Saturday, May 22, 2010

Miranda, Continuity of Counsel, Fundamental Fairness, Jamie West and Scott Turow

I've got something of a love/hate relationship with Scott Turow.  And it's all about the rule of law.
Like virtually every other soon-to-be law student, I read One L, his fictionalized account of his first year at Harvard Law School. Perhaps it's because I was older, preparing to switch sides in the university classroom from teacher to student, but unlike many readers and soon-to-be law students, I didn't find the book frightening.  I found Turow's responses so naive and annoying that they overwhelmed the nastiness.  In any event, it left me less than enthusiastic.
On the other hand, I thought Presumed Innocent, despite the weirdly contrived plot gimmick, to be absolutely terrific.  The courtroom scenes were rendered brilliantly, the prose just enough of a touch above the norm for crime fiction.  I was a fan.
Then Turow wrote an article for the New York Times Magazine discussing legal ethics and legal education.  Along the way, he mentioned the ethics charges that had been brought against him as an AUSA.
Indeed, the most dismal -and disappointing - moment I have endured as a lawyer arose last year in a sharp dispute over ethical duties. In June 1987, a Federal appellate court in Georgia rebuked me severely for my role as a United States prosecutor in allowing a defense lawyer who was seeking to cooperate with the Government to secretly tape-record a conversation with one of his clients about a drug-selling scheme that the lawyer admitted he and the client were planning. When I protested, the court responded by suggesting that my conduct regarding the defense lawyer might have constituted obstruction of justice. Various public officials and scholars spoke out in my defense, and, after a full investigation, the Public Integrity Section of the United States Department of Justice publicly vindicated me and my superiors in the Justice Department who had directed my actions, stating that the conduct in question fully complied with Federal law. I believed - and continue to believe - that neither clients nor lawyers have the right to plan crimes secure from government law-enforcement efforts.
When I read that back in 1988, I was in my first year as a lawyer in private practice. I was struck then, and am struck now, reading it again, that when your boss declares you behaved ethically in doing his bidding, that's vindication. It's not that I think Turow did in fact breach the ethics of the profession. I don't know nearly enough about the situation to weigh in on it. But I knew then, and know now, that there was something wrong with Turow's analysis. I wrote a lengthy letter to the Times laying out my position. They published three short paragraphs.

I agree with Scott Turow's call for serious exploration, in the law schools and out of them, of ''an understanding of the moral issues that govern law.'' But I am also concerned about what seems to me a misunderstanding, by Mr. Turow and much of the profession, of what those moral issues are.
When Mr. Turow reports his public vindication from charges of unethical conduct and provides as evidence a statement by the public integrity section of the Justice Department that he and his superiors in the Justice Department had not violated any law, he shows a blindness to the issues he addresses. It is the same blindness that former Attorney General Edwin Meese 3d showed in his similar declaration that he was vindicated when the independent prosecutor decided not to seek an indictment against him.
It doesn't matter, here, whether Mr. Turow or Mr. Meese actually did violate any rules, laws or ethical standards. What matters is that neither one can see that it is possible to adhere to every rule and code around and still be immoral.
I'm not sure I was particularly fair to Turow in those paragraphs (or in the much longer letter which I cannot check because I no longer have a copy - or cannot find it if I do), though I think the point itself sound.

Some years later, Turow wrote Ultimate Punishment, which I think one of the very best books on why capital punishment should be abolished.  If the state is going to be in the business of killing people, it should bear the burden of proof regarding the need/virtue/wisdom/something for doing so.  Starting as an agnostic on the question of abolition, Turow studied the death penalty in the real world and concluded that the state could not meet that burden.  Amen.
All of that is by way of explanation for my love/hate relationship.  If it seems a set up for a review of Turow's new book, Innocent, it's not.  I intend to read Innocent, but I have not yet done so.  Perhaps a review will come in time.   But not today.

No, what led me to this today is that the Times just reprinted on-line (is that an oxymoron? a mixed non-metaphor?) an op-ed Turow wrote back in 2000 shortly after the Supremes decided Dickerson v. United States, holding that Miranda warnings were constitutionally mandated.

Turow praised Dickerson's conclusion.  He noted that despite years of whining and posturing, Miranda seems to have had little real-world consequence.  Those arrested still confess an astonishingly large percentage of the time.  (That's true even of innocent arrestees, but it's a wholly different issue.)  And those confessions are admitted in court nearly always.
Nor is my experience idiosyncratic. After a couple of hours of computer research, I could not find a single reported decision in Illinois in the last 12 months in which a confession was suppressed or a conviction reversed because of a Miranda violation.
To a great extent, as the court recognized on Monday in Dickerson v. United States, courts and cops have accommodated themselves to the rule. The more conservative justices who ascended to the Supreme Court after the Warren years have narrowed the decision's grand mandate, refining, for example, what amounts to interrogation for Miranda purposes, or sometimes allowing subsequent statements to be admitted even if a defendant initially claimed his Miranda rights.
As for the police, the court is right when it says that law enforcement practices have adjusted to Miranda's strictures. As a prosecutor, I never noted that federal agents much resented Miranda, even though some, like those in the Internal Revenue Service, were required to give warning when simply questioning someone.
In eight years, I never had a statement excluded from evidence because of the Miranda rule. The agents accepted the standard and often applied it skillfully. I remember a veteran F.B.I. agent dispensing the Miranda warnings to a suspect before we took him before a grand jury, a practice required by the Justice Department. As one of my colleagues commented, the warning sounded so avuncular, you just about expected the agent to put his arm around the prospective defendant's shoulders. 
Turow's point was clear.  The bad guys don't go free because of Miranda.  Indeed, even Miranda did not.  After the Court threw out his confession, he was tried again and convicted again because he had confessed another time - in a setting to which Miranda  did not apply.  Or consider the alleged would-be bomber of Times Square who apparently confessed for days, at length, warnings (which were eventually given, after a period of interrogation Miranda permits) be damned.
But Turow's point wasn't that
Miranda should remain the law because it's worthless.  Rather, he said, it's vital.  Miranda, he says, "is an expression of some fundamental concepts about the law we all should hold dear."  He mentions equality (everyone gets the warnings, rich and poor, educated or not, powerful or powerless) and then gets to the meat of the matter.

But cops should recognize that no matter how noisy their protests, or how much they chafe, they are always going to be subject to civilian authority. Catching bad guys is important, but it is not the only thing this society values; we also care about certain minimal standards of decency in the government's treatment of citizens and limits on the authority of the state.

The requirement to recite Miranda is an important reminder to the police that the war on lawlessness is always subject to the guidance of the law. This week's decision, by a court that is not perceived as particularly hostile to law enforcement, is a needed reaffirmation of that message.
Which is, of course, the real point.  More relevant now than ever, perhaps, as the war on drugs morphs into the war on sex and into the war on terror - all of which are variants on the war-on-whatever-we-can-be-made-to-fear.
And which brings me to Georgia and the prosecution of Jamie Weis.  He's been sitting in jail in Georgia, awaiting trial, presumed innocent, for more than four years.  The State wants to kill him one of these days.  For some time, he was represented by Robert Citronberg and Thomas West, Atlanta capital defense lawyers.  Then the state ran out of money to pay them.  What to do?
In November 2007, the prosecutor had an idea: Take Citronberg and West off the case and appoint the state public defender to represent Weis.  According to
Marcia Coyle, writing in the National Law Journal, Judge Johnnie Caldwell thought that a good plan.

"This court is going to do something it has never done, which I believe it has the inherent authority to do under the Constitution of this State, as well as under the rules of the Uniformed Rules of the Superior Court, and that is in this instance I am going to remove defense counsel from this case," said Caldwell, who resigned last month amid an investigation into allegations he sexually harassed a female divorce lawyer.
Weis is now before the Supreme Court.  He claims that he's been denied his right to counsel and his right to a speedy trial.  The speedy trial issues are what they are.  The right to counsel claim is something else, and a matter of grave importance.

Weis wants the justices to make clear that "lawyers are not fungible," said lead counsel Stephen Bright of the
Southern Center for Human Rights in Atlanta.

Indigent defendants, Bright said, have the same Sixth Amendment right to continuity of counsel once the attorney-client relationship is established as do those defendants with the means to hire lawyers. That right, he and his colleagues contend, was violated in the Weis case, when two appointed attorneys were removed because the state ran out of money to pay them. "I think we have the complete breakdown in this case," Bright said. "The legislature just didn't put enough money into the system and it ran out of gas."

Indigent defendants may not have a right to counsel of their choice, Bright argues, but once they have counsel, the state cannot remove them at its convenience.

In the U.S. Supreme Court, Bright argues this is not a counsel-of-choice issue but an issue of continuity of counsel. Only Georgia, Louisiana and two federal circuits -- the 2nd and 6th -- refuse to recognize that, once the attorney-client bond of trust and confidence has been established, counsel cannot be removed absent some extreme circumstances. "There's a whole string of [lower court] cases saying, unless the lawyer is just disabled or engages in contemptuous behavior, you can't sever the relationship," Bright said. "This wasn't about Weis' seeking preference of counsel but opposing counsel moving to remove counsel. I think the Court will be offended by that."
Criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law and ethics scholar Monroe Freedman of Hofstra University School of Law said Bright's distinction is an important and valid one. Freedman is more emphatic, saying, "It is so clear this was a violation of fundamental rights that it should be the easiest of cases and should never have occurred in the first place."
We're talking here, as Turow was in the Times Magazine and the op-ed and Ultimate Punishment  (see how I cleverly wind back to where we began) about the rule of law and a sense of fundamental fairness.
All the more reason to suspect that the Court won't hear the case.  Or that, if it does, Weis will lose.
And if he does, we all do.
Which is, once again, what Turow was saying back in 2000 on the op-ed page of the Times.

H/t John Wesley Hall

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