From Bob Mabry at his blog, Courts and Writing, I learned about an article by University of Georgia law professor Erica J Hashimoto in the latest issue of the Boston University Law Review. According to Professor Hashimoto, the criminal client should have a complete right to represent himself at trial and on appeal. Also, when a client has a lawyer by appointment or whom he has retained, Hashimoto argues that the client should control all matters in the case including which defense to choose, which witnesses to call, which errors to enumerate on appeal, and how the appellate brief should be written. I agree with the professor generally. The client’s autonomy is important. Criminal counsel should communicate regularly and consider the client’s views. However, I cannot go so far as to agree with the specifics of her argument. The client should not have the power to control which issues are chosen for appeal or how the appellate brief should be structured or worded.
Professor Hashimoto’s Argument
The general thrust of the article is that courts since Faretta v. California have taken an increasingly paternalistic view toward the client in a way that has undermined the client’s autonomy in violation of the Sixth Amendment. Hashimoto then proposes that courts return to regime where the client controls all issues in the case, with the advice and assistance of counsel. She argues that, when the 6th Amendment was drafted, few criminal defendants had lawyers, and that, when they did, the client called the shots on all major trial and appellate issues. So, the framers never envisioned a legal system where the acceptance of a lawyer meant a waiver of the right to control the flow of the case.
Next she argues that the plain language of the 6th Amendment envisions that the client can call the shots on everything with the assistance of counsel.
Finally, she points out that control of the trial is the last major opportunity the accused has to control his destiny before going to prison and ceding all control over day to day activities to prison officials.
While there are some things I like about this article, there are some things about it which, if true, would make it difficult to professionally represent clients on appeal.
What I Agree With and Take from the Article
The client is an autonomous human being whom I should inform and with whom I should work as a team as the case progresses through the various stages of the appeal. I should make sure that the client understands the process, how the process differs from trial, and what my general strategy will be. When the brief in drafted, I should discuss it with my client. Finally, before oral argument, I should let the client know what my general strategy should be. I should be available to answer the client’s questions.
After reading this article, I want to make sure that I am not leaving the client out of the loop. However, beyond this point, the professor and I part ways.
Where I Can’t Accept the Article’s View
However, I believe that the article goes to far. In fact, Professor Hashimoto would reduce the lawyer’s role to the client’s scrivener, mouthpiece, or legal secretary. I am reminded of Abraham Lincoln, who said that “A man who represents himself has a fool for a client.”
Specifically, I have some issues with degree that the article embraces the idea of the represented client’s autonomy. One, when the 6th Amendment was framed, prosecutions were often taken up by private individuals against private individuals, much the way that pre-warrant hearings are conducted in Georgia. In such a situation, lawyers are not absolutely necessary. Things have certainly changed since then. Crimes are prosecuted by well-funded professional prosecutors with the assistance of well-funded and experienced law enforcement agencies. Criminal trials are no longer mano-a-mano. There was no Patriot Act when the Sixth Amendment was framed.
The judge is not there to help the defense. While the trial judge might have helped out the pro se defendant in the 18th century, the modern trial judge is often a second prosecutor. Most of the rulings go against the defense. A pro se defendant in a modern courtroom is basically some meat on a platter being served up to the State and to the trial judge. Sometimes it feels that way to a lawyer in front of Georgia trial judges.
Prison Law Libraries Suck
Criminal defendants do not have access to very good research materials, and they have not lived with precedent and lack experience doing legal research. I get jail mail all the time citing the Uniform Commercial Code and all sorts of other irrelevant stuff. Am I required to use it when I am unsuccessful in persuading my client that it is inapplicable?
What About Jones v. Barnes?
The professor does not discuss the Supreme Court’s opinion from 1983 in Jones v. Barnes. Chief Justice Burger wrote the majority opinion (and was a dissenter in Faretta) In that case, the United States Supreme Court rejected a per se rule that “appellate counsel must raise every nonfrivolous issue requested by the client.” In so holding, the Court reasoned that appellate advocacy is an art and a science and that “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” The Court then goes on to quote Justice Jackson:
One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that the lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in one. … [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.
If my most vocal clients had their way, I would argue on appeal that each witness lied. I would raise every objection as an enumerated error, I would move to recuse every trial judge, and I would argue for a new verdict. I would raise ineffective assistance of counsel in every case whether it was there or not, and I would subpoena the trial judge and the prosecutor as a witness in every case. I would also raise frivolous issues in violation of the Georgia Rules of Professional Conduct and probably be held in contempt a lot. Unfortunately, I have duties as a member of the State Bar that my client doesn’t have, and complete respect for his autonomy on appeal would, in some cases, make me at best a subject of ridicule and at worst sanctioned by the Court and in hot water with the State Bar. Of course, such things are not the concern of my autonomous client.
Ultimately, I sign my name at the bottom of the brief, not the client. Ultimately, my reputation is at stake every time I file something with an appellate court. And I want to win my client’s case and would like a receptive audience for my next client’s appeal.
At the end of the day, I support my client’s right to represent himself on appeal. Indeed, in Cook v. Georgia, I won on appeal my client’s right to fire me and do his appeal by himself. He went on to forego great issues that likely would have won him a new trial, but such was his choice. When he and I could not get on the same page, he wanted to represent himself. I moved to withdraw; when the trial court foisted me upon him and Ordered me to represent him, I appealed that decision and “won.”
Is it Really “Self” Representation?
When my client starts finding issues that lead him to believe that I should move to recuse the judge, put the district attorney under subpoena along the the governor, the director of the CIA, and the client’s ex-wife, I begin to suspect that he has found other “counsel,” particularly when letters to me are notarized and are suddenly in a different person’s handwriting that looks similar to the last such letter I received from the same facility on behalf of another client.
It has been said that “the law is a jealous mistress.” Well, the jailhouse lawyer is an even more jealous mistress. Her advice is always much more radical, aggressive, and optimistic than mine. And when I get those 50-page letters that begin, “Mr. Key, I need to you to type these pages into my brief,” I know that I am competing with a jailhouse lawyer. Of course, I can’t compete with a jailhouse lawyer because his advice promises so much more than I have ever promised with mine with my esoteric notions of subject matter jurisdiction and the Confrontation Clause. So, in respecting the autonomy of the client, am I really required to sign my name to the writing of my unlicensed felon co-counsel from cellblock D whose signature, reputation, and good standing with the bar are not on the line? And how logical is my autonomous client when he is unpersuaded by me when I implore, “Mr. Smith, if NightTrain is such a great legal mind, why is he in prison still?”
If you choose to have a lawyer on appeal, he gets to write the brief, and choose and frame the issues. The lawyer should consult and value his clients point of view and work hard to get on the same page with his client. In a good relationship where there are open lines of communication, the kinds of disagreements discussed in the law review article often do not arise. However, when they do, I have to weigh the client’s view of the issues against my legal training and experience, my professional obligations, and my very credibility as an advocate before the appellate court. If the latter has more gravity, I get to veto the client’s framing of the issues.
Put another way, when I go to the doctor for surgery, I take the anesthesia and let the procedure go forward without my interference. Is the doctor being paternalistic when she refuses to hand me surgical appliances to assist? While I have the power to elect to have the procedure or not and the right to be an advocate for myself by asking the doctor lots of questions, I don’t control the specifics. I don’t get to scrub in and help out. She’s the professional.
I value the client’s input, am compassionate toward the client, but where the rubber hits the road, only one of us can be the lawyer.