20 August 2009

The Case Of The Three Bad Criminal Lawyers

A man was convicted of two criminal offenses by a jury.

Three judges in an appellate panel agree that the two prosecutors in a federal criminal case grossly violated the rules of professional conduct that apply to prosecutors regarding trial conduct, and that the criminal defense lawyer in the case also seriously screwed up by failing to object to the prosecutorial misconduct.

But, because of the type of appellate review that applies when a criminal defense lawyer screws up and doesn't object, two of the three judges voted to uphold on appeal one of the two convictions, basically on the grounds that the error was harmless given the other evidence in the case. The case will be remanded for resentencing. A third judge on the panel (famous for his role in setting Bush Administration terrorism and military justice policy) would have reversed both convictions (presumably allowing for a retrial).

The case is unusual, because it is rare that appellate judges specifically note that each of the lawyers involved in the case acted incompetently.

In disputes between private parties, we don't worry too much about lawyer incompetence. It is an adversary system, and if your lawyer screws up, you can sue your lawyer. If all the lawyers screw up, then the parties must not have taken the case very seriously, perhaps the clients didn't either.

In criminal cases, the U.S. also has an adversary system, but it is more troubling when all of the lawyers screw up. When someone who should be convicted is not, that person is at large and presents a threat to the public. When someone who should be acquitted is not, we spend tax money incarcerating someone who doesn't belong in jail or prison. Other than a restitution award, which often isn't paid anyway, the victim of the crime often has only a slight interest in the outcome.

A criminal case tried by both incompetent prosecutors and an incompetent criminal defense lawyer is also troubling on constitutional grounds. No one in this case, not even the appellate attorney, disputes that the prosecutors violated the constitutional rights of the criminal defendant. No one in this case should deny that the criminal defendant's constitutional rights were also deprived due to ineffective assistance of counsel who failed to object to obvious prosecutorial misconduct.

The facts of the case suggest that it is entirely possible, even likely, that the criminal defendant was guilty. He probably lied on the stand. Indeed, the criminal defendant also apparently admitted in his testimony to making a false 911 call, which is also a crime, although not one charged in the indictment.

But, in what should be a rare case when there are clear violations of the constitution by the prosecutor are compounded by ineffective assistance of counsel on the part of the criminal defense lawyer (possibly a public defender or judge-advocate-general's office soldier, the facts on appeal don't make a distinction because it isn't legally relevant on appellate review although from a legal theory perspective, perhaps it should be relevant), wouldn't it be more respectful of the constitution to simply retry the case from scratch by the book? Finality has a place in the law, but a retrial in a relatively simple case like the one appealed, where a guy allegedly hit a couple of military policemen while he was drunk one night, is not an impossibly burdensome thing to do.

More generally, this case is an excellent example of the inconsistency of a genuine adversarial system, where a client is required to suffer for the mistakes of his lawyer, and a constitutional right to effective assistance of counsel to defend yourself from a criminal prosecution. In this case, as it typical, the right to effective assistance of counsel takes a back seat to the general structure of the system as an adversarial one.

Indeed, in Colorado state courts (I'm not familiar enough with federal criminal appellate practice to know the rule there), ineffective assistance of counsel is generally not a claim that can be raised on direct appeal of a conviction at all, even though it can be raised in a post-conviction appeal. It is a second class constitutional right.

Footnote On Military Justice Issues

The prosecutors in this case were military lawyers on loan to the Justice Department to try a case involving a soldier who was a criminal defendant who assaulted two other police officers. The incident took place at a bar which was not on a military base in Hawaii.

It isn't entirely clear to me, as a non-expert in the jurisdiction of courts-martial, why this case was tried in a civilian criminal court at all. I had thought that the military had jurisdiction over all conduct by soldiers. But, perhaps it doesn't apply to conduct by soldiers in a civilian location in the United States during peacetime or something.

The fact that the prosecutors were not ordinary federal prosecutors is probably one important reason why they were unethically incompetent. They weren't daily participants in the non-military criminal courts.

Indeed, one of the reason that the appellate judges may have gone out of their way to scold the lawyers in this case, in the case of the prosecutors, by name, when judges usually make a point of depersonalizing the conduct of trial lawyers, is that as one time special appointees of the Justice Department who are military lawyers, they are probably beyond receiving punishment for their misconduct from the trial court, from the Justice Department, or from a state attorney regulation body, for their conduct. And, no normal bureaucratic line of communication exists between their government supervisors and either the Justice Department or the civilian judiciary.

The lack of bureacratic loyalty to the special appointees also helps explain by the Justice Department didn't attempt to defend the conduct of the prosecutors on appeal. It is unusual in the extreme for the Justice Department to point out that the people who prosecuted a case didn't have the usual qualifications to do the job, and the appellate court made a point of rejecting the notion that this should matter. The local U.S. Attorney's office may have fought behind closed doors the decision to make the special appointments in the first place. The Justice Department's appellate lawyers may have been happy to risk losing this case in order to gather up ammunition in a turf battle between Justice Department prosecutors and military lawyers that crops up across the nation at near many military bases.

Normally, when Justice Department prosecutors have obviously screwed up, they cut a plea deal in the trial court rather than appeal, in order to bury the case and to avoid making binding precedents that the Justice Department doesn't like.

In contrast, an impersonal appellate reversal involving a prosecutor in Hawaii's U.S. attorney's office, which is one of the smallest (probably about two or three dozen lawyers in the criminal division) and practices almost entirely in a U.S. District Court before just six judges and three magistrate judges, in which the judges serve life terms, on a daily basis, still sends a powerful message to shape up. A U.S. attorney who displays a pattern of misconduct that is noticed on appellate review will be kept on a tight lease by the federal public defender, local criminal defense lawyers who practice regularly in federal court, and judges, and will lose effectiveness in plea bargaining.

Still, when military lawyers instinctively and consistently rely on procedures that would be improper in a civilian criminal court, it makes one wonder about the quality of justice in courts-martial, which until post-World War II and other recent reforms, was always considered doubtful.

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