Sunday, September 18, 2016

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.

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