SIT DOWN & SHUT UP

I try to pay some limited attention to what goes on in the Texas courts. I'm often horrified by what I find. Still, there are lessons one can learn. So, it's time for another installment in the growing Sit-down-and-shut-up series (here).
Dayana Delgado testified that three men broke into her house, hit her, and tied her up, and that one attempted sexually to assault her. Based on their accents, she believe that two were Colombian and one was Dominican. Sandy Agosto was charged as one of the men and went to trial. As the court of appeals wrote:

The jury found Agosto guilty. During the punishment phase, defense counsel called Agosto to the stand to prove eligibility for probation. On direct examination, Agosto testified that he was from Puerto Rico. He also stated that he wanted to give testimony to the jury. He stated that he did not agree with the jury’s verdict and wanted to be able to give his testimony about “how things really were.” He testified that he was not at Delgado’s house and that he had never seen her before. Defense counsel declined to ask Agosto additional questions along these lines.

On appeal, Agosto argued that his lawyer should have let him testify more.

It's not a frivolous claim. As the court recognized, criminal defendants have an absolute, fundamental right to testify in their own behalf. SCOTUS told us that more than 20 years ago in Rock v. Arkansas. Denial of that right is a major problem. In this case, and during cross examination while he was on the stand, Agosto made clear that he had things to say.

Prosecutor: Do you agree with the jury's verdict.
Agosto: No. I want to be able to give my testimony, to give my testimony how things really were.
Prosecutor: OK. Were you there that day?
Agosto: No.
Prosecutor: OK. So you are saying that the jury got it wrong in this case, correct?
Agosto: They have not heard my testimony.
Prosecutor: Now, Mr. Agosto, you did hear the testimony in this case though, correct?
Agosto: Yes, but I did not have the opportunity to give my version.
Prosecutor: Now, having heard the testimony in this case, you heard Ms. Delgado get on the stand, correct?
Agosto: Yes, I heard her.
. . . .
Prosecutor: And she would have no way to know about you being connected with that car, correct?
Agosto: I don't know her. I have never seen her.
Prosecutor: Okay, that is kind of the next thing. You have never seen her before, correct?
Agosto: Never. I have never had any dialogue with her or seen her in my live, never in my life.
Prosecutor: And you never threatened her at any point in time, correct?
Agosto: I don't know her, you know, even where she comes from. I just don't know her.
Prosecutor: I mean, she would have no reason reall at all to point you out in this lineup, correct? It is not like you all have a grudge against each other, correct?
Agosto: Yes; but if you give me the opportunity to talk to the jury and let them hear my testimony, then you will find out that I didn't have anything to do with this, that I don't even
know her.

No redirect from Agosto's counsel.

So, it's pretty clear that Agosto wanted to testify more and didn't get the opportunity. That's a violation of Rock.

But this post isn't about the right to testify, remember, it's about sitting down and shutting up. Agosto's attorney gets to decide which witnesses to call and what to ask. And while Agosto has a right to overrule that call, if he can't convince his lawyer, he has to force the issue on the court. If it's just the lawyer, then it's a question of counsel's strategy.

The court of appeals saw this as an issue of ineffective assistance of counsel, a typical claim, regardless of whether it's ultimately successful, in criminal appeals. To win that claim, SCOTUS says, you have to show that counsel's behavior was unreasonable, that it was incompetence, not just a poor choice of trial strategy.

After the jury left the courtroom to deliberate on punishment, defense counsel offered, on the record, his reasons for not asking more questions of Agosto during the punishment phase. He said that he “believe[d] that he would – and not wanting to go into any attorney/client conversations – basically, he would lay out the facts in which the jury could conclude that they were basically right; and that he was guilty. It would have been more evidence.” As for why he did not call Agosto during the guilt/innocence phase, he said, “[I] advised him to exercise his Fifth Amendment right because I believed that his testimony, especially on cross-examination . . . basically supplied more information to connect him with the crime.” He stated that it was trial strategy not to call Agosto to testify.

Let's recap. Trial counsel elected to explain on the record that he had strategic reasons for not letting Agosto testify. Why in Chief Justice Warren's name would he do that?

Rule for trial counsel: Do not make a record that the decisions you've made were carefully thought out strategy.

KNOW WHEN TO SAY WHEN

Last month we learned that it's good not to be asked questions during oral argument (at least in some courts). This months news is that it may sometimes be the better practice not to say anything.

This isn't about trial litigation when it's obviously sometimes the wise practice to be quiet, though there's that, too. You know, the rules they taught in trial practice in law school:

• Don't ask the "one question too many."
• Don't ask a question on cross to which you don't know the answer.
• Don't ask any questions on cross if there's nothing useful to be had from the witness.

Good rules all, though as with all practice advice, violate if you have a really good reason and you know what you're doing.

On a related note, George Orwell's "Politics and the English Language" where the sixth and last of his suggested "rules that one can rely on when instinct fails" is:

Break any of these rules sooner than say anything outright barbarous.

But, again, that's not today's keeping-your-mouth-shut-topic (a metaphorical mouth, in this case). Today's comes from this story in the National Law Journal (free registration required), "Study shows influence of SG in high court cases granted cert."

Here's the skinny, and it comes in two parts - one a whole lot more useful, I think, than the other.

First, the less useful part. The Supreme Court typically grants cert in just under 1% of the cases for which a cert petition is filed. However, when the Court asks for the Solicitor General's view, it grants cert 34% of the time. And it accepts the Solicitor General's suggestion on whether to grant or deny just under 80% of the time, which is remarkable.

I say this isn't all that useful because I don't think I have any idea what I can do in a cert petition (or an opposition filing) that would lead the Court to seek the SG's view. But the second part I can maybe do something with occasionally.

Again, the Court grants cert just under 1% of the time. However, respondent files a response to the cert petition, the percentage of grants goes up. Just how far it goes up is a function of who's responding and whether the response is voluntary or called for after respondent initially declines to respond.

• In 80.5% of petitions, a respondent waives his or her right to file a brief in opposition.
• When the Solicitor General represents the respondent, and chooses to file a voluntary response brief, the grant rate is 26 times higher than in instances where the office opted to waive response. When an individual state is the respondent, the grant rate increases by a factor of about 16 when the state voluntarily files an opposition brief. For private respondents, the grant rate increases only by a factor of three.

I know that if I want a court of discretionary review to refuse a case, I don't want amicus in opposition to granting review. That just makes the case seem important. Now, it seems, that any response at all may tend to do that, at least in the U.S. Supreme Court.

It'd be nice to see a similar study of other courts of discretionary review, like the Ohio Supreme Court. But even without that study, there's food for thought here. So, in those rare cases where I'm the respondent, I need to think carefully about whether to respond.

By the way, the full study on which the NLJ article is based is in the George Mason Law Review. You can download it here.

SILENCE IS GOLDEN

Adam Liptak reports in today's Times (here) on a series of studies each of which demonstrates that the way to win your case in the U.S. Supreme Court is to not get asked questions. The first study was by a law student at Georgetown, the second by then Judge, now Chief Justice Roberts. Now, Liptak reports, a far larger and more comprehensive study by several academics (abstract here) reaches the same conclusion.

The moral? Liptak quotes Timothy A. Johnson, one of the new study's authors, who suggests that it might be good advice to avoid questions:

“The old adage that you should keep your head down may be the way to go,” he said. “The advocate who tried to throw in the kitchen sink and try every argument in the world may be heading for trouble.”

Ms. Shullman, the young lawyer who started this enterprise, said she applied her study’s conclusions successfully not long ago in a bankruptcy hearing.

“The judge was really hammering the other side,” she said. “You know what? I’m going to shut up. I’m going to let this play out. And sure enough, he ruled for us.”

Perhaps the better part of advocacy really is learning to shut up.