Thursday, June 14, 2012

Supreme Misconduct

Half of law school is spent listening to professors and administrators tell you how your legal reputation starts the minute you walk through the proverbial law school doors. Students are continuously reminded to be courteous and respectful, and that the legal profession should be just that--professional. The minute you start practicing law, however, you realize that the advice you were given seems to be wholly disregarded, as if your professors dealt more with aspirations than actuality. Consider the recent Utah Supreme Court case, Barrientos v. Jones, 2012 UT 33. I should admit that I don't usually read opinions on civil cases that are issued by the appellate courts. I have little interest in reading about the rights of lien holders or the nuances of corporate formation. Instead of poring over the civil decisions, I usually skim the decisions for anything of interest, perhaps a juicy quote I can use for some other criminal justice-related purpose. Though it dealt with a wrongful death suit, the decision in Barrientos is a must read for criminal and civil practitioners alike. The case in Barrientos centered around a traffic accident involving an Ogden City police officer who, in the course of a high-speed chase, struck a car that was in an intersection. The mother of the plaintiff was tragically killed in the accident, and the case went to trial on issues of negligence. As if the facts of the case weren't bad enough, the lawyer for Ogden City decided to make a mockery of the case, attempting to introduce inflammatory information about the victims of the accident despite pretrial orders prohibiting such tactics. To make it short, let's just say that no lawyer wants his or her first appearance in a Supreme Court opinion to read like the passage about Ogden City's attorney. The Supreme Court's observations tell all that needs to be told:
The conduct of Ogden City's counsel, Ms. White, was indefensible. Her questioning of Theresa reveals that Ms. White surrendered, without resistance, to the impulse to win her case by bludgeoning the character of the dead. She pursued this course of action undeterred by court orders that unequivocally forbade her chosen course of action. We condemn Ms. White's conduct.
Needless to say, perhaps Ms. White should have paid a little closer attention to the constant reminders in law school. It's one thing for a trial court to admonish counsel; it's something of an entirely different magnitude to be personally called out by the Utah Supreme Court. I only hope that bar discipline will ensue so that all Utah lawyers, regardless of practice area, will see yet another stark reminder that professionalism and civility do in fact have a place in court.

Thursday, April 12, 2012

Reading the Tea Leaves

One of the most frustrating parts of appellate advocacy occurs not just when the appellate court reject's one's arguments on appeal, but rather when the appellate court appears to go out of its way to suggest that the problem with the argument is that it was framed improperly. Instead of simply rejecting the argument, the appellate court will offer some gratuitous aside about how another question--undoubtedly one not specifically raised in the appeal, or so the appellate court says--might result in a different resolution. It's essentially a double dose of harsh reality, as if the court were saying that (1) the argument you did in fact make was no good, and (2) if you had made this other argument, you might have won. Implicit in the second observation is that you were likely ineffective for not raising that other argument. Of course, as most appellate practitioners know, if you did in fact make the argument suggested by the appellate court, the opinion would probably say the error was harmless, unpreserved, and/or insufficiently briefed.

All rambling aside, a good example of the gratuitous appellate comment can be found in the recent decision of the Utah Court of Appeals in State v. Tibbets. After rejecting the defendant's arguments about the improper admission of 404(b) evidence, the court casually observes:

Throughout Defendant's analysis of rule 404(b), she claims, without legal support, that rule 404(b) evidence must be "direct evidence" and cannot be an unsubstantiated allegation. While this raises the interesting issue of what quantum of proof must be presented for evidence to be admitted as rule 404(b) evidence, Defendant has failed to convince us that more was required in this case.

In other words, the Court of Appeals acknowledges that the defendant has raised an "interesting" issue regarding 404(b) evidence, but rather than actually establish a rubric for determining the quantum of proof necessary for future cases, the court simply says that the defendant has not convinced the court that any error occurred. So, I suppose, the defendant must meet a particular threshold showing, though just how much is necessary to meet that threshold is left undetermined. Defense attorneys are thus left guessing what standard, if any, is imposed in Tibbets, and they are also left wondering whether subsequent challenges to the "interesting" question of what quantum of proof is necessary to admit 404(b) evidence will be summarily rejected in a similar fashion. Out of an abundance of caution, however, it may behoove practitioners to address the "interesting" question alluded to by the Court of Appeals. The chances of success aren't great, but at least the court won't claim that you failed to raise the argument.

Monday, April 2, 2012

Replacing Counsel

While the decision in State v. Alvarez-Delvalle is neither surprising nor groundbreaking, it contains a helpful reminder of the procedure courts must follow to determine if a defendant is entitled to new counsel. The defendant in Alvarez-Delvalle sought to replace his attorney in the trial court, and on appeal argued that the trial court erred by not in fact replacing counsel. The Utah Court of Appeals was quick to reject this claim, ultimately finding that the defendant did not show good cause to warrant appointment of new counsel.

The court provided a succint summary of the analysis trial courts must undertake when considering requests for new counsel. First, the trial court has a duty to make some "reasonable non-suggestive efforts to determine the nature of a defendant's complaints before deciding whether good cause for substitute counsel exists." Second, the defendant must establish that good cause exists for such a substitution. Good cause, in turn, exists where the defendant can establish a conflict of interest, a complete breakdown in communication, or an irreconciliable conflict. While the court in Alvarez-Delvalle addressed whether the failure to provide new counsel resulted in prejudice to the defendant, it is clear that trial courts must engage in the analysis above when confronted with requests for new counsel. It appears, however, that any failure of a trial court to meaningfully engage in the analysis above is only reversible error if the defendant can establish that the court's decision resulted in prejudice to the defendant.

Again, the decision in Alvarez-Delvalle is hardly novel or unexpected, but the Court of Appeals has nonetheless provided a roadmap for counsel and trial courts to consider in the seemingly more frequent context of requests for new counsel.

Sunday, March 25, 2012

Redheaded Stepchildren & Supervised Release

I've long thought of supervised release violations as the redheaded stepchildren of federal court--unwanted and something no federal pracitioners really pay much attention to. The last year or two, however, has spawned a fair amount of litigation around the country about the maximum terms of supervised release, directing a little attention to the oft neglected violations. The Tenth Circuit jumped back into the fray last week in United States v. Hunt, which addressed whether the terms of imprisonment for previous violations aggregate and are capped by the maximum terms prescribed by 18 USC 3583(e)(3).

The defendant argued in the district court that the court should aggregate all previous revocation sentences, and that the total amount of imprisonment for revocations of supervised release could not exceed the three years allowed in the operative statute. In Hunt's case, he had previously served two revocation sentences of one year and one day each. He argued that his third violation sentence was therefore limited to 363 days, which represented the three year maximum provided by 3583(e)(3) minus the credit for time already served on the prior revocations. The defendant attempted to distinguish the holding in United States v. Hernandez, 655 F.3d 1193 (10th Cir. 2011), in which the Tenth Circuit held that 3583(e)(3) does not require courts to credit a defendant for time previously served on revocation. Needless to say, the Tenth Circuit found Hunt's argument unavailing and upheld the 18 months revocation sentence.

In a nutshell, the Hunt and Hernandez cases reaffirm the nationwide trend in the circuits recognizing that, since the PROTECT Act amended the statute in 2003, courts may impose a sentence up to the statutory maximum on each revocation. In other words, the district court no longer has to give any credit for prior revocation sentences (other than the requirement that the sentence imposed must reduce the applicable term of supervised release that the court may impose following the revocation). In cases with lifetime supervision, the reasoning employed by the Hernandez and Hunt decisions likely suggests that defendants can receive a lifetime of imprisonment for supervised release violations, though it would have to be imposed piecemeal on each revocation. A challenge to the constitutionality of such a reading of the statute is something that practitioners should contemplate if faced with an offender given a lifetime of supervised release, though it's unclear how such a challenge would be resolved given the decisions in Hunt and Hernandez.

Thursday, March 22, 2012

Ineffective Plea Bargaining

As most criminal practitioners are well aware, the current members of the Supreme Court have little love for the Fourth Amendment. The protections against illegal searches and seizures have been largely chipped away, and the exclusionary rule may soon be on its way out the door as well. Surprisingly, however, the Supreme Court has reinvigorated some of the protections for criminal defendants. The past decade has seen the reinvigoration of the right to a jury trial and jury findings (think Apprendi and Booker), and there seems to be growing recognition for the need to provide effective assistance of counsel under the Sixth Amendment (think Padilla). In two cases issued yesterday, Lafler v. Cooper and Missouri v. Frye, the court has ensured that the right to counsel does not extend solely to the effective assistance of counsel at trial but extends to the plea bargaining process as well. Or, as Justice Scalia puts it in his dissent in Lafler, the Court has created a "whole new field of constitutionalized criminal procedure: plea-bargaining law."

The holdings in Lafler and Frye are quite simple, though the remedy for constitutional violations is by no means clear or predictable. In Frye, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. The Court notes that counsel has a duty to communicate formal offers to the accused, and any failure to do so may constitute prejudice. In order to establish prejudice under Lafler, the defendant must demonstrate a reasonable probability both that they would have accepted the more favorable offer and that the plea would have been entered without the prosecution revoking the offer or the court refusing to accept it.

Similarly, in Lafler the Court was confronted with a situation in which the defendant rejected a plea offer because of counsel's erroneous legal advice. Unlike Frye, however, the defendant proceeded to trial and was convicted. The Court found that the fact that Lafler had a jury trial free from constitutional infirmity did nothing to cure the constitutional violation. The Court held that where a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a more severe sentence at trial, the remedy must neutralize the taint of a constitutional violation. In other words, the court must try to put the defendant in the same position had the constitutional violation not occurred.

While the holdings in Frye and Lafler are rather straighforward, it is less clear how defendants and courts will implement those holdings. In particular, the Court's framework set forth in Frye is hardly the model of clarity. The Court requires defendants to (1) show a reasonable probability that they would have accepted the earlier plea, and (2) that if the prosecution had the discretion to cancel the plea or the court had the discretion to reject it, there is a reasonable probability neither entity would have done so. The majority itself provides little guidance to trial courts about how best to implement the framework set out in these decisions, acknowledging in Lafler that "today's decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case." While the Court is providing direction to the trial court in Lafler in the preceeding sentence, it can be assumed that the Supreme Court's vague guidance will have to suffice for all other trial courts dealing with these issues.

Tangents and Observations:

(1) Left unaddressed by the Frye opinion (because it was not relevant to the decision) is the fact that the defendant received three years in prison for driving with a revoked license. Does driving on a revoked license warrant a three year prison term? Does anyone even think about the cost to taxpayers of incarcerating someone for three years? I know he had three prior convictions for the same offense, but one has to wonder if there's a better way to allocate resources. Hell, there should probably be an Eighth Amendment claim the next time some judge gives prison for driving on a revoked license.

(2) The Court again recognizes that our system is a system of pleas--not jury trials. The statistics cited by the Court are staggering--97% of federal convictions and 94% of state convictions are the result of pleas. Extending the protections of the Constitution to the plea bargaining process is simply a way to meaningfully protect the rights of defendants--defendants who will, in all likelihood, plead guilty.

(3) If practitioners had any doubt, these decisions make clear that counsel is ethically (and constitutionally) obligated to convey plea offers to their clients.

(4) As occasionally happens, Justice Scalia's dissent provides defense attorneys with fertile grounds for expanding the holdings in these cases. By raising questions about the implications of the majority's decisions, Scalia provides a potential road map for other issues related to the plea bargaining process. As Scalia queries,

"Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak--thereby excluding the defendant from 'the criminal justice system'?"

Some of his questions are no doubt rhetorical, but there may be a basis in the future to raise issues similar to the ones posed by Scalia's questions.

Wednesday, March 21, 2012

No Time Limit for Justice

Lemuel Prion pled guilty and mentally ill to three felonies in 1994. Just shy of two decades later, the Utah Supreme Court finds that the procedure for re-sentencing permitted for guilty but mentally ill offenders in 1994 violates the Double Jeopardy Clause of the United States Constitution. Justice Lee, as he is wont to do, provides a thorough analysis of the common law protections against re-sentencing individuals on the basis of information not presented at the initial sentencing hearing, ultimately finding that Utah's re-sentencing provisions applicable to guilty but mentall ill offenders impermissibly allow a district court to re-open a sentence that has already been imposed.

While the decision in Prion is unlikely to have broad application for criminal defense practitioners, the case provides a helpful discussion of rule 22(e) and the Double Jeopardy Clause. More specifically, the Court rejects the State's argument that Rule 22(e) does not apply in this instance, instead noting that "because an illegal sentence is treated as void, it may be raised at any time." Justice Lee further observes that the rule 22(e) motion in this case "is one that comes within the traditional bounds of the rule" because the rule has historically contemplated double jeopardy challenges. The Court in Prion is careful to observe the "narrowly circumscribed" construction of rule 22(e), but practitioners otherwise deterred by the time constraints imposed by the PCRA should nonetheless be mindful of the potential for relief provided by the rule.

Sunday, January 27, 2008

Careful Driving Does Not Reasonable Suspicion Make

In another defense win, the Court of Appeals in Salt Lake City v. Bench upheld the trial court's decision to suppress the evidence obtained following a traffic stop of the defendant's vehicle. The City argued that the stop of the defendant's vehicle was proper where there was a tip from the defendant's ex-wife stating that the defendant had transported his children while intoxicated. In addition, the City relied on the officer's observations once he located the vehicle. The officer did not observe any traffic violations, but insisted that traveling 10 mph below the speed limit and signalling for five seconds (instead of the requisite 3 seconds) were indicative of overly cautious (and thus impaired) driving.

The Court of Appeals rejects the City's position that the officer's stop was justified by reasonable suspicion. The court first notes that the tip provided little detail and any corroboration was limited to innocuous observations. Similarly, the court gives less weight to the tip because of the fact that it came from the defendant's ex-wife, citing a number of cases in support of the proposition that such a tip is less reliable since it may come from someone bearing ill will or malice toward the former spouse/partner.

In addition, the court rejected the assertion that cautious driving gave the officer reasonable suspicion. As the court noted, "[p]rudent driving--going slower than the posted speed limit in a residential area and signaling for a couple of seconds longer than the statutory minimum--is simply not suspicious. It is commendable."

All in all, the decision in Bench provides ample fodder for defense counsel regarding tips and corroboration of innocent details. Similarly, counsel faced with the familiar contention that your client was driving too safely ought to use this decision to dispel any suspicions of impaired driving.