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.