Trust the lawyers?

Last week's decision in Lee v Weber reminded me of an old disagreement with a friend about the right to counsel on botched habeas claims. This is a highly technical area of post-conviction criminal procedure. I've always disliked procedure opinions because they sometimes miss the big picture. I've always felt that the only procedural question should be, "What can be done to make the procedure clearer?" We don't get straightforward rules of procedure from a bunch of precedents because we end up spending all our time reading cases and using them somewhat out of context.

I digress. In this case, the defendant, David Lee was convicted of Second Degree Murder and sentenced to life. He'd been drinking homemade hooch and killed his cellmate. As I've touched on in prior posts, the difference between first and second-degree murder in South Dakota has to do with whether the killing was premeditated, and the penalty leaves room for parole. Over the years, I've had to remind clients and friends that compulsory sentences are really only compulsory until the next legislative session. It's possible in a state like South Dakota to change the law based on the will of the people through initiative and referendum. With social media taking a more persuasive role in society, and as we've seen with marijuana prohibition, mandatory sentences ain't exactly permanent. 

One argument for release for every inmate is the right of habeas corpus. If you remember your Constitution, you know that it guarantees the right to habeas corpus except in wartime. The general idea is that everyone has a right to know why they are locked up and, if the reason isn't good enough, to be released. It's usually done in the context of criminal incarceration, but I've read about it being used to get out of guardianships. It's not possible in our modern system for someone to actually make it through a conviction and incarceration without knowing what the charge is. Most people learn the charge during the arrest or have a general idea. The process of indictment by the grand jury adds another layer of advisement of what the charge is. There's also arraignment, where the charges are read in public and the defendant pleads guilty or not guilty. Modern habeas corpus law most often concerns the Sixth Amendment right to an attorney. The constitutional right to habeas corpus not only guarantees the release of individuals who never learned the charge but also guarantees the release of those who were deprived of their right to counsel.

And again, there needs to be more clarity about that before I go on. The right to counsel includes not just any person or attorney; the counsel must be "effective." That's different from successful; it looks more about what the attorney did or didn't do and the effectiveness of the representation. Attorneys make mistakes, too. They usually can fix them before any damage is done. But in some cases, the attorney's mistake is bad enough to damage the defendant's right to counsel, and they get to claim habeas relief. 

In addition to being complicated, habeas cases take a long time. In the case from last week, the defendant was convicted twenty-five years ago! After being convicted, he appealed to the SD Supreme Court in 1999. The SDSC couldn't reverse his conviction, so he filed a habeas case that year. The habeas case made its way to the judge for a hearing in 2003, and the judge denied his claim to be released. Lee filed another habeas claim arguing that the lawyer at the hearing in 2003 was also incompetent. 

It's worth mentioning at this point what a habeas trial is like. It's not like a jury trial. The only people in the room are the lawyers, the defendant, the judge, and the regular court personnel. The case is public, so the public can sit in the courtroom pews and observe. Usually, there are witnesses and maybe some documents offered as evidence. The lawyers typically file written arguments called briefs. Whenever a defendant alleges that his trial attorney screwed something up, he waives all rights to attorney-client confidentiality connected to the claim, so the lawyer is usually the only witness. That lawyer is questioned and cross-examined at the habeas trial and more or less is free to throw the defendant, a former client, directly under the bus without violating attorney-client confidentiality. And that's often how it goes. If the defendant is a difficult client, you can expect his attorney to explain to the judge at the habeas hearing how much of a pain in the rear the defendant was to work with. On the other hand, if the attorney was genuinely incompetent, it comes through in the testimony. 

Now, let's get back on track. In this case, the defendant lost the trial, was sentenced to life, lost the appeal, and then lost the habeas trial. Now what? The next defense procedure is to appeal the loss of the habeas trial. This is where the habeas attorney got tripped up by the process. There was no Certificate of Probable Cause to file an appeal. This procedure is designed to cut frivolous habeas cases short before they can get to the SDSC. One problem is what a certificate of probable cause looks like and when it should be requested. I've handled enough habeas cases to recognize that there are three ways of doing things in SD: The Minnehaha County method, the Pennington County method, and then the third bucket, which is a method as diverse as the people of SD. There probably needs to be a unified method of doing it, and therein lies the ambiguity. However, this being a Pennington County case, the habeas attorney should have applied the Pennington County method at a minimum. 

So we have a jury trial attorney who was alleged to be incompetent, and then a habeas trial attorney who is also alleged to be incompetent. This is the point where I've had a disagreement with a good friend on the defense bar. Does a defendant have a right to another attorney to help him with the habeas attorney's incompetence? How about a fourth attorney to help him with that guy's blunders? When does it stop? On the other hand, if it ends with the habeas attorney, why bother making any effort in the habeas case if you know you can't be found incompetent? The SC in this case held that even if the habeas attorney blew it when he didn't get the certificate, there was no harm, no foul, since he didn't actually have a right to a Certificate of Probable Cause. The next option after losing a habeas appeal is to file a new habeas case in federal court.

At some point, we have to trust that our state-licensed attorneys and Judges are doing their best to avoid mistakes. We live in a world where trust in human beings is in short supply. Mistakes happen, and that's what appeals and habeas cases are for. But it will never be a system free of human error; that's impossible.