Kerry L. Smith was indicted on marijuana related charges in April 2007. He retained John Rogers to represent him. Both sides dealt with voluminous amounts of discovery. Various motions were filed and superseding indictments were issued. Approximately a year into the case Rogers requested a competency evaluation for Smith. It was completed in June of 2008. No trial date was set. On August 25, 2008 Smith filed a motion asking to substitute in Beau Brindley as his attorney. On September 8 the Court set a trial date of November 4 and denied the motion to substitute counsel because Brindley was scheduled to be in another trial on November 4.

When the court rejected Brindley, Smith requested that Rogers continue to represent him. With the court’s prodding, Rogers refused. The Court appointed Ronald Jenkins to represent Smith.

Three weeks later Smith plead guilty with a written plea agreement that among other points surrendered the right to appeal unless the sentence exceeded the guidelines.

Federal Rules of Criminal Procedure Section 11(b)(1)(N) requires that the district court “must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Though the appellate waiver was in the agreement the Court made no effort to independently inform Smith of the parameters of the waiver. The court mentioned it only in passing and then only to ask Jenkins whether there was a waiver.

The right to counsel of one’s choice is so fundamental that one should not be able to waive an appeal of its denial. The denial of the right to counsel of one’s choice brings into question the value of the waiver. Different counsel will handle different issues in different ways. If Smith had been granted the substitution he may not have plead guilty and if he had plead guilty he may not have agreed to waive the right to appeal. As the appellate court stated, “[i]f a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself. ”

The Seventh Circuit Court of Appeals found a clear violation of the Sixth Amendment right to counsel. Since no trial date had been set at the time the motion to substitute counsel was made, the interference with the court’s calendar was minimal and the court’s refusal to set a trial date when Brindley was available was uncalled for and a violation of Smith’s Sixth Amendment right to counsel.

Percy Dillon was convicted of various drug offenses including some involving rock cocaine (also known as crack) in 1993, He was sentenced under the mandatory guidelines that were in effect at that time to 322 months in prison. At sentencing the judge said that if he had a choice he would sentence Dillon to five years but the guidelines left him with no choice.

In 2005 the Supreme Court in United States v. Booker found the mandatory guidelines an unconstitutional violation of the Sixth Amendment right to have facts used to aggravate a sentence found to be true beyond a reasonable doubt by a jury. As a result the guidelines became advisory.

In 1987 the Sentencing Commission set guidelines for the sentencing of Federal offenses. though widely criticized the guidelines, based upon drug quantities treated rock cocaine 100 times as harshly as powder cocaine. In other words, two people, one convicted of possessing 10 grams of rock cocaine and the other convicted of possessing 1000 grams of powder cocaine got the same sentence.

In 2007 the Sentencing Commission attempted to alleviate the problem by decreasing by two levels the penalty for rock cocaine. Thereafter the ratio was approximately one to twenty. The following year the Commission gave judges the power the power to make the change retroactive. But judges were only allowed to modify the sentence in so much as the former sentence did not comply with the new guidelines.

Dillon claimed that he should be resentenced, not only to take into account the change in the guidelines but also to take into effect the now voluntary guidelines and other corrections in his sentence. He claimed that under Booker the mandatory guidelines are unconstitutional and he should get the five year sentence the judge wanted to give him at his original sentencing. According to Dillon to merely reduce the guidelines by two levels maintained the mandatory guideline and therefore violated Booker.

But the Supreme Court held otherwise. In the majority opinion by Justice Sotomeyer, the court held Booker was was not violated. The general rule is that “A federal court . . . may not modify a term of imprisonment once it has been imposed.” However Congress imposed an exception to the rule in the Sentencing Reform Act of 1984 to allow the Sentencing Commission to reduce the sentence of inmates after a significant reduction in the guidelines. But the reduced sentence can only bring the sentence into line with the new guideline. Therefore, since Booker is not retroactive Dillon’s sentence can be modified to reduce it by two levels to bring it into line with the current guidelines but it cannot be changed in such a manner as to take into effect the Booker decision.

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.

President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

The United States Supreme Court ruled yesterday in Padilla v. Kentucky that defense counsel in a criminal case is incompetent if he/she does not inform a defendant prior to entering into a plea agreement of the immigration consequences facing the defendant.

Jose Padilla, a citizen of Honduras who lived in this country for forty years was told by his counsel prior to his entering a guilty plea to trafficking in narcotics that he would not be deported. The advice was clearly wrong. The law mandate deportation for anyone convicted of trafficking.

The Court, using the Stickland standard, required that an attorney’s performance fall within the expected range of attorneys in similar cases and that the defendant not be prejudiced by the attorney’s performance.

But some courts, including the Supreme Court of Kentucky, have held that attorneys have no duty to inform the client of collateral effects of the plea. But the Supreme Court in this case, without directly deciding what collateral affects defense counsel must inform their clients of decided that in this case the odds on deportation were so great that not informing the defendant of the correct immigration consequences in effect left the client not knowing a direct effect of the plea.

While admitting that in some cases the immigration effects of a guilty plea may not be clear enough for a non-expert in immigration law to give competent advice the court said that in this case the defense counsel gave incompetent assistance by not accurately advising Padilla of the immigration consequences.

As Justice Alito pointed out in a concurring opinion the decision will lead to further litigation as to what cases will the immigration effects be too complicated to assume that a criminal defense attorney will be able to competently advise his/her client on the consequence. What about other collateral consequences, such as licensing issues, civil suits, tax issues, civil commitments, etc.

But there is no question that the better informed a defendant is about all of the consequences of a plea bargain, the better she/he can decide whether to accept the bargain. All too often clients are presented with a proposed bargain and given only a few minutes or less to decide whether or not to accept it. In these cases they do not have time to consider all of the possible ramifications of the agreement and often regret their decision with no ability to retract the plea.

The Supreme Court in Berghuis v. Smith looked at an appeal from a grant of habeas corpus in which the question, again, is not whether the trial court was right or wrong but rather whether the state court decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,”

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

“prohibits federal habeas relief unless the state court’s adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’. . . or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’”

In Smith the issue is whether Diapolis Smith, an African American, was denied his Sixth Amendment right to a jury consisting of a cross section of the population. He was convicted of murder by an all white jury in Kent County, Michigan. The lower courts in finding a constitutional violation cited Duren v. Missouri in which the Supreme Court developed a three part test “a criminal defendant must make to establish a prima facie violation of the Sixth Amendment’s fair-cross-section requirement:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

In Duren the underrepresented group was woman. The court found that women made up 54 per cent of the jury-eligible population but only 14.5 per cent of the weekly venires. In contrast the court in Smith found that African Americans in Kent County made up 7.28 per cent of the jury eligible population but only six per cent of the jury pool. In Duren the law did not require women to sit on juries. They were allowed to exclude themselves and if they did not answer jury summons they were assumed to have excluded themselves. Contrasting this to the system in Kent County where Smith claimed that the jury selection system which gave priority to the District Courts and allowed them to get first choice at minorities instead of the Circuit Court which tried felonies such as that with which he was charged.

But the Supreme Court did not find that the alleged discrimination in Kent County violated any “clearly established” decision of the Supreme Court. The figures in Duren cannot be compared to the figures in Smith. The Supreme Court has given the states wide discretion in determining how to meet constitutional jury requirements and no Supreme Court precedent clearly supports the Sixth Circuit decision supporting the granting of the writ of habeas corpus.

Mike Scarcella and David Ingram have a post Friday’s BLT:The Blog of Legal Times about the efforts of certain right wing group to force out Department of Justice attorneys who prior to being hired by the Department of Justice represented detainees at Guantanamo.

Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930′s in Harper Lee’s novel, “To Kill a Mockingbird.”

The Sixth Amendment guarantees a defendant the right to counsel and to those who can afford private counsel it guarantees the right to counsel of their choice. But it also guarantees a fair trial. In some instances those rights contradict each other. For example, part of a right to a fair trial is the right to have counsel who will zealously defend you. But when counsel has a conflict that prevents him/her from zealously representing a defendant the right to a fair trial is violated. The right is only preserved when counsel does not have conflicting responsibilities. This question comes up, for example, when counsel represents two defendants in the same trial. If the defendants have conflicting defenses such as to require counsel for one defendant to point the finger at the other defendant a defendant is denied a fair trial since his/her lawyer ends up pointing the finger at one of the clients jointly represented by the lawyer.

In United States v. Turner The Seventh Circuit Court of Appeals faced the question of conflicting rights when one member of a multi-defendant drug case was arrested after all of the other defendants had either plead of been convicted. The same lawyer who represented one of the other defendants in sentencing was hired to represent Roosevelt Turner who had recently been arrested. The United States Attorney complained about a possible conflict and the United States District Judge removed Turner’s attorney. Turner went to trial with another attorney and appealed. The appellate court reversed the conviction because Turner had been denied the attorney of his choice.

The only evidence the United States Attorney raised to show a conflict was that either Roosevelt or Anthony Womack both of whom were represented by Irl Baris might want to testify against the other or that one of them might be subpoened to testify against the other. But the appellate court said that the fact that something might happen was not enough to deny a defendant his choice of attorneys. In fact neither turned against the other or was subpoenaed to testify against the other.

Since the denial of Turner the right to the attorney of his choice is a structural error Turner is entitled to a new trial. Afterall no one could tell if he would have been convicted with a different attorney.

Well if anyone thought that Justice Sonia Sotomayor was a bleeding heart liberal they were wrong. Nor is she a Justice Thurgood Marshall or a Justice William J. Brennan who thought that the death penalty was cruel and unusual. Yesterday she wrote on behalf of a 7-2 majority (Justices Stevens and Kennedy in the minority) upholding the death penalty for Holly Wood against claims of incompetence of counsel.

The primary question on appeal was whether counsel’s decision not to investigate was a stategic decision or negligence. The Supreme Court will not reverse a trial court decision in a competence of counsel case if the attorney’s decision is made for strategic reasons and if the decision is reasonable even if the Supreme Court disagrees with the decision. Prior to trial counsel obtained a psychiatric report which showed borderline intelligence. But counsel did not call the psychiatrist to testify nor did the defendant’s lawyers further investigate the report or introduce it into evidence.

The court found that there was enough damaging information in the report that it was a reasonable decision not to place it into evidence or to call the psychiatrist to testify. A second report or investigation of the allegations done in the first report was not done. Justice Stevens’ dissent points out that even if it was not used in the case in chief there was no stategic reason not to use it in the penalty phase of the trial. But Sotomayor claims that since at least two of Wood’s three lawyers thoroughly read and considered the report the rejection of the report had to be for strategic reasons. Therefore according to the majority decision counsel’s actions were not below that which would be expected by competent counsel and therefore they upheld the conviction.

The Supreme Court yesterday reversed the Georgia drug conviction of Eric Presley due to the judge’s refusal to allow Presley’s uncle to be in the courtroom, or even on the same floor of the DeKalb County Courthouse during jury voir dire.

The Sixth Amendment, among other things guarantees “the right to a speedy and public trial.” The trial judge stated that he did not want jurors to be put into a position where they might hear out of court statements related to the case. The Georgia Supreme Court in upholding the trial court said that the trial judge had the power to prevent jurors from hearing potentially prejudicial statements.

But the United States Supreme Court found that the Georgia Supreme Court’s holding could prevent the public from viewing voir dire in all cases and it would invalidate the Sixth Amendment. The Court admitted that there might be some cases in which the public could be prohibited from attending voir dire. But in such cases the court would have to make a specific finding that an overriding interest requires exclusion of the public from voir dire. Also the trial cases must make a finding that there are no alternative methods to prevent the specific damage that would be caused by voir dire being open to the public.

In this case the Georgia court made no attempt to find an alternative method to allow the public to view the voir dire and therefore the court reversed the conviction.