarcerated and some who are currently incarcerated will be released. The effect will be a threat to the public safety of American citizens.”
Because of course, all that worthless stuff is really really accurate.  On those random and unidentifiable occasions.  Don't believe Pasco?  How about "Jim Bueermann, president of the Police Foundation, which does law enforcement-related research"?
“Just because there is a lack of science does not mean the analysis is inaccurate or done wrong or is not worthwhile,” he said.
Sure.  I mean, nobody actually knows if it's meaningful.  But it snowed one day in January.

And the cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) . . . .

Aye, there's the rub. 

Friday, July 15, 2016

Strickland Prejudice, Part 2

If you read what I wrote yesterday (The Wrong Question? The Wrong Answer? It Depends), and if you didn't, follow that link and go there now, I'll wait, then you've gotten the basic test for when trial counsel fucks up so badly that someone can get relief on appeal.

Here's a quick recap and summary in case you didn't follow the directions in the last paragraph (not a crime in violation of the Consumer Fraud and Abuse Act, since I didn't formally notify you personally that it was a requirement if you were to continue reading this, but if I had . . . ).

The Sixth Amendment guarantees not just the right to counsel but the right to the effective assistance of counsel.  That means, if you're one of those literalists who believes in the words, that a person accused of crime is entitle not just to a lawyer but to a lawyer who's effective, who does her job well.  Except, of course, that's not really what it means.  The Supreme Court laid out the basic test in 1984 in a case called Strickland v. Washington.  To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his lawyer's performance was objectively deficient (whatever that means) and (2) that it was prejudicial.

Yesterday, I was bitching about Judy Lanzinger's question to Nathan Ray and about his answer during oral argument in State v. Cepec.  She asked Ray about the second prong, the prejudice part.

What about the outcome determinative part of that test, though? Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?
Ray's answer?
The right answer? 
The test isn't "outcome determinative," your Honor.  It's not even "more likely than not."  It's just a "reasonable probability."
That's not just me. It's what the Court said in Strickland.

They worked to get there.  They rejected "outcome determinative."  They rejected "some conceivable effect on the outcome."  They rejected Washington's suggested "impaired the presentation of the defense" and rejected "more likely than not."

They rejected the weakest of those measures because either they 
provide[d] no workable principle . . . no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.
They rejected the stricter ones because they 
presuppose[] that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. . . . An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower.
Think about that.  If you start with the presumption that trials are basically fair so that the results should be honored, it follows that it should take a lot of prejudice to call for a do over. As one Ohio court explained,
There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant when applying a harmless error analysis. Relatively minor trial errors are harmless so long as there is overwhelming evidence of guilt from other sources.
But if the trial lawyer was objectively deficient, if he fucked up badly enough, then there's little reason to think the original outcome was right, so there's no reason to be deferential to it.

The analysis makes so much sense that it's hard to believe the Supremes actually came up with it. And its understandable that judges in Ohio (and much of the rest of the country, I imagine*) simply don't believe that's how it works.

So we have to educate them.  Over and over and over and over and over and . . . .
The prejudice prong of Strickland is easy to satisfy. 
Repeat as if it's a mantra.
The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy. 
Of course, there's a catch.  It's easy to satisfy the second prong of Strickland precisely because it's hard to satisfy the first.  Hell, it seems close to impossible sometimes.  As I described the test yesterday, 
If you held a mirror up to the lawyer's nose what would have happened? If it would have gotten foggy, the lawyer was good enough.
That's not how courts describe what they do. But it's too often the reality. Still, once in a while they concede the point. The fuck up was in fact beyond the pale. And no marginally sentient being could have thought it rational strategy. So we get to the second prong of the test.

Which we should almost always win.

Except, of course, that judges get the test wrong. And attorney's don't correct them.

*Note that the judges of the Texas Court of Criminal Appeals and 5 judges of the 5th Circuit Court of Appeals didn't find that Calvin Burdine showed enough prejudice even though his lawyer, Joe Frank Canon, slept through "significant portions" of his capital trial.  (Nine judges on the 5th Circuit thought there was enough prejudice, but the sheer number who disagreed tells you how high judges tend to view that low bar.) 

Thursday, July 14, 2016

The Wrong Question? The Wrong Answer? It Depends

The correct answer to every legal question, I regularly say, is "It depends."  
  • I have a lawsuit, don't I?  It depends.
  • The drugs will be suppressed, won't they?  It depends.
  • That means there's reasonable doubt, doesn't it?  It depends.
  • My lawyer fucked up, so I get a new trial, right?  It depends.
Clients hate it.  Reporters looking for quotes hate it.  You're uncle who's been arguing with his neighbor about the tree that drops sap on his car when it's in the driveway hates it.  But dammit, it does depend.

It depends on all the facts and circumstances.  It depends on whether the burrito the judge had for lunch gave him gas.  It depends on whether the lawyer or the judge won the last round of golf and whether the jury thinks your lawyer's tie is ugly or her skirt's too short.

So yeah, the correct answer to every legal question is, "It depends."

Except, of course, when it isn't.

Over at Fault Lines, Andrew Fleischman examined the oral argument before the Georgia Supreme Court in West v. The State to draw lessons from When Oral Argument Goes Wrong.  It's a useful tutorial and the lessons are general sound.

  • Know the law.
  • Policy arguments are nice but focus on the law.
  • Take the other side seriously and respond to what they're arguing.
  • Sometimes it's better to shut up and let the other side screw themselves.
  • Courts really try to focus on the law, not the lawyer, even when they fail.*

Sure.  Good advice and good things to know.  

But sometimes --

The Supreme Court of Ohio as it's properly called.  Oral argument in State v. Cepec, a capital appeal.  Nathan Ray, representing Mr. Cepec, was just getting rolling.  Cepec's trial counsel, Ray was arguing, screwed the pooch provided ineffective assistance in violation of his client's rights under the Sixth Amendment.  

It's standard stuff.  There's a two part test, first set out in 1984 by the Supreme Court (the big one, in DC) in Strickland v. Washington.  

First part:  Was the lawyer's representation was objectively deficient? If you held a mirror up to the lawyer's nose what would have happened?  If it would have gotten foggy, the lawyer was good enough.  If not, it's on to the second part of the test.

Roll the tape:  Justice Judy Lanzinger's asking questions.  She's just gotten Ray to assure her that he is, indeed, making a Strickland argument.  Minute 5:50:
What about the outcome determinative part of that test, though?  Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?
To which Nathan Ray gave exactly the wrong answer.  
He said.  And then he began to explain why.  

All of which seems reasonable and satisfied Lanzinger.  Not on the merits, I suspect, but on the substance.  She got her answer simply and directly.
Which is one of the things they teach in law school - answer the judge's question (a lesson Andrew didn't draw from West v. The State, but he was writing a post, not a book addressing every issue).  

So, cool.  Except, as I said, it was exactly the wrong answer.  Because the second part of the Strickland test is not whether the lawyer's incompetence was outcome determinative.  It's not whether if the lawyers didn't make those mistakes "the outcome would have been different."  Hell, it's not even whether the outcome would probably have been different.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Strickland at page 693.

That's worth repeating, this time adding some boldface.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Oh, there's some bar.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.
(citation omitted).

There's even an actual standard.
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
And no, I don't really know what that means, either.  Except that it's more than a mere theoretical possibility ("some conceivable effect").  And it's less than probably.  One more time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Which means, to return to Judy Lanzinger's question and Nathan Ray's answer, that she asked the wrong question and he gave the wrong answer.

Because the right answer wasn't 
Yes, the errors were outcome determinative.
The right answer was
That's the wrong question, your Honor.  Strickland  specifically says that the second part of the test isn't even whether competent lawyering would probably have made a difference. 
Of course, it's not just Judy Lanzinger.  Our judges and justices routinely demand showings of harm far greater than the law requires.

And we let them get away with it.  Unchallenged.  

They're supposed to know the law.  We can't make them learn it, and we sure as hell can't make them follow it if they don't want to.  But we can damn well insist on telling them that they're fucking our clients because they insist that we have to prove more than we do.

No, it doesn't depend.  And it's damn well not outcome determinative.

One last time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Judy? Nathan?


*These are my summaries of Andrew's captions.