Fair Trial? Meh. String 'em Up

Time and time again this court has commented on the impropriety of a prosecutor's argument throughout the course of a capital case. Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt.
However, despite our best efforts to clarify the limits of acceptable advocacy, and our stern warnings to avoid such inappropriate conduct in the future, some prosecutors continue to unabashedly cross the line of vigorous but proper advocacy. In doing so, they taint the fairness of our criminal justice system.

Ohio's late Chief Justice, Tom Moyer, wrote that in 1999.  Admonition without consequence.  Threats without substance.  Next time.  One of these days.  Just wait.  

It proves, ultimately, to be as Moyer said: Bull.  We teach them to cheat.  

Q               What do you call a prosecutor who lies and cheats to get a conviction?
A               Your Honor.

The particular case at issue there was that of Angelo Fears.  He was on death row after a trial riddled with prosecutorial misconduct.  It "pervaded the trial, especially the penalty phase." Enough to taint its fairness said Moyer (joined in his comments by Justice Pfeifer).  But of course, they were alone.  Justice Sweeney (Francis, Sr., for those of you familiar with the spate of Sweeneys who've sat on Ohio's courts), writing for himself, Douglas, Resnick, Cook, and Lundberg Stratton agreed that the prosecutor cheated up a storm.  

But Fears was guilty, so who really cared if the State cheated?  Ends justifying the means and all.  But really, don't do it again.  We mean it this time.  Just like we did last time.

I'm getting sidetracked here.  I don't actually want to write about prosecutorial misconduct or the willingness of the courts to let them get away with it.  Really, I just bring it up as background.  Because when you get right down to it, it never much mattered whether Angelo Fears got a fair trial or a fair sentencing proceeding.  He was guilty.  They said he should die.  Nothing else mattered.

Nothing else much mattered then.  Nothing else much matters now.

This morning, the Supreme Court of Ohio, by a vote of 6 to O'Neill, said that Angelo Fears should die.  Not in the abstract.  We shall all die, after all.  But in the concrete.  The concrete of a small room in a small building at the Southern Ohio Correctional Facility in Lucasville.  On September 17, 2015.

Of course, there are whole bunches of men slated to be killed there before we get to Fears.  He is, in fact, 14th on the list.  First is Billy Slagle on August 7 this year.  Nobody cares whether he got a fair trial, either.  

After all, he's guilty.  They said he should die.  Nothing else mattered.

A Wilderness of Confusion

Photographer Lois Greenfield writes on her website

I can’t depict the moments before or after the camera’s click, but I invite the viewer’s consideration of that question.

Jean Luc Goddard once said that 

Film is truth at 24 frames a second.

Which makes something of the same point.

This isn't the first time I've quoted those two sentences at the opening of a blog post.  When I did it before, the post focused on a still image and two videos of UC Davis Police Lieutenant James Pike pepper-spraying peaceful students.*  That is, I used comments about photographs and film as a lead-in to a photograph and video.  This time my subject is precisely not visual.  Except it sort of is.

Jeffrey MacDonald, physician and green beret, did or did not murder his wife and children in their home at Fort Bragg in North Carolina that February morning in 1970.  He was sort of charged and kind of vindicated by the military.  He was absolutely charged and convicted in federal court.

He's in prison still. and he still maintains, has maintained for 43 years, that he didn't do it.  Which may or may not be true.

Errol Morris thinks it is true.  Jeffrey MacDonald, he believes, is innocent.  Morris can't prove it, he says, but A Wilderness of Error: The Trials of Jeffrey MacDonald is his effort to convince.  And convincing it is.  At 24 frames a second.

Morris is best known as a filmmaker, a serious documentarian. For our purposes here, his most important film was The Thin Blue Line, about the murder of Dallas police officer Robert Wood, and about how Randall Dale Adams was convicted and sent to death row for the crime, largely on the testimony of David Harris, who more-or-less confesses at the end of the film that he killed Wood and blamed Adams for it to save his own skin.  Adams was exonerated.  Harris was executed in 2004 for another killing.

He wanted to make a film about the MacDonald case, too.  He couldn't get the financing, though, so he decided to write the book, which he does pretty much as a documentary film maker.  He focuses on objects. He includes line drawings of them, still images, like film close ups.  He gives us brief chapters, scenes really sometimes just quick cuts.  He quotes affidavits and provides transcript excerpts from hearings and from conversations he had with people while investigating the case.

It's thoroughly compelling.  And convincing.  At 24 frames a second.

Think of A Wilderness of Error as the framework, the statement of facts on which hangs a legal argument for an appellate court, better still, think of it as an elaborate (and goes-on-way-too-long) closing argument at trial.  Put yourself on the appellate panel or on the jury. You'd be angry at the way the prosecutors and the investigators fucked up the case and the way the judge's rulings denied MacDonald a fair trial.You'd want to overturn the conviction.  You'd want to vote not guilty.  You'd want to send Jeffrey MacDonald home, even after all these years.

MacDonald's was, of course, a celebrity case from the moment of the killings.  He was a physician with sterling credentials.  And a green beret.  The crimes were, gruesome.  Blood, bludgeons, a horrific scene.  MacDonald himself was injured, stabbed in the chest.  He said there were 4 people: a white blonde with a floppy hat (holding a candle and saying, "Acid is groovy. Kill the Pigs"), two white guys, and a black man.  Oh, and on the headboard of the bed in the master bedroom, where his wife's dead body was found, someone had written "PIG." In blood.

The military police and investigators mucked up the crime scene.  At an Article 32 hearing, to determine whether there was a basis for to court martial MacDonald, the presiding officer, Colonel Rock concluded there were not:

All charges and specifications against Captain Jeffrey R. MacDonald [should] be dismissed because the matters set forth in all charges and specifications are not true.  There are no lesser charges and /or specifications which are appropriate.

Which is about as clear as can be.  MacDonald was factually - not just legally, but factually - innocent.  He didn't do it.  At 24 frames a second.

Until he was charged in federal court in 1979 and sentenced to life in the slammer.

Because . . . well, maybe he did it.

Morris, of course, doesn't think so.  He believes in the blonde with the floppy hat (who turns out to be a woman named Helena Stoeckley who sometimes claimed she was there and sometimes denied it and sometimes remembered stuff and sometimes certainly seemed to believe she was there but who . . . . Well, it's not nice to speak ill of the dead, which she now is, so let's just say that her credibility ain't what you'd really like.

Sadly, though, neither is Morris's.  See, here's the thing.  

The defense isn't the only side to put on a story.  Prosecutors get to have their turn, too.  They get to explain just what's wrong, what Morris fudged, what he in fact wrote that seems to be factually false.  They get to show what happens in the interstices between those 24 frames.

Forget Joe McGinniss's Fatal Vision and the ensuing mini-series of it.  Forget how Janet Malcolm savaged McGinniss in The Journalist and the Murderer.   Forget the BBC documentary False Witness.  Instead, look at what Gene Weingarten wrote for the Sunday Washington Post Magazine.
 

It's recent, it's kind of skeptical (and kind of not) and it makes a compelling case for MacDonald's factual guilt.

But see, here's the thing.  Trials aren't about factual guilt or factual innocence.  They're about proof.  The idea is that the evidence will be presented fairly, challenged fairly, and the jurors will sift through it and relying solely on the evidence decide whether the government proved its case.  The hope, of course, is that the jury will reach a factually correct determination.  Sometimes it does.  Sometimes it doesn't.  But it's job isn't to discover truth, it's to evaluate evidence.  There's a relationship between the two, but they're not the same thing.

 

Weingarten writes:

Many of the supposed disclosures in “A Wilderness of Error” are not new — the original jury heard them, weighed them against the prosecution’s competing evidence, and sent MacDonald away for life. Several of the trial jurors are still around, but Errol Morris didn’t talk to any of them. 

As if that's scathing.  Which of course it isn't. Nor is it that when a juror tells Weingarten that MacDonald got a fair trial and that the jury waited fruitlessly for  the defense to "blow [the government's case] out of the water," well, that's just a evaluation of the evidence.  And with all respect, the juror doesn't have a clue whether MacDonald got a fair trial.

And, frankly, today that's the right question.  Oh, sure, maybe in some theoretical realm where facts are absolutely knowable and whatever was done wrong can always be set right it would matter whether MacDonald did or did not murder his wife and children.  But that isn't our world.  And it's too late to fix if the jury was wrong.  Even if we could know.

 

Morris writes:

But what happens when the narrative of a real-life crime overwhelms the evidence? When evidence is rejected, suppressed, misinterpreted - or is left uncollected at the crime scene - simply because it does not support the chosen narrative? It is easy to confuse a search for revealing plot details with a search for evidence. But there is a difference. In one case, we are wandering through a landscape of words.  In the other, we are in the physical world.

Morris wants the physical world, but all he can offer is his own, imperfect, occasionally disingenuous or even dishonest "landscape of words."  Then again, MacDonald's is a legal case not a morality play.  (Many would disagree.  I'm right, they're wrong.)

 

Even if Jeffrey MacDonald is factually innocent, he can't regain those years.  The bad guys (if not he) are pretty much beyond reach of man's justice.  And it doesn't matter.

It's not that innocence doesn't matter.  It's that innocence is beyond what the system can even dream of reaching at this remove.  Here's what it can do.  It can correct error.

Regardless of McGinniss and Weingarten and all the prosecutors and hangers on who are invested in MacDonald the psychopathic monster, the question we can ask, the only one that can be fairly asked today, is whether he got a fair trial.  Not an accurate result, a fair trial.

What Morris makes pretty clear, in his own imperfect way, is that he did not. 

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* The post is here.  It's altogether irrelevant to this post. 

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?




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*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.

The Valley of the Shadow of Death

On a pretty regular basis, people write or send e-mails asking that I volunteer my services on behalf of one or another person in prison or on death row who the writer knows absolutely to be innocent.  Often there's an additional inducement.  Perhaps a cut of the lawsuit against the oppressive police and prosecutors and judges who put this person behind bars or on a path to the gurney.  Perhaps the fact that it's so open and shut a case that no serious work will be involved to free the person who's languished in prison for decades.

There was, for instance, this note that I came across while clearing some old messages out of my inbox recently.

In my opinion, a private investigation of that matter should get acquittal by itself without even going to a court, a prosecutor can merely review the findings, then make a few phone calls, and sign some papers for his release.

Would that it were that easy.  Just find an investigator (not, obviously, one of the numerous corrupt and incompetent ones who have failed over 20 years or more to discover the readily available overwhelming proof of innocence) who'll work for nothing for a couple of hours and then call up the prosecutor.

Voilà

Except, well, no.  It doesn't actually work like that.

The evidence, if it exists, isn't sitting on the kitchen table ready to be picked up.  It isn't available with a quick Google search.  And it isn't, frankly, all that self-evidently compelling.
And even if it were, the prosecutor has neither the power nor, almost surely, the inclination to be readily convinced and then to act on it and secure the person's freedom with the stroke of a pen or a phone call or two.

It really is a lovely idea, It's also nonsense.

Once the jury says 

Guilty!

Well, it's pretty much over.   If they say he did it, then there's nothing much left to consider.  Just some technical mumbo jumbo about hearsay rules and exclusionary rules and Batson challenges and effective assistance of counsel, about which nobody gives a rat's ass.  

Because, after all, the jury said 

Guilty!

Which means it's pretty much over.  Because he either did it or might as well have.

That's the sad truth underlying Clive Stafford Smith's new book, The Injustice System: A Murder in Miami and a Trial Gone Wrong.

It was 1986 when Krishna (Kris) Maharaj, a successful businessman, was charged with the murders of Derrick Moo Young and Duane Moo Young at the DuPont Plaza Hotel in downtown Miami, a crime horrific in its coldness and brutality. It was 1994, when Smith first met him. represent him for free. By then, Kris had been on death row for seven years. All his money had been spent on lawyers who, truth be told, didn't do the job. Now he was broke and his best legal options largely past. In The Injustice System, Smith tells the story of how it is that Kris ended up there and of the fight to free an almost certainly innocent man.

In the world of capital defense, as in pretty much every field, there are stars, those lawyers others turn to for advice and inspiration.  Clive is among them.  He founded a couple of non-profits (the Louisiana Crisis [now Capital] Assistance Center and Reprieve). He teaches at major national capital defense seminars.  He's smart, clever, dedicated, passionate.  You get him in your corner, things look up.

That's certainly how it looked to Kris Maharaj.  But then, Kris had always figured things were going to look up.  He was innocent, you know.  That would be obvious to the jury.  If not, it would be obvious to the judge.  It followed that there was no need to fuss, no need to spend big bucks on a first rate trial team.  Just a lawyer who talked a good game.  Really, that would be all he'd need.

Except it wasn't.  And the next guy and the next guy and Kris was broke and then Clive came to see him and, as I said, with him in your corner, things look up.

As I said, this is the story of how it is that Kris ended up on death row for a crime he almost certainly didn't commit.  And about what happened after that.  Smith takes us through the case point by point, historical event through historical event.

He begins with the trial, then the sentence.  What happened next and his first meeting with Kris.  Then there's examination and investigation as Smith peels away the lies, the distortions, the misrepresentations.  And what he finds as he digs deeper. 

He investigates the witnesses.  He looks for other suspects.  He follows the money.  Was Derrick Moo Young tied to the Columbian drug cartels?  It sure looks that way.  Was his murder a hit for stealing from the Columbian drug cartels?  It sure looks that way.  

And what about the crooked judge?  And what about the jury?

Kris files post-conviction pleadings in state court, then in federal court.  This is how it goes, how these cases play themselves out.

Smith explains it all carefully and clearly.  These are the legal steps.  These are the legal hurdles.  Here are the stories of other cases and how the went.  Stories of other prosecutors and other judges and other juries.  Of other investigations and other innocent men and women. Here are stories of forgiveness and compassion, and stories of hatred and vengeance.  He tells the story of Rais Bhuiyan (which I've written about here and here).

Through it all, Smith never loses sight of Kris, who is himself both ordinary and extraordinary.  And of Kris's wife, Marita, who's simply extraordinary.  They, as much as the family of the Moo Youngs, are victims here. 

As an epigraph, Smith offers this from Pascal Calogero, a former chief justice of the Louisiana Supreme Court.

Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result.  If either of those two primises is not met, the criminal justice system itself falls into disrepute.

And so it does. The Injustice System lays it out.  Piece by piece.  Kris's case is the model. But it's not just his case.  It's another and another and another.

Most of the books you'll read - even the really good ones - about innocent men and women caught up in the system, like most of the movies and TV shows, most of them are about a case where things went wrong.  For whatever reason, the system screwed up.  It failed. And then through some combination of diligence and luck and pluck the truth came out.

This book is different.  Oh, it shows the system screwing up.  But Clive makes clear that it's not an aberration. And diligence and luck and pluck - they just may not be enough.

Clive is, among other things, a terrific storyteller.  And he's got a terrific story to tell.  Of how the system fails.  How it's designed to fail.  How failure isn't an accident, it's a feature.

At the same time, ever and always, it's a story of man.  I'll give him the last word.  He was in the hospital associated with the prison. Shackled to a bed. Suffering from a flesh-eating bacteria. Smith paid him a visit.

I ask Kris what keeps him going, when he can't do anything in the hospital.  He responds by quoting Psalm 23, the entire thing from memory. "'Surely goodness, mercy and love shall follow me all the days of my life,'" he intones.  I look at the grubby wall again and wonder. 

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My thanks to the publisher for sending me a copy of The Injustice System for this review.

But It Was My Lawyer's Fault

Your 93-year-old dowager aunt Nell dies but there's a real issue about whether her museum-quality collection of corrugated cardboard crates and the castles in Castille and Kensington where she has them catalogued should go to you or to M.T. Assets, the ne'er-do-well 24-year-old gardener with whom she's been carrying on a clandestine affair for a couple of years.

You hire the law firm of Dudley and Doright to defend your interest in the estate.  He hires Snidely and Whiplash.  Dudley files an incompetent response to Snidely's summary judgment motion and you're out on your ass, forced to leave in a flea bag hotel in Chelsea while M.T. suns himself on the Riviera.

You appeal, of course, now represented by Rock & Bull Winkle, but the case is tossed almost immediately.  You chose to hire D & D.  You pays your money and you takes your chances and you got fucked. (No, I'm not doing the joke).  That's because when you hired D & D as your lawyers, they became your agents and you're bound by what they did as long as it was within the scope of what you hired them for.  That they did it incompetently doesn't do squat.  No do over, sorry.

Sigh.

Now what?

Of course.  You sue Dudley for malpractice.  And because he was so obviously incompetent, you win.  Sure he was your agent, and for purposes of the agency (beating off M.T. and getting hold of Nell's boxes) you're bound by what he did.  But he was supposed to do it competently, and he didn't.  So he gets sued and you get millions (though Rock and Bull take a share).

At least that's the idea.  You made your legal bed, now lie in it.  But if the lawyer screws up you can sue and recover what you lost.  

Which has its problems as a system that purports to be fair, but there's a certain logic to it that's built around the law of agency.

Thing is, agency law doesn't work so well when the lawyer/agent is representing someone charged with a crime.  See, when the issue is something really important like money, it can be fixed by paying money.  It all evens out (sort of).

Doesn't work that way in a criminal case, though.  The defendant didn't just have to pay, he got to go to prison.  He lost his job and his family and his standing in the community.  Oh, maybe he can sue for malpractice, but so what?  Even a win won't get him back the years.

Or his life.

I've written about all this before, of course.  Repeatedly.  But now there's this from Adam Liptak writing the Forward to this year's book review issue of the Michigan Law Review (I've stripped out the footnotes).

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.
This theory holds that the lawyer is the client’s agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Liptak goes on to discuss the development of the agency model (civil cases), its application to criminal law, and some softening of it - at least in truly extreme cases of abandonment like Holland v. Florida and Maples v. Thomas. 

But there are dangers, Liptak seems to accept, with taking this all too far.  If the client is never bound by the lawyer's negligence or incompetence, then the client may be better served to have a negligent or incompetent lawyer than a good one.  Which is, of course, silly.

The client, and especially the criminal defendant, is always better served by having a lawyer who does right from the start than by hoping he can convince a later court to undo a screw up after he spends, perhaps, a few years in the tender embrace of the prison system.

No, there's no serious danger in actually saying that the client shouldn't suffer - not even a little - for his lawyer screwing up.

But there's another problem, too, with agency law here - at least, in the criminal context where the vast majority of the clients don't choose their lawyer.  They're represented, instead, by public defenders or court appointed counsel or contract lawyers.  They're represented, that is, by lawyers chosen by the government, paid by the government.  They have (ordinarily) no say in who their "agent" will be.  They never agreed to let Doright do the case, let alone agreed to let him do it wrong.

Liptak puts it this way (footnote again stripped).

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned—or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?

Perhaps to the courts.  Maybe to some lawyers.  Not, I think, to ordinary folk.

The thing is, Liptak distinguishes that fairly ordinary circumstance from what he refers to as "the ideal case."  For that, he has us imagine

a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer’s work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client’s will, and so the client may fairly be tagged with the lawyer’s errors.

I'm sorry, no.  Because the lawyer doesn't suffer the risk of the error.  The lawyer doesn't suffer the consequence.  Not in the criminal arena.

At the end of the day, whatever the jury says about the client, the lawyer goes home.  However much the lawyer got paid, with whatever degree of care she was vetted and selected, however that works, the client is the one who faces a steel cot and a sink atop the toilet tank.  And maybe a gurney and a needle.

And if that's because the lawyer was negligent or incompetent, it's just wrong.

h/t Mark Godsey at the Wrongful Convictions Blog.

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.

The Dog Ate My Defense

Every day in Ohio courts, jurors are told this.

You are the judges of the facts, the credibility of the witnesses, and the weight of the evidence.
To determine the greater weight of the evidence, you must consider the credibility of the witnesses. You will use the tests of truthfulness that you use in your daily lives.
These tests include the appearance of each witness upon the stand; the witness' manner of testifying; the reasonableness of the testimony; the opportunity the witness had to see, hear, and know the things about which the witness testified; and the witness' accuracy of memory, frankness or lack of it, intelligence, interest, and bias, if any, together with all the facts and circumstances surrounding the testimony. Use these tests and assign to each witness' testimony such weight as you think proper.
You are not required to believe the testimony of any witness simply because the witness was under oath. You may believe or disbelieve all or any part of the testimony of any witness. It is your duty to decide what testimony to believe and what testimony not to believe. The testimony of one witness if believed by you is sufficient to prove any disputed fact.

Look at that witness.  

Does he seem nervous?  Uncomfortable?  Unsure?

Or is she confident? Calm? Controlled?

Does he look the defendant in the eye or turn away?

Does he look at the jurors or is he turning to the prosecutor for protection or comfort?

If it's hard for the witness, that's something for the jurors to consider in deciding whether to believe or disbelieve the testimony.

None of that's a sure thing, of course.  There's no telling what any particular juror will find a sign of honesty.  Or of fabrication.  

But it's their job, the jurors' job, to decide what, and especially whom, they're going to believe.   To aid in that, the framers gave us the Confrontation Clause.  It's right there in the 6th Amendment.

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .

And that confrontation is supposed to be face to face.  Justice Scalia explained in Coy v. Iowa.

We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U. S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting). For example, in Kirby v. United States, 174 U. S. 47, 55 (1899), which concerned the admissibility of prior convictions of codefendants to prove an element of the offense of receiving stolen Government property, we described the operation of the Clause as follows: "[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases." Similarly, in Dowdellv. United States, 221 U. S. 325, 330 (1911), we described a provision of the Philippine Bill of Rights as substantially the same as the Sixth Amendment, and proceeded to interpret it as intended "to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination." More recently, we have described the "literal right to `confront' the witness at the time of trial" as forming "the core of the values furthered by the Confrontation Clause." California v. Green, supra, at 157. Last Term, the plurality opinion in Pennsylvania v. Ritchie, 480 U. S. 39, 51 (1987), stated that "[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination."

The Sixth Amendment's guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial in a criminal prosecution." Pointer v. Texas, 380 U. S. 400, 404 (1965). What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. . . . In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Press release of remarks given to the B'nai B'rith Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists, "Look me in the eye and say that." Given these human feelings of what is necessary for fairness, the right of confrontation "contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." Lee v. Illinois, 476 U. S. 530, 540 (1986).

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is." Z. Chafee, The Blessings of Liberty 35 (1956), quoted in  Jay v. Boyd, 351 U. S. 345, 375-376 (1956), (Douglas, J., dissenting). It is always more difficult to tell a lie about a person "to his face" than "behind his back." In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss — the right to cross-examine the accuser; both "ensur[e] the integrity of the factfinding process."  Kentucky  v.  Stincer, 482 U. S., at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.

The thing is, we're too often unwilling to pay those costs.  After all, the accused is guilty.  Why run the risk of letting him off just because the Constitution mandates some dumb rule?

Which brings us to New York and to the story of Rosie the wonder don't-call-her-therapy [see here] dog.  William Glaberson had the story in the Times.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. Both prosecutors and defense lawyers have described her as adorable, though she has been known to slobber.

Prosecutors and defense lawyers are talking about Rosie because she's also the courtroom dog who helps kids and other accusers testify on the witness stand calmly and coolly without any of the stress associated with falsely accusing lying telling the truth. 
Also she coaches the witness.

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
. . .
At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose.

Those leaning in and nose-pushing things.  You know, because the dog knows the truth and helps to get it out.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
In written arguments, the defense lawyers claimed it was “prosecutorial misconduct” for the Dutchess County assistant district attorney handling the rape case, Kristine Hawlk, to arrange for Rosie to be taken into the courtroom. Cute as the dog was, the defense said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.
Ms. Hawlk declined to discuss Rosie. In written arguments, she said that all Rosie did was help a victim suffering from serious emotional distress, and she called the defense claims “frivolous accusations.”

Really, it's all there.  The witness is prejudged a "victim."  The jury is denied the opportunity to evaluate the witness's stress and figure out what it means.  The dog can't be cross-examined.

As Gideon said.

A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?

And Scott Greenfield puts it this way.

As wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn't wrong, or isn't lying, and that the real victim in the courtroom isn't the defendant.

See,  despite the string of accuser's rights laws and amendments, they're really just accusers unless the jury says otherwise.  The court isn't supposed to coddle them in advance, to provide comfort, to make it easy so that they can be understood to be compelling because how damn hard it is to have to face the person they're accusing - regardless of whether the accusation is true.  The accuser, that is, has no legal presumption of victimhood.

The accused, on the other hand, is not only presumed innocent.  The accused is innocent unless and until the jury says otherwise having been convinced by proof beyond a reasonable doubt - truth untainted by a presumption that the accuser is truthful.

Greenfield again.

And no one has yet suggested that the defendant be allowed a cute, adorable, slobbering dog to sit at his feet, to lend his loving dog-eyes to the warmth of the accused, just in case he's the person suffering trauma in that courtroom.

Yeah.