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.

But

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. Olsen.  As 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.

or 

Might not have changed anything.

or

But he should have said that before.

or

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.

The Lawyer Woke Up Too Soon

As in so many things, the law on this is clear but nearly toothless.
The criminally accused have a right to counsel.  More, they have a right to the effective assistance of counsel.
That's the "clear" part. The "nearly toothless" part is that the standard is so preposterously low.  In March of last year, I explained it this way.

The Sixth Amendment guarantees not just the right to counsel, but also the right to the effective assistance of counsel.  That should mean something like actual quality representation.  It doesn't.  The Supreme Court set out the test of effectiveness in Strickland v. Washington.  It started from a premise close to integrity.

An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

And then it eviscerated it.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

That's all a fancy way of saying that pretty much anything that can be imagined to be strategy or tactics, however ill-conceived (a nice way of saying "stupid") or inadequately accomplished (a polite way of saying "performed incompetently"), will suffice.  The basic test: If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.

But even if not, the lawyer wasn't ineffective unless there's a reasonable probability that the outcome would have been different.  Got that?  The Court offered several formulations of that rule, but here's the starkest.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

And you know, it has to be that way.  Because if we actually demanded that counsel do their job properly, then the criminally accused would have a hard time finding lawyers.  And they might not trust the incompetent ones.

Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

(You really can't make this stuff up unless you sit on the Supreme Court.)

So what does that mean in the real world?  It means that the lawyer fucking up is trivial.  What matters is proving that there's a reasonable probability you'd have done better with a lawyer who was doing everything right.  And while the Supremes have consistently said that "reasonable probability" doesn't mean "probably," they've also said that it just about does.
Except, you know, there are those extreme cases.  The ones where the courts just had no choice but to find prejudice.  Hell, they had to assume it.  Because see there's this other case that says when you're completely deprived of counsel, or when your lawyer doesn't function as a lawyer, that's automatically reversible.  Because, really.  What?  Not so?

Prejudice has not been presumed for claims of denial of effective assistance of counsel due to counsel's alleged impairment because of alcohol, drug use, or a mental condition. See, e.g.,Burnett v. Collins, 982 F.2d 922, 928-30 (5th Cir.1993) (alcohol abuse); Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (addiction to illegal drugs), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978) (poor health); Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.) (Alzheimer's disease), cert. denied, ___ U.S. ___, 121 S.Ct. 254, 148 L.Ed.2d 183 (2000); Smith v. Ylst, 826 F.2d 872, 875-76 (9th Cir.1987) (mental illness), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988);Hernandez v. Wainwright, 634 F.Supp. 241, 245 (S.D.Fla.1986) (intoxication during trial), aff'd,813 F.2d 409 (11th Cir.1987).

That's from Judge Rhesa Hawkins Barksdale's majority opinion from a case in the Fifth Circuit.
So when your lawyer has Alzheimer's?  Well, sure, but see maybe there was a cogent moment.  So prove that the Alzheimer's mattered and we'll give you a new trial.  You can do that, can't you?  What's that you say?  You can't prove it?  Oh, too bad.  Better luck next time.
That Fifth Circuit case is Burdine v. Johnson.  By a 2-1 vote, the panel said that sure, it's a bad thing for counsel to sleep through a capital murder trial.  But really.

Of course, our rejecting Burdine's presumptive prejudice claim should not be understood as condoning sleeping by defense counsel during a capital murder trial (or any other trial, for that matter). Again, we hold only that, under the specific circumstances of this case, in which it is impossible to determine — instead, only to speculate — that counsel's sleeping was at a critical stage of the trial, prejudice cannot be presumed; the Strickland prejudice analysis is adequate to safeguard the Sixth Amendment guarantee of effective assistance of counsel.

OK, the good news (at least for Calvin Burdine) was that the 5th Circuit then took up the case en banc, and with the whole court voting reversed the panel.

The State suggests that because Cannon was physically present in the courtroom, his dozing constituted a form of performance that should be subjected to prejudice analysis. The State maintains that it is impossible to distinguish between sleeping counsel and other impairments that nevertheless have been subjected to prejudice analysis. We disagree. An unconscious attorney does not, indeed cannot, perform at all. This fact distinguishes the sleeping lawyer from the drunk or drugged one. Even the intoxicated attorney exercises judgment, though perhaps impaired, on behalf of his client at all times during a trial. Yet, the attorney that is unconscious during critical stages of a trial is simply not capable of exercising judgment. The unconscious attorney is in fact no different from an attorney that is physically absent from trial since both are equally unable to exercise judgment on behalf of their clients. Such absence of counsel at a critical stage of a proceeding makes the adversary process unreliable, and thus a presumption of prejudice is warranted pursuant to Cronic.

Of course, the decision wasn't unanimous.  (It was 9-5.)  But even the 9 wouldn't give it all. 

As in Russell, we decline to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice. Our holding, that the repeated unconsciousness of Burdine's counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine's capital murder trial warrants a presumption of prejudice, is limited to the egregious facts found by the state habeas court in this case.

Of course, Calvin Burdine isn't the only guy who's had a lawyer sleep through his case.
Up in Michigan, for instance, there was Joseph Muniz.  His situation is different than Calvin Burdine's because he wasn't sentenced to die.  (Michigan has no death penalty, and anyhow the guy Muniz is supposed to have shot didn't die.)  Still, it's no bagatelle.

Muniz is currently incarcerated in Michigan. In his trial held in the Circuit Court for Wayne County, Michigan, he was convicted of assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz was then sentenced as a second habitual offender to 29-1/2 to 60 years for the assault with intent to commit murder conviction, to run concurrently with a sentence of 40 to 60 months for the felon in possession of a firearm conviction. He was also sentenced to a consecutive term of two years for the felony firearm conviction.

I'm not a Michigan attorney, and I don't have any idea of how much time Muniz will actually have to serve, but it's substantial.  And, in any event, his lawyer dozed.  
Ah, but not enough.

Muniz testified in his own behalf, the usual way, it seems.  You know, his lawyer asked questions and Muniz answered.  Then it was time for cross-examination.  And well, asking questions can wear a fellow out.  So during the cross-examination of Muniz, counsel took a nap.
Really, it could happen to anyone.
But it shouldn't.  Really.  The 6th Circuit was clear about that.  His lawyer did a bad.

While no evidentiary hearing has been held at the state or federal level on this claim, by putting forward the affidavit of a juror who witnessed Muniz’s attorney sleeping Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness. There is no suggestion in the government’s brief, nor could there be, that Muniz’s attorney fell asleep at trial because in his “reasonable professional judgment” it was the best course of action.

Glad we got that cleared up.  Sleeping wasn't a reasonable trial tactic.  But then.
As it happens, there are two ways Muniz could have gotten relief.  
He could have proved that his lawyer slept through a "substantial portion" of the trial.  But apparently cross-examination of the defendant just isn't substantial enough.  Counsel just woke up too soon.  Damn.
So Muniz was stuck with the other way.  He had to prove prejudice.  And there it is again.

Muniz, however, cannot show prejudice from his attorney’s deficient performance. “To establish prejudice, [Muniz] must show that a reasonable probability exists that, but for counsel’s deficient performance, the result of the proceedings would have been different.”

And how do you do that again?  Of course, by retrying the case.  But you can't do that because you can't prove that retrying the case with an awake lawyer had a fair chance of making a difference because you can't get the chance to retry the case with an awake lawyer because you . . . .
Fortunately, nobody gives a fuck about whether any of this was fair.  Nobody's interested in whether the system operates as it should.  All anyone gives a damn about is whether Muniz got convicted.
Because finality and all that.
And Joe Muniz?  Hell, at least they aren't going to kill him. 
Oh, yeah.  Did I mention that counsel had been using cocaine?

H/t Micah Gates at the 6th Circuit Blog 

Resting up

What is it with these folks who snooze at death penalty trials? Sure, the trials aren't like TV dramas. They're slow and often boring with a lot of not terribly articulate folks speaking in great detail about matters of what can seem like stultifying trivia. ("Patrolman Smith handed me the bag, I signed my name to the chain-of-custody slip attached to it, signed it right below what looked like Smith's name, then I carried it to the property room and gave it to Sergeant Jones who I watched sign the slip and then put the envelope in the safe." That sort of thing, which can go on for four or five witnesses and take the better part of an hour in some cases.)

But still. Sleeping?

I want to talk about Calvin Burdine and Joe Frank Canon and George McFarland and John Benn. I want to talk about Arif Majid and Juror No. 1. And I want, especially, to talk about Judge Doug Shaver and Judge Kathleen Sutula.

Burdine and McFarland ended up on death row after their lawyers (Canon and Benn) slept through substantial portions of their trial. Both cases were tried before Judge Shaver in Houston, Texas, who explained to a reporter, in the context of McFarland's case that

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Shaver can't have been too surprised by Benn's sleeping. According to an article in the Los Angeles Times in July 2000, Shaver explained,

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

Benn himself said,

I'm 72 years old. I customarily take a short nap in the afternoon.

After years of struggling, Burdine got a federal judge to agree that when your lawyer sleeps through your trial, it's like you had no lawyer at all and you're entitled to a new trial. Although a panel of the Sixth Circuit disagreed, the entire court ultimately overruled them in a 9-5 vote.

So far, McFarland hasn't been so lucky.

That extra lawyer may have made a crucial difference. Although he was young, and specifically appointed to assist Benn, not replace him, he ended up trying almost the whole case by himself. And though he made some efforts to wake Benn, he eventually gave up the effort to concentrate on the trial.

But the Texas Courts have said that no matter what Benn did, McFarland had that other excellent lawyer, and that's enough. In fact, he may actually have wanted Benn to sleep:

We might also view Melamed's decision to allow Benn to sleep as a strategic move on his part. At the new trial hearing, Melamed stated that he believed that the jury might have sympathy for appellant because of Benn's "naps."

So, at least, said the Texas Court of Criminal Appeals.

McFarland sits on death row in Texas. The federal courts are next for him.

Arif Majid has a different story. His lawyer didn't sleep through his death penalty trial (he got life) - Juror No. 1 did. Judge Sutula, who tried the case, knew it but did nothing about it. Let's consider the difference, for a moment, between a sleeping lawyer and a sleeping juror.

The sleeping lawyer cannot make decisions about the evidence. He can't decide to object or not. He can't decide whether to cross-examine based on what a witness said, because he doesn't know what the witness said. He is, in every meaningful respect, not present. The sleeping lawyer makes an unfair trial because the adversary system under which we operate collapses. There's just a one-sided presentation. The trial shouldn't count because it wasn't fair.

A sleeping juror isn't listening to the evidence. He cannot weigh it because he doesn't know what it was. He cannot decide whether the witness is lying or telling the truth or maybe just confused because he never observed the witness. His vote is a coin toss and his verdict shouldn't count because it can't have properly been voted by the juror who, in effect, might as well have stayed home.

They didn't put it that way, but that's what the Eighth District Court of Appeals said last week. And good for them. But here's what the Judge Sutula, who tried the case, said.

I saw it. So what. Let him sleep. You guys picked this jury, I didn’t.

Got that?

One judge thinks your right to a lawyer is satisfied even if the lawyer sleeps through the trial. Another judge thinks its OK if the jury sleeps through the trial.

I don't know either Judge Shaver or Judge Sutula. In fact, you now know absolutely everything I do about them. Perhaps they have, in other cases, demonstrated themselves jurists of the highest wisdom and integrity, paragons of the profession, virtually the Platonic ideal of Judge. But you gotta wonder.

Oh, you should wonder about this, too. Both Texas and Ohio elect judges.