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.

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?

Yes.

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.) 

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.  

Yes.

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.

Yes.

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?

Bueller?


-----------------
*These are my summaries of Andrew's captions.

Effective Assistance? Fuck You.

Allow me to vent.

50 years ago, in Gideon v. Wainwright, the Supremes said that the 6th Amendment guarantees that a person charged with a crime is guaranteed the services of an attorney for his defense.  29 years ago, in Strickland v. Washington, the Supremes had a good laugh over what they'd done.

What Strickland says is that the 6th Amendment doesn't just entitle people charged with crimes to the assistance of counsel.  It entitles them to the effective assistance of counsel.  Which sounds pretty good.

Hey! I'm not just entitled to a lawyer.  I'm entitled to an effective lawyer.  You know, one who's gonna defend me, do it right.  That's cool, man.

And it is, indeed, the law.  That's what you're entitled to if you're charged with a crime.  You have a right to that.  From that right, it follows that if you don't have that sort of lawyer, you must have a remedy.  Back in 1803, the great Chief Justice John Marshall explained in Marbury v. Madison.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

So, of course, if you're lawyer proves to be an incompetent bozo, you get a new trial. I mean, that's the whole idea.  

Right?

Wrong.

Because, you see, ours may have been

emphatically termed a government of laws, and not of men

but them's just words.  And that measure?  So 1800s.  Simply, we do not, in Marshall's own formulation,

deserve this high appellation.

You have to go back to Strickland where the Court actually explained about that effective assistance of counsel thing.  It works this way.  A person who's been convicted of a crime can complain on appeal that she was denied the effective assistance of counsel, that she didn't get what she's entitled to.  The court will (in theory at least) examine the claim.  

The problem is what happens.

The lawyer doesn't have to have been good, doesn't even have to have been average.  Less than average, way less than average, is "effective."  The test is whether the lawyer's actions or inaction fall below an "objective standard of reasonableness."  And that's determined by whether there's some rational reason, some barely rational reason for what the lawyer did.

Actually, that's not even right.  The test isn't whether the lawyer had an at least barely rational reason.  It's whether the court, with an assist from the prosecutor, can think of one the lawyer might have had.  But let's say it can't.  Then the poor shlub with the actually brain dead lawyer gets a new trial.  Right?

Well, maybe if the lawyer was technically brain dead.  A true flat line on the EEG.  After all, a majority of the judges on the 5th Circuit Court of Appeals held in Burdine v. Johnson (reversing a decision made by a three-judge panel of that court) that when a lawyer sleeps (that's literally, with snoring) through major portions of his client's death penalty trial, the client did not have effective assistance of counsel and is entitled to a new trial.  (Of course, some of the judges disagreed, which really tells you all you need to know.)

But the basic rule is that you're only entitled to that even barely functioning lawyer (judges in Burdine observed that courts haven't given new trials as a matter of course to lawyers who were drug addicts at the time of their clients trials, or who were drunk, or who were suffering psychotic breakdowns or from Alzheimers) in theory.  Because if you ended up getting less than that, well, gee, too bad.  Unless you can show that if the lawyer was sentient you'd have done better.

You know, based on the old adage that if there's some reason to think you might be guilty, nothing else matters.  I mean, what's the bitchin' about?  So you had a lawyer who wasn't quite brain dead and who really did nothing for you?  You might be guilty and we can't just give new trials to everyone whose lawyer makes the chair I'm sitting on look like a genius. 

'Cause we said so.

Gideon be damned.

Law of Rule.

I'm done venting.  Thanks.

Flowers Bloom in the Garden State

In Texas they used to have (and maybe still do, but I don't stay up on its procedure since I moved away and let my license to practice there go inactive) a rule that unpublished opinions couldn't be cited.  Sometimes lawyers would file motions to publish opinions just so they could cite them.  Sometimes they'd engage in verbal gymnastics, trying to direct a court's attention to an opinion they couldn't actually cite.

Ohio's rules for unpublished opinions were different.  (We actually no longer have unpublished opinions in the Buckeye State, though we have ones that aren't "print-published" for which the rules are the same as for any other opinion, which is why I'm putting the Ohio stuff in the past tense.  Don't worry, this is all introductory folderol you can skip over with no loss.) Unpublished opinions could be cited anytime, they just weren't binding except on the parties and had precedential value only insofar as they were convincing.

The feds changed their rules regarding unpublished opinions a few years ago, declaring that if they were issued after January 1, 2007, they can be cited.

Your state's rules are whatever they are.  I don't know.  Which is certainly true of the rules in New Jersey, which might or might not be too bad for lawyers in the Garden State* who want to cite last week's decision in State v. Morgan. 

This is apparently Morgan's third trip up the appellate ladder.  He was tried "in absentia" (don't know why and haven't rooted around in an effort to figure out why) convicted of drug charges and sentenced to 20 years.  He appealed and lost.  Then he applied for state post-conviction relief claiming that his trial lawyer was constitutionally ineffective for objecting to the State's suggestion that a detective employed by the local prosecutor's office should be removed from the jury.

As I've explained repeatedly, the constitutional measure of effectiveness is absurdly low.  To succeed on an ineffective assistance claim, first you have to show that the lawyer's performance was objectively deficient and not any sort of even marginally comprehensible strategy.  Then you have to show that the deficiency might reasonably be thought to have made a difference.  (The amazing thing is that we sometimes make those showings for our clients, which will tell you just how bad some lawyering is.  But I digress.)

The trial judge blew Morgan off.  Maybe the judge thought that his lawyer could do whatever she wanted in jury selection.  Maybe he just relied on the apparently undisputed fact that the evidence was overwhelming.  Either way, Morgan lost without a hearing.  And the court of appeals reversed, sent the case back for the judge to find out what the lawyer's reason was for keeping the detective on the jury.  So the judge held the hearing, got the answer, and said some variation on 

Close enough for government work and anyway the evidence is overwhelming, the guy had 15 bags of heroin, who gives a shit.

Morgan, of course, appealed.  Which is what brings me to this post.  Because last week, in an unpublished opinion (see how I cleverly swing back to where I began), the court of appeals said  - wait, you need more plot.  Specifically, you need to know the lawyer's explanation. (Which I'm mostly about to summarize, not quote except for the part in quotation marks - duh.)

She believed in the jury system.  She figured it would be OK.  She'd kept law enforcement folks on juries before (though she didn't really know how that had worked out for her clients), and she hoped he would tell the other jurors this was a trivial case so they would ignore the evidence.  And - wait for it - she figured it would throw the prosecutor "for a loop that I left a prosecutor's investigator on the jury."

To which, as I said, the trial court responded with some variation on 

Close enough for government work and anyway the evidence is overwhelming, the guy had 15 bags of heroin, who gives a shit.

And the court of appeals said to the trial court a far more elegant version of 

No fucking way.

Specifically, the court said,

In our view, trial counsel's testimony did not establish an actual strategy justifying an employee of the Essex County Prosecutor's Office, the prosecuting entity, remaining on the jury panel. . . . Trial strategy must consist of more than belief in the soundness of the jury system, the presumed benefits of puzzling one's adversary, and the hope of communicating the concept of jury nullification to jurors. . . . This is one of those rare instances where the decision made by counsel was "`of such magnitude as to thwart the fundamental guarantee of a fair trial.'"

Which is extraordinary.  Fairness counts and is relevant to the outcome even when the evidence is overwhelming.

Even in a case such as this one, however, where the charge is a possessory offense and the State's proofs are overwhelming, we must still have "confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52. As we previously said:

a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes, but instead is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome. In examining the parties' contentions, we must remain mindful that "[p]ost-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)).

Justice Scalia, of course, would disapprove, fairness being a thing to be avoided in his view.  Nino wasn't on the panel, though.

So Morgan gets a new trial.  Fairness blossoms in the Garden State.

The question, though, is whether anyone can cite the unpublished opinion there.  Or are the flowers visible only in a secret garden?




-------------------
*Normally, I'd just put in the link here to the page on state nicknames that includes New Jersey and how it came to be called the "Garden State" (the page is here) but the story, well, read it yourself.

A distinguished citizen of Camden, Hon. Abraham Browning , stirred the pride of Jerseymen by telling them, at the Centennial Exhibition in Philadelphia, on New Jersey Day, August 24, 1876, that our “Garden State” is like a huge barrel, with both ends open, one of which is plucked by New York and the other by Pennsylvania.

Got that? Browning "stirred pride" by explaining that New Jersey was a barrel open at both ends and "plucked at." No wonder the Soprano's choose to call it home. Certainly makes me want to hang out there and be a pluckee.  Or maybe one of those folks in the middle who just muddle along, watching the wormy north and south being snatched away to feed the nestlings in the Big Apple and the City of Brotherly Love.

Pro Fucko Publico

[M]ore people are struggling financially; more people need legal services to cope with foreclosures, evictions and credit and employment problems that could push them into long-term poverty; and state and federal financing for legal services has plunged.

So writes Anne Barnard in the Times.  She's right. 

And it's not just those civil cases where people need lawyers but have no formal right to them.  The criminally accused have a right to counsel guaranteed by the Sixth Amendment to the Constitution, but that right is too often barely met if at all.

We're a nation vastly overlawyered with thousands of new lawyers each year, many of them saddled with nearly insurmountable debt and no jobs.  Yet there's a deep and ever-increasing pool of folks who desperately need but cannot obtain legal services.

There's something wrong with this picture.

Courts encourage lawyers to take on cases pro bono to help out.  Bar associations encourage lawyers to take on cases pro bono to help out.  The big law firms have pro bono departments to help out.  And, of course, lots of lawyers take cases pro bono because it's the right thing to do.* 

Here and there around the country there's a mandatory pro bono program of one sort or another. And in many places (Barnard mentions New Jersey and we've previously encountered New Orleans but it happens in many places and many ways), lawyers are sometimes conscripted for cases.

But it's not nearly enough.

Enter New York's Chief Judge Jonathan Lippman who made it public yesterday.  As Barnard reports, beginning in 2013,

The approximately 10,000 lawyers who apply to the New York State Bar each year will have to demonstrate that they have performed 50 hours of pro bono work to be admitted, Chief Judge Jonathan Lippman said. He said the move was intended to provide about a half-million hours of badly needed legal services to those with urgent problems, like foreclosure and domestic violence.

Carolyn Elefant says this is terrible.

There’s so much wrong with this proposal that I scarcely know where to start. But given that law students are graduating deeply in debt, shouldn’t they focus on paying work – even if it’s at a Starbucks or pizza parlor – rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

I'm a bit confused by that last sentence but she's on to something.  Lippman says it's just a week, but when you have no money and no prospects, well

And I'd note the irony that the requirement that the 1% perform pro bono (because the 99% don't do enough of it ) was announced on a day when the Occupiers were marching and clamoring.  Carolyn didn't make that particular observation, but she did note the broader irony.

As a New York licensed lawyer myself, I am outraged and offended that wealthy lawyers are passing the buck to those just starting out.

But it was in response to a comment by Karen Eichman that Carolyn got to the real point.  Eichman wrote:

What kind of pro-bono work is a new graduate required to perform in order to obtain admission? I would think they cannot do pro-bono legal work, as doing so would be practicing law without a license.

To which Carolyn responded:

Good point. Maybe NY thinks that the poor don't need licensed lawyers.

Pshaw. 

The already licensed will happily ensure that the unwashed unlicensed lawyers do the work of licensed lawyers brilliantly, carefully overseeing the half million hours a year performed by those 10,000 would-be lawyers.  The Times makes that clear in an editorial.

 Like many states, New York allows law students to perform legal work under the supervision of faculty members or legal services groups.

You'll excuse me if I'm not sanguine.

Look, there's a desperate need for lawyers to provide legal assistance to the poor.  It's a need that we, as a society, are demonstrably unwilling to meet if it requires actual resources.  It's a need that we, as lawyers, are either incapable or unwilling to meet.  

It's a need for lawyers, for people who know what they're doing (one wishes all lawyers did), for people who care about what they're doing (one wishes all lawyers did), and for people who are, well, lawyers.

Pro bono publico  is Latin.

It means, "For the public good."

Which is sometimes expressed, though not, as it happens by Marie Antoinette, as "Let them eat cake."

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*There is, of course, a PR element to all (or at least much) of this, too, of course: See, lawyers aren't sleazy.  We're noble.  Look at all we do for the needy.  And you think we're only out to line our pockets.  Hah!  We'd starve ourselves for the public good.

Sure it's racist. What's your point?

Here's Samuel Alito, that's Associate Justice Samuel Alito of the Supreme Court of the United States, explaining the problem.

The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial.

"[B]izarre and objectionable."  You won't see that sort of language often from the most conservative, law and order, member of the Supreme Court in his summary of the facts about which a condemned guy complains.  Of course, there aren't that many cases like Buck v. Thaler.  Or, sadly, maybe there are.  It probably depends on how you're counting.

I've written about Duane Buck before.  Here's the summary plot from one of those posts.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white.

Quijano shouldn't have done that.  What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites. What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he's now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.  He supported vacating those sentences.  Of the seven people whose death sentences were infected by Quijano's claims, six had their death sentences vacated and received new sentencing hearings.  The seventh is Duane Buck.

I wrote that on September 13th.  Texas had planned Buck's murder on the 15th, but that day, and some two hours into the killing window, the Supreme Court called a halt so it could decide what to do.  I wrote then:

In a few months, the Court will decide whether to hear the case. 

Until then, Duane Buck lives.

And maybe, just maybe racial injustice moves one baby step toward its demise.

Nah.  That's too much to hope for.

Today's the day.  And even Alito (joined, I should add, by Scalia and Breyer), recognizes the basic truth.

Bizarre and objectionable.

Wait.  No.  That's not the basic truth. That's a pesky complication. The basic truth is that Texas should get to kill Duane Buck because his trial lawyer's the one who got Quijano to say that Buck was more likely than most folks to commit crimes because he's black.  Alito (joined by and his band of brothers) explained.

Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.

Alito doesn't use the term, but he's talking about a close cousin of what's called invited error.  The idea, and it's not absolutely nuts, is that you can't complain that the judge was wrong to grant your request or motion or objection or whatever.  You can't, that is, complain that you shouldn't have gotten your way.  This isn't quite the same thing, but you can see the connection.

Buck's trial lawyer had a report from Quijano saying that one of the things he looks at in assessing future dangerousness is that black's are especially dangerous.  [That's nonsense, of course, but a different issue.]  So when he asked Quijano, 

[i]f we have an inmate such as Mr. Buck whois sentenced to life in prison, what are some of the factors, statistical factors or environmental factors that you’ve looked at in regard to this case?

He pretty much either knew what he was gonna get.  Hell, he put Quijano's report into evidence even though the prosecutor objected.  Of course, the prosecutor didn't exactly shy away from the racism of it all.

Q. You have determined that the sex factor, that a male is more violent than a female because that’s justthe way it is, and that the race factor, black, increasesthe future dangerousness for various complicated reasons; is that correct?
A. Yes.

But, as Alito said,

[T]he responsibility for eliciting the offensive testimony lay squarely with the defense.

And you really should have learned the basic rule by now.

If the lawyer fucks up, kill the client.

In Parents Involved in Community Schools v. Seattle School District No. 1,  Chief Justice Roberts  wrote  about racism, and though his point in that case was both wrong and offensive, the words he used have some resonance.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

He had nothing to say about Duane Buck.  Nor did the only African-American Justice, Clarence Thomas who once complained that he was the victim of a "high tech lynching." Nor the Court's longest serving woman, Ruth Bader Ginsburg, the one who as a powerful advocate before the Court almost single-handedly (yes, I'm exaggerating, but not all that much) forced it to confront and begin to redress discrimination against women.

Sonia Sotomayor, on the other hand and joined by Elena Kagan, dissented.

Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

Which is something, I suppose.  

But not nearly enough.

And cold comfort to Duane Buck.

Interpreting the Constitution - Part VI - The Fear of Too Much Fairness

It was just a single comment by Justice Scalia during oral argument yesterday.  He serious.  He wasn't being sarcastic or ironic, wasn't poking fun.  Still, I'm not sure that he really meant what he said - or at least what it implies.  But it gets at a major problem with how we think about the Constitution, the closest thing we have to a sacred text.

A bit of context.

The case is Missouri v. Frye.  You can find the entire oral argument transcript here. Here's the plot.

Galin Frye was charged with driving without a license, a felony.  The prosecutor offered a plea bargain.  to a misdemeanor with 90 days in jail if he accepted the deal promptly.  Frye's lawyer didn't tell him about the offer, and after it had expired, Frye entered a guilty plea to the charge and was sentenced to three years.  While he was in prison serving that 3-year sentence, Frye learned about the 90 day misdemeanor offer.  

Nobody seriously disputes that his lawyer should have told Frye about the offer.  It's an absolutely basic rule:  The lawyer conveys every offer (civil case, criminal, doesn't matter, every offer) to the client.  Why?  Because it's always the client's call whether to take it.  We can advise.  We can browbeat.  But we can't decide.  That's for the client.  So the lawyer fucked up.  Then what?

The Missouri courts concluded that Frye was denied his Constitutional right to effective assistance of counsel and that he should be allowed to withdraw his plea and have a trial or plead again (though not to the misdemeanor plea which is long since off the table.

Here's the legal mess.

Missouri says that however much his lawyer screwed up, Frye entered a lawful and proper plea to what he did.  Since he can't show that he didn't know what he was doing when he entered the plea - or that it was somehow involuntary - he really can't complain about it now.  Frye says that he should be able to get that misdemeanor plea that he would (presumably) have jumped on if he'd known about it at the time.

So what to do?

That original plea offer is long-since off the table.  And if you let everyone take back a plea (or undo a trial, for that matter) when they realize that they passed up a chance at a lesser sentence, well, there's no stopping place.  (Or so says Missouri.)  Which led to this exchange between Scalia and Frye's lawyer, a man with the Dickensian moniker Emmett D. Queener.  (In fact, I have to start with Justice Ginsburg to have this make any sense.)

       JUSTICE GINSBURG: But you are -- you are leaving out of the picture the prosecutor's prerogative to withdraw or flip. You said that the court, that it lacked authority to order the State to offer any bargain, but also the court said, I'm not going to require the prosecutor to renew an earlier offer.
One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
       MR. QUEENER: The -- this is a remedy for the Sixth Amendment violation, and that is to put the defendant back into the position as nearly as possible as he would have been in at the time; and at the time the offer was open -- this is not a situation where the prosecutor is being ordered initially or the first instance to make an offer; it -- this is being viewed as the offer that was originally made is still available and open to the defendant.
       JUSTICE SCALIA: Yes, but at the time that offer could have been withdrawn by the prosecutor. And you are saying now it can't be withdrawn. So you are really not putting him back in the situation he was in.
       MR. QUEENER: There -- there is never going to be a perfect remedy for any of these violations, I don't believe.
       JUSTICE SCALIA: I think that's right.
       MR. QUEENER: Right.
       JUSTICE SCALIA: And that's one of the things that causes us to be suspicious of whether there is a constitutional violation -
       MR. QUEENER: Well -
       JUSTICE SCALIA: -- because there really isn't any perfect remedy.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

In fact, Marshall held that Marbury's rights were, in fact, invaded but that he couldn't sue.  That is, Marbury said that if there's a right there must be a remedy except that there doesn't have to be, proving that the law could be as incoherent and disingenuous and outright dishonest in 1803 as it can be today.

It was probably 15 or more years ago that I was arguing a case in the court of appeals.  The judges agreed with me that what the trial judge did was wrong.  But they couldn't find (and frankly, neither could I) any way to even hint at its having made a difference in the trial.  

What can we do?  We can't tell the judge he was wrong without reversing and we have no basis to reverse?

Which was just silly.  As I told them, they do it to me all the time.

Yeah, you're right, but the error was harmless so live with it.  Do it this time.  You want the judge to stop doing this, but the only way tell him to stop is to say it was wrong.

Which makes perfect sense.  Except the court wouldn't do it.  And to this day, I should add, the judge is still doing the same damn thing.  Because the court took the same position.  No remedy, therefore no error.

Anyway, what I'm interested in today is Scalia's claim that if there isn't a perfect remedy, then it seems there must not have been a constitutional violation.  That feels intuitively wrong, and I think it is.  I think (as I suggested at the beginning) even Scalia wouldn't really buy it.  For while his statement seems to channel Blackstone's (and Marshall's) formulation of the rule (if not Marshall's application of the rule), it doesn't.  The problem is that you can't work backwards that way.

To see why, it's necessary merely to offer a more generalized rule.  Here are two versions.

• If it can't be fixed, it isn't broken.
• If it can't be undone, it didn't happen.

You know immediately that those are wrong.  Lots of broken things cannot be fixed.  (Consider Humpty Dumpty.)  And lots of things that can't be undone did indeed happen.  (Princess Di is, in fact, dead.)

Yet if those counter-examples demonstrate why Scalia is wrong, they don't exactly say how to solve his dilemma:

What do you do when the Constitution is violated but there seems no quick and dirty remedy?

Start by looking at it in the context of Frye's case.  The Sixth Amendment says that he had a right to effective assistance of counsel, which means a lawyer whose performance was not objectively deficient.  That was violated.  His lawyer was objectively deficient in not reporting the plea offer to him.

The Supreme Court says that there is no relief for a Sixth Amendment violation unless there is a reasonable probability of a different outcome had counsel's performance been adequate.  OK then.  On that test, Frye would have to prove that if his lawyer had told him (in time) about the misdemeanor plea offer, there's a reasonable likelihood he would have taken it.  That is, he'd have to show that he isn't just suffering buyer's remorse from the sentence he got after his plea but that he ended up entering this plea because his lawyer was incompetent and didn't tell him about the earlier one.

Ah, but that might open a mess.  People who got sentences they don't like might claim that they would have taken deals if they'd known they were offered or if their lawyers had pushed them harder or something.

Damn.

Breyer suggested that maybe there could be a special test for these cases just to avoid that problem.  Nobody asked why it was a problem.  Because, I suppose, and this is deeply distressing, all nine of the Justices were wary of inflicting too much fairness on the system.

The risk of too many people asking to have their rights vindicated.

But of course, that's what we're supposed to be about.  We embrace that risk.

Unless we're the Supremes (or your local trial, appellate, or supreme court much of the time).  If we're them, we think of floodgates.

The remedy crosses the board.  If someone's constitutional rights have been violated, there really is a remedy.  Put the person her back as close to the position she'd be in if they hadn't been as possible.  Will the remedy be imperfect?  Sure.  Most of the time.  But it's something.

The alternative is to assert that only some constitutional violations - ones that lend themselves to congenial remedies - count.  But that's the cafeteria, not the Constitution.

Back to Galin Frye.  If he can show that he'd likely have taken the deal if he'd known of it (and apparently the Missouri courts were convinced), then do what the Missouri courts wouldn't do and  give him the deal he would have taken.  It's not perfect now.  But it's the best that can be done.

Because Blackstone was right, and Scalia wrong.

And either way, bitch slap his lawyer around some.