Selling Out the Client - Part VI

Your client was convicted of a crime.  You're doing the direct appeal.  Maybe you've been retained; maybe you were appointed; maybe you're a public defender.  Whatever.  It's your case.

You represent the convicted guy or gal.

You know that on appeal you're limited to the record from the trial court.  You don't get to call new witnesses or do a better cross-examination.  You can't ask the judge to tell the jury to disregard.  You don't get to have the drugs reweighed or to have your own arson expert.  You can't get another set of DNA tests done in the hope that they'll show it wasn't your client's semen.  No new psychologist will be able to tell the court of appeals that your guy was crazy as a bedbug and when he shot up the pancake house he actually thought he was playing badminton with some 8-legged-6-armed-14-eyed creature from Tau Centauri with the winner getting to star opposite Angelina Jolie in a remake of Love Story.

But you're stuck with the record from the trial court, and the record from the trial court sucks.  You read the pre-trial motions.  All losers.  You read the trial transcript.  Sure the prosecutor cheated some and the judge blew a ruling of two.  And there was that time when your client's lawyer didn't bother to object to the Confrontation Clause violation, but who knew that SCOTUS was going to decide Crawford that way?  Hell, you probably wouldn't have objected, either.  Anyhow, your client would probably have been found guilty regardless of all that.  And you sure aren't likely to win an appeal on this stuff.  All those issues will be losers.

And if you can't win, if all your issues lose, why then, really, it's just silly to appeal.  I mean, the whole thing's frivolous.  Right?

Now what do you do?  You look at Anders v. California from back in 1967 when the Supreme Court addressed just that question.

We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.

The answer, as I've explained before, is that you acknowledge that your primary duty isn't to the client.  Your primary duty is to the court and the system.  You can't win.  It's hopeless.  So you don't fight.  You tell the client you're throwing in the towel and then you file and Anders brief telling the court that the appeal is frivolous and asking to withdraw.  

Stop the train.  I want to get off.

Oh, you're supposed to point to anything in the record you can find that might be arguable error and explain why it's not.  (Yep.  You're supposed to explain why the client should lose.)  The client can then file a pro se brief.  And the court is supposed to scour the record itself looking for arguable error, something that isn't frivolous.  (And occasionally it finds something.  See State v. Robinson.) But the client rarely has anything useful to add.  (Which is how it's supposed to be.  Lawyers are, at least in theory, trained advocates while appellate clients are, well, convicts.)  And really appellate judges and their staff attorneys aren't criminal defense lawyers or appellate specialists or even advocates for the criminally convicted.  'Tain't their job.*

So, in the ordinary course of things, you've abandoned the client whose left without any meaningful representation.  With nothing.  Zip.  Zilch.

The lawyer who files Anders may do it out of laziness.  May do it from lack of interest.  May do it because, 

darn it, there just aren't any real issues here.

Still, as Justice Souter recognized in a footnote to his dissent in Smith v. Robbins, lawyers aren't fungible.  Some will have

[A] keener eye for arguable issues or a duller nose for frivolous ones.

Of course, the problem with a lawyer filing an Anders brief isn't that the client will lose, it's that the lawyer is, ultimately, abandoning the client.  And really, despite what the courts say, those of us who fundamentally believe in criminal defense know that our first obligation is to the client.  Within the bounds of the law, but to the client.  Anders is a betrayal of that.  (Yes, I understand that there may be a few peculiar circumstances in which Anders actually serves the client's interest.  They are, if they exist at all, exceedingly rare.)

The appellate judges I've spoken with about it don't like Anders cases.  Anders is, after all, a breakdown in the system.  The judges don't want to scour the record looking for error.  They hate doing it (or, more precisely, having their law clerks/staff attorneys do it).  They didn't become judges so that they could be replacement advocates for our clients.  And while Anders makes it easy for the client to lose, the judges know perfectly well that the client will probably lose anyway, and Anders leaves a bad taste.  It's not really how the system is supposed to work.  They get that.

But if the judges don't like it, they're OK with it, too.  Because they don't really want to have to deal with worthless appeals

Let's just have a system to shut them off.

Good idea!

Some courts have gone farther, which brings me, at last, to where I'm going.  The other day, the 5th Circuit decided two Anders cases.  In United States v. Garland, an appeal from a guilty plea, Garland's lawyer filed what purported to be an Anders brief but didn't adequately (or even at all) address potential appellate issues or explain in any detail why there weren't any.  Not enough, said the court.  In fact, we have a checklist on our website, the court explained, telling you what to look for in an appeal and guidelines for what to put into an Anders brief.  You didn't obey, so we're not letting you withdraw.  You have to represent the client you tried to sell down the river.

Accordingly, we ORDER counsel for Garland to file within 30 days a supplemental brief that comports with Anders following the guidelines set forth above or, in the alternative, a brief on the merits addressing any nonfrivolous issues that counsel deems appropriate. If counsel files a supplemental Anders brief, he should demonstrate that he has addressed the issues listed on the Anders checklist found on this court’s website at http://www.ca5.uscourts.gov insofar as it applies to his case, to assist the court in its review.

And then there's this.

[I]f counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.

B.W. Barnett at Liberty and Justice for Y'all put it,

Use the court’s template and you can’t go wrong.

The court's we-won't-be-bothered rule, that if a lawyer files a brief satisfying the guidelines and checklist the court won't bother to look at the record to see if there are issues the lawyer missed or ignored or abandoned, is the guts of the court's other Anders decision, United States v. Flores.

Flores gets there by adopting the holding of a United States v. Wagner, a 1996 case from the 7th Circuit.  (The 3rd Circuit seems to have adopted the same rule.)  Writing for a panel of the court in Wagner, Judge Posner lays out the new rule.

The intermediate position, which we now adopt, is for the appellate court to be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. (If it is not, we shall deny the Anders motion and either direct counsel to file a new brief or discharge counsel and appoint a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer's discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court's decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer's competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research.

There's a logic to this if you buy the underlying principle that a criminal appellant is entitled only to a marginally competent lawyer doing a marginally competent job.  After all, if the lawyer can convince the court of his marginal competence and the marginal competence of his review of the record for appeal, then why should the court engage in its own review?  Make it look good, and we're done.

Like I say, there's a logic.  But it's bullshit.

The court's assumption is that if the lawyer turns in something that purports to address all the issues in its checklist, then the lawyer must diligently and as an advocate examined the record and researched the potential issues.  But the assumption is nonsense.  Oh, it might be true.  Just as easily, it might be that the lawyer files some seemingly-compliant BS.

Sigh.

Keener eye or number nose.

It's really all about selling out the client.

 

-------------------

*Here's what Anders actually says (with a footnote silently omitted and a sentence referring to the facts that led to the Supreme Court's decision omitted with ellipsis).

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. . . . Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

And May the Best Man Win

It's a tough business this criminal defense thing.  And it takes, sometimes, a tough guy (or gal) to do it.

Last year, I mentioned this story from Washington State. It seems that Micah W. Hasselstrom tried to escape from Spokane Municipal Court. His public defender and two other PDs, with the able assistance of a deputy sheriff, tackled him. Yes, that's right. He was, in effect, arrested by his lawyer and two other public defenders.

I mean, who knew that the public defender job description included taking down escaping clients?  The real question, and the one which I gather generated heated discussion among Washington's criminal defense bar, was whether criminal defense lawyers should be using their considerable physical prowess to aid the police.  It's the question from the old union song.

Which side are you on?

Sometimes, at least, it seems the answer is clear.   Case in point.  Cook County Public Defender and sometime professional boxer, Henry Hams. 

As reported by Rummana Hussain and Frank Main in the Chicago Sun Times (and notice that this was a big enough story to require two reporters to cover it),  Hams and an (unnamed) assistant county prosecutor apparently had a disagreement over when to set a date for a hearing.  Lawyers argue about that sort of thing all the time.  Sometimes the arguments are contentious.  

There was, for instance, the time the Honorable Gregory A. Presnell, U.S. District Judge in Florida, ordered opposing counsel to resolve their dispute over the time and location of a deposition by playing rock, paper scissors.

[A]t 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.

Even when childhood games are required, though, contentious arguments over scheduling can generally be resolved peaceably.  Hams and the (unnamed) assistant county prosecutor?  Well, Hussain and Main report it this way.

The incident today happened after an argument spilled out from Judge Clayton Crane’s courtroom on the sixth floor, authorities said.
The two disagreed over when to set the next court date on a post conviction hearing for convicted murderer Derrick Neal.
“We could just set a date on Aug. 5. I don’t see a problem. . .,” Hams said, according to a transcript of the hearing.
The prosecutor responded, “I didn’t say there was a problem. I’m trying to be convenient to everybody, including myself and the court.”
The prosecutor “left the courtroom and was in the hallway when the public defender came up to him and resumed the argument. That led to a physical fight where the public defender had to be pulled off of the state’s attorney,’’ Cook County Sheriff’s spokesman Steve Patterson said in a statement. It took two deputies to separate the men, he said.
Hams allegedly put the prosecutor in a “choking headlock,’’ police said. The public defender allegedly  told a bystander he did it because he was “sick of him mocking him,” the bystander said.

Sophia Tareen, reporting the story in the Chicago Tribune reports not a "choking headlock" but that

Hams was on top of the prosecutor with both hands around his neck. 

A subtle distinction, perhaps, but one that suggests the fight to have been more a brawl than a wrestling match.

More significantly, Tareen emphasizes that the fight was all about the law.  She notes that the lawyers knew each other "only through legal proceedings."

Most criminal defense lawyers I know will tell you that criminal law is considerably more civil than civil law.  It's not that we don't fight with prosecutors (and they with us) every bit as forcefully as civil plaintiff and defense lawyers do.  Maybe it's just that with so much more than money at stake, and so little billing by the hour on either side, we're often more accommodating about the truly trivial.

Or maybe we just deceive ourselves.

In Berger v. United States, Justice Sutherland wrote of the duty of a prosecutor.

[W]hile he may strike hard blows, he is not at liberty to strike foul ones.  

The blows the (unnamed) assistant county prosecutor and Henry Hams exchanged probably weren't what Sutherland had in mind.  Then again, is not quite what Justice White was talking about in his concurring and dissenting opinion in United States v. Wade when he observed that

we countenance or require conduct [of defense counsel] which in many instances has little, if any, relation to the search for truth.

Henry Hams is in jail tonight.  He's charged with resisting arrest and aggravated battery in a public place. Both felonies.  He'll be in court tomorrow to have bond set.

h/t Law of Criminal Defense

Learning to get around Rule Two

I haven't been posting for the last couple of days, and probably won't post anything much of substance today or tomorrow, either. I'm on a working vacation at a death penalty defense seminar - this one focused on federal habeas corpus, the stage that comes after the ordinary state procedures are done. It's specialized work, not for everyone.

Like all capital work, it takes a certain crazed mindset to do what is literally life and death work, knowing that the result will sometimes be death. As Colonel Blake said to Hawkeye in an episode of M*A*S*H,

There are two rules of war. Rule number one is that young men die. Rule number two is that doctors can't change rule number one.

Same for us. We can stave it off. We can save some lives. But not all of them. You do enough of this work, you'll have clients who are killed on your watch.

And the work is damned hard. It's hard because when you do federal habeas you're picking up the pieces, working on a case that has gone down the tubes a couple or three times. Lost at trial, lost on direct appeal, lost in state habeas (or whatever they call it in your state) procedures. You're also fighting a patchwork of laws and court created procedural hurdles designed to make winning - or even staying in court - exceptionally difficult.

One procedural misstep through the minefield of AEDPA, one misstep that may have occurred a decade or more before you ever got involved in the case, and your client dies. If you win in the district court, the state appeals. If you lose in the district court, you can appeal only if the court tells you it might have gotten it wrong. (I'm oversimplifying almost but not quite to the point of being misleading.)

Counsel made a mistake a few years earlier about the deadline for filing a petition in state court. As a consequence, I was appointed to represent the client some 19 months after the final deadline for him to seek habeas review. We eventually found a way through that mess, but it's likely to come back some day and get the client killed. And there's a pretty good chance that the one who rolled over on him and got a deal is the actual killer. It's an ugly business when procedural error trumps life.

There are probably 250 of us here, learning and refining what we know. We're not kids. There are a few young lawyers, and a larger number of lawyers new to this highly specialized work but mostly we've been in the trenches for a while. What we already know, most of us anyway, is how damned hard the work is and how the odds work. We know our equivalents of Rule Number One and Rule Number Two.

And so we come to study and learn, from the people who teach and from the others with us in the trenches who learn. And then we go back and try to break through Rule Number Two.

In Raymond Chandler's seminal essay on detective fiction, "The Simple Art of Murder," he writes that "In everything that can be called art there is a quality of redemption." So there is in everything that can fairly be called human. We struggle for it, and to find it. Sometimes it's tough, buried among the horrid things one has done and had done to her. But it's there.

We're all better, as Sister Helen Prejean routinely reminds us, than the worst thing we've ever done.

It's 8 a.m. I have to get to class.

Selling out the client - Part III

Here's the question (and I'm deliberately fuzzing it up) that's been the subject of fairly heated debate among Ohio criminal defense lawyers this afternoon:

The judge screws up the written entry (which in Ohio is what counts) and gives the client less time than everyone expected and less, almost surely, than the judge intended. Apparently, the only one who notices is defense counsel. What's counsel's obligation?

Maybe you'd think that would be an easy one? And it seems as if everyone thinks it is. Except that there are two dramatically different answers coming from members of the bar.

So let's step back for a minute and try to see what's going on.

First there's the law. Back in 1997, in Cincinnati Bar Assn. v. Nienaber, the Ohio Supreme Court said that lawyers could never lie to the court either explicitly or implicitly. Nienaber, the court said, "not only made affirmative representations to the courts which were untrue, but by his silence he allowed each court to make unwarranted inferences."

In reaching that conclusion, the rejected Nienaber's defense that he'd given precisely correct, albeit incomplete and misleading (that "albeit" is mine; it's not clear Nienaber conceded as much) answers to the courts' questions. Not good enough, the court said. He intentionally misled. Then came the kicker. Quoting the Nebraska Supreme Court from 1937, the court said:

We require complete candor with courts. We agree with the Supreme Court of Nebraska, which sixty years ago said, “An attorney owes his first duty to the court. He assumed his obligations toward it before he ever had a client. His oath requires him to be absolutely honest even though his client's interests may seem to require a contrary course. The [lawyer] cannot serve two masters; and the one [he has] undertaken to serve primarily is the court.”

So there you have it. In a contest between the client and the court, the lawyer is supposed to be on the court's side.

But that assumes there's a contest.

Lawyers are also supposed to represent their clients, er, just how? Not zealously, as I explained in an earlier post Ohio has abandoned that requirement which it never really meant. Instead, well, to quote the court itself,

[V]igorous and effective representation of a client is the responsibility of all attorneys.

With the caveat, of course, that the court comes first.

OK, that's all part of the same rule. You can't lie to the court directly by what you say or indirectly by what you omit. But it doesn't really say what you can do.

Along with the legal/ethical rules, there's the doing business problem. If you don't point out the probable mistake, you "risk your good name and reputation" with prosecutor and judge. If you do, you earn "brownie points" or "street cred." with them. (I'm quoting lawyers who staked out positions on this today). So, if you speak up, you might earn some favoritism in the future. And really, what's the harm since the client will end up with what the client expected.

OK, there's the problem and the issues.

Here's my answer.

We represent the client. We can't lie to the court by commission or omission. But we're under no obligation to volunteer information that will hurt our clients. In fact, we're under an obligation precisely not to do that.

If the court made a mistake that helps our client, so be it. Not our job to point it out.

And while it never hurts to be liked (even favored) by judges and prosecutors, we must never trade the obligation to this client for the possibility that not advocating forcefully today will redound to the benefit of others tomorrow. And certainly not for a pat on the head or a scratch behind the ears.

You know, it is an easy call. I just don't get why some people don't get it.


It's an easy call. But too many lawyers don't get it.

Selling out the client - Part II

Over at Arbitrary and Capricious today, there's this story from Washington State. It seems that Micah W. Hasselstrom tried to escape from Spokane Municipal Court. His public defender and two other PDs, with the able assistance of a deputy sheriff, tackled him. Yes, that's right. He was, in effect, arrested by his lawyer and two other public defenders.

Apparently there's a debate in Spokane criminal defense circles about what the right response was. Should his lawyer have tackled him to prevent him from making a mistake that would have meant more charges and greater sentences or letting him screw up his life further.

I'm not part of the Washington criminal defense bar and, therefore, not privy to those discussions, but isn't the real point that when we take on the role of law enforcement we can no longer represent out clients? There are times when I'll encourage my client to turn himself in. I may even go along as he does so. But I'm not going to arrest him. I may not aid him in new crimes, but I sure don't have to go out of my way to become part of law enforcement.

Selling out the client - Part I

Today's question: What do I owe my client?

In law school ethics class, we were taught that the attorney's duty is to represent the client "zealously within the bounds of the law." That's what Canon 7 of Ohio's Code of Professional Responsibility (the ethics rules for lawyers - yes they exist) said. But in 2007, Ohio replaced the Code with Rules of Professional Conduct, and the rules very specifically do not call for zealous representation. As a comment to the new Rules explains, they purposely omitted the requirement and, really, despite the language, they never meant it.

Neither Model Rule 1.3 nor any of the Model Rules on advocacy states a duty of “zealous representation.” The reference to acting “with zeal in advocacy” is deleted from Comment [1] because “zeal” is often invoked as an excuse for unprofessional behavior. Despite the title of Canon 7 of the Ohio Code of Professional Responsibility and the content of EC 7-1, no disciplinary rule requires “zealous” advocacy. Moreover, the disciplinary rules recognize that courtesy and punctuality are not inconsistent with diligent representation [DR 6-101(A)(3)], that a lawyer, where permissible, may exercise discretion to waive or fail to assert a right or position [DR 7-101(B)(1)], and that a lawyer may refuse to aid or participate in conduct the lawyer believes to be unlawful, even though there is some support for an argument that it is lawful [DR 7-101(B)(2)].

That part about how they never meant it is true. You see, while lawyers like to tell people (especially prospective clients) that the first duty is to the client, the courts tend to say otherwise. The first duty, they say, is to the system and the court. That's why we can't lie, which isn't much of a burden. But it's also why we need to sort of make clear when we know that the client is lying (a complicated dance that the Supreme Court cooked up in Nix v. Whiteside).

But that's really not what I want to talk about. I don't know any decent lawyers who think they're supposed to flat out lie or to suborn perjury. And while lots of clients would like us to, the actual problem of defense lawyer lying or knowingly facilitating perjury is fairly rare.

There are other more common problems though. Sometime soon, I'll talk about whether and when lawyers should be willing to fall on their swords for the sake of their clients. Today I want to talk about Anders briefs. The term comes from the case of Anders v. California where SCOTUS set out a procedure for appellate lawyers to avoid making frivolous arguments.

Here's the problem.

A lawyer's duty to the client on appeal is to make the best presentation possible. We write briefs saying to the appellate courts, "Here's what went wrong in the trial court, and here's what you should do about it." We know that most of those arguments will fail (most criminal appeals do fail), but we make them because our job is, again, to do our utmost for the client. It's that zealous representation withing the bounds of the law, thing. Except, a lawyer isn't allowed to make a frivolous argument because that would violate the lawyer's duty to the court.

So, what happens when the only argument you can make is frivolous? The answer, of course, is that the duty to the client is to be abandoned in favor of the duty to the court. You file an Anders brief explaining how it is that the best you can do is to sell out the client.

Of course, there's a catch. Sometimes you're wrong. Oh, the court of appeals is supposed to look for winning issues, but that's not what they do. They don't advocate for the client. It's the wrong role, and they're not equipped to handle it. Except once in a while . . . . Like, say, yesterday.

Brandon Robinson entered a guilty plea in Erie County Common Pleas Court to the offense of failing to register as a sex offender. Then he filed an appeal. His lawyer decided there was nothing worthwhile to say and filed an Anders brief. In that case, State v. Robinson I, the court of appeals thought there might be an issue. So it took that lawyer off the case and appointed a new lawyer for Robinson. Yesterday, in State v. Robinson II, the court of appeals agreed with the new lawyer that the trial court screwed up the plea and granted Robinson a chance to do it over - go to trial, enter a plea, whatever.

We can be advocates or we can say we owe more to the court than to the client. If we do the latter, we have a conflict of interest that really can't be overcome. And if we act that way, why should our clients trust us?