"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, April 19, 2006

Legal Reasoning Lesson, vol I

OK... another lesson in legal reasoning for any "lay" people perusing this blog. This is my continuing effort to educate you non-lawyers about the delicate and intellectually rigorous method of applying legal reasoning to the text of the Constitution. I hope that this public service will help you understand and appreciate our judges, and not complain when they come up with rulings that seem incomprehensible to your untrained minds.

Today's lesson involves the Sixth Amendment to the federal Constitution, which in relevant part states:
"In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence."
First, I have to apologize for invoking the actual language of the Constitution. Lawyers really should never stoop to this level, since layer upon layer of case law tell us all we need to know about the Constitution, and the text itself is a quaint relic of a bygone age.

Nevertheless, there it is. It says that in criminal prosecutions, you have the right to have a lawyer assist you. So assume you are a drug dealer facing trial. You want to hire lawyer 'x' but the judge tells you that you can't have lawyer 'x' represent you at trial, but must accept lawyer 'y' because lawyer 'x' is not admitted to practice in the court your case is in. Lawyer 'y' represents you, he is a competent attorney who gives you effective representation. Question: have you received your right to "Assistance of Counsel for [your] defence" as the Sixth Amendment requires?

If you can read plain English and have not received legal training, your answer is probably "yes." A competent lawyer represented you at trial.

But friend, that answer is far off the mark. If you knew how to interpret the Constitution, you would clearly understand that what "Assistance of Counsel" means is not that you have a competent lawyer assisting you. It means you have a right to choose whichever lawyer you want, whether or not he is admitted to practice before the court your case in. And it means that if the court gets it wrong and really should have allowed you to have lawyer 'x' instead of lawyer 'y,' the appellate courts will not even consider whether you had a fair trial and competent counsel, but will instead summarily reverse your conviction for you!

This is after all, justice American-style: a fair trial with competent counsel is not enough; your right to choose your own lawyer is "rooted in respect for the dignity and autonomy of the accused," and whether that accused is a convicted drug dealer whose guilt was established in a fair trial with competent counsel is beside the point: your dignity and autonomy outweigh any minor concerns about public safety, finality of judgments, or the rights of the people to enjoy their right to a community unmolested by drug dealers.

After all, justice is not about rendering people what is due to them, a fussy old idea perpetuated by dead white males, but is simply about following procedures. If the procedure was violated, even though it did not result in an unfair trial, then "justice" was not done.

Now that you know how the lawyers have re-invented the Sixth Amendment, and have gotten rid of your naive, non-legal, text-bound understanding of the Constitution, class is adjourned.

HT: Crim Prof Blog.


Anonymous said...

You really need to cite to the actual cases from the lower courts below. Also don’t redact portions of the constitution.

While you might ultimately be right, it is bad legal reasoning to declare a court’s decision to be wrong, without reading it, citing to it, and likely quoting from it. Quoting from another blog is not acceptable. For god’s sake, we are facing a war on terror here! We can’t go around just repeating slogans like our enemies do.

To your credit, the blog you cited, while a blog, is written by real lawyers. The kind that win cases before the Supreme Court. But this blog also shows the myriad of other issues here (some of which may be dispositive and don’t involve the 6th amendment at all.)

What I find ironic is that you don’t refer to the original understanding of the word “counsel.” Are you really saying that at the time of the drafting of the constitution all courts viewed bar admission in the same way that they do now? This is a bit of a stretch.

Life is a lot more complex than just declaring other peoples’ reasoning to be bad. You need to understand multiple issues, understand what other courts have done, and you need to understand the actual arguments made.

Luckily, Justices like Scalia have time and time again shot down the activist positions of legislatures and prosecutors who, based on no legal reasoning at all, have concluded that various parts of the 6th amendment (regarding jury trials for sentencing) didn’t matter at all. While Scalia can probably be faulted for letting many criminal run wild on the street, at least he legally reasons well, and I understand why you dislike Scalia so much.

Faithmy said...


Anonymous said...

Faith, I think you need to be a tad more specific in your response there. Or are you saying that Crawford was wrongly decided?

Faithmy said...

No, I am saying anon1 is a windbag. Couldnt you grasp that? Was I too subtle?

Anonymous said...

(This is a different anonymous poster.)
On the other hand, you have to admit, Tom, that there are a huge number of ineffective PDs and defense lawyers. It simply won't do to say, "The trial was correctly decided, so there's no problem." Due process means that there is a certain level of procedural fairness that occurs in the course of a trial, and many criminal defendants simply never get counsel that competently ensures a procedurally fair trial.

Anonymous said...

I actually have never met a PD that was always ineffective. Sure, some individual representation may be ineffective, but since PDs are subject to a fair amount of internal discipline they will either be fired or given the necessary training. But, in states without a developed public defender agency (where the goal of justice is to put black people in jail), any lawyer can do just about any trial, and there is no oversight other than Strickland analysis. The problem then becomes what happens to the members of the middle class who are too rich for PDs and too poor for real lawyers, and rely on the Yellow pages. These people are the real victims.

On the other hand, I never admit that any defense is ineffective, because I want to put as many poor people in jail as possible.

I don’t think that Tom or Faith knows or cares about the actual issues, but no matter.

Anonymous said...

(new anon)

Actually the whole idea behind having a lawyer of your choice is that your lawyer is supposed to represent your interests and nobody elses. Not the judge who is running for re-election, not the jury pool, not the police force, most certainly not the D.A. but you.

Now, I'm not saying this is absolute-if I am a lawyer suspected of informing the mob about potential turncoats, there are excellent reasons not to allow me to defend someone in that mob. But generally, defendants are entitled to a lawyer of their choosing percisely because that lawyer is (hopefully) beholden to nobody else.

And yeah redacting the Constitution while purporting to quote from it is very 1984.

Tom McKenna said...

Well, OK, here it is since you folks are so unfamiliar with it:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Since the only portion of this amendment having anything to do with the subject was the portion I cited, and since most educated folks know generally what's in there, I think it's a little overblown to criticize my editing it for the sake of clarity and in order to focus on the particular guarantee involved with the topic I was addressing.

Anonymous said...

"to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

And do you suppose that process will work without a competent, impartial attorney? Also, it is true that nowhere does that amendment say the lawyer has to be competent, or impartial, or an advocate for his client. That is fine. (Nowhere does the amendment say that the lawyer has to be awake during trial which a 5th Circuit panel said justified a lawyer who slept through his client's trial.) But honestly...

My employment contract does not say that I have to show up for work, on time, sober, and dressed in clean clothes. Do you think I would have a case if I showed up hungover an hour late wearing flip flops and overalls to teach?

There was a capital case in Alabama where the lawyer was such a notorious drunk, the judge would require him to come up to the bench every morning and allow the judge to smell his breath. Under your reading of the Constitution, is this okay?

Also, going back to the lawyer of your choosing - how about the black defendant in Georgia whose appointed lawyer was the Wizard of the KKK? Yes, he was duly licensed to practice law but is he the best choice, legally, ethically and morally?

Again, if there is obvious harm in appointing a lawyer, I'm not advocating it, but otherwise- well hell what is the point of having a lawyer if s/he is not capable, hard-working and fighting for you tooth and nail within ethical bounds?

(faith-too many words, I know. Literacy sucks.)

Anonymous said...

Tom, Do you really think that someone on trial for his life can, without competent counsel serve subpoenas, investigate matters, and prepare for trial ? Or is this not a violation of due process. Have you even read Strickland?

4:32, I, too think it is funny that Faith didn’t go to law school and complains about people using too many words. I guess that is why Tom truncated the 6th amendment and didn’t even begin to describe the somewhat sad 6th amendment jurisprudence we have to deal with. Sure it won’t impress lawyers, but it will get him marriage proposals.

Faithmy said...

I am complaining about STUPID people using too many words....get it straight.

Tom McKenna said...

If the two anons would actually read the posting and the case which I'm commenting on, which is linked in the posting, they might learn that it was conceded that the attorney selected by the court was both 1) competent; and 2) Strickland effective. The sole issue was whether the defendant's "self-determination" interests required that he be allowed to pick his own lawyer despite the trial court's (ultimately mistaken) belief that the lawyer was not eligible for pro hac vice admission to practice before the court. The further issue was even assuming he should have been allowed to pick his own lawyer, is the remedy to reverse a conviction where the defense attorney was constitutionally competent and effective.

Yes, I have read Strickland. I defended the state in habeas cases in our appellate and trial courts for 18 months before returning to prosecution.

Anonymous said...

"The sole issue was whether the defendant's "self-determination" interests required that he be allowed to pick his own lawyer"


Anonymous said...

Tom, The only reason people were citing Strickland is for the proposition that someone could be denied due process if the state somehow interfered with the person’s defense. There is a lot more to Strickland than just “prejudice.” I don’t have a position on the ultimate issue in this case, because it is complex, and it would be irresponsible (and supportive of terrorism) for me to form an opinion without extensive research.

But, I should compliment you on updating you blog to include links to the cases that you cite. Soon it can be considered a legal blog.

pattypoo said...

"Soon it can be considered a legal blog."

And soon, this anon will be considered human (we hope).

kateri said...

I didn't know that Tom considered this a "legal blog" It's titled "Seeking Justice." Not "Seeking a Load of Lawyer's Excrement."

Obviously, he recognizes that a whole world exists outside of the persecuted wretched minds of the anonymous posters on this site.