Wednesday, in Lafler v. Cooper and Missouri v. Frye The Supreme Court set the rules for granting writs of habeas corpus for incompetence of counsel in cases involving plea bargaining. First it held that plea negotiations were a ‘critical’ stages of the criminal proceedings.” and therefore were covered by the3 Sixth Amendment’s right to effective counsel. With 97 per cent of all Federal criminal cases and 94 per ce4nt of all state criminal cases being resolved by pleas, plea negotiations become a very vital part of our criminal justice system. Without them the system would collapse under its own weight. There is no way we would have enough judges or attorneys to try all of the criminal cases. The cost of bringing every case to trial would easily force every court in the country into bankruptcy.

In Frye the defense attorney failed to timely convey a plea bargain resulting in the plea being withdrawn and the defendant pleading to a longer sentence after picking up another case. The Supreme Court held that the failure to convey a proposed plea violates the first prong of Strickland in that the attorney acts below the level expected of competent counsel. ¹The fact that the defendant got a longer sentence than he could have gotten shows prejudice and meets the second Strickland prong. The Court held that in such cases it is necessary to show that the defendant would have accepted the offer and that neither the judge or the District Attorney would have withdrawn the plea. In this case it is clear that Frye would have accepted the plea since he eventually plead to a more stringent offer. But is not clear that the district attorney and the judge would have accepted the plea. Therefore the Supreme Court remanded the case for further hearings.

In Cooper the defendant rejected a plea after receiving faulty advice from his attorney that under the facts of the case he could not be convicted. As a result Cooper went to trial and got a heavier sentence than if he had accepted the plea. Under these circumstances the court ruled that it was necessary to show that the defendant would have accepted the proposed plea, that it would have been presented to the court, that the district attorney would not have withdrawn the plea, and that the could would have accepted it. The Supreme Court ruled that the proper remedy in such cases is to order the district attorney to reoffer the plea and see what happens.

Kenneth Clair was convicted of the 1984 murder of Linda Rogers. His appeals were denied and he requested appointed counsel to file a Federal habeas. His request was granted and counsel was appointed. Two associates in the firm accepted jobs at the Federal Public Defender. The Federal Public Defender substituted in as counsel.

After an evidentiary hearing and the completion of post hearing briefs Clair requested the appointment of substitute counsel,claiming inter alia that his counsel refused to work with his investigator and did not attempt to prove his innocence. After briefing and a hearing Clair changed his mind and agreed to continue representation by the Federal Public Defender. Three weeks later Clair again requested the appointment of substitute counsel. In addition to the prior reasons he said that his counsel refused to investigate new evidence that became available. But the court denied the request without a hearing and without listening to Clair.

The appointment of substitute counsel is authorized by 18 USC 3599. But the section does not state what standard the court should use to grant or deny such motions. Clair argued that the court should use an “interests of justice” standard which is the same standard used in non-capital cases. The government argued that substitution of counsel can only happen when there is an “actual or constructive denial” of counsel. Specifically it stated that either the lawyer must lack the qualifications necessary for appointment under the statute; the lawyer must have a “disabling conflict of interest”; or the lawyer must have “completely abandoned” the client. The court sided with Clair. There is no reason in law to accept the government’s stricter standard and it is illogical to make it more difficult for a capital defendant to change lawyers than a defendants charged with lesser offenses.

But the Court found that there was no abuse in discretion in denying Clair’s motion. It would have been better if the trial court held a hearing after the second request and if the court had allowed Clair to explain his position, but the case had been briefed and argued there was little that new counsel could do.

George Bush’s Justice Department indicted former Alaska Senator Ted Stevens. He was tried and convicted on charges of failure to report financial contributions to the Senate. After the trial it was accidentally disclosed that government attorneys failed to turn over important Brady discovery. ¹

The government then moved to void the conviction with prejudice. The presiding judge, Emmet G. Sullivan ordered an independent investigation and appointed Washington attorneys Henry F. Schuelke, III and William B. Shields to perform the investigation. Schuelke and Shields have completed the investigation and they turned over the 500 page report to the judge, who is at least temporarily is keeping the report under seal. But he released an order allowing the Justice Department, the attorneys involved and Steven’s attorneys to object to the unsealing of the report. The order indicated that the scope of the government’s failure to provide Brady discovery is greater than previously reported. Schuelke and Shields found that the government attorneys intentionally withheld Brady evidence that would have supported Steven’s defense and which would have questioned the credibility of the government’s major witness.

But at the same time the report recommended that the government attorneys not be criminally charged since there was no violation of a direct order from the court. Without such an order it would be difficult to find the attorneys in contempt of court. Sullivan’s order does not indicate whether Schuelke and Shields recommended that the attorneys be reported to the Bar for possible disciplinary action or whether they should be banned from further appearances before the District Court for the District of Columbia where the trial was held. It is expected that Sullivan will decide whether to make the report public by January and then we may know more.

Joel Rodriguez was arrested on Federal narcotics charges. Shortly after he was arrested and prior to his indictment, while housed in New York City’s Metropolitan Detention Center, he called his sister and asked her to ask their brother to talk to his lawyer to negotiate a pre-indictment deal. The jail taped the conversation, as it does with all inmate calls and gave the tape to the prosecutor who introduced the tape at trial as evidence of his consciousness of guilt.

On appeal Rodriguez challenged the admission of the telephone call on the grounds that 1) it was an attorney-client communication and 2) it was a statement made in plea negotiations.

The Second Circuit confirmed his conviction and upheld the admission of the telephone call. Attorney-client communications are inadmissible if they are: “(1) between a client and his or her attorney (2) . . . intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Conversations with third parties may be inadmissible under the privilege if they are necessary to obtain the confidential advice of an attorney.

The appellate court found that the tape was admissible. Since it was well known that telephones conversations were taped Rodriguez knew that the conversation could not be confidential. Furthermore there was no evidence that Rodriguez could not call the lawyer or that it was necessary to go through his sister to get to the lawyer.

As to statements made during plea bargaining, they are governed by Rule 410 of the Federal Rules of Evidence which only prohibits statements made with opposing counsel and the United States Attorney was not involved in the discussions.

The problem is that attorneys are not easy to get a hold of. Here the matter was urgent in that it needed to be done before the indictment. The attorney may not be in the office. All jail calls have to be collect and if an attorney runs up too many collect calls the phone company terminates further collect calls until the attorney deposits more money in the account. Sometimes there is a language barrier to direct conversations with the lawyer. For any number of reasons it may be easier and more convenient to go through a third party and the admission of these third party calls at trial can be very harmful. More importantly what about direct calls to the attorney. They are still taped. Jails are supposed to have special lines that are not taped for use in calls to the attorney. But access to these lines is often dependent upon the convenience or availability of a guard to provide access and this is often difficult to obtain.

But more importantly, the message to be learned from Rodriguez is that inmates must be very careful what they say to other inmates, in telephone calls, and during visitation. There is a very significant risk in saying anything about their case except in conversations with their lawyer and preferably these conversations should be in person.

Robert Hilson wrote about the Anthony trial for the Association of Certified E-Discovery Specialists. ¹ You’re probably asking what E-Discovery has to do with a murder trial and if you are a criminal defense attorney your probably asking, “What is E-Discovery?”

We do not need the Anthony trial to learn that criminal defense attorneys can no longer evade the use of E-Discovery. Not too many years ago, with the possible exception of a major wiretap case criminal defense attorneys did not use E-Discovery. Now we have discovery coordinators and E-Discovery specialists who, using complicated programs, guide us through the world of E-Discovery. We use expert witnesses to perform complicated tests and to explain this world to juries.

In the Anthony trial a forensic technologist testified about the process used to trace Casey Anthony’s internet searches for terms like chloroform. Despite efforts to delete the searches, little can be hidden and experts in the field can search the hard drive. Certainly knowing that Anthony may have used the computer to find ways to kill her daughter not only points the finger at her but helps to disprove claims that the death was accidental. ²Her attorneys point out that while forensic technologists can find out what was searched on the computer they cannot prove that Anthony was the one who performed the search.

Ken Kratz, the District Attorney of Calumet County, Wisconsin who has been accused by a number of women including some who were the victims in domestic violence cases he was prosecuting of sending sexually provocative text messages has resigned.

It is a time in the victims’ lives when they feel they cannot trust anyone, and particularly people in positions of authority. They tend to generalize their feelings about the abuser towards all men. And here is a man, who will call them as a witness, sending them abusive messages. All of this makes kratz’s behavior all the more obnoxious. He was supposed to protect the victims–not abuse them.

He resigned after Wisconsin Governor Jim Doyle initiated impeachment proceedings.

Is this the last we will hear of Ken Kratz. Probably not. He still faces a civil suit and the state bar is reopening its investigation of him.

Last week I discussed the case of Ken Kratz, the District Attorney of Calumet County Wisconsin who was accused of sending sexually abusive text messages to a victim in a domestic violence case.

Kratz’s response seemed to be that he made an innocent mistake. He refused to resign. He said, “(I hope) my entire career won’t be judged on a single series of text messages. But I know it will be.” He admitted the behavior was inappropriate but he said it came from a lapse of judgment in a career of being “a zealous advocate” for victims of crime.

But allegations have come forward of at least two other women, one a law student who he helped clear her record and the other another victim of domestic violence who he abused with text messages. If these are true it is hardly a single lapse of judgment but a pattern of sexual misconduct.

Kratz is now on medical leave and the governor is looking for ways to remove him from office.

Kratz should be looking for a good criminal defense attorney to defend him against possible stalking charges and to defend him before the state bar for bringing discredit to the bar.