Removing an attorney
As the unnumbered hordes of my regular readers know, this blog generally concentrates on criminal law, at the state level, and with a slight focus on Cuyahoga County. Normally, the decisions of import in that area come out of the 8th District. The most significant decisions this week, though, came from an unexpected quarter: the Federal District Court. One of them we'll talk about later; today, we'll concentrate on Donaldson v. Reid.
You can find out an amazing amount of information on the Internet, but you won't learn much about Lonnie Donaldson, other than that he and Joshua Jahmil Young were accused of gunning down Lewis Moss back in October of 2007. Young rolled in return for a plea to attempted murder, and Donaldson's trial on capital murder charges began on December 2, 2009.
Six days into trial, the defense attorneys told the trial judge they'd just talked to Young in the courthouse hallway, and learned that he'd given a recorded phone interview to homicIde detectives, where he made statements which contradicted his anticipated trial testimony. These statements, the attorneys said, were exculpatory, and should have been turned over to the defense. One problem, the prosecutor noted: homicide detectives don't usually record phone interviews, but the investigator the defense used commonly does. Turns out he was right: Young's interview had been conducted and recorded by the defense investigator.
Things went south in a hurry after that: it turned out that the investigator had recorded several other statements, none of which the defense attorneys knew about, even though the investigator had taken almost two years before. If this had been a week before a drug trafficking trial, that would have been one thing, but this was six days into a death penalty case. This isn't to dump on the lawyers -- I know both of them personally, and they're top-flight criminal attorneys -- but the lesson here is that anyone can goof up.
So the judge declared a mistrial, on the basis that defense counsel had provided ineffective representation.
That's a ballsy move. Back in 2007, the trial judge -- a different one -- had declared a mistrial in the case of Manuel Rodriguez, who was accused of raping his 11-year-old daughter. Rodriguez was convicted at a second trial, but walked out of court a free man when the 8th District decided that the judge was wrong in declaring a mistrial in the first place. I talked about the case here, and the problem is the Double Jeopardy Clause. The clause has been interpreted to guarantee a defendant a right to have his case decided by the chosen jury, and if the judge grants a mistrial sua sponte, she does so at her peril; unless there was a "manifest necessity" for the mistrial, the defendant's prosecution is barred.
That's what Donaldson claimed, and when new judge (the one who'd declared the mistrial recused herself) ruled against him, he took it to federal court. Why? Because under Ohio law, a ruling that a defendant's double jeopardy rights haven't been violated isn't a final appealable order. (Whether this is still good law remains questionable. See my discussion of last year's Ohio Supreme Court decision in State v. Chambliss, here.) In response to that, the federal courts here have held that a defendant can pursue a habeas corpus petition to bar retrial.
The judge's move also provided another challenge. Remember what I said about her finding the defense attorneys had provided ineffective assistance? She didn't actually find that, and to understand why you need to remember the two-part test for ineffective assistance the Supreme Court laid down in Strickland v. Washington in 1984: the defendant must show that the defense attorney's performance was deficient -- below the normative standard for counsel -- and that he was prejudiced by it, that is, that there is a reasonable likelihood that the outcome would have been different if counsel had performed effectively. The problem here is obvious: while the judge could find counsels' performance was deficient, she couldn't make a finding of prejudice and declare a mistrial, because until you get the result, you don't know whether the defendant has been prejudiced. He could wind up being acquitted, or it could turn out in the context of a full trial that the statements at issue were irrelevant.
I'm guessing here, but I'd bet the judge wouldn't have done this in, to use my previous analogy, a drug trafficking trial or other relatively ordinary case. Review for ineffective assistance is fairly deferential in those cases. It's not in death penalty cases; about a third of the reversals are for that reason. The judge probably figured there was no chance this case was going to get all the way through the multiple levels of review that a capital cases receive, and she was probably right.
The result is largely dictated by the Magistrate's conclusion that "the 'manifest necessity' standard cannot be interpreted literally." Translation: it means something else, in this situation, a "'high degree' of necessity." (The easier way to do this would've been to just say that "manifest" means "high degree," and call it a day. After all, what is the "literal" interpretation of "manifest"? ) There are some standards here, though, besides semantic flexibility; there's a cite to one case which notes that suggests a "sliding scale of scrutiny" (which will also be a new ride at Cedar Park next year), where "the strictest scrutiny is employed when the mistrial was premised on bad-faith conduct by the judge or prosecutor, and the most relaxed scrutiny is employed when the mistrial was premised on a deadlocked jury." No bad faith by judge or prosecutor, so Round 1 goes to the State.
Round 2 is on whether counsel's performance was deficient, and given the deferential standard of review, abuse of discretion, the State brings that one home, too.
The big fight is over the issue of whether the attorney's performance prejudiced Donaldson, and, as I explained above, that issue was pre-empted by the fact that the declaration of the mistrial prevented an "outcome" by which prejudice could be measured. Donaldson argues for "a hard and fast rule prohibiting the sua sponte declaration of a mistrial due to counsel's deficient performance until the final verdict," but the magistrate finds that impractical. The court's opinion comes to the same conclusion, but is stronger and more developed on this issue.
I've come across numerous cases where the judge was confronted with issues of ineffective assistance during trial, such as the "My Cousin Vinnie" case discussed here or the one I mentioned here. Donaldson could change how judges react to that. The opinion clearly indicates that a trial judge can declare a mistrial for that reason, and review on appeal is only for abuse of discretion.
One thing. Donaldson's lawyers were appointed. Neither the report nor the opinion make any reference to that, or whether a different standard would have to be utilized if counsel had been retained. I think you could make a good argument that it should, and it's something to keep in mind.