Friday Roundup
There's gratitude for
you. So you've got a client who was
convicted of rape, along with four counts of unlawful sexual conduct with a
minor, and got sentenced to 25 years in prison.
Then he caught a break: the
appellate court found the evidence insufficient for the sexual conduct charges
and vacated them, and also reversed the rape conviction because of improper
admission of other acts testimony, so the whole thing comes back. You get appointed to represent him, and you
work out a sweetheart of a deal: the
rape charge is reduced to one count of gross sexual imposition, a fourth degree
felony, and since he's already done three years, he's released.
So what does the client do?
He files an appeal, claiming you rendered ineffective assistance of
counsel.
That was the claim presented in State v. Wright, a decision handed
down by the 8th District a couple weeks back.
The panel makes short shrift of it, noting that a guilty plea waives any
claim of ineffective assistance except to the extent that the attorney's
deficient performance induced the plea, and here the sole claim of deficient
performance is that Wright would've been acquitted of the rape charges if he'd
gone to trial. Since he was convicted
the first time around, that doesn't have a lot of legs.
But still, is that trip even
necessary? When an attorney's efforts
result in a guy going from spending over half his adult life in prison to
walking out the door as a free man, is the issue of whether the attorney did a
good job even debatable?
I've commented before on the
promiscuous use of ineffective assistance claims; sometimes I come away from
reading the week's 8th District decisions with the belief that, at least
according to the defendants' appellate briefs, half the criminal attorneys in
town are drooling idiots. It's quite likely that Wright was the one who
came up with the idea of claiming his attorney was ineffective; his first two
attorneys in the trial court withdrew, and he filed a supplemental pro se brief
in his first appeal. Still, this was one
assignment of error that probably should've been left on the cutting room
floor.
Mind your manners. Gosh, and
here I thought it was okay to show up for court in Levis, refer to opposing
counsel as a "sniveling jackal," and shout "that's bullshit!" as a method of
lodging an objection to a question.
Guess I was wrong, at least according to the Supreme Court's Commission
on Professionalism, which recently
issued a list of Dos and Don'ts for "professionalism in the courtroom."
Most are things you should've
learned by third grade -- about half of them can be summarized as "play nice" --
and there are some that should be self-evident to anyone who didn't flatline
his last EEG. ("Speak clearly and
enunciate when addressing the judge or a witness." Who knew?)
There are a few weird ones; I've never begun a voir dire, opening
statement, or closing argument by saying "may it please the court," and despite
the admonitions of the Commission on Professionalism, I have no intentions of
doing so in the future. A little too
formal for my tastes.
The list could easily have been
written 50 years ago (and probably was), with one exception that falls into the
category of Sign o' the Times: "During
final argument, be circumspect when summarizing testimony that contains profane
language." Don't remember Perry Mason
having to do that.
Onward, onward, ever onward. Back
in 1979, Pearl Bailey and Cluster Daniels filed a civil rights class action lawsuit
in Federal court alleging that Tennessee's Medicaid program violated various statutory
requirements, and also constituted a Due Process violation. What's the significance of that? The
case is still going on! Sure, some parties
have been substituted (Bailey died way back in 1984), and various consent
decrees resolving parts of the case have been issued and reissued, but the case
has become an Energizer Bunny, motoring across the legal landscape.
The latest news from the front
comes via the 6th Circuit's decision last
week, a 45-page opus which addresses who gets paid for all this, and how
much. (Among other things; it gives a procedural
history of the litigation that is positively mind-numbing.) Well, we know how the defendants' lawyers get
paid: they're on the public dime. So are the plaintiff's lawyers, in a sense,
because civil rights litigation is one of the exceptions to the American rule
that each party is responsible for paying their own attorney fees.
The opinion's probably a good
read if you're doing a lot of civil rights actions and want to know what a "prevailing
party" is and stuff about the "lodestar" rate and so on. Fortunately, I was spared having to read all
that, since those subjects have about as much relevance to me as how Hot Pockets
are made. (Slightly more interesting is
the question of why anyone would ever eat one.)
The payoff actually comes in the first paragraph, where the court notes
that the original petition for fees "yielded requests for dry cleaning bills, mini
blinds, and health insurance."
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