Fault Lines
29 April 2017

Oh, I’m Sorry Your Honor. Were You Talking to Me?

Feb. 3, 2016 (Mimesis Law) — The other day at Fault Lines, Chris Seaton wrote about In re Carrington in which a divided Tennessee Supreme Court held that while parents are entitled to counsel when the state wants to take away their children, they are not entitled to the effective assistance of counsel.

Try to follow this absurdist logic. Child abuse is a criminal offense, and grounds for terminating one’s parental rights.  During your criminal proceeding, you are under this rationale entitled to “effective” assistance of counsel.  When the State the attempts to sever the parental bond because you committed child abuse, you are simply entitled to “counsel.”

Chris is younger than I am, and perhaps less jaded. He found the decision both appalling and astounding.

Appalling? For sure. Astounding?

I offered a comment (the only one, as it happens, come on folks, get with the program, there’s lots of stuff here worth commenting on) pointing out that in post-conviction proceedings in Ohio, a person who’s been sentenced to be executed has a right, by statute, not just to a lawyer, but to a lawyer appointed by the court from a list of lawyers who have been specially certified by training and experience to handle those cases. But the same section of our Revised Code that authorizes that appointment, 2953.21(I), specifies that it’s just fine for that appointed, specially certified lawyer, to do an incompetent job.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

Frankly, I’d say that’s even more appalling, though its constitutional basis is the same underlying point. The right to counsel has, for the most part, only a marginal relationship to the right to competent counsel.  And the right to competent counsel, even when it exists in theory, is honored mostly in fine words rather than substantive decisions.

Start with Carrington. The court there set out a significant part of the problem – greater, really, than what Chris noted.

The United States Supreme Court has held that, in the absence of a Sixth Amendment right to counsel, there is no constitutional right to effective assistance of counsel, even in proceedings where counsel is appointed by the court. Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) (holding that there is no right to counsel or effective assistance of counsel in post-conviction proceedings); Wainwright v. Torna, 455 U.S. 586, 588 (1982) (stating that because there is no constitutional right to counsel for discretionary appeals, there is no right to effective assistance of counsel in such appeals); Ross v. Moffitt, 417 U.S. 600, 610 (1974) (holding that there is no constitutional right to appointed counsel for discretionary appeals).*

Got that? Unless there is a constitutional right to counsel, there is no constitutional obligation that counsel be “effective.”  That’s not wholly illogical taken as an abstract proposition.  But lawyers and their clients aren’t abstract propositions.

Of course, in certain contexts, if your lawyer screws up badly enough, that’s malpractice and the victimized client can sue. If successful, the shit-ass lawyer (or the shit-ass lawyer’s malpractice carrier, if the victimized client’s lawyer was insured) will have to pony up the money that the client lost through the malpractice.

But no incompetent lawyer can return a parent’s child and make up for those years. And no insurance carrier can give a client back the years spent in a steel cage.  Or revive the executed.  In our world, malpractice (and if we’ve got half a brain we carry insurance still) is no remedy for the client if we screw up.

But it’s worse for the indigent client (and the vast majority of those charged with crimes or whose children the state is trying to take are, in fact, indigent). If they get a lawyer, it’s likely to be one chosen by the government, and paid by the government.

“I want a real lawyer,” clients are inclined to say. “You’re just a public pretender,” they’re liable to say.  (“Public offender,” one once told me his trial counsel was.)   Of course, those are real lawyers, just as they’re real clients.  But while the government appoints, the government promises nothing.  Certainly not competence.  Except when the Supreme Court says the 6th Amendment says so.

When is that? Trial.  First appeal (but don’t try going to a higher court).  In some few other contexts (the contours of which are not firmly established).  That’s it.

But even then.

Because there’s no actual right to a lawyer who will do a good job. In fact, what we say is that the test of effectiveness is to hold a mirror to the lawyer’s nose.  If it fogs up, the lawyer did a good enough job. Not quite true, of course.  Sometimes even when it doesn’t fog up.

Consider the case of Calvin Burdine. He was facing capital charges in Texas, where they take those things seriously.  At least, some folks do.  Unfortunately, those folks didn’t include Joe Frank Cannon, the lawyer appointed to represent Burdine.  He slept through what the courts described as “substantial portions” of the trial.  The Texas courts did not find this problematic.

A federal district court judge did. It’s like you had no lawyer at all, the judge said, ordering a new trial.  The state appealed, of course, and a panel of the Fifth Circuit reversed.  (2-1 vote, which I suppose was something.)  Here’s one telling paragraph from the majority decision, explaining why sleeping through whole chunks of the trial is no big deal.

Prejudice has not been presumed for claims of denial of effective assistance of counsel due to counsel’s alleged impairment because of alcohol, drug use, or a mental condition. See, e.g., Burnett v. Collins, 982 F.2d 922, 928-30 (5th Cir.1993)(alcohol abuse); Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (addiction to illegal drugs), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986);Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978) (poor health); Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.) (Alzheimer’s disease), cert. denied, ___ U.S. ___, 121 S.Ct. 254, 148 L.Ed.2d 183 (2000); Smith v. Ylst, 826 F.2d 872, 875-76 (9th Cir.1987) (mental illness), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988); Hernandez v. Wainwright, 634 F.Supp. 241, 245 (S.D.Fla.1986) (intoxication during trial), aff’d, 813 F.2d 409 (11th Cir.1987).

On further appeal, Burdine got relief, so I guess there’s some standard of ineffectiveness.  And it was Texas.  But still.

Yes, Burdine’s case is an extreme instance, though he’s not the only person sentenced to die in Texas after his lawyer slept through the trial. In fact, appellate courts do reverse cases based on constitutionally defective counsel.  But they don’t do it often.

Much of the reason is that appellate courts are required to be highly deferential to the decisions of trial counsel. Tactical decisions, even stupid ones, are for the lawyer to make, not to be second-guessed afterwards.

And then there’s the other part. The client complaining that the lawyer was incompetent must show not just that the lawyer’s representation was objectively unreasonable.  That’s part one.  The client must also show that there’s a “reasonable probability” that if the lawyer hadn’t fucked up the outcome would have been different.

So, if a timely objection had been made, the jury would have found the defendant not guilty.   And the drugs would have been suppressed.  Right.  That’s usually what happens.  It’s why there are almost no men and women in prison for drug offenses.

Oh, wait.

A judge on the Sixth Circuit once suggested that capital lawyers in Ohio were intentionally incompetent at trial so that if the client ended up on death row, he’d eventually get relief. Ohio, I might note, has executed 53 men.  The next closest state in the north is Indiana where they’ve executed 20.  If that’s our tactic, we’re doing a piss-poor job of making it work.

Back in 1994, Steve Bright, the brilliant President and Senior Counsel of the Southern Center for Human Rights (and a law prof at Yale), published in the Yale Law Journal, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer.” Sadly, nobody much gives a shit.

Look Chris is right. Carrington is a terrible decision.  But it’s a symptom, not the disease.

*Apparently the Tennessee courts do not partake in the worthwhile convention of italicizing case names.

4 Comments on this post.

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  • Cornflake S. Pecially
    4 February 2016 at 8:15 am - Reply

    I rarely miss an opportunity to transit a temporal R.D. Laing bonnet. But for the sake of harming the brevity of you will, I will.

    You ain’t that old yet Mr. Gamso.

    • Jeff Gamso
      4 February 2016 at 10:48 am - Reply

      I’m older than R.D. was when he died.

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    15 February 2016 at 8:58 am - Reply

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    7 April 2016 at 9:24 am - Reply

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