Sunday, December 15, 2013

Gambling Is His Game

He shouldn't have done it.  I'm talking here about Maverick Ray and how he decided, just over six months after he got licensed, to defend Howard Wayne Lewis on charges of Capital Murder.*  Mark Bennett picked up on it and encouraged the world to join him in trying to convince the kid (Maverick) that he had made a terrible mistake and that he should back out now.  And while not the world, the commentariat certainly has with comments sometimes stern and sometimes soft, but consistently negative.  And so have fellow lawyer blawggers: Gideon and Scott Greenfield and Rick Horowitz and Daniel Partain and Keith Lee and not-lawyer blawggers Grits and Windy and . . . . Well, I know I've missed some.  All of them agree, as I say, that Maverick is making a serious mistake, is likely to get his client killed, and should either quit now or find an experienced and competent lawyer to take over an sit beside (or behind) him and study and learn.

Its a given then, it seems, to everyone but Maverick (and I suppose Lewis) that this is a horrible mistake.  But perceptions are often false, as those of us who take criminal law seriously know, and I think this one probably is.
Oh, not the perception that he shouldn't have done it.  That's absolutely right and true. (Quotidian true, don't start on me.)  I mean the perception that everyone but the two of them get it.  I'd bet there's a whole passel of supporting young lawyers and law students out there.  They believe they can do anything.  They needn't be taught and have nothing to learn because they already know it all.  Experience isn't worth shit.  They're smart and clever and know more than all us old fuddy-duddy types who've made our living in the trenches for however long. 

Besides, they've seen every episode of CSI wherever, and they have the internet and twitter and facebook and LinkedIn and whatever the latest internet toys are so they're primed and ready.  (And tan and buff, too, I suspect, but that's wholly irrelevant here.)

Anyway, as I was reading the comments on Bennett's and Greenfield's posts, I was struck by the number of folks who are sure that the kid is being underpaid and that the shortage of funds will be a major issue.  What struck me isn't that they're wrong.  It's likely he is being underpaid for capital representation.  I mean, virtually everyone who does a capital case, whether retained or appointed, is underpaid.  And virtually everyone who does a capital case struggles for the resources to do the job properly.  So the shortage of funds really will matter.


Here's part of a comment by Noah Clements on Greenfield's post.
This is the real issue (money and time) – and while it looks like Texas may have fixed some of its past problems in appointing counsel in capital cases with its criminal procedure rule (they had the famous issue where half the residents of Harrison County’s death row were defended by one guy who assured all that he was competent and effective), that’s certainly not the case everywhere. The Equal Justice Institute in Alabama estimates that “Nearly half of the people on Alabama’s death row were represented at trial by appointed lawyers whose compensation for out-of-court preparation was capped at $1000.”
As Scott points out in response, Noah missed his point, and I'm only quoting part of what he said because, frankly, I'm just using it as a lead in to my point.

Let's look at that first bit again: "This is the real issue (money and time)."

In fact, no.  The real issue is appointing competent lawyers and THEN giving them money and time.**  The latter are important, vital even, but competence requires more.

For all the blustering about how young Maverick undercharged and hasn't the funds for the necessary resources, I don't actually know that to be true.  And in the scheme of things, it doesn't matter.  What we know is that he hasn't the experience to do the job properly regardless of the money and regardless of how much time he's willing to devote to it.

The thing is, even when you toss experience into the mix you're still only working on the margins.  After all, having done a lot of stuff doesn't mean you've done any of it well or that you've learned anything much in the process.  So even after demanding experience, we'd want to add on an education component.

In Ohio, for instance, to be appointed in a capital case the lawyer has to have so many years in practice, so much trial experience (or appellate experience for an appellate appointment), and regular training at capital defense CLEs where there is to be, among other things, discussion of case law and voir dire technique and whole bunches of other stuff.  Which surely beats not requiring those things, but doesn't do anything to ensure that the lawyers on the list are actually competent.  And it certainly doesn't ensure that the alwyers who qualify are actually willing to do the work, actually care about the client, actually . . . .

And, in fact, too many of the lawyers who are qualified and certified and actually get appointments do terrible work.  And that has nothing to do with whether they get the necessary resources (time and money).

You can't make standards/requirements that will ensure competent representation.  That isn't to say we shouldn't have them, but that all they can really do is help at the margins.

And, frankly, the margins are all anyone much cares about (if they care even about the margins).

Duane Buck, sentenced to die in part (and really, this isn't even in serious dispute) because he's black.  Texas promised it would undo that and give him a fair shake.  It reneged. 
What?  Honor an agreement with a guy on death row? Fuck you.
At SCOTUS they said,
Gee, it's an outrage.  Que lastima.  Fuck you.
Back to the Texas Court of Criminal Appeals.  Where they said
Procedure.  Abuse of the writ.  We won't even consider.  Fuck you.
Calvin Burdine, sentenced to die when his lawyer (Joe Frank Canon) slept through major portions of his trial.  And the Texas courts (them again) said
Hell, he had a lawyer.  Fuck you.
And a panel of the Fifth Circuit said
Shit.  It's not like his lawyer was psychotic, which we wouldn't care about either.  Let him die.  Fucki you.
(Though en banc the court said, "Well, this time" though there were strong voices for "Fuck you.")

Mario Dion Woodward, sentenced to die by an Alabama judge after the jury voted 8-4 for life.  But really, he did a bad.  So the judge said (and yes, this is getting to be a theme)
Fuck you.
As Alabama judges have done 95 fucking times after juries said the guy should live - as opposed to the 9 times they choose life when the jury said to kill.  And the Alabama courts said, 
So what? Fuck you.
And SCOTUS said,
Gimme a break.  We can't be bothered.  Fuck you.
Though Sonya Sotomayor said they should indeed bother and tell Alabama to knock it off.

And in the next case, whatever it is, the courts will say, 
Yeah, but so what?  Who gives a shit.  There's a fair chance he's guilty.  Fuck you.
And nobody, really, nobody much calls them out.

Oh, sure, Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, took a shot at prosecutors for Brady violations (hiding evidence favorable to the defense).
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
Which would be great if the court did something to put a stop to it.  But Kozinski was dissenting in United States v. OlsenAs was Ohio's late Chief Justice Tom Moyer when he said he would have reversed a death sentence because of misconduct by the prosecutor.  He wrote in State v. Fears, in dissent.
Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.
Because they won't.

Oh, there are explanations.  Legal standards and rules.  Harmless error tests that let judges say, 
Wouldn't have changed anything.
Might not have changed anything.
But he should have said that before.
Fuck you.
Which is what they all are.

And after all, Congress enacted AEDPA which says that federal courts can't correct the constitutional errors of state courts unless they're really really really obvious and gross constitutional errors.  Because we don't really give a shit about constitutional rights or fair trials.  And then SCOTUS added a gloss in Harrington v. Richter, and maybe said (we're still hoping for some wiggle room in this) that if even one rational judge somewhere in the world could see things the way the state court did, why then, the feds won't interfere.  Justice Kennedy explained.
The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. 

. . .
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
And, oh, those federal courts in their vigilance and independence don't get to consider any evidence that wasn't presented to the state courts, no matter how incompetently things were done in the state courts.  Because
Fuck you.
My guess is that Maverick Ray doesn't understand all this.  And if he does, he doesn't really believe it.  It takes years fully to grasp just how seriously the system works to screw our clients. And that's leaving aside open venality and cheating.  There are paths, there are things to do.  There is, as I say regularly, no death penalty case that cannot end up in life though not all of them can. 

Maverick Ray will almost surely provide what by any fair measure is ineffective assistance of counsel to Howard Wayne Lewis, because he probably will be under-financed and will lack the resources and doesn't have the experience or the knowledge and the nuance and the maturity.  And it likely won't matter because the courts don't really believe in effective assistance and even when they find counsel's representation horrifically deficient they commonly end up with a 
Fuck you.
So maybe Maverick really cares and will bust a gut and what ends up happening will drive him so crazy he'll give up criminal law.  Or maybe he'll just chalk it up and declare a win anyway.  

And Howard Wayne Lewis? I don't know why he hired Maverick.  Maybe they're related.  Maybe their grandmothers are best friends.  Maybe he thought a kid would bust a gut for him.  Maybe he was gulled by the self-gushing on the kid's website.  After all, he claims to be "Houston's Premier DWI Attorney," and if it's on the internet it must be true.  

F. Scott Fitzgerald famously said there were
No second acts in American lives.
He was wrong about American lives.  But he would have been very close to right if he'd been talking about capital defense.    

Howard Wayne Lewis almost certainly made a mistake in hiring Maverick Ray.  

Maverick Ray almost certainly made a mistake in signing on to be Lewis's lawyer.
It's not too late to undo those errors, though time's a wasting.  

And yet, and yet.  Texas has executed over 500 men and women.  Some have had able, experienced lawyers.  There are no guarantees.

*The claim in some of the commentary and blog posts is Maverick was graduated from law school 6-8 months ago.  A quick check of the State Bar of Texas website says not so.  He was graduated last December and licensed in May of this year.  The difference is trivial in context, but facts do matter some.

**Maverick was retained, and much of Scott's post and its apparent motivation addresses issues about retained capital counsel.  But retained capital counsel, including retained baby lawyer capital counsel, is the exception.  I don't have numbers (anyone who does, I'd love to see them) but the vast majority of capital cases are defended by appointed counsel.


  1. Alex Bunin made the incisive point that this is one of those instances where market forces tend to serve a greater (and unintended) goal of putting death cases in competent hands. finances may not be the right reason to go with death qualified indigent counsel, but it beats going with unqualified retained counsel.

  2. Almost anything beats going with unqualified retained counsel. I trust Bennett (and Bunin) to know the Texas landscape today when they tell me that his appointed counsel would be competent and would have adequate resources. Even incompetent retained counsel can take advantage of the Capital Assistance Attorneys in Texas.

    I'm all for standards and qualifications, I'd just like to see them work better than they do. And at least in my part of the country, indigent appointed counsel typically have to fight for more than bare minimum resources. I was co-counsel at trial in a case where the judge assured us we'd get what we need. She authorized $2,500 for a psychologist, told us to come back if we needed more. The case settled. The psychologist billed something like $1,800. She refused to pay much of that since it included his travel time from Cleveland to Toledo to meet with the client.

    There's ongoing litigation over whether the judge in another case was obligated to approve payments he'd authorized to experts. Money makes a huge difference in these cases, but appointments - even of competent lawyers who are willing to do the work - don't always get what they need. And they're grotesquely underpaid.

    None of which has anything to do with Messers Lewis and Maverick. Lewis should get indigent counsel for many reasons - resources being only one of them. And Maverick should bow out.