Friday, June 13, 2008

CAAF issues Lee opinion

CAAF has released its opinion in Lee. More later.


Anonymous said...

Dissent wins this one. Solid opinion by Judge Ryan, joined by Judge Stucky. Appellant did not meet the Strickland test and it's his burden. CAAF is sending it back to give him a second chance. Silly. He either meets his burden or he doesn't. End of story. Nonetheless, the policy of a law center that would allow someone to wear two hats as a defense counsel and trial counsel simultaneously is rather ludicrous. Did his supervisor ever take ethics? How about at least a Chinese wall?

Anonymous said...

The dissent loses because it misstates the law.

It is NOT "well-settled" that conflict issues are ONLY analyzed through the Strickland prism.

First, the court quotes Cuyler for this proposition, a 1980 case FOUR YEARS BEFORE Strickland!

Second, Cuyler - a habeas case - not a direct appeal - stands for the proposition that the court itself NEED not initiate an inquiry into the propriety of multiple representation. So while the Sixth Amendment imposed no affirmative DUTY on the court to inquire into conflict, it DOES NOT PRECLUDE SUCH AN INQUIRY either. Cuyler was getting rid of the previous "automatic reversal" rule.

Third, in Mickens, Scalia harps on the fact that there was no ACTIVE conflict-of-interest. It was a techinical, imputed conflict, based on a partner's work. We have a more dangerous possibility here - an active conflict ("I won't rock the boat with this defense client so I can finish my tour without trouble and get a good fitrep")

Finally, Strickland does not apply to structural errors. United States v. Cronic, 466 U.S. 648 (1984) MAY apply to such cases:

In Cronic, the trial court had appointed a young lawyer with a real estate practice to represent respondent, but allowed him only 25 days for pretrial preparation, even though it had taken the Government over four and one-half years to investigate the case and it had reviewed thousands of documents during that investigation.

No "prejudice" was shown. Yet the Cronic court concluded: "There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified."

In this case, the majority is right because it wants more facts.

The dissent is wrong because it over-generalizes conflict-of-interest law into black-and-white categories and concludes that no set of facts could demonstrate a structural deficiency. The dissent's conclusion is simply incorrect and lacks the nuance we expect from a federal court.

Anonymous said...

Anon 2 might want to read Mickens. Just a thought...

Anonymous said...

Straightforward analysis by the dissent. No idea why the majority felt the need to kick the can down the road. The end result will be the same.

Anon 2 might want to read Strickland too. There's no evidence in his post that he understands ineffective assistance of counsel.

Anonymous said...

Anon 3: I read Mickens and did not say it was not controlling. What I cautioned against was overgeneraling its conclusions as the final word in all conflict cases. But, just a thought, if you have an argument to make, make it. Smug comments don't cut it...especially when you are on the losing side of an issue. You are like the barrister who just shouts out "objection." Yes. And?

Anon 4: Pithy. I understand Strickland. It is the case I must use every time I review one of YOUR cases. Lucky for you the Strickland bar is so low. It is reserved for lawyers, such as yourself, who can't articulate an actual argument.

Your position is "Go dissent!" Do you have your pom-poms.

Anonymous said... about a smug response. And Strickland ain't that low.

Anonymous said...

Yes, my response was defensively smug. In the spirit of fair debate, I apologize. My comment was in response to rather pompous suggestions, unsupported by actual arguments. The gist of the two anon comments was just, "the dissent was right." This harldy satisfies any level of intellectual rigor. This is a blog. Make an argument.

I stand by my conclusion that the dissent has overstretched Mickens' conclusion and had no business asserting that the law was "well settled" in this area. "Well settled" is a term of art reserved for when a legal rule has been employed for a generation, over and over, by courts at all levels. It DOES NOT MERELY MEAN that the Supreme Court has ruled on the issue (a la Mickens). This would make the ruling authoritative, not well settled. When an appellate judge uses the term "well settled," when the area is not well settled, he or she is like the lawyer who uses the term "clearly" ... when the point or conclusion is not so clear.

And Strickland is the lowest standard known to the law. Lawyers can literally sleep through the case, so long as they don't sleep through the important parts.

Anonymous said...

Strickland expressly adopted the analysis from Cuyler as the test for when a defense counsel's conflict of interest would establish the predicate facts necessary to presume prejudice to the defense. Westlaw claims that that single point of law has been cited 45 thousand times in 24 years. Is your claim that it is not well-settled based on something other than the fact that you think the Strickland test for IAC is too difficult for the defendant to prove?

You clearly believe that conflict of interest should qualify as some type of structural error, but there is no law to support that claim. Neither Mickens, nor Chronic creates structural error out of a conflict of interest. Even when prejudice may be assumed, the defendant still has to demonstrate that the counsel's performance fell below the objective standard. If you want to make the policy argument that conflict of interest should be a structural error, then go for it, but I don't see how you can justify your claim that the dissent misstated the law.

Anonymous said...

You are confusing two closely related statements.

I fault the dissent for misstating the law in the sense that this issue is "well settled."

The SPECIFIC issue in this case, a potential active conflict, where the SAME attorney, is serving both as a prosecutor and a defense attorney, is NOT WELL SETTLED. It has not even been litigated much.

What you are doing, is confusing two levels of analysis. You are saying that some BROAD RULE is well settled. Fine. But don't misuse that term, and mislead, by smuggling that term into the analysis and suggest that the issue at hand is a "no-brainer." And as a term of art, using the term "well-settled" is the judicial equivalent of saying the issue is a "no brainer." But this issue is not settled.

Once again, go back to Cuyler. Read it out loud. It does not preclude a court from inquiring into a conflict, it just does not mandate it. So it got rid of the "automatic reversal" rule. i wish you would tease this point a little bit more in your analysis.

What this means is that the majority is perfectly within its rights to inquire into the conflict. It does not HAVE to. But it may.

You seem to love broad rules, especially one that has been quoted 45,000 times. My suggestion to you is to do what a lawyer is supposed to do, exhibit some more sophistication and nuance and look at the specific scope and application of that rule.

In the end, the majority may conclude that there is no conflict and/or no prejudice. But the majority is not disobeying ANY precedent, and you fail to explain how they do.

In short, this is like a motion for summary judgment. You are saying that NO SET OF FACTS could warrant a verdict (finding of prejudice). CAAF (majority) is simply saying, "not so fast; lets take a closer look." There is NOTHING wrong with that under Culyer or Mickens. But I invite a specific quote from you stating that this enterprise is forbidden.

Anonymous said...

Strickland doesn’t restrict Cuyler to its facts, but says that its analysis applies “when counsel is burdened by an actual conflict of interest.” Sometimes there are broad rules. Your desire to restrict Cuyler is like limiting Brown v. Board of Education to public high schools, while allowing other public institutions to remain racially segregated. Every time a defendant has argued for an exception to Strickland/Cuyler, the courts have shot it down. I think what you’re calling nuance, many people would call judicial activism. You clearly don’t approve, but Strickland/Cuyler is the law for conflicts of interest until the Supreme Court decides otherwise. I don’t see any justification for your statement that the dissent misstates the law. You could claim that the dissent has an overly formalist approach, but that is an issue of judicial philosophy, not legal accuracy.

If the defendant can’t establish that there were any deficiencies in his counsel’s performance, he’s never going to prove IAC. I assume that that is why the defendant argued a denial of counsel claim instead of IAC in the first place –- he knew he stood no chance under Strickland/Cuyler. I applaud the defendant for arguing a novel and creative structural error claim, but the court has a duty to follow the law, not to zealously advocate for one of the parties. Just as you say that it is within the majority's authority to request additional facts, it is equally within the dissent's authority to decide that there was no IAC.

Anonymous said...

Ok. Heres a broad, well-settled rule: Thou shalt not kill.

The Bible does not restrict this rule to the facts.

So, under your general jurisprudential approach, this is the end of the matter. All killing is forbidden.

And I don't think the "exceptions" to this Rule (e.g., capital punishment, self-defense, police action, accident, war, etc.) can be called "judicial activism." I call this nuance and sophistication.

But, you are perceptive:

"[I do] clearly believe that conflict of interest should qualify as some type of structural error."

Yes, I think that a lawyer who is acting as both a defense attorney and a prosecutor is acting under a fundemantal structural flaw. It raises questions besides his own actions as an attorney, but also how he was detailed. This is a structural matter. And it could be WORSE than Chronic's lawyer who has only 45 days to prepare for a major case.

You say there is "no law" to support that claim. You say that neither Mickens, nor Chronic creates structural error out of a conflict of interest. I agree. But they don't exclude that possibility either. And you can't quote such a global statement from either case. Moreover, there is no law on this issue because such a ridiculous conflict has not arisen before. Only in the military would somebody be so stupid to act in both roles. When its happened in the civilian side, these cases are reversed based on the "public confidence in the criminal justice system" test. Please, do better LEXIS research.

Your argument just falls apart because this specific issue has not been litigated. The statement that this area of law is well-settled is a highly misleading statement becuase it is designed to suggest that the specific issue itself is well-settled. It is not. And again, in Mickens Justice Scalia emphasizes the imputed nature of the conflict, implying that an active (not 'actual') conflict of interest.

By the way: do you really believe that NO SET OF CONFLICT FACTS could ever result in prejudice? What if the defense attorney eventually admitted upon investigation that he did not investigate the case very zealously on purpose? The omitted exculpatory facts could never prove prejudice. How would you deal with such an admission under your analysis? Would you say, "too bad, no actual prejudice, Culyer and Mickens dictate no relief."?

Anonymous said...

Actually, I think “capital punishment, self-defense, police action, accident, war, etc.” are called affirmative defenses and statutory exceptions, not “nuance and sophistication.”

Of course there are conflicts of interest that result in prejudice (and more importantly IAC violations and reversal), but judges don’t get to reverse convictions at their own whim. IAC can be proven by establishing: (1) that counsel’s performance was deficient; and (2) that the defendant’s defense was prejudiced (Strickland). Alternatively, in cases of conflict of interest, the defendant can establish: (1) that defense counsel was actively representing conflicting interests; and (2) that the conflict of interest had an adverse effect on specific aspects of the defense counsel’s performance (Cuyler). Either way, deficiencies of counsel’s performance must be shown.

Look, I get it. None of that matters to you because you’re an adherent of critical legal theory. You don’t think precedent matters because every case is distinguishable. You think judges preside over courts of equity, dispensing “justice” like Solomon the Wise. You believe that policy trumps precedent. That’s fine. Go with that. There are lots of law school professors who agree with you. But at least have the self awareness and honesty to say that that is your perspective. Most people don’t share your view, so to go around accusing people of acting dishonestly (by misstating the law) when you really just have a difference of opinion about policy is bad form.

Anonymous said...

I am not an adherent to critical legal theory. I think that precedent is vital.

I am critical of black-and-white, rigid categories. This is quite a different matter - in life, logic, and law. I suggest you simply do some reserch on Ven diagrams, or better yet, just reflect on some Ven diagrams, and you will be enlightened. And your ability to "do law" will be greatly enhanced.

But I love your statement that its bad form for me to say that the dissent "mistates the law," when the dissent does the exact same thing. After describing the posture of the case and the majority's reformulation of the issue, Judge Ryan states: "That is simply not the law." So, I guess the softer wording is what saves it for you. OK, if you want me to repackage my position in silk lining, and in "good form," here it is: "The dissent's position is simply not the law."

At the end of the day, the newly discovered facts may create unanimous agreement, even by me, that there is no real problem here. But there is NOTHING wrong with the majority asking for more facts so that we may develop a more "sophisticated and nuanced" position.

(And your supposed comeback to my analogy about how broad rules are useful references, but not dispositive, was actually quite wrong. The exceptions to the Biblical edict are not, and never were, "affirmative defenses." This is a quite modern term. And there was never even a court case in which one needed to "defend" himself, because he was never accused in the first place. These were definitional distinctions. But only people with sophistication would know that.)

After my multiple challenges to you, you can't cite one case where this category of active conflict has arisen and how the court dealt with the issue. Instead, you scurry-up Mt. Olympus, counsel with Zeus (and Culyer and Mickens), and dispatch Hermes to us with this message:

"Humans, mortals, obey and heed the broad rule of conflicts."

Which rule of conflict, we humbly ask?

"The well-settled rule of conflicts. The one that have been quoted by the Muses 45,000 times."

And this rule of conflicts that has been quoted by the Muses 45,000times, what exactly is this rule? How should we apply this well-settled conflict rule to our lives, we humbly ask?

Then, you summon Zeus to blast us with a thunderbolt for daring to ask for specifics.

It may be that it is customary and routine that "conflicts of interest are analyzed under the 'ineffective assistance of counsel' rubric." Fine. I have no problem with such a statement. But, this does NOT logically or even empirically mean that it is the required and mandatory analytical tool. This is just a simply inductive fallacy on your part. And a blog is not the best place to educate you on set theory. But it suffices as a place to point out that the statement is at least an overgeneralization.

So, the dissent attempts to rigidly frame this issue with a statement like this: "But it has never been the case that the right to counsel of choice is violated by conflicted or
ineffective counsel." Maybe so. But this also demonstrates use of a misleading framing bias. There are civilian criminal cases where the prosecutorial roles and defense roles have been improperly mingled that have been reversed based on the public confidence test. No prejudice was required. The courts bypassed Strickland completely. You may say this does not accord with Culyer and Mickens, but don't dare you say "never." That's not true.

And CAAF has excactly such a test at its disposal. CAAF created this jurisprudential rule of "public confidence in the military justice system," not radical 'ol me.

So, if intellectual honesty is what you are looking for, take a harder look at CAAF precedent and criticize that as well.

But seriously, instead of looking at square boxes, take a look at some Ven diagrams. You will get it.