First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

New York Rocks

Not all wins are created equal.


Take Kimberly Hurrell-Harring.  I've written about her case before.  It's the class-action lawsuit, brought by the New York Civil Liberties Union, challenging the provision of public defender services in five New York counties.  When the case was filed back in 2007, the NYCLU described it this way.

The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer.

The claim, stripping away the details and linguistic blubber, was that in five New York counties, public defender services were so deficient that the indigent accused might as well have had no lawyer at all.  And sometimes, the lawsuit claimed, they actually did have no lawyer.


There's no legal question that people accused of crimes have a Sixth Amendment right to what the courts call the "effective assistance of counsel."*  In practice, that "at least minimally" language has far more sticking power than the "effective" does, but that's to argue about the force of the right.  The right itself is now such well-settled law that even Justice Thomas has not suggested he'd be open to revisiting whether it's proper.  (Don't tell him I wrote this.)


That's the right Hurrell-Harring and her co-plaintiffs said was violated.


The case was filed in 2007.  The State asked the New York Supreme Court (which is the lower court in New York) to dismiss the case.  They made two relevant arguments.  

1. The problem really requires a legislative fix, not a judicial one.
2. Determinations of effective assistance can only be raised after a conviction, as part of a post-trial process, because they are necessarily case specific.

The Supreme Court, which is the trial court in New York, denied the motion to dismiss.  The state appealed that to the Appellate Division which reversed, granting the motion.  Then the Court of Appeals (which is the high court in New York) agreed to hear the case.  Thursday, in a split decision, the court said the case could go forward.  More precisely, part of it could.


To understand that, you need to understand that the right to counsel has a couple of parts.  There's the right to counsel itself (Gideon v. Wainwright) and there's the right to have that counsel be at least minimally effective (Strickland v. Washington).  A Strickland claim requires showing a reasonable likelihood of a different outcome.  A Gideon claim doesn't require any showing of prejudice because it's considered a violation of the structure of the system.

Hurrell-Harring raised Gideon and Strickland issues.  She and her co-plaintiffs argued that the system in those five counties was so bad that they weren't getting counsel at all at what the courts call "critical stages" of their cases (Gideon).  And they claimed that when they did have lawyers, they were so grossly incompetent that they weren't even minimally effective (Strickland).

Got that.  In his opinion for the Court of Appeals, Chief Judge Jonathan Lippman parsed it out.

Strickland's approach is expressly premised on the supposition that the fundamental underlying right to representation under Gideon has been enabled by the State in a manner that would justify the presumption that the standard of objective reasonableness will ordinarily be satisfied (see Strickland, 466 US at 687-689, supra). The questions properly raised in this Sixth Amendment-grounded action, we think, go not to whether ineffectiveness has assumed systemic dimensions, but rather to whether the State has met its foundational obligation under Gideon to provide legal representation.

Inasmuch as general prescriptive relief is unavailable and indeed incompatible with the adjudication of claims alleging constitutionally ineffective assistance of counsel, it follows that plaintiffs' claims for prospective systemic relief cannot stand if their gravamen is only that attorneys appointed for them have not, so far, afforded them meaningful and effective representation. While it is defendants' position, and was evidently that of the Appellate Division majority, that the complaint contains only performance-based claims for ineffective assistance, our examination of the pleading leads us to a different conclusion.

He concludes this way.

Assuming the allegations of the complaint to be true, there is considerable risk that indigent defendants are, with a fair degree of regularity, being denied constitutionally mandated counsel in the five subject counties. The severe imbalance in the adversary process that such a state of affairs would produce cannot be doubted. Nor can it be doubted that courts would in consequence of such imbalance become breeding grounds for unreliable judgments. Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases. Wrongful convictions, however, are not the only injustices that command our present concern. As plaintiffs rightly point out, the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon's guarantee to the assistance of counsel does not turn upon a defendant's guilt or innocence, and neither can the availability of a remedy for its denial.

That's terrific and pretty ringing.  If New York is systemically denying counsel to indigents, or if it is effectively denying them counsel while pretending to give them lawyers, it's violating their rights and they can sue to change the system.

What they can't do, though, and amid the hosannah's it's worth noting that this is no small loss, what they can't do is bring a civil lawsuit to argue that the indigent defense system is providing incompetent, poorly trained, nearly worthless lawyers.  The Gideon claim can go forward.  But the individually fucked plaintiffs who had lawyers will still have to deal, case-by-case and only after-the-fact with bad lawyering.

Hurrell-Harring had a lawyer who convinced her to enter a plea to a felony.  Except the offense was a misdemeanor.  So she had a lawyer, just one who did an awful job.  The likelihood is that whatever the outcome of this case (and the plaintiffs still have to win at trial), it wouldn't have helped her.

The shame is that the Court of Appeals wouldn't even allow the argument that bad lawyering can be a systemic problem, too.

Still, two steps forward one sideways is a pretty darned good result.

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*There's a similar right (maybe somewhat broader) under the New York State Constitution.

Half-Empty Glass

Some people focus on the silver lining.

Justice Stevens' opinion (sorry, Bennett, I prefer the visual aesthetic of omitting that final "s") in Padilla v. Kentucky is really a wonderful thing. Regardless of whether he announces his retirement this month - as many, perhaps most, expect - Padilla should justly be viewed as a highlight.

The very short version: Lawyers have an obligation to tell non-citizen clients about the immigration consequences of a plea if those consequences can be readily determined. When they can't be, a more general warning, something on the line of "There may be adverse consequences; you should check with someone if that matters to you," is required. Mark Bennett's summary is even simpler than mine.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client.

He adds, rightly,

It’s about damn time.

In fact, Padilla is a terrific opinion for more than just the formal holding.

There's the reminder that although the lower courts have routinely said that the right to effective assistance of counsel doesn't include the right to effective assistance in regard to collateral consequences of pleas or convictions, the Supremes have never said that. (Russ Bensing's post this morning spins out, with focus on Ohio, some of the collateral consequences to which criminal defense lawyers ought to be paying more attention.)

There's the recognition that ABA standards for defense counsel

may be valuable measures of the prevailing professional norms of effective representation.

That's particularly notable in light of the almost cavalier dismissal of the significance of those standards just a few months ago in Bobby v. Van Hook.

There's the recognition that "deportation is intimately related to the criminal process," which has led at least one person to suggest that the case lends itself to challenging Miranda-free interrogations by ICE with the statements then being admitted at criminal trials.

All this and more. It is, as I say, a great opinion.

But if some people focus on the silver lining, I can't help paying lots of attention to the cloud.

The other day it was Clarence Thomas suggesting that in the right case he'd be happy to reconsider the claim that it's unconstitutional to insist that juries must actually represent a "fair cross section of the community." Why not go back to the framer's idea? White, male, property owners from nearby.

Today it's Scalia (joined by Thomas) hinting that the Constitution does not mandate counsel for anyone and certainly doesn't mandate that counsel be competent.*

The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28–29(1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

The boldface is mine.

Forget that appointed counsel stuff. Oh, sure, states (and even the feds) can provide counsel if they want. There's nothing inherently unconstitutional about public defenders. (At least, they haven't yet suggested that.) But required? Don't be silly. The Sixth Amendment just says counsel's allowed. Defendants who manage to get themselves lawyers can have the lawyers defend them. But it's the defendant's burden to find (and pay) willing counsel.
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

And, by god, the defendant who manages to arrange counsel certainly has no right to have the counsel be even marginally competent.

Today only Scalia and Thomas are going there. And there's a fair chance that only Thomas would actually vote to overturn Gideon or Strickland. But time has an ugly way of catching up to the worst possibility.

Yet more need for the PD Revolution.

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*Bennett noted their wariness in his post on Padilla, but didn't focus on it.

The Right to Effective Assistance of Counsel - or Something

At the urging of her public defender, Kimberly Hurrell-Harring entered a guilty plea to a felony for smuggling a small amount of marijuana into a New York prison to deliver it to her incarcerated husband.  She was caught.  She lost her job and any reasonable prospects.  After four months in custody, she was released for good behavior and placed on five-years probation. She lost her home and, with her kids, moved in with her mother.  They were living on food stamps.


Yeah, yeah.  Happens all the time.  If you can't do the time, don't do the crime.  (I first heard that on Baretta, I think.  My clients never say it.)


Except, see, the crime wasn't a felony.  It was a misdemeanor.  Less serious.  Almost certainly no prison time, no probation, no loss of job, no loss of housing.  Her lawyer should have known that, of course.  In fact, he was told.  But he apparently ignored the information.  That's pretty clearly ineffective assistance of counsel, a denial of Ms. Hurrell-Harring's rights under the Sixth Amendment.  


You can read all about Ms. Hurrell-Harring in last Friday's New York Times.  The Times is reporting the story now because she's one of the named plaintiffs in a class-action case brought by the New York Civil Liberties Union.  The case was filed in November, 2007, dismissed by the intermediate appellate court, and tomorrow the Court of Appeals (the high court in New York) will hear oral argument as to whether the case can go forward.  


Oh, about the case.  Here's the NYCLU's take from back when it was filed.

“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. . . .

The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer. 

I'm not licensed to practice law in New York.  I haven't participated in or even watched the New York system of indigent defense in action.  I have no personal knowledge of the merits of the case.  Nevertheless, I don't doubt for a moment that the plaintiffs are right.  


Indigent defense is problematic pretty much everywhere - even when it's superb - because at some point the system, and in particular its funding, is in the hands of the government.  And indigent criminal defendants don't have a great lobby and don't make big campaign contributions.   


But it's more than cash.  As Mike Cernovich points out today, even those of us who defend the system don't fully trust it.

There isn't a criminal defense lawyer reading this post who would, if charged with a crime, choose to be thrust into the public defense system rather than hire counsel. Sure, you know a guy in the office you'd entrust with your case if he had the time to spend on your case. 

You'd go into the public defender's office if - unlike poor people - you could choose your lawyer, and demand that he not treat you like another piece of meat on the assembly line. Which means, in reality, you do not trust the public defender system.

It's histrionic, maybe, and at some level unfair.  It's also true.


Public defense at its best provides superb representation.  There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis.  But the system doesn't.  Not broadly enough, anyway.


I'm a believer in public defense.  I served on the Ohio Public Defender Commission.  I've worked with the current and past state public defender.  I have taken and continue to take court appointments.  I'm generally supportive of Norm Pattis's movement seeking public defenders for everyone - rich and poor and those in between - a universal public defender system.  I asked permission to sign on to the Public Defender Revolution.


That just makes me more sure that these cases are important.  If standing up for our clients is what we do  (the rest is mechanics and details), if we understand that the clients, rich or poor, are on one side and the weight of the government is on the other, then the Sixth Amendment right to counsel needs constant and vigorous defense precisely because the clients have no lobby and don't make big contributions.


The issue in the Court of Appeals tomorrow isn't the quality of representation in New York.  It's whether the courts can address the quality of representation in more than a case by case way.  It's a predicate to the main event, but lose and the main event doesn't occur.


The New York case is important precisely because it's the New York case.  Oh, there's one in Michigan; and there have been and will be others in other states.  But New York is, well, New York.


As Sinatra didn't quite sing, if it can be done there, it can be done anywhere.


You can read all the major filings in the case here.  You should be able to watch the oral argument here.


And here's where you find the court's own summary of the case, which I'm just reproducing.

This action, filed as a proposed class action in 2007 by 20 plaintiffs who are or were represented by assigned counsel in criminal cases, seeks a declaration that New York's public defense system, which is primarily funded and administered by counties, fails to assure effective assistance of counsel for indigent criminal defendants as required by the State and Federal Constitutions. They allege that the State's failure to adequately fund, oversee and set standards for the public defense system has resulted in systemic deficiencies that deprive indigent criminal defendants of counsel at critical stages of their prosecution and create a severe and unacceptably high risk that the poor will be denied their constitutional right to effective assistance of counsel. The State moved to dismiss on several grounds, arguing that the structure and funding of public defense systems is a legislative function and therefore not justiciable and that plaintiffs may not use a civil action to challenge the adequacy of counsel provided in their criminal proceedings. 

Supreme Court denied the motion to dismiss, holding that "allegations of systemic deficiencies which give rise to a strong likelihood that plaintiffs' constitutional right to effective assistance of counsel will be violated state a justiciable cause of action seeking prospective declaratory relief without the need to allege or prove actual ineffective assistance of counsel" in a particular criminal case. It rejected the State's claim that judicial review of policy and budgetary decisions regarding public defense would intrude on the roles of the other branches, saying "the complaint merely seeks a general direction that the State provide a criminal defense to the indigent which complies with all constitutional and legal requirements. It does not demand any specific manner of compliance." The court also held the plaintiffs "do not have any effective remedy available within the context of their criminal proceedings."

The Appellate Division, Third Department reversed in a 3-2 decision and dismissed the complaint, ruling the claims were not justiciable. "Justiciability involves the constitutional separation of powers and determines what matters should be resolved by the Judiciary as opposed to" the other branches, it said. "There can be little doubt that what plaintiffs seek in this action -- a massive overhaul of this state's public defense system -- has obvious and ominous implications for the constitutional principle of separation of powers. Their claim, if granted, necessarily involves the judicial assumption of traditional legislative prerogatives." It also said the civil action would improperly impact related criminal cases. "[S]ound public policy requires that severe restrictions be placed upon the ability of criminal defendants to litigate claims in a civil action that can be, and ought to be, resolved in the criminal actions," it said.

The dissenters argued the plaintiffs adequately alleged that the State has failed in its constitutional duty and "the courts have the responsibility to examine the allegations and adjudicate the dispute.... Justiciability of the instant claim is even more compelling given that the constitutional right at issue is so interwoven with, and necessarily implicates, the proper functioning of the court system itself.... Concerns about costs, fiscal impact and the difficulty courts may encounter in fashioning and then enforcing [any remedies], while not to be ignored, cannot be sufficient to require us to turn a blind eye to constitutional compliance...." They said, "[W]idespread and systemic instances of deficient performance caused by an ill-equipped assigned counsel system will not be cured through a case-by-case examination of individual criminal convictions."

AT LEAST IT WASN'T A HORSE'S HEAD IN THE BED

Thanks to John Wesley Hall at the Law of Criminal Defense blog for this post directing attention to Commonwealth v. Means, decided by the Massachusetts Supreme Judicial Court (gotta love the name) on Friday.

Means, who even the judge acknowleged had very serious mental health and anger management issues, had been complaining about his appointed counsel for some time and had filed repeated motions to have him removed and new counsel appointed.

In March, 2005, the defendant filed a further pro se motion for the "immediate withdrawal" of his counsel and for the appointment of new counsel to represent him at his trial. In an affidavit attached to this motion, the defendant disclosed that he had sent a blood-smeared letter dated March 6, 2005, to appointed counsel threatening to harm him and his family if counsel did not withdraw from the case. . . . The defendant's affidavit also stated that, if the judge did not allow his motion, then at the "very first chance," the defendant "will physically assault, spit, kick, head-butt, etc." appointed counsel. To emphasize his point, the defendant added that he was "not playing around; this isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues, due to lack of treatment." The defendant concluded his affidavit by noting that he was "not prepared" for his April 27 trial date, and did not have any documents with which to present his defense.

OK, that's a problem.

The trial court held a hearing. (Means was present by video conference, which is probably just how they do things there, but it likely made the threatened lawyer feel better than if he had to sit next to the guy.) Means acknowledged (threatened counsel advised him not to) that he'd written the letter. Judge said that his threats were sufficient to let counsel off, but that no new counsel would be appointed because, by the threats, he'd forfeited the right to appointed counsel.

A couple of days later, Means said that he never actually intended to harm anyone, it was just "a stunt" to get counsel to withdraw. He wanted and needed new counsel. Tough, said the judge. Means went to trial, pro se (the Committee for Public Counsel Services offered to represent him, but the judge wouldn't let that happen), and was convicted.

The high court said, look, threatening your lawyer and his family is serious stuff, and could, maybe, in the right case, be a basis for forfeiting the right to counsel. But

Before a judge orders the forfeiture of the defendant's constitutional right to appointed counsel based on the defendant's misconduct, the judge must give notice of and conduct a hearing in which the defendant is given a full and fair opportunity to show why so severe a sanction should not be imposed. Because the defendant was not given that opportunity, and because we cannot say with confidence that the result may not have been different had he been given that opportunity, we reverse the judgments.

And, of course, counsel should have been appointed for the defendant for the hearing.

Means gets a new trial. And good for the Massachusetts Supreme Judicial Court.

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A question all this raises is just when appointed counsel ought to ask leave to withdraw. All too often, counsel don't ask, or don't say the right things when they do ask, because their egos won't let them. I may talk about this in some future post.