Criminal Defense
Newsletter

 

January – February, 1998
Volume 21, Numbers 4-5

 

 

More than just a new look! See page 11

 

Features

Proposed Legislative Sentencing Guidelines 10
Rates of Compensation Paid to Court-Appointed Counsel 1
Request for Information: Assigned Trial Counsel Fees in Michigan 10

Departments

Circuit Court Opinion of the Month: Restoration of Driving Privileges 13
Criminal Defense Online 11
From Other States 16
From Our Readers: Term Limits 14
In a Manner of Speaking 12
Legislative Update 14
New and Interesting in the Online Brief Bank 12
Newsletter Renewal 9
Practice Note: Defense Contact with Prosecution Witnesses 17
Reports and Studies 10
Training Calendar 40
Training Events 17

 

Appellate Courts

Michigan Court of Appeals

Selected Published Opinion Summaries 33
Michigan Supreme Court
Leave Granted 30
Opinion Summaries 32
Proposed Order 30
United States Court of Appeals
Sixth Circuit Opinion Summaries 23
United States District Court
Opinion Summaries 28
United States Supreme Court
Certiorari Granted 19
Opinion Summaries 20

 

 

 

Rates of Compensation Paid to
Court-Appointed Counsel in
Non-Capital Felony Cases at Trial:
A State-by-State Overview, 1997

 

We begin a series of articles on assigned counsel fees with this month’s examination of payment methods used throughout the nation. Prepared by The Spangenberg Group for the American Bar Association Bar Information Program, the article is hot-off-the-press, just finished and full of interesting information. The article appears here with the permission of The Spangenberg Group.

The chart referenced throughout the article (omitted due to space restrictions) is available upon request from the Criminal Defense Resource Center.

Upcoming months: contracts for defense services, appellate and trial assigned counsel fees in Michigan.

Introduction

The Spangenberg Group last prepared a chart on compensation rates for assigned counsel handling non-capital felony trial cases in 1994. The chart, which was prepared on behalf of the American Bar Association Bar Information Program, provided state-by-state information concerning the hourly rates paid and the authority for the rates. We have received repeated requests for the chart, most often from attorneys and policy-makers and usually when a state legislature is considering a change in its attorney compensation rates.

There have been a number of changes made in the hourly rates paid to court-appointed counsel since 1994. In addition, there have been significant changes in the way in which counsel are provided to indigent defendants in conflict-of-interest cases. Because of these changes, we felt the time had come to update the chart with the current rates paid and to prepare an accompanying narrative to discuss the nuances of the subject.

While the chart alone is a valuable tool for comparison purposes, it is impossible to use it to make an accurate ranking comparison of rates paid to court-appointed counsel among states. In part this is because many states are so-called "reasonable compensation" states, where the rates are set by the local judge or county and vary widely from county to county and therefore no single rate can be defined for the state. Also complicating a ranking exercise is the growth in the number of states which are using contract counsel for cases previously handled by counsel appointed on a case-by-case basis and paid hourly rates. Contracts are administered in different ways: some contract attorneys receive flat fees for each case handled, while others receive annual figures, paid in monthly installments, to handle all of the conflict of interest cases in a given year.

Most major metropolitan areas in this country are served by public defender offices. Cases in which the public defender (and, in some cases, the second public defender) has a conflict of interest are handled by court-appointed counsel or contract counsel. In addition, in some jurisdictions, there is no public defender, so contract counsel or court-appointed counsel handle all indigent defendant cases. The large majority of cases handled by attorneys who would be paid under the rates provided in the accompanying chart are cases in which a public defender has a conflict of interest.

 

Different Approaches to Compensating Non-Public Defender Counsel

The following section discusses eight approaches taken by the states to compensating conflict counsel and other non-public defender counsel assigned to non-capital felony cases. These approaches are characterized as:

 

 

Reasonable Compensation

In 15 states (Arizona, Arkansas, Florida, Idaho, Louisiana, Mississippi, Michigan, Montana, Nebraska, North Carolina, Pennsylvania, South Dakota, Texas, Utah and Washington) the compensation for court-appointed attorneys is left up to the locality, either the county, a local judge or a combination of the two. In some states, such as South Dakota, the rate paid is uniform throughout the state ($55 per hour with no maximum). In other states, such as Arkansas and Texas, the rates paid and the use of a maximum vary considerably from county to county, and from judge to judge within a county. Because the range of practices concerning compensation of court-appointed counsel in so-called "reasonable compensation" states is so significant, we highlight below several examples from the various states.

 

In Arizona, state statute and the Rules of Criminal Procedure govern compensation of appointed counsel, leaving it to the court to award the attorney a sum representing reasonable compensation for services performed. In the two largest counties, Maricopa (Phoenix) and Pima (Tucson), the responsibility of administering court-appointed counsel compensation has been transferred from the courts to small county agencies. The agencies administer contract programs for conflict of interest cases which the public defender is unable to handle. In Maricopa County, there are two types of felony contracts: regular felony contracts and major felony contracts. Regular felony contracts pay $31,500 per year for 45 defendants (or $700 per case) with the expectation that two percent of the cases will go to trial. Major felony contracts pay $80,000 per year for 10 cases (or $8,000 per case). Concessions may be made for regular felony contract attorneys or major felony contract attorneys whose cases are extraordinarily complicated or lengthy.

In Pima County, contract attorneys accept appointments to two classifications of non-capital felony cases. Group A felonies include attempted murder, second degree murder, manslaughter, negligent homicide, drive by shooting, sexual offenses involving minors and arson of occupied structure. Group B felonies include everything else. Until recently, the contract attorneys were paid flat fees for Group A and Group B cases. Now they are paid $50 per hour for Group A felonies, up to $2,000 per case, and $50 per hour for Group B felonies, up to $4,000 per case. An attorney may petition the court to receive payment in excess of the maximum.

 

In Arkansas, court-appointed counsel rates are set by local judges. The rates vary not only from county to county but also vary in one circuit from judge to judge.

 

Statutory ceilings on individual case payments are in effect statewide ($2,500 for a non-capital, non-life felony and $3,000 for a life felony), but it is up to the counties to establish their own hourly rates of compensation. In Dade County (Miami) court-appointed counsel rates are set out in an administrative order of the chief judge of the circuit. Attorneys are paid $40 per hour for work performed out of court and $50 per hour for in-court work, but only after they exceed the quantum of hours set out in the Circuit Court of the 11th Judicial Circuit's short form. Each type of case has a different schedule. The schedule for first degree felonies is:

 

5 hours or less $250
above 5 hours - 10 hours $500
above 10 hours - 20 hours $750
above 20 hours - 30 hours $1,000
above 30 hours - 40 hours $1,250
above 40 hours - 50 hours $1,500

Thus, a court-appointed attorney with a first degree felony that took 70 hours to handle would receive $1,500 plus $40 x 20 or $2,300, or $500 less than an attorney who billed 70 hours at $40/hour would receive. The 11th Judicial Circuit has a fee review committee which reviews all claims in excess of the maximums, and will grant additional payments if it agrees they are warranted.

 

Although the statute concerning court-appointed counsel compensation states that the rates should be set by local judges, in some areas the county commissioner sets the rates. The majority of court-appointed counsel are paid $40/hour out of court and $50/hour in court in non-capital felony cases.

 

In Louisiana, most of the district-based indigent defender boards utilize contract counsel to handle conflict of interest cases, but among the few that still use court-appointed counsel, the average rate paid is $42 per hour, for work performed both in and out of court.

 

Court-appointed counsel in non-capital cases may be paid up to $1,000 per case plus reimbursement for hourly overhead expenses. The presumptive rate for overhead expenses is $25 per hour.

 

There is wide variation in court-appointed counsel fee schedules among Michigan's judicial circuits. Further, while the majority of circuits pay hourly rates on a case-by-case basis, some circuits pay flat fees for plea and trial cases. One circuit, which last changed its fee schedule in 1979, pays $25 per hour for all work done in the office and $35 for all work done out of the office up to a maximum of $1,000 in trial cases. Another circuit, which amended its fee schedule in 1997, has no set maximum and pays $69 per hour for all work performed.

 

In Montana it is up to local judges to decide what to pay court-appointed counsel, however, in the majority of counties, counsel are paid $60 per hour for work in and out of court. A few counties pay counsel $40 per hour for out-of-court work and $45 per hour for in-court work. There is no firm case maximum in Montana, but some counties use $5,000 as a ceiling.

 

The majority of counties in Nebraska pay court-appointed counsel $60 per hour with no per-case maximum. Douglas County (Omaha) is a notable exception, paying attorneys $45 per hour out of court and $65 per hour in court, up to $3,500 for felony cases. Douglas County's employment of a per-case maximum is not sanctioned by state statute or common law (see In re: Rhem v County of Richardson, 410 NW2d 92 (Neb. 1987). The presiding judge can determine if additional funds should be granted.

 

The rates paid to court-appointed counsel are completely at the discretion of the judges. Some pay hourly rates, some pay flat rates.

 

The rates paid to court-appointed counsel vary widely in Pennsylvania, with all decisions left to local judges. In Philadelphia, in non-homicide cases, counsel are paid $40 per hour for out-of-court work and $50 per hour for in-court work. In homicide cases the out-of court and in-court rates are $50 and $60, respectively.

 

Some counties in South Dakota use contract counsel for conflict of interest cases, but among those that use court-appointed counsel, the majority pay counsel $55 per hour for work in and out of court with no cap in all types of cases.

 

Texas has 254 counties, each with a different indigent defense system, and no statewide mechanism to track what goes on in each of the 254 counties. There is no way to determine a statewide average rate of compensation for court-appointed counsel; judges within the same county pay different rates.

According to legislation passed in 1987, all counties are supposed to establish an indigent defense system, and if they choose an assigned counsel system, they must formalize the requirements for appointment of counsel through a "schedule of fees adopted by formal action of the county and district criminal court judges within the county." Texas Criminal Code of Procedure Article 26.05(b). Some counties have a schedule, but others only pay flat rates for court appearances. Dallas County reportedly has a fee schedule, but not all of the judges adhere to it. For example, one district court judge in Dallas County pays various daily rates for court appearances:

$200-$750 per day for jury trials
$50-$500 per day for hearings
$50-$150 for court appearances
$75 for pre-indictment court appearances.

Some counties reimburse travel and expenses, others do not. One county, Webb County, has a mandatory pro bono program. The judges call it a pilot program but it has reportedly been in place for years. Every lawyer must be on the rotation unless they pay the $600 annual buy out rate.

 

Court-appointed counsel compensation rates vary widely in Washington. In King County (Seattle), conflict counsel are paid $30 per hour with no cap for all types of cases, except homicides, which are handled on a case-by-case basis where the attorney negotiates with the Office of Public Defense for payment. In King County the court-appointed counsel rate is set by the County Council, and was last changed in 1991.

 

Statutory Hourly Rate

Nine states, plus the District of Columbia, reimburse court-appointed counsel according to state statute. These states are Alabama, Hawaii, Illinois, Kentucky, Nevada, New York, South Carolina, West Virginia and Wisconsin. All of the pertinent statutory sections and the rates appear in the accompanying chart. Some of the rates have not been changed for decades. For example, the hourly rates in Illinois ($30 out of court, $40 in court with a $1,250 maximum) were set in 1975, the rates in Kentucky ($25 per hour out of court, $35 per hour in court, with a $1,250 maximum) were set in 1978, and the hourly rates in New York ($25 out of court and $40 in court with a $1,200 maximum) were set in 1986.

 

Hourly Rate Per Administrative or Court Rule

In 13 states, uniform, statewide hourly rates are established either by executive administrative rule (Rhode Island), the Public Defender or indigent defense commission (Kansas, Maryland, Massachusetts, Minnesota, New Jersey) or court rule (Colorado, Maine, New Hampshire, Vermont, Virginia, Tennessee, Wyoming). The practices in several of these states warrant brief discussion.

 

In Minnesota, it is exceedingly rare to appoint counsel on an hourly basis, as the state public defender system contracts with salaried attorneys to handle conflict of interest cases.

 

The hourly rates set by the New Jersey Public Defender for court-appointed counsel handling non-capital felony cases ($15/hour out of court and $22.50/hour in court) are the lowest in the nation.

 

In Vermont, 13 V.S.A. §5205(a) and Administrative Order of the Vermont Supreme Court govern compensation rates for court-appointed counsel. In 1992, by Supreme Court administrative order, the $25 per hour rate was raised to $50 per hour, effective FY 1993, with the following maximums: $25,000 for felonies involving life imprisonment or death penalty (Vermont currently does not have the death penalty), $5,000 for a major felony, and $2,000 for a minor felony. However, the legislature passed a legislative override in 1992 stating: "Notwithstanding 13 V.S.A. §5205(a) and Administrative Order of the Vermont Supreme Court as amended, the rate of compensation for the services of ad hoc counsel in public defender cases shall be $40 per hour through June 30, 1997." The sunset date was extended in 1997 through June 30, 1998, so the $40 figure is the rate that is currently paid.

 

In Virginia, the state supreme court has established rates of $40 per hour for out-of-court work and $60 per hour for in-court work, but state statute restricts per-case payments to no more than $575 to defend charges punishable for more than 20 years and $265 to defend other felony charges. (The $575 figure will increase to $735 on July 1, 1998.) Because of these low per-case caps, the relatively competitive hourly rates have little bearing. An effort is currently under way in Virginia by a group of private attorneys, prosecutors, court administrators and others to see that attorney compensation rates are raised in the 1998 legislative session.

 

Flat Fee Per Case

In Missouri, a standard flat rate is paid for each case not handled by a public defender. The rates are set by the state public defender, but it is extremely rare to appoint an attorney from outside of the public defender program to a conflict case. The vast majority of conflict of interest cases are handled by transferring the case from the branch office where the conflict was identified to another branch office.

 

Flat Fee Per Case Under Annual Contract

In two states, Connecticut and New Mexico, the state public defender contracts with attorneys to handle conflict of interest cases and cases where no public defender is available. Attorneys agree to accept a flat rate for each non-capital felony, misdemeanor or juvenile delinquency case handled (capital cases are handled outside of this arrangement). For cases in Connecticut where there is no available contract attorney, outside counsel will be appointed at hourly rates of $20 for out of court work and $25 for work in court; rates which are also paid to contract attorneys when a case goes to trial.

 

Annual Contract

In Delaware, superior court rule governs compensation of attorneys appointed in non-capital felony cases. Counsel are paid an annual contract amount of roughly $43,800. Outside of the contracts, counsel may receive up to an additional $12,000 for handling Class A felony appointments.

 

Non-Binding State Commission on Indigent Defense

In three states, Georgia, Indiana and Ohio, a statewide commission for indigent defense sets recommended rates of compensation, but these rates have no binding effect. In all three states, indigent defense is organized and delivered at the county level.

 

The Georgia Indigent Defense Commission recommends that counties pay rates of $35 per hour out of court and $45 per hour in court in non-capital felony cases, and discourages the setting of a per-case maximum. If a county chooses to adopt a maximum fee, GIDC recommends the fee be at least $1,000 in non-capital felony cases. Currently 141 of Georgia's 159 counties meet the standards and guidelines set out by GIDC, which include using this recommended fee schedule. GIDC receives an annual state appropriation to distribute among counties that meet its standards.

 

In Indiana, the Indiana Public Defender Commission also receives a state appropriation for disbursement to counties which meet its standards and guidelines pertaining to the delivery of indigent defense services. The Commission requires counties to pay attorneys $60 per hour for work in non-capital felony cases with no case maximum, and the Commission reimburses compliant counties for a portion of their annual expenditures on appointed counsel.

 

Each county in Ohio is required to have a fee schedule for court-appointed counsel. In addition, the Ohio Public Defender Commission sets a non-binding, recommended maximum fee schedule for appointed counsel, which was last updated in April 15, 1996. The Commission's recommended rates are currently $40 per hour out of court and $50 per hour in court. Recommended per case maximums in non-capital felony cases are: murder - $3,000, aggravated felony (first, second and third degree felonies) - $2,000, other felonies - $1,500. Some counties pay lower rates than suggested by the Commission, and a few pay higher rates. The Ohio Public Defender reimburses counties for up to 50% of the state or county rate (whichever is lower) paid to court-appointed counsel. Attorneys may petition the court for a waiver of the maximum if their county has an extraordinary fee clause in its fee schedule.

The Ohio Public Defender Commission's 1996 Annual Report lists the hourly rates paid in each county for felonies, misdemeanors, juvenile, appeals, death penalty and other cases. The average hourly rate for non-capital felonies paid among the counties in 1996 was $28.

 

Combination System

In five states (Alaska, California, Iowa, North Dakota and Oklahoma), there is a combination of more than one conflict case model and therefore no way to succinctly characterize the hourly compensation paid to court-appointed counsel.

 

In Alaska, non-capital felony cases not handled by the statewide public defender are handled by one of three types of counsel: staff, contract and "volunteer." The Office of Public Advocacy (OPA) has staff lawyers who handle a limited number of conflict cases. The OPA contracts with other lawyers at rates ranging between $65-$100 per hour, depending on the experience of the lawyer and his or her location. Lawyers who volunteer to take appointed cases and are not under contract are paid $50 per hour for out of court work and $60 per hour for work in court. There are different maximums for various types of cases for volunteer lawyers; $4,000 is the outside maximum, however, the maximum will be waived for cases with extraordinary circumstances.

 

In California, trial-level indigent defense representation is organized at the county level. The majority of counties have a public defender, and several counties have a second public defender to handle conflict of interest cases. Orange County has a public defender system that is organized into three segments, enabling it to handle up to three co-defendants without going to outside counsel. Some counties pay conflict counsel hourly rates, while others contract with lawyers who accept case assignments and receive flat fee-per-case payments.

Orange County compensates conflict counsel according to a flat fee schedule which pays $470 for a felony resolved in municipal court or for a certified plea, $1,160 for a felony bound over to superior court where there is a plea before a jury is selected, and a $365 per day per diem on top of the $1,160 for a case that goes to trial. The contracts also provide for extraordinary circumstances which must be approved by a judge. In San Francisco court-appointed counsel receive $65 per hour for work on regular felonies and $80 per hour for work on serious felonies. There are no per case maximums imposed. Rates are set by the San Francisco Bar Association, which administers the assigned counsel panel and takes a two percent administrative fee from each payment to panel lawyers. The court forwards the payment to the Bar.

 

In Iowa, state statute authorizes the district court judge to establish the rate of compensation for court-appointed counsel. In addition, pursuant to Rule 6 of the Guidelines - Costs of Court-Appointed Counsel, the Supreme Court is required to periodically promulgate guidelines which include a range of rates to be paid court-appointed counsel. These guidelines, last changed in 1987, set the hourly fee range between $40 and $60 per hour with no per-case maximum.

Since 1992 in Iowa, the state public defender has contracted with private attorneys to provide indigent defense services at the rate of $45 per hour for the majority of cases. (Attorneys handling Class A felony cases are paid $55 per hour and attorneys handling Class B felony cases are paid $50 per hour.) In 1996, the state legislature authorized the state public defender to set the rates paid to all court-appointed counsel, whether or not they work under contract with the public defender. The rates currently paid to non-contract counsel are the same as those paid to contract attorneys. Currently there is no per case maximum.

Now, although the supreme court guidelines remain in effect, and the $45 per hour rate falls within the guidelines, judges have virtually no say over the rate authorized in court-appointed counsel cases. Previously, many judges opted to pay rates at the upper end of the range rather than the lower end. The governor in 1997 vetoed legislation granting an increase from $45 to $55 per hour for non-contract attorneys in non-A and B felonies and a $60 per hour rate for A and B felonies.

 

In North Dakota, the vast majority of conflict cases are handled by contract attorneys working under two-year contracts in the state's seven judicial districts. In 1981 the North Dakota Supreme Court's advisory commission on indigent defense first established a guideline for the hourly rate paid to (those few) attorneys who are appointed outside of the contracts. The guideline was $50 per hour, and that was recently increased to $75 per hour. Actual payments range between $40 per hour and $85 per hour.

 

In Oklahoma, a statewide program, the Oklahoma Indigent Defense System (OIDS), is responsible for all indigent defense representation in 74 of the state's 77 counties. Counsel in these counties who are appointed by the court to felony cases are expected to be paid statutory rates of compensation ($40 per hour out of court and $60 per hour in court with a $3,500 maximum). However, the majority of cases in these counties are handled by attorneys who work under annual contracts with OIDS, and receive significantly lower per-case payments than if they were working under the hourly amounts. Conflict counsel in the three other counties, which include Oklahoma and Tulsa counties, are paid various rates.

 

The Federal Model: the Criminal Justice Act

The approach to appointing private counsel to represent indigent defendants charged with federal crimes is very similar to the "statutory hourly rate" approach used in a number of states. At the federal level, the Criminal Justice Act of 1964 (U.S.C. §3006A) authorizes payment for representation of indigent defendants accused of committing crimes. Under the Act, each United States district court is required to develop a plan for furnishing counsel and investigative, expert and other services necessary for adequate representation in trial and appellate proceedings. The Criminal Justice Act (CJA) authorizes three methods for a court to provide counsel to indigent defendants: a Federal Public Defender Organization, a Community Defender Organization, and a panel of private attorneys.

Roughly half of the 94 federal judicial districts operate a Federal Public Defender Organization. A Federal Public Defender Organization consists of one or more full-time, federal salaried attorneys who are prohibited from having private law practices. The head of a Federal Public Defender Organization, the federal public defender, is appointed by the respective court of appeals to a renewable four year term and is paid a salary fixed by the court of appeals at a rate not greater than that of the United States attorney (prosecutor) for that district. A Federal Public Defender Organization operates under a budget approved by the Administrative Office of the United States Courts.

A Community Defender Organization (CDO) is a non-profit legal services organization incorporated under state laws and supervised by a board of directors. Nine CDOs currently serve 10 of the nation's judicial districts. CDOs may operate under grants approved by the Judicial Conference or they may opt to be reimbursed for their services on a case-by-case basis under the statutorily prescribed hourly rates which also apply to CJA panel attorneys.

CJA panel attorneys serve every district in the federal court system. In those districts where there is a Federal Public Defender Organization or a Community Defender Organization, panel attorneys are appointed to handle those cases in which the institutional defender has a conflict of interest -- approximately 25% of all cases. They handle all of the indigent defendant cases in those districts without a CDO or Federal Public Defender Organization.

Private attorneys are appointed on a case-by-case basis by a district court or court of appeals from a panel of lawyers approved by the court as qualified to handle federal criminal cases. Panel attorneys are reimbursed for each hour of legal work performed, typically at $40 an hour out of court and $60 an hour in court, but rates as high as $75 an hour may be authorized. They are also entitled to reimbursement for out-of-pocket expenses, such as travel. In order to receive payment for their services, panel attorneys submit vouchers to the clerk of the appointing court, specifying the number of hours devoted to the case and any accompanying expenses. Attorneys may receive up to $3,500 for felony cases, $2,500 for appeals and $1,000 for misdemeanor cases. These ceilings may be exceeded in complex or extended cases upon application to the court.

 

Conclusion

Standard 5-2.4 of the American Bar Association Standards for Criminal Justice, Providing Defense Services, Third Edition states, "Assigned counsel should receive prompt compensation at a reasonable hourly rate and should be reimbursed for their reasonable out-of-pocket expenses. Assigned counsel should be compensated for all hours necessary to provide quality legal representation..." This standard provides a measure against which jurisdictions can evaluate their compensation rates for court-appointed counsel.

This narrative and accompanying chart illustrate the different approaches throughout the states in compensating non-public defender counsel who represent indigent defendants in non-capital felony cases. As the chart shows, many states have established hourly rates and a per-case maximum, but in only three of these states - Alabama, Mississippi and Virginia - is there no possibility of waiving the maximum upon a showing of extraordinary circumstances. Recent litigation in Alabama and Mississippi challenging the constitutionality of the fee caps failed to increase or eliminate the per-case maximums, but succeeded in entitling court-appointed counsel to receive reimbursement for overhead costs. In addition to submitting vouchers for payment of attorneys' fees, counsel in Alabama and Mississippi submit vouchers for reimbursement of overhead costs for every hour worked. Wilson v. State, 574 So.2d 1338 (Miss. S.Ct., 1990), May v. State, 672 S. 2d 1307 (Ala. App. 1993), cert. denied, May v. State, 672 S. 2d. 1310 (Ala. 1995). See also State v. Lynch, 796 P.2d 1150 (Oklahoma S.Ct., 1990). There has been a significant amount of litigation concerning compensation for court-appointed and conflict counsel, and the Appendix to this narrative provides a partial listing of such litigation.

The use of an hourly rate for attorney’s fees plus a separate hourly rate to cover overhead is the system endorsed by the 1992 Interim Report of the Committee to Review the Criminal Justice Act of the Judicial Conference of the United States. The nine-member Committee was appointed by Chief Justice William H. Rehnquist to conduct a comprehensive analysis of the CJA program and to recommend appropriate legislative, administrative and procedural changes to the United States Judicial Conference. The Committee’s report recommended enactment of a statutory method that ensures CJA panel attorneys a fair hourly fee over and above their reasonable overhead. One approach the report supports is the use of a national presumptive overhead figure, such as $25 an hour, which could be tailored on a regional basis using empirical data contributed by local bar associations, chambers of commerce and the CJA panel entity in a federal district. The overhead rate would be paid in addition to the compensation rate.

Finally, it is important to mention one concern with the court-appointed counsel compensation system, which is the potential for conflict of interest when judges approve the compensation and reimbursement claims of panel attorneys who appear before them. The Interim Report of the Committee to Review the Criminal Justice Act pointed out that when a judge approves a fee that is less than the amount sought, counsel may – rightly or wrongly – perceive the reduction as an "admonition, rebuke or retaliation for defense tactics." Judges, however, sometimes feel justified in cutting vouchers they feel are excessive for the type of case handled, relying on their own view of "what a case is worth." This practice, if done routinely, effectively reduces the authorized hourly rate or per-case maximum. The Committee addressed this issue by recommending utilization of a local administrator to review interim and final vouchers and to certify final payments. The Committee’s report further recommended implementing a procedure to notify an attorney of the intent to reduce a payment to him or her and the reason for the reduction. In such a system, the attorney would have the opportunity to appeal a decision to reduce a voucher and judges would have the opportunity to comment on the administrator’s initial determinations for payment.

Responding to the review committee’s recommendations in the March 1993 Report of the Judicial Conference of the United States on the Federal Defender Program, the Judicial Conference rejected the proposal for local panel administrators but endorsed the recommendation that CJA panel attorneys receive compensation which covers reasonable overhead and a fair hourly fee.

 

By The Spangenberg Group,
Marea L. Beeman and
David J. Carroll

 

The Spangenberg Group is a public policy research firm located at 1001 Watertown Street, West Newton, MA 02165, (617) 969-3820. This report was prepared for the American Bar Association Bar Information Program.

Selected Case Law Concerning
Indigent Defense Counsel Compensation

State Ex Rel Stephen v Smith, 747 P.2d 816 (Kansas S.Ct., 1987).
State v. Lynch, 796 P.2d 1150 (Oklahoma S.Ct., 1990).
State v. Ryan, 444 N.W. 2d 656 (Nebraska, 1989).
State v. Smith, 681 P.2d 1374 (Arizona, 1984).
Wilson v. State, 574 So.2d 1338 (Miss. S.Ct., 1990).
May v. State, 672 S. 2d 1307 (Ala. App. 1993), cert. denied, May v. State, 672 S. 2d. 1310 (Ala. 1995).
In re: Rhem v. County of Richardson, 410 N.W.2d 92 (Neb. 1987).
Zarambia v Superior Court, 912 P.2d 5 (Ariz. 1996).

 

Last Chance to Renew Subscriptions

 

Subscribers to the Criminal Defense Newsletter, SADO Summaries Service, and Web Services should make sure that their 1997-98 renewal has been paid, as non-renewed subscribers will be dropped in early March. If you aren’t sure about your subscription status, please call Maria Sanchez at (313) 256-9833, or send her an e-mail message at maria@sado.org.


Request for Information:
Assigned Trial Counsel Fees in Michigan

 

As part of our series on assigned counsel fees, both nationwide and in Michigan, the Criminal Defense Resource Center is collecting fee schedules and contracts for all Michigan circuits. We’ve had a good response from many courts, but could use some help from attorneys practicing in the circuits listed below. Please send us a copy of the schedule or contract(s) currently in use for the following circuits:

7th Genesee County
8th Ionia and Montcalm Counties
10th Saginaw County
15th Branch County
19th Benzie and Manistee Counties
20th Ottawa County
21st Isabella County
24th Sanilac County
29th Clinton County
30th Ingham County
34th Arenac, Ogemaw and Roscommon Counties
35th Shiawassee County
37th Calhoun County
42nd Midland County
44th Livingston County
45th St. Joseph County
46th Crawford, Kalkaska and Otsego Counties
47th Delta County
48th Allegan County
49th Mecosta and Osceola Counties
51st Lake and Mason Counties
52nd Huron County
54th Tuscola County
55th Clare and Gladwin Counties

 

Proposed Legislative Sentencing Guidelines Available,
Useful as Secondary Authority

While they have not yet been adopted by the Michigan Legislature, legislative sentencing guidelines proposed by the Michigan Sentencing Guidelines Commission are now available for use and analysis by practitioners. The massive overhaul of the guidelines scheme has produced a number of proposed changes, including the inclusion of expunged convictions and adjudications, and habitual offender grids. We reviewed the proposed changes in the November, 1997, newsletter.

Scoring of some offenses and offenders may produce recommendations of sentences lower than those recommended under the current scheme. Attorneys are well-advised to obtain at least the abridged copy of proposed guidelines, which will permit calculation of guidelines recommendations under the new scheme, perhaps helpful for persuasive effect. The abridged version (approximately 80 pages) is available from the Criminal Defense Resource Center for $7.00 (check payable to "State of Michigan.") The full report (several hundred pages) is available from the Sentencing Guidelines Commission for $15.00. Call the Commission at (517) 373-7676 for more information or to order a copy.

Reports and Studies: National Prison and Jail Populations Up

Releasing its new data on January 18, 1998, the United States Justice Department’s Bureau of Justice Statistics reported a significant increase in the number of prisoners serving time in the nation’s state and federal prisons and jails. With a total of 1,725,842 imprisoned, 96,100 more prisoners were in custody as of June 30, 1997 than was the case in June of 1996. During that year, the number of prisoners in state and federal prisons grew by 4.7 percent, somewhat less than the annual average increase since 1990 of 7.7 percent. During the same period, the number of local jail inmates grew by 9.4 percent, more than the 4.9 percent average annual growth since 1990. By midyear 1997, one in every 155 United States residents was behind bars. More information and the complete report are available on the Web at http://www.ojp.usdoj.gov/bjs/.

 

More than just a new look:

Newsletter changes feature faster delivery, as well as updated format

Readers of this month’s newsletter will notice a new look to the publication, the first major reformatting in over a decade. We took a hard look at both organization and presentation, and came up with a cleaner, more organized product. We hope you enjoy the new look!

Better yet, we’ve made new printing and mailing arrangements which should significantly improve the timeliness of newsletter delivery. Where it once took up to a month between final editing and receipt in readers’ hands, our turnaround has been reduced to approximately one week. This should make newsletter information and news much more useful to criminal defense attorneys wishing to stay on top of new developments and case law.

I welcome your feedback: send me a message at dvanhoek@sado.org, or a note at the address appearing on the back cover. Thanks for your continued support!

 

Dawn Van Hoek, Editor

 

Criminal Defense Online

 

New in Database: Appellate Assigned Counsel Fees

Updated information about the fees paid to attorneys accepting assigned criminal appeals is now available on SADO’s Web site, http://www.sado.org. The data was compiled by the Michigan Appellate Assigned Counsel System, which surveyed all Michigan circuits, and was released in August of 1997. Included in the data is type of payment (hourly, contract for percentage of cases), whether payment is authorized for expenses, actual fees authorized, and much more. The appellate assigned counsel fee chart appears in the online database, and also on pages devoted to bulletins and finding criminal defense attorneys in Michigan.

New on Links Page: Updated Links to Useful Sites

Our review of legal research on the Web has produced an updated list of links to sites which provide useful information to criminal defense attorneys. Much more is available now than was available when we built the original list. We’ve organized links into state and federal categories, providing a quick way to find what you need. Rather than listing all sites which might provide access to a particular database (United States Supreme Court decisions, for example), we list only the best. This screening function makes the SADO Links page a very good place to start your online research.

 

Finding an Attorney Page: New Clients Find Attorneys

More than twenty criminal defense attorneys who have their own Web pages currently appear on the SADO "Finding Criminal Defense Attorneys in Michigan" page. Public interest in the list is growing, as evidenced by the number of "hits" tracked by our reporting program. Better yet, at least one of the attorneys on the list reports that he has had several retained clients find him through the Web page listing. Criminal defense attorneys who are serious about advertising/marketing their services should consider making a Web page part of the plan. SADO offers a Web page design kit to attorneys for $30; fill in the requested information and we will create the page and host it on our Web server. If you develop one on your own, provide your URL to us and we will add the link.

Questions about any of the Web services should be addressed to John Powell, who may be contacted at either (313) 256-9833 or by e-mail at john@sado.org.

 

New and Interesting in the Online Brief Bank

 

Attorneys with online access to the SADO Brief Bank may be interested in the following issues recently filed by SADO attorneys. This is just a sampling of the hundreds of pleadings now available to registered criminal defense attorneys through SADO’s Web site, www.sado.org. Attorneys also may use the brief bank at SADO’s Detroit office, 3300 Penobscot Building, 645 Griswold, Detroit, during normal business hours.

Elements of Carjacking

The defendant’s conviction should be reversed where the trial court failed to instruct the jury that defendant must have had specific intent, as such an element must be read into the carjacking statute to uphold the intent of the Legislature and to avoid violating defendant’s due process rights by rendering the statute a strict liability offense. BB 8039.

Factual Basis for Guilty Plea

The defendant is entitled to plea withdrawal where the court failed to question him and establish support for a finding that he was guilty, as the asking of leading questions by defense counsel, where defendant merely answers yes or no, is insufficient to satisfy the court rule requirements regarding an accurate plea. BB 8249.

Unsigned Warrant Affidavit

The defendant’s state and federal constitutional rights to be free from unreasonable search and seizure were violated when police searched a residence, pursuant to a warrant, where the underlying affidavit was unsigned. BB 8245.

Conduct of Trial Spectators

Where the judge allowed spectators in the courtroom to display blown-up photographs of the deceased women in the jury’s presence, the trial judge failed to control the courtroom and deprived the defendant of his due process right to a fair trial. BB 8241.

References to OJ Trial

The trial court and the prosecutor denied defendant a fair trial by referring repeatedly to the O.J. Simpson trial, which was highly prejudicial where the defendant is black and his jury was all white. BB 8242.

Impeachment with Prior Similar Offense

The defendant was denied his due process right to a fair trial, where he was impeached with a nine-year-old conviction for unarmed robbery, which had little bearing on his character for truthfulness and which was unfairly prejudicial because of its similarity to the armed robbery charge for which he was on trial. BB 8252.

Drug Profile Evidence

The trial court abused its discretion when it denied defense counsel’s motion for mistrial, where the trial court qualified all K-Vet officers to testify as expert witnesses regarding drug profile evidence; or, defendant’s trial attorney was ineffective in not clearly objecting to drug profile testimony. BB 8248.

 

In a Manner of Speaking

 

Pulled from the archives of submissions is this gem, sent in by Cadillac attorney Roger Wotila. A local newspaper was covering a murder allegedly committed by a motorcycle gang. While the police had some physical evidence of the murder, including strong testimony from eye witnesses, the body had not been located. One of the headlines in the series:

Murder Victim Eludes Police

Have you an amusing anecdote, quotation or transcript excerpt? Consider passing it along to us for publication in the Criminal Defense Newsletter, anonymously if you wish. Contributions should be addressed to Dawn Van Hoek at the Criminal Defense Resource Center, 3300 Penobscot Building, 645 Griswold, Detroit, MI 48226.

 

 

Circuit Court Opinion of the Month:

Restoration of Driving Privileges Following Revocation

This month’s featured opinion reveals the care which should be exercised in defining burdens of production, proof and statutory presumptions. Ruling in an appeal from a hearing officer’s refusal to reinstate the petitioner’s driving privileges, Kent Circuit Judge Dennis C. Kolenda found an error of law which required remand for application of the correct standard. Hoebbel v Secretary of State, No. 97-09102-AL, 12-31-97. The Hoebbel ruling was applied in another case, Bunce v Secretary of State, No. 97-09848-AL, 1-2-98, with additional analysis supplied by Judge Kolenda.

Petitioner Hoebbel’s driver’s license was revoked in June of 1995 for one year, as he was convicted for a second time within three years of drunk driving. His petition for restoration of driving privileges, made one year later, was denied. One year after that, in August of 1997, he again filed a petition, submitting an alcohol assessment, letters of support from family and friends, and verification of regular attendance at AA. When the hearing officer refused to reinstate his privileges, despite the absence of proofs from the respondent, Hoebbel appealed to circuit court.

A fundamental defect characterized the hearing officer’s ruling, according to Judge Kolenda, as it imposed too high a burden on the petitioner. The relevant statute, MCL 257.303(1)(f); MSA 9.2003(1)(F), provides that two drunk driving convictions within seven years are "prima facie evidence" that a person is an "habitual violator" who should be barred from licensure. Rejecting Hoebbel’s petition, the hearing officer found that he had failed to rebut the habitual violator presumption by clear and convincing evidence. This ruling was at odds with Michigan jurisprudence which interprets such statutory language to impose no more than a burden of going forward, Judge Kolenda ruled. Once Hoebbel introduced evidence that he is not an habitual violator of drunk driving laws, the Secretary of State had to prove that he in fact is such a violator. In other words, as Judge Kolenda elaborated in Bunce, petitioners do not have the burden of proving their entitlement to a license, but only a burden of production which, if met, leaves the respondent the burden of proving that a license cannot be issued. Judge Kolenda relied on appellate authority interpreting statutory presumptions, precedent of which the legislature must have been aware, and precedent which could not be "overruled" by regulations.

Retaining jurisdiction, Judge Kolenda directed the hearing officer to determine whether, in light of Hoebbel’s evidence, "it can be said that his driving record alone proves by a preponderance that he remains an habitual violator of this State’s driving laws:"

His [petitioner’s] history is evidence of that ultimate fact, but, petitioner having provided adequate responsive evidence, that history is no longer a basis for a presumption, just an inference. That inference must be measured against the evidence presented by petitioner to determine if, everything considered, the inference remains sufficiently persuasive. It is sufficiently persuasive if, but only if, there is, in the evidence taken as a whole, a principled basis for the hearing officer to conclude that petitioner’s two convictions earlier this decade, standing by themselves, outweigh the evidence presented by petitioner.

The petitioner in Hoebbel is represented by Amy Rademaker; counsel in Bunce is Duane Carr. An application for leave has been filed in Hoebbel. Attorneys wishing a copy of the opinions should contact the Criminal Defense Resource Center.

 

From Our Readers: Term Limits

Barring unlikely court action negating term limits, over 60 of the current 110 state representatives sitting in the Michigan House will not be able to run for their seats in November of this year. As a result, next January the House will have a majority of fresh faces. Predicting in advance which party will have control will be a difficult task.

One of the primary stated reasons for term limits is to increase citizen involvement. Attorney involvement in the political process, and in the legislature, is historic and desirable. As noted in an article in the December, 1997, issue of the Michigan Bar Journal (Kelley and Haynes, "An Interview with Bruce Neckers," 76 MBJ 12 at 1342), eleven of the term limited house members are lawyers. If no lawyers are elected to the House in November, attorney representation in the legislature will be reduced to a handful. Attorneys, particularly criminal defense practitioners, should treat this as a wake-up call.

As criminal defense practitioners we know all too well the effects of recent legislative action. Prosecutors have gained more legislative clout and have been able to secure substantial additional powers. Recently, thirteen prosecutors from around the state met with Senate Democrats to push for longer and more mandatory sentences, stricter corrections and parole policies and more procedural advantage. The criminal defense bar must get more involved in the legislative process if we are to restore a semblance of balance to it for the sake of all our citizens.

Defense practitioners should give consideration to running for the state House. At a minimum, criminal defense attorneys must become more active in the process. You should speak with candidates for these offices. Find out what their views are on the state's current criminal justice and corrections policies. Make a decision about which candidate and party you can support and become active in the campaign. And stay involved with your legislator after the election. Let him or her know where you stand on critical criminal justice issues.

If the criminal defense bar can send some representatives to Lansing and develop a base to provide accurate information and research on critical issues to the legislature, we can go a long way toward improving the quality of justice for all of Michigan!

 

By Gail S. Benson and
Frank Harrison Reynolds

Tired of talking to yourself? Talk to other readers or the editor by sending a letter to the Criminal Defense Resource Center, for publication in the Criminal Defense Newsletter. The letter can take any form you wish, from requesting help with a legal issue, sharing a successful tactic, posing a rhetorical question, to simply blowing off steam. Address letters to the Editor, Criminal Defense Newsletter, 3300 Penobscot Building, 645 Griswold, Detroit, MI 48226.

 

Legislative Update

 

Bills and Resolutions to Watch

 

Plea and Arraignment by Telephone

SB 536 unanimously passed the Senate on December 10, 1997. This bill would allow for bail hearings and arraignments by telephone or, if an individual is incarcerated outside the jurisdiction, arraignment by mail or document filed with the court. In all instances, the defendant must by personally present upon request. The portion of this bill that allowed for pleas by telephone was eliminated, thanks to testimony by SADO's Marty Tieber.

Restitution

SBs 780 and 781 also unanimously passed the Senate on December 10, 1997. These bills would allow the imposition of a conditional sentence ordering the person to pay a fine and restitution to the victim under the Crime Victims Rights Act. If the person goes in default of payment, he or she would be sentenced as provided by law.

Trademark Counterfeiting

On December 3, 1997, the Senate concurred in the House amendments to HBs 4278 and 4279. The bills, which permit forfeiture for trademark counterfeiting violations, have been enrolled and presented to the Governor. They became 1997 PA 155 and 156, effective March 1, 1998.

Controlled Substances

SBs 280 and 281 were reported by the House Judiciary Committee on December 2, 1997, with substantial amendments to the Senate versions. The House Judiciary amendments would remove all mandatory minimums and would also remove mandatory consecutive sentence requirements. Those individuals currently under sentence could be parole-eligible after 15 years and the prosecutor would not have complete control over this process. The link to truth-in-sentencing/bad time for all crimes was eliminated, along with the draconian parole measures inserted on the Senate floor. The House adjourned on the evening of Wednesday, December 10th, without voting on these bills. Apparently negotiations continue. The session resumes on January 20, 1998. Additional detail can be obtained from attorney Marty Reisig or Laura Sager of FAMM (Families Against Mandatory Minimums) at (517) 482-4982.

HB 4065 was unanimously passed by the House on December 10, 1997. This bill would classify the "date rape" drugs, rohypnol and methaqualone, as schedule 1 controlled substances and prohibit delivery of certain controlled substances in order to commit or attempt to commit criminal sexual conduct. As passed by the House, the bill provides for a life sentence or a term of years not less than 20 for over 650 offenders.

Witness Immunity

SBs 473-476 passed the Senate on December 10, 1997, on votes of 31-6 (three bills) and 30-6. SADO has received negative feedback from Ken Mogill and Dave Lawson on these bills, which would provide witness immunity in various proceedings. The language of each of the bills deletes the statutory provisions granting transactional immunity to witnesses whose testimony is compelled and replaces it with use/derivative use immunity. Also, bills 473 and 474 delete the requirement that the immunized testimony be transcribed and furnished to the witness except at the judge's discretion. SB 474 also creates a secrecy requirement that a witness may not disclose the subject matter of his or her testimony to his or her attorney unless the immunized testimony is actually used against the witness in violation of the order granting immunity. SADO's Marty Tieber has relayed this feedback to Suzanne Lowe at the Senate Fiscal Agency and requested from the House Judiciary Committee advance notice of the next hearing date.

Juror Boards

SB 312 was passed by the Senate on December 10, 1997, by a close vote of 19 to 18. This bill would eliminate juror boards and appoint the County Clerk as the individual responsible for compiling lists of potential jurors.

District Court Jurisdiction

SBs 537-539 were reported by the Senate Judiciary Committee on December 2, 1997. These bills would allow district courts to have concurrent jurisdiction over minor (underage) smoking violations.

Assisted Suicide

SB 200 passed the Senate on December 4, 1997, on a bipartisan 28 to 7 vote, after lengthy and emotional debate. The bill, which would prohibit assisted suicide and provide penalties, was referred to the House Judiciary Committee on December 9, 1997.

Sentencing Guidelines

SBs 825-827, dealing with the enactment of legislative sentencing guidelines and truth-in-sentencing [summarized in the December Criminal Defense Newsletter], were passed unanimously by the Senate on December 10, 1997 and referred to the House Judiciary Committee.

Impersonating a Public Utility Employee

SB 6, which would penalize individuals for impersonating a public utility employee in order to commit a crime, passed the House on December 3, 1997, and the Senate concurred in House amendments on December 4, 1997. On December 30, 1997, the bill, now 1997 PA 159, was signed, filed, and given immediate effect.

Explosives Violations

SB 97 was reported by the House Judiciary Committee with a substitute on December 9, 1997, and would increase penalties for certain explosives violations.

Personal Injury Actions filed by Criminal Defendants

SB 718 passed the Senate on December 10, 1997, and would require a court to dismiss a civil action brought by a criminal defendant for personal injury or death occurring during commission of or flight from a felony.

Spousal Privilege

HB 4837 was moved to third reading on the House floor and is poised for passage in January. This bill would exempt spousal privilege for offenses involving minors under the care of one spouse.

 

By Marty Tieber and Susan Walsh
Mr. Tieber may be contacted at (517) 334-6069 or marty@sado.org.

 

From Other States

 

New York: No Interrogation on Unrelated Offense without Counsel

Going beyond what the United States Supreme Court has required under the federal constitution, the New York Court of Appeals interpreted that state’s constitution to suppress the fruits of counselless interrogation on an offense unrelated to the one on which the defendant was jailed. In one of two cases resolved, the defendant was in custody on a rape charge and had counsel appointed for him. Police officers investigating a murder met with him and obtained incriminating statements about that offense. Once counsel has been appointed, the New York court ruled, a defendant who is in custody may not be questioned about any matter in the absence of counsel. The court’s majority noted that clarity is important for both individual and public interests, and declined the prosecution’s invitation to confine the rule to situations in which an attorney, in some active fashion, interjects into the process and asks police to cease questioning. The defendant was not in custody in the second case, but his attorney had advised police that no questioning was to take place in his absence regarding a particular robbery. Police intermingled questions about both that robbery and a later robbery-murder, where they had information that a gun taken in the former was used in the latter. The murder confession was suppressed, as the questioning was "integrated and intertwined." People v Burdo, ___ NY2d ___, ___ NYS2d ___, ___ NE2d ___ (1997 WL 677307, 10-30-97) and People v Cohen, 90 NY2d 632, 665 NYS2d 30, 687 NE2d 1313 (1997).

 

Eighth Circuit: Government Lawyers Not Exempt from Rules Barring Contacts with Represented Persons

In a case proving some impetus for ethics rule changes, the Eighth Circuit Court of Appeals ruled recently that the Department of Justice may not exempt federal government lawyers from state legal ethics rules which forbid ex parte contacts with persons represented by counsel. Since at least 1980, the DOJ has maintained that the rules don’t apply; regulations recently replaced the "Thornburg Memorandum," both of which granted lawyers the authority otherwise denied. Ruling in O’Keefe v McDonnell Douglas, ___ F3d ___ (#97-2261, 1-6-98), the Eighth Circuit ruled that the attorney general simply lacked the authority to issue the regulation. It specifically rejected the argument that no more than a "housekeeping" matter was involved, and therefore authorized by the 1789 "Housekeeping Statute." That law was intended to allow an agency to regulate its own administrative affairs; it could not be used here in a substantive manner to exempt government lawyers from rules which bind all other litigants. The challenge was raised with regard to statements made by present and former low-level employees of a contractor. The court affirmed a district court order to cease ex parte contacts and provide discovery of the fruits of contacts already made. The Conference of Chief Justices is considering a proposed revision of the Model Rules of Professional Conduct which would widen the scope of permissible ex parte contact. The draft rule would serve as an example for states, which may or may not change their ethics rules. See report at 62 CrL 1323.

 

Practice Note: Defense Contact with Prosecution Witnesses

This month’s practice note springs from a recent discussion on SADO’s Forum, the online discussion group for criminal defense attorneys. The discussion revolved around whether defense counsel needs permission to interview prosecution witnesses. Many attorneys responded with the advice that neither notice nor permission is required, as defense counsel has an obligation to investigate a case before trial. One attorney cited People v Leo, 188 Mich App 417 (1991) as authority for the advice. A review of that case reveals relatively little analysis and a less-than-clear ruling; while witnesses said that they "had to talk with someone first" before granting a defense interview, the Court of Appeals found no clear evidence that the "someone" was the prosecutor.

Much more guidance was provided recently by a secondary, but very persuasive authority; namely, the State Bar’s Committee on Professional and Judicial Ethics. On October 20, 1997, it released RI-302, an informal ethics opinion, in response to a criminal defense attorney’s questions. The syllabus for the opinion states:

It is not professional misconduct for a criminal defense lawyer to communicate ex parte with a complaining witness without notice to or consent of the prosecutor.

In any contact by a criminal defense attorney with a complaining witness, the lawyer must make it clear that the lawyer represents the defendant in the criminal case, and the lawyer must not use any deception, give any advice, request the witness to testify falsely or to refrain from giving information to the prosecutor or offer any inducement that is prohibited by law.

It is not professional misconduct for a criminal defense lawyer to inquire whether the complaining witness wishes to have the prosecution of the case continue or to request that the complaining witness ask the prosecutor to dismiss the charges.

It is professional misconduct for a prosecutor to request or to advise a complaining witness to refrain from talking with the defendant or defense lawyer, or to urge a law enforcement officer to make, or to knowingly acquiesce in a law enforcement officer making such a request or giving such advice.

Text of the full opinion is available from the Bar [call (517) 372-9030] or on the State Bar of Michigan’s Web site, http://www.michbar.org.

 

Training Events

 

The Macomb County Bar Association (MCBA) will present Bruce Cutler, attorney for John Gotti (aka "The Teflon Don"), at a dinner meeting on February 26, 1998, in Warren, Michigan, starting at 5:30 p.m. Members of the SADO Forum and MCBA members may attend for the special rate of $25 by registering in advance; non-members pay $35. Call (810) 468-2940 for more information or to register.

The American Bar Association’s Criminal Justice Section and the Center for Continuing Legal Education will present the Twelfth Annual White Collar Crime Institute on March 5-6, 1998, in San Francisco, California. The full-day sessions will address a wide variety of subjects, including representing corporations in complex white collar cases, technology crime, health care fraud, post-indictment discovery, campaign contributions law, defenses, criminal tax enforcement, avoiding indictment, insurance fraud, sentencing guidelines, and environmental and antitrust enforcement. The Institute is attended by over 500 persons, including judges, federal and state prosecutors, defense attorneys and corporate in-house counsel. Tuition ranges from $625 (general public) to $525 (Section Member), and some scholarships are available. For more information, call (800) 285-2221.

The National Criminal Defense College will present "Advanced Cross-Examination 1998," on March 13-15, 1998, in Atlanta, Georgia. The seminar will present a comprehensive approach to the "why and how" of cross-examination, using lectures, demonstrations and videotaped workshops. Tuition is $475. Register early for this popular seminar by calling NCDC at (912) 746-4151.

The Center for Legal Studies of Wayne State University will present a luncheon lecture by Political Science Professor Susan Fino on "Crackpot Science in Legislatures and Courts," at 12:00 p.m. on March 16, 1998, in Detroit, Michigan. The lecture takes place in the McGregor Memorial Conference Center on Wayne's campus, and is free. For more information, contact the Center at (313) 577-3947.

The Wayne State University School of Medicine, Michigan State Police and the Fraternal Order of Police will present "Medicolegal Investigation of Death," a popular annual seminar, on March 19-20, 1998, in Detroit, Michigan. With a faculty including Forensic Pathologist Werner U. Spitz, speakers will address gunshot wounds, differences between strangulation, smothering and hanging, death by fire explosion and mass disaster, injuries by knives and other sharp weapons, drowning, traffic accidents and child abuse, blood spatter evidence, DNA evidence, and much more. The seminar is targeted to anyone involved in death investigations, including attorneys, police and pro-secutors. Registration is $275, and the ac-companying textbook will be available for $75. Call (313) 577-1180 for more information or to register.

The Criminal Defense Attorneys of Michigan (CDAM) will host its Spring Training Conference at Novi’s Doubletree Hotel on April 3-4, 1998. Watch this space for details.

The National Association of Criminal Defense Lawyers (NACDL) will host "Post-Daubert Strategies for Winning Cases with Experts & Forensics," on April 22-25, 1998, in Santa Monica, California. A large faculty of nationally-known criminal defense attorneys will explore polygraph exams, syndrome evidence, use of experts in child sex offense cases, profile evidence, eyewitness and memory evidence, and DNA evidence. Call NACDL at (202) 872-8600 for more information.

The Appellate Bench Bar Conference Foundation will host the Second Biennial Appellate Bench Bar Conference on April 23-24, 1998 in Detroit, Michigan. This large conference will focus on Court of Appeals opinions, the Supreme Court's rule-making powers and aspects of the appellate court rules, applications for leave to appeal, advocacy skills, and criminal and family law. Many appellate judges will participate, and the format includes lectures and small-group workshops. Re-gistration for the conference is $195, which includes the Thursday luncheon, cocktail reception and dinner; an additional $20 covers Friday luncheon, which features a presentation on Automation in the Future. Registration is limited, and may be arranged by calling either Mary Massaron Ross, (313) 983-4801 or Jim Neuhard, (313) 256-9833.

The Louisiana Association of Criminal Defense Lawyers will host the eighth annual "Law & All That Jazz" on April 23-25, 1998 in New Orleans, Louisiana. The sessions feature nationally-prominent criminal defense attorneys, and they will discuss jury selection, ethics, "high-tech" demon-strative evidence, opening statements, and Fourth Amendment issues. Registration is $350 for non-members, and early registration is encouraged. The seminar takes place during the popular Jazz and Heritage Festival. For more information, call (504) 387-3261.

The National Criminal Defense College will present its annual Trial Practice Institutes, on June 14-27 and July 12-25, 1998, at Mercer Law School in Macon, Georgia. Each session is limited to 96 participants, who are divided into small groups according to trial experience. Small group exercises are supplemented by faculty lectures and demon-strations, and virtually all aspects of trial skills are covered during the two weeks. Each participant performs daily assignments under the supervision of the nationally-recognized faculty; faculty members rotate daily and exercises are videotaped. Tuition is $1,100 and housing at the nearby Crowne Plaza Hotel is $430 (double) or $840 (single). A limited number of scholarships are available. For more information, call NCDC at (912) 746-4151.

Gerry Spence will host his popular Trial Lawyer’s College at his ranch in Jackson, Wyoming, on August 1-31, 1998. With a faculty of well-known criminal defense attorneys, Spence will train a limited number of attorneys (48) who wish to develop their "own magic" as effective advocates. Applicants should have at least three jury trials in their background, and must apply with a letter explaining their experience and goals as a lawyer. Dormitory-style living arrangements at the ranch, and the chores assigned, are intended to remind lawyers that they are ordinary people representing ordinary people. Tuition is free, lodging and meals cost $2,900. For more information, call (307) 739-1870.

 

United States Supreme Court: Certiorari Granted

 

HABEAS CORPUS--Federal

Calderon v Ashmus
#97-391, 12-5-97
62 CrL 3093

At issue in the case is: (1) whether the Eleventh Amendment bars coercive suits that seek to prevent state officials from advocating their views on disputed issues of law that will arise and be adjudicated in the regular course of habeas litigation; and (2) whether an injunction barring one party from seeking favorable judicial rulings on disputed questions of law and procedure constitutes impermissible viewpoint-specific prior restraint on lawful advocacy. Case below: 123 F3d 1199 (CA9, 1997).

 

18 USC 924(c) (1) [Weapons Possession During
Drug-Trafficking]
FELONY FIREARM

Muscarello v United States
#96-1654, 12-12-97
62 CrL 3101

Granting review to the defendant, the Court agreed to consider whether there was a violation of 18 USC 924(c)(1), which imposes a five-year prison term on anyone who "carries" a weapon during and in relation to any drug-trafficking crime, where the defendant knowingly possessed a firearm in a locked glove compartment of a truck, but could not readily access it during commission of the underlying crime. Case below: 106 F3d 636 (CA5, 1997).

 

18 USC 922(a)(1)(A) [weapons dealer licensing]

Bryan v United States
#96-8422, 12-12-97
62 CrL 3101

The issues in the case are: (1) whether conviction for a violation of 18 USC 922(a)(1)(A) requires proof that a defendant was aware of the requirement of a federal firearms dealers license, but dispensed firearms without a license; and (2) whether the trial court erred in charging the jury that it need only find that the defendant acted "knowingly" and not "wilfully" in firearms trafficking without a license by declining to instruct the jury that it must find that petitioner knew he required a license. Case below: 122 F3d 90 (CA2, 1997).

 

18 USC 924(c) [weapons possession during drug-trafficking]
FELONY FIREARM

Cleveland v United States
#96-8837, 12-12-97
62 CrL 3101

Granting review to the defendants, the Court agreed to consider whether there was a violation of 18 USC 924(c), which prohibits carrying a firearm during and in relation to drug-trafficking, where defendants who admittedly intended to use guns to rob their drug suppliers lacked immediate access to the guns which were in an automobile’s trunk during transit. Case below: 106 F3d 1056 (CA1, 1997).

 

ARREST--Warrant Requirements

Ricci v Arlington Heights
#97-501, 1-9-98
62 CrL 3121

Granting review to the civil rights plaintiff, the Court agreed to consider: (1) whether the Fourth Amendment’s Reasonableness Clause incorporates the common-law rule prohibiting warrantless arrests in misdemeanor cases that do not involve a breach of the peace; and (2) whether a municipality may, consistently with the Fourth Amendment, require its police officers to make full custodial arrests for alleged violation of a fine-only ordinance, "in order to ensure compliance with the ordinance." Case below: 116 F3d 288 (CA 7, 1997).

 

 

WEAPONS--Possession by Felon or Inmate
18 USC 921(a)(20) [armed career criminal]

Caron v United States
#97-6270, 1-9-98
62 CrL 3121

The issue in the case is whether a Massachusetts ex-felon’s prior firearms convictions count as predicate crimes for the purpose of 18 USC 921(a)(20) [sentencing as an armed career criminal], where Massachusetts permits an ex-felon to obtain a firearms identification card and to keep and carry rifles and shotguns, but bans handgun possession by ex-felons outside the home or business. The focus is on whether the ban is a sufficiently substantial limit on firearms rights to require that the prior convictions count as predicate crimes. Case below: 941 FSupp 238 (D. Mass,1996).

 

United States Supreme Court: Opinion Summaries

 

APPEALS -- Standard of Review -- Abuse of Discretion
WITNESSES -- Expert
EVIDENCE -- Admissibility -- Scientific

 

General Electric Company, Et Al v Robert K. Joiner Et Ux
#96-188, December 15, 1997
62 CrL 2036

Reversed judgment of Court of Appeals reversing district court's order granting summary disposition for petitioners.

The district court did not abuse its discretion when it excluded expert testimony. Respondent worked for the electric company and came into contact with dielectric fluid which contained PCBs. He was diagnosed with lung cancer and claimed that his cancer was promoted by exposure to PCBs and their derivatives, furans and dioxins. However, respondent smoked for eight years and had a family history of cancer. The district court ruled inadmissible testimony of respondent's experts, and the Court of Appeals reversed, applying a "particularly stringent" standard of review to the trial court's exclusion of expert testimony. Abuse of discretion is the proper standard of review of evidentiary rulings, and Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), did not alter this general rule in the context of a decision to exclude scientific evidence. That the granting of summary judgment was outcome- determinative did not make a more searching standard of review necessary. In applying an overly stringent review to the district court's ruling, the Court of Appeals failed to give the trial court the deference that is the hallmark of abuse of discretion review.

Applying the abuse of discretion standard to the facts, the district court did not abuse its discretion in excluding testimony of respondent's experts. The animal studies upon which the experts relied involved infant mice that had been injected with massive doses of highly concentrated PCBs and developed a type of cancer different from respondent's cancer; thus, the studies were so dissimilar to the facts presented in this litigation that the district court did not abuse its discretion in rejecting them. The epidemiological studies did not support the experts' conclusions that respondent's exposure to PCBs caused his cancer. Conclusions and methodology are not entirely distinct from one another, and the district court did not abuse its discretion in concluding that there was too great an analytical gap between the data and the opinion proffered.

Whether respondent was exposed to furens and dioxins and whether, if there was such exposure, the opinions of the experts would then be admissible, remained open questions, necessitating a remand for proceedings consistent with the opinion.

Justice Breyer, concurring, discussed ways, such as seeking help from court-appointed scientific experts, in which district courts can better fulfill their "gatekeeper" role.

Justice Stevens, concurring and dissenting, agreed with the standard of review, but said that its application in this case should be done by the appeals court. Stevens also disagreed with the majority's blurring of the line between methodology and conclusions.

 

DOUBLE JEOPARDY - Multiple Punishment

 

Hudson, Baresel, and Rackley v United States
#96-976, December 10, 1997
62 CrL 2022

Affirmed judgment of Tenth Circuit Court of Appeals reversing dismissal of criminal bank fraud indictments. Case below: 92 F3d 1026 (1996).

The Double Jeopardy Clause of the Fifth Amendment was not a bar to later criminal prosecution following administratively imposed monetary penalties and occupation debarment for violation of federal banking statutes. The administrative proceedings were civil, not criminal. Petitioners used their bank positions to arrange loans to third parties in a manner that unlawfully allowed petitioner Hudson to receive the benefit of the loans. The illegal loans contributed to the failure of two banks of which Hudson was chairman and chief shareholder. Petitioners were assessed substantial monetary penalties and were barred from further participation in any "insured depository institution." Later, petitioners were indicted for misapplication of bank funds and making false bank entries, based on the same unlawful lending transactions. The indictments were dismissed by the District Court and the Court of Appeals reversed.

Affirming, the Court observed that the Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense. Congress intended these money penalties and debarment sanctions to be civil in nature. There was very little evidence, much less the "clearest proof," suggesting that either the money penalties or debarment sanctions were so punitive in form and effect as to render them criminal despite congressional intent to the contrary. The analysis adopted in United States v Halper, 490 US 435 (1989), was disavowed because it deviated from the traditional double jeopardy doctrine by bypassing the threshold question of whether the successive punishment at issue was a "criminal" punishment, and failing to evaluate the statute on its face. The Halper Court found the civil sanction in that case ($130,000 for defrauding the government of less than $600) to constitute "punishment" because it was so "overwhelmingly disproportionate" to the injury caused that it served retributive or deterrent purposes, rather than the remedial purpose of compensating the government for its loss. The Halper test for determining whether a particular sanction is "punitive" proved unworkable as it is not possible to determine whether double jeopardy is violated until a defendant has proceeded through trial to judgment. Moreover, some of the ills at which Halper was directed are addressed by other constitutional provisions, such as the Due Process Clause, the Equal Protection Clause, and the Eighth Amendment.

Justice Scalia, joined by Justice Thomas, concurred, but would conclude that double jeopardy prohibits successive prosecution, not successive punishment.

Justice Stevens, concurring in the judgment only, would have disposed of the double jeopardy claim by ruling that the civil and criminal proceedings did not involve the "same offense." The Court should not have used this case to re-examine Halper.

Justice Souter, concurring, noted that the requirement that a sanction can be found to be criminal only on the "clearest proof" should be read contextually. Given current enforcement trends, the Court should not be surprised if more defendants surmount this hurdle than was previously the case.

Justice Breyer, joined by Justice Ginsburg, concurring in the judgment, suggested abandoning the "clearest proof" formulation. The court should not have decided now whether a sanction statute should be evaluated on its face, or as applied.

 

APPEALS -- Harmless Error
INSTRUCTIONS -- Duty to Charge -- Essentials of Crime

George G. Rogers v United States
#96-1279, January 14, 1998
62 CrL 2048

Writ of certiorari dismissed as improvidently granted. Case below: 94 F3d 1519 (CA11, 1996).

The record failed to present the question of whether the district court's failure to instruct the jury on an element of the offense was harmless error where the defendant admitted that element. Petitioner was charged with possession of an unregistered firearm described as a silencer. He admitted that he knew the item was a silencer, and this admission satisfied the mens rea requirement. The trial judge instructed that the jury had to find beyond a reasonable doubt that defendant "knowingly possessed a firearm as defined above," where the judge had defined "firearm" to include a silencer. He denied the request for an instruction that defendant "willfully and consciously possessed items which he knew to be firearms." A fair reading of the instructions given did require the jury to find that defendant knew that he possessed a silencer, as required by Staples v United States, 511 US 600 (1994) [decided after the trial in this case]. As the instruction was adequate on the mens rea requirement, the question of whether it was harmless error to fail to instruct on an element of the offense was not fairly presented.

O'Connor and Scalia, concurring, would find dismissal justified because the instructions were ambiguous as to whether the jury was required to find that defendant knew the item he possessed was a silencer.

Kennedy, Rehnquist, and Souter, dissenting, would hold that the instruction was deficient under Staples as it told the jury it had to find the defendant knew he possessed the device, but not that he knew it was a silencer. Moreover, the substantive issue decided by the majority was neither briefed nor argued; they felt the Court should issue a full opinion addressing the merits of the conviction.

 

FALSE STATEMENT -- "Exculpatory No"Exception (18 U.S.C. 1001)

 

James Brogan v United States
#96-1579, January 26, 1998
62 CrL 2092 (1998)

Affirmed judgment of Court of Appeals for the Second Circuit affirming defendant's conviction of making a false statement to federal agents. Case below: 96 F3d 35 (1996).

The federal statute which makes it a crime to make a false statement to government agents does not have an exception for a false statement consisting of the mere denial of wrong doing, the "exculpatory no" exception previously recognized by many federal courts. Defendant was asked by federal officials whether he accepted cash or gifts from his employer when he was a union officer. Defendant answered "no" and did not change his answer after being told that lying to federal agents in the course of an investigation was a crime. Defendant was convicted of accepting unlawful cash payments from an employer and making a false statement to a federal agent. The Second Circuit affirmed the conviction, rejecting the "exculpatory no" doctrine that a simple denial of guilt is not covered by the statute. By its terms, the statute covers false statements of any kind. Defendant's argument that the statute criminalizes only statements that "pervert governmental functions" does not support the "exculpatory no" exception. Any falsehood relating to the subject of an investigation perverts the purpose of uncovering the truth. Moreover, there is no basis for the premise that only falsehoods that pervert governmental functions are covered by the statute. The reach of a statute often exceeds the precise evil to be eliminated. The literal reading of the statute does not violate the "spirit" of the Fifth Amendment by placing the suspect in the "cruel trilemma" of admitting guilt, remaining silent, or falsely denying guilt. The Fifth Amendment does not confer a privilege to lie. As for the fear of prosecutorial abuse in "piling on offenses," it was the intent of Congress to make obstruction of a legitimate investigation a separate offense, and there has been no history of prosecutorial excess. The narrow, case-by-case interpretation of the statute espoused by the dissent would leave the courts "at sea," not knowing when or how to invoke the rule. Courts may not create their own limitations on legislation.

Justice Souter joined in the opinion of the court, but joined Justice Ginsburg's opinion warning of the risks inherent in the literal interpretation of the statute.

Justice Ginsburg concurred in the judgment but expressed concern that the statute grants prosecutors too much authority and creates the risk that they will manufacture crimes, contrary to the proper function of law enforcement, which is to prevent crime and apprehend criminals. In the instant case, Brogan's unadorned denial misled no one.

Justice Stevens, dissenting, joined by Justice Breyer, contended that not every "exculpatory no" is a felony, that the majority's literal reading of the statute is broader than the coverage intended by Congress. Stevens said the Court should show greater respect for the decades-long, virtually uniform interpretation of the statute by the bench and the bar which had the approval of both the Supreme Court and the Department of Justice.

 

United States Court of Appeals: Sixth Circuit Opinion Summaries

 

PRETRIAL PROCEEDINGS AND MOTIONS --Continuance or Adjournment
EVIDENCE - Prior Testimony
GRAND JURY PROCEEDINGS

United States v Charles H. Foster
128 F3d 949 (CA 6, 1997)
KEITH, Merritt, Suhrheinrich
THOMAS E. CLAY for Foster

Reversed jury conviction and sentence for conspiracy to possess and possession with intent to distribute cocaine and cocaine base and engaging in monetary transactions of criminally-derived property; remanded for new trial.

The district court abused its discretion in failing to grant the defendant's motion for a continuance in order to secure the presence of a defense witness, Williams. Williams had testified at a grand jury proceeding that defendant Foster had not been involved in selling drugs. The district judge did not order the government to release the grand jury transcript to the defense until six days before trial, and defense counsel did not receive the transcript until four days before trial. Foster's counsel faxed a subpoena to Williams' attorney, who told counsel that the US Attorney threatened to revoke Williams' immunity and prosecute him if he testified on behalf of Foster. Defendant's motion for a continuance based on the late receipt of the grand jury transcript and the government's threats against Williams was denied because the district court found that defendant failed to exercise due diligence in subpoenaing Williams. In light of defendant's due process right to present witnesses in his defense and the improper conduct by the government in intimidating Williams, the district court should have conducted an evidentiary hearing to determine whether the government's misconduct substantially interfered with Williams' free determination to testify, or whether the misconduct was harmless in light of the other evidence against Foster.

The district court abused its discretion in failing to admit Williams' grand jury testimony under FRE 804(b)(1). Williams was unavailable, as defendant was unable to procure his presence. Defendant was duly diligent in efforts to subpoena Williams because he did not know the substance of Williams' grand jury testimony and its importance to the defense until four days before trial, the subpoena was returned unexecuted, and Williams had fled the area because of problems with the local police. The grand jury testimony was admissible because the government was able to strenuously question Williams during his grand jury testimony and it had the same motive to develop the witness's testimony during the grand jury as it would at trial. Williams' exculpatory testimony could have had a significant impact on the jury's verdict, and it could not be said for certain that the transcripts would not have influenced the jury to acquit Foster.

 

CONTROLLED SUBSTANCES, DELIVERY – Sufficiency of Evidence
MONEY LAUNDERING -- Sufficiency of Evidence
DOUBLE JEOPARDY -- Multiple Punishments
CCE (CONTINUING CRIMINAL ENTERPRISE) – Sufficiency of Evidence

 

United States v John Paul Avery,
Sherry Avery Daniels, Michele Avery Daniels
128 F3d 966 (CA 6, 1997)
Appeal from USDC for the WD Kentucky,
No. 94-00008
RYAN, Daughtrey, Friedman
RICHARD D. BIGGS

Affirmed all defendants' convictions for multiple drug trafficking and money-laundering offenses, except for John Paul Avery's conspiracy conviction, which was reversed.

The conspiracy convictions of Sherry Avery Daniels and Michele Avery Daniels were supported by sufficient evidence. These defendants were involved in growing the marijuana, paying the workers, and laundering the profits. Circumstantial evidence need not remove every reasonable possibility of doubt, and since money laundering is an integral part of a drug enterprise, the jury was entitled to infer from such conduct a conspiracy to knowingly aid and abet the violation of the narcotics laws.

Defendant John Paul Avery was subjected to multiple punishment in violation of the double jeopardy clause by his convictions of both conspiracy and engaging in a continuing criminal enterprise (CCE). Conspiracy is a lesser included offense of CCE. Rutledge v United States, 116 SCt 1241 (1996). Although the Supreme Court did not determine which offense must be vacated, and the Sixth Circuit had been concerned with an anomaly in the sentencing guidelines in which the sentence for the lesser included offense was greater than the sentence for CCE, that anomaly was not present in the instant case; the base offense level was higher for CCE, and the conviction and sentence for conspiracy were therefore vacated.

The evidence was sufficient on the element of CCE that the defendant must have committed the series of offenses in concert with five or more persons. Sherry and Michele Daniels qualified as participants for CCE purposes because money laundering, while not a Title 21 narcotics offense, is an integral part of a drug enterprise. Also, although Sherry and Michele were convicted of only one count of conspiracy, there is no requirement that the government prove that each of the participants, themselves, be shown to have also participated in three or more of their own narcotics violations.

 

COUNSEL -- Ineffectiveness Of -- Competency in General
COUNSEL -- Ineffectiveness Of -- Conduct in General
COUNSEL -- Ineffectiveness Of -- Failure to Investigate
COUNSEL -- Ineffectiveness Of -- Trial Tactics and Strategy

Ronald Eugene Rickman v Ricky Bell
#94-5721/6232/6538, December 2, 1997
Appeal from Rickman v Dutton,
864 FSupp 686 (1994)
Keith, RYAN, Suhrheinrich
PAUL R. BOTTEI

Affirmed district court's decision granting petitioner's writ of habeas corpus.

Upon de novo review, the district court was correct in finding that petitioner was unconstitutionally denied effective assistance of counsel. Rickman had been convicted of murdering for hire a co-defendant's wife by strangling her (after first having raped her), stabbing her in the back, and abandoning her in the trunk of her car, ignoring her pleas for help, for five days. The victim died as a result of the excessive heat in the car trunk. Petitioner failed to show that his attorney's deficient performance resulted in prejudice under Strickland v Washington, 466 US 668 (1984), but counsel's performance was so egregious as to amount to the virtual or constructive denial of the assistance of counsel, and the presumption of prejudice exception described in United States v Cronic, 466 US 648 (1984) was met. Counsel's behavior was "shocking and professionally outrageous." Petitioner's attorney, Livingston, failed to investigate the case and failed to communicate with his client, but worse than that, Livingston expressed such contempt for his client, creating a loathsome image which would make a juror feel compelled to rid the world of him, that the effect was to provide Rickman with a second prosecutor. Assuming that petitioner had no legal defense, Livingston's "strategy" was to convince the jury that Rickman was a sick, abnormal, man who should not be judged as a normal person. However, what counsel did instead was to convey to the jurors a personal antagonism toward his client. Livingston made attacks on Rickman and repeatedly elicited information detrimental to Rickman's interests, such as threats made by petitioner to commit unrelated, violent crimes. Livingston portrayed Rickman as crazed and dangerous, and expressed personal sympathy for the prosecution and shame for representing Rickman, aligning himself with the prosecution against his own client. Counsel's behavior could not be characterized as legitimate trial strategy. What Livingston did was "worse than no representation at all," and his performance dispensed with the necessity of a separate showing of prejudice. In this case, prejudice was patently inherent. Nor was it necessary to find actual bad faith, as Livingston's performance was so outrageous. What was permitted to occur at Rickman's trial was the evisceration of the right to counsel and a travesty for the entire judicial system, according to the majority.

Suhrheinrich, dissenting, would not apply the presumption of prejudice dicta in Cronic to this 20-year-old conviction of an individual unquestionably guilty of a murder to which he voluntarily confessed and which was "one of the most atrocious and inhuman conceivable." The resort to a per se presumption of prejudice was not justified by the goal of avoiding case-by-case litigation. The majority's generous reading of Cronic did little more than replace case-by-case litigation over prejudice with case-by-case litigation over prejudice per se. It frustrated other substantial interests as well: comity, federalism, and the finality of judgments. Livingston did not breach his duty of loyalty to Rickman or entirely fail to subject the prosecution's case to adversarial testing. Counsel did file a pre-trial motion to suppress Rickman's confession, filed a motion to sever his case from those of his co-defendants, requested a psychiatric evaluation with respect to competency, tried to persuade the District Attorney to accept a plea of guilty and life sentence to avoid the death penalty, and, all that failing, made a last ditch attempt to persuade the jury to spare Rickman from the electric chair. Petitioner was unable to demonstrate prejudice, and the ineffective assistance of counsel claim should have been rejected.

 

COUNSEL -- Ineffectiveness Of -- Competency in General

COUNSEL -- Ineffectiveness Of -- Conduct in General
COUNSEL -- Ineffectiveness Of -- Failure to Investigate
COUNSEL -- Ineffectiveness Of -- Failure to Cross-Examine Witnesses
COUNSEL -- Ineffectiveness Of -- Trial Tactics and Strategy
DOUBLE JEOPARDY -- Multiple Prosecutions

 

William E. Groseclose v Ricky Bell
130 F3d 1161 (CA 6, 1997)
Appeal from Groseclose v Bell, 895 FSupp 935 (MD Tenn 1995)
Keith, RYAN, Suhrheinrich
LARRY D. WOODS

Affirmed district court's issuance of writ of habeas corpus.

Upon de novo review, the district court was correct in finding that petitioner was denied his constitutional right to effective assistance of counsel. Groseclose hired co-defendant Rickman to murder his wife, was convicted of first-degree murder and sentenced to death. The rape and murder of Mrs. Groseclose were particularly brutal and inhuman. Defense counsel, Brackstone, failed to provide adequate legal assistance under the first prong of the standard set forth in Washington v Strickland, 466 US 668 (1984). Three aspects of Brackstone's representation were "especially appalling:" his failure to have any defense theory whatsoever; his failure to conduct any "meaningful adversarial challenge," including failure to cross-examine more than half the prosecution witnesses, failure to object to any evidence, and failure to put on defense witnesses or make a closing argument; and his abdication of his client's case to co-defendant's counsel, who, in turn, was ineffective. Co-counsel failed to prepare for trial, and repeatedly elicited testimony that portrayed co-defendant Rickman as a deviant, violent, "subnormal" person. Also, Rickman's defense was completely antagonistic to that of petitioner Gorseclose. The question of whether counsel's performance was so inept as to amount to a constructive denial of counsel, relieving petitioner of the need to show prejudice, did not need to be decided because the prejudice resulting from Brackstone's ineffective assistance was patent, and without his incompetence, the jury would have had a reasonable doubt respecting petitioner's guilt. The state's evidence tying Groseclose to the perpetrators of the murder was relatively weak; any defense, however anemic, which was tailored to Groseclose rather than his co-defendant, could have led to a different verdict. Counsel's ineffectiveness at the sentencing phase, including his failure to present mitigating factors, also prejudiced Groseclose; he was denied effective assistance of counsel at that stage as well.

The double jeopardy clause would not prevent retrial of petitioner even if jury instructions were unconstitutionally defective because erroneous instructions fall in the category of trial error, as distinguished from evidentiary insufficiency.

Suhrheinrich, dissenting, would hold that, even assuming that defense counsel's representation was deficient, petitioner did not show that Brackstone's representation actually prejudiced his defense. The majority's analysis was conclusory and unconvincing. There was no reasonable probability that, but for the allegedly deficient representation, the jury would have had a reasonable doubt with respect to petitioner's guilt. The evidence of guilt was overwhelming, and there was no evidence to suggest that the co-defendants planned the victim's murder and implicated Groseclose after the fact. There was no basis for concluding that the trial was fundamentally unfair or unreliable. Neither was there a reasonable probability that the outcome of the sentencing stage would have been any different but for Brackstone's allegedly deficient representation. The district court erred in finding that counsel's performance was so inept that prejudice was presumed, pursuant to dicta in United States v Cronic, 466 US 648 (1984). While Brackstone's strategic decisions may have been deficient, there was no reason why the errors were not amenable to the traditional Strickland prejudice analysis.

 

MURDER, FIRST DEGREE -- Sufficiency of Evidence
JURY -- Selection -- Challenge to the Venire
JURY -- Prejudicial Publicity
JURY, RIGHT TO -- Waiver
JUDGE -- Duty to Control Proceedings

Lawrence DeLisle v Jessie Rivers
#96-1198, December 8, 1997
Appeal from USDC for the ED of Michigan,
No. 95-70818
Merritt, RYAN, Suhrheinrich
SADO - PETER J. VAN HOEK

Affirmed district court's decision denying application for writ of habeas corpus. Convictions of four counts of first-degree murder and one count of attempted murder affirmed. Case below: People v DeLisle, 509 NW2d 885 (1995).

Federal habeas corpus review was available to defendant where he raised issues concerning the sufficiency of the evidence and his right to an impartial jury trial. The district court's legal conclusions were reviewed de novo, and any findings of fact for clear error.

The district court did not err when it held that the evidence was sufficient to prove that DeLisle acted with both premeditation and deliberation when he drove into the Detroit River, drowning his four children. Although the evidence of premeditation and intent to kill were circumstantial, DeLisle's intent to drown his family, and perhaps even himself, could reasonably be inferred from the facts, including that he accelerated rapidly down Eureka Road and into the river, through the narrow passage between two posts, without swerving or braking, and that he surfaced quickly and did not call for help or attempt to save his family. That most of the evidence was consistent with his defense (that he had a leg cramp and the accelerator stuck) was of no consequence, as the jurors' credibility determination could not be rejected.

The district court did not err when it held that defendant was not denied due process when the trial court denied his blanket challenge for cause to all venirepersons with knowledge of his suppressed statements. DeLisle had been interrogated by a special agent for hours following his arrest, was hypnotized, and made numerous inculpatory statements, which were widely publicized by the media locally and nationwide. Not satisfied with secondhand police accounts, the media filed suit demanding access to the taped interrogations. Recorder's Court Judge Roberson granted the media's request on First Amendment grounds, the ruling was appealed, and the Court of Appeals remanded to the district court for fact finding. The district court would not release the tapes, but Judge Roberson again granted the media's request, the Court of Appeals affirmed that decision, and the Supreme Court denied leave. The tapes were released and became the subject of numerous headlines. Just prior to the release of the tapes, the trial court ruled that DeLisle's confession was coerced and induced by hypnosis, had not been made voluntarily, and was inadmissible, a ruling affirmed on appeal. People v DeLisle, 183 Mich App 713 (1990). The trial court excused 16 prospective jurors for cause, and eleven of 15 venirepersons challenged by the defense were excused for cause. A motion for change of venue was denied. Defendant's blanket challenge for cause to all venirepersons with knowledge of the suppressed statements was denied. The result was that all of DeLisle's jurors had heard about the case, and most had heard details of DeLisle's confession. Defendant's due process right to an impartial jury did not include the right to jurors who were entirely ignorant of the facts or who had no preconceived notion as to guilt or innocence. Defendant's blanket challenge was based on a presumption of prejudice rather than any evidence of juror hostility, and only in the most extraordinary circumstances must a trial court disregard jurors' assurances of impartiality and assume that they are prejudiced. The jurors' knowledge of DeLisle's confession was not, without more, that kind of extraordinary circumstance. The trial was not conducted in the kind of circus-like atmosphere that corrupted the proceedings in Sheppard v Maxwell, 384 US 333 (1966). As all of the jurors assured the trial court that they would base their decision on the evidence presented at trial, defendant's right to a fair trial was not denied.

Since DeLisle's right to an impartial jury was adequately safeguarded, he had no federal constitutional right to waive his jury over the objection of the prosecution.

Judge Merritt, dissenting in strong terms, would hold that the state courts failed to carry out their affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity arising from unreliable and illegally obtained evidence. There was no support in federal case law whatsoever for Judge Roberson's ruling that the First Amendment gave the press the absolute right to defendant's statements: in fact, release of such material to the press is forbidden by the Sixth and Fourteenth Amendments. In no other case has a state court "held a confession involuntary and inadmissible with one hand and then released it to the press with the other." If it is improper for the prosecution to leak a confession to the press, it was much more prejudicial for the state court to "legitimize" the practice and play the recording of defendant's coerced, involuntary, inadmissible statements for the media in the same court where defendant was to be tried.

The overwhelming, sustained, "no-holds-barred" media attention to the case turned the proceedings into a circus, as destructive of rational fact-finding as in the Sheppard case, and the trial became a "travesty." The state courts maximized rather than minimized the prejudicial publicity and violated their constitutional duty under the Sixth and Fourteenth Amendments. The prejudice was especially severe where the courts not only released DeLisle's suppressed confession to the media, but the jury learned the details of the confession without knowing that it was coerced and unreliable. This was more prejudicial than if the coerced statements had been sealed from media scrutiny but had been admitted as evidence at trial. At least then DeLisle could have confronted and contradicted the government's witnesses and cross-examined them.