Tag Archive for: Jones v. Barnes

Lawyer Who Let Client Write Brief Faces Sanctions from SCOTUS

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I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

  • If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
  • If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
  • Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.

The Importance of Being a Good Witness at a Habeas or Motion for New Trial

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There’s a side effect of having a robust appellate practice in Georgia. If you handled the appeal, and your client has a lengthy prison sentence, you will likely become a witness as your former client tries to demonstrate your ineffectiveness. In Georgia, the client has the right to effective assistance of counsel during the trial and during the direct appeal. You cannot raise your own ineffectiveness as an issue at trial. If you are new counsel on direct appeal, any issues of ineffective assistance are waived if you don’t raise them. So, if you do not raise the issue at all, you’ve waived your client’s right to raise it. Or if you raise it one way, you waive it with respect to other possible ways you could assert it.

The trouble is that Georgia’s system is a veritable pressure cooker for appellate counsel to raise ineffective assistance of counsel. The trouble is that it is hard to prove ineffective assistance of counsel. The law is extremely deferential to the trial lawyer. Strategy, even bad strategy, is not actionable in an ineffective assistance of counsel plea. Even demonstrable mistakes are not actionable unless there is a likelihood that they had an impact on the trial’s outcome.

No trial lawyer conducts a perfect trial. Mistakes get made along the way. Some things just don’t work, and we don’t realize that they won’t until trial is over. And some trials just aren’t going to go well for the defendant unless you manage to perfect time travel and remove the client from the crime scene before anything bad can happen.

Here’s the point where the attorney client relationship is most delicate. It’s a rare convicted appellate client who thinks his trial lawyer was awesome. I allow for the possibility that he messed up and engage in a dispassionate search for mistakes. When I find things, I raise them. When I don’t, I don’t. Sometimes, trial counsel will agree that he made a mistake in one area or that he “just didn’t consider” something but will won’t to fight you on some other issue. At that point, you have to jettison some issues to secure trial counsel’s cooperation on others.

When it’s all said and done, you will likely end up as a witness on a habeas if your appeal was unsuccessful. And when you do, the subject matter will likely be your decision not to raise ineffective assistance of counsel at all or your decison not to raise it on other issues.

If you were the trial lawyer, you may end up on the witness stand also. As I said above, sometimes mistakes get made.

As a guy who raises ineffective sometimes and who has taken his turn on the witness stand, I have thought of seven things that go into being a “good” witness. By good, I mean you are being honest, assisting your former client where you can, but taking pride in your hard work.

  1. Work hard on appeal. I’m sure that you already are. But really work hard. Find the best issues. Research them every way you possibly can. Write. Then rewrite. Then rewrite again. Make your appellate brief a work of literature.
  2. Paper the file. Criminal lawyers often are retained on a flat fee. So, we really don’t have the incentive to document our time the way civil lawyers do. Change that. I started managing my practice on RocketMatter. RocketMatter has a nifty feature where you can turn on a timer every time you speak to a client. Use it. Whenever you decide to exclude an issue, write about it. Whenever you decide that you will not pursue some issue your client suggests in a letter, write it down. Note why you are excluding. Make your file bad-ass.
  3. Answer ever letter your client sends. Even if it is to say, “Dear Mr. Smith. I received your letter of August 2, 2010. I have read it and will consider carefully the important issues you have raised.” Then see item 2 aboce.
  4. Read Jones v. Barnes. Then read Jones v. Barnes again. It is an appellate lawyer’s best friend. Thank you, Justice Burger. Thank you, too, Justice Jackson, for you eloquent words that made it into the opinion. It’s good when trial lawyers get on the United States Supreme Court
  5. If habeas counsel calls you, by all means call back. See where he is coming from. Be honest. Help if you can. But I don’t advocate “falling on the sword.” People who fall on the sword die.
  6. Take pride in your work. Be a craftsman in all that you do.
  7. Dress up for the hearing. You’re a lawyer when you testify. So, dress like one. Even though you are driving as far as the interstate goes. Then you are exiting. Then you are driving on a two-lane road. Then you are driving down a dirt road. Then you are hacking your way to the parking lot at Shawshank with a machete, dress like a lawyer. Your not just any witness. You’re a lawyer who takes pride in your appearance. If you’re really feeling on your game, wear a bow tie.

Be a good lawyer, so that you can be a good witness. Reward the habeas counsel who calls you and prepares. Take a good hard look at your work. Be honest. And wear a red tie. Even if it’s a red bow tie

Client Autonomy on the Front Lines as a Georgia Appeals Lawyer

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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.

 

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