Going on strike. South Carolina lawyer James Brown decided that he'd had all he could stand, and he couldn't stand no more. Appointed to represent an indigent defendant in a serious criminal case, he begged to be taken off the case, even going so far as to file a motion to "halt prosecution." The judge wouldn't let him do it, so, in the tradition of all oppressed workers, he went on strike, simply refusing to do any more work on the case. Only after consulting with his own attorney did Brown relent and proceed to trial. Payback was a bitch, though; the judge refused to award him attorney fees in excess of the statutory cap of $3,500, citing his "unprofessional conduct."
Brown appealed, and that's where things took an interesting turn. The state bar joined as amicus curiae, arguing that payment of attorneys for indigent defendants implicated the 5th Amendment Takings Clause. For those of you who skipped out of your Con Law class that week, that's the provision that prohibits taking of private property without just compensation. And the state supreme court bought it:
We agree and hold today that the Fifth Amendment Takings Clause is implicated when an attorney is appointed to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.
Even better was its quote from a Kansas Supreme Court decision:
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protection.
Interestingly, the same argument was rejected by the 2nd District here in Ohio, as I discussed in this post five years ago. It may be time for another go-around on it, though, because the situation on indigent counsel fees, which I have bemoaned on any number of occasions (here and here, for a sampler) hasn't gotten any better in the interim.
By the way, despite the court's broad reading of the Takings Clause, Brown didn't benefit from it; the appellate court held the trial judge didn't "abuse his discretion" in denying him additional fees, given Brown's "egregious conduct."
Shut up already. A couple of weeks ago, I ran across an appellate opinion which got a little porky with the defense attorney for raising the Ice issue -- that the Supreme Court's decision in Oregon v. Ice had implicitly overruled State v. Foster, and reimposed the requirement that judges make findings of fact before imposing consecutive sentences. The Ohio Supreme Court had rejected that argument back in December in State v. Hodge, and the appellate court got a bit testy over having to cite Hodge and rebuff that assignment of error yet once again, pointedly reminding defense counsel of recent prior cases where it had done just that. It reminded me of a story I'd heard about an Ohio Supreme Court justice who couldn't understand why lawyers kept citing Federal cases in their briefs to the court.
Well, guys, there's a reason we do that. It's called preserving the claim -- regardless of what the Ohio courts do, there's always the possibility of relief in Federal court.
Or was, anyway. Hodge appealed his case to the United States Supreme Court, but on Monday, the Court denied his petition for certiorari. As I'd explained right after Hodge came down, making it a Federal issue was always a stretch. Ice had held that judicial fact-finding was permissible for imposition of consecutive sentences, not that it was required.
So does that mean appellate lawyers can stop including Ice arguments? You can still take the claim into habeas, but that's really not going anywhere, either. In order to show entitlement to habeas relief, you have to demonstrate that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." That's real hard to do when you don't a determination by the Supreme Court of the United States.
Scheduling. I'm off on Monday, as is everybody else in the country, and so is The Briefcase. Over the next few weeks, I'll be taking a closer look at the new criminal law package just signed by the governor. Remember, our motto at The Briefcase: We read the law so you don't have to.