When Attorneys Fumble, Defendants Face Consequences

by David M. Reutter

The right of defendants facing criminal charges to be represented by counsel is the bedrock of our criminal justice system, expressly enshrined in the Sixth Amendment.

An underlying doctrine to that right holds that counsel becomes an agent of the client, binding the client to the actions and inactions of their attorney. In cases where counsel acts negligently, the client is often unable to pursue or is denied relief – though one federal circuit court judge has stated that such an outcome in capital cases is “unjust and inequitable.”

After the U.S. Supreme Court held in 1963 in Gideon v. Wainwright that every criminal defendant has the right to representation by counsel, states created public defender offices or other means of indigent defense. The right to counsel has extended, thus far, to representation at trial and on direct appeal. Recently, the Supreme Court held that cause to overcome the Antiterrorism and Effective Death Penalty Act (AEDPA) may be established when a claim of ineffective assistance of trial counsel must be raised on collateral review and counsel was not provided for that purpose. See: Martinez v. Ryan, 132 S.Ct. 1309 (2012) [PLN, Nov. 2013, p.12].

Currently, most criminal defendants are left on their own to navigate and litigate in the difficult post-conviction arena, which typically encompasses habeas corpus petitions. Death row prisoners, however, often receive appointed counsel or are approached by groups willing to assist them due to the fact of their death sentences.

Unlike in most states, prisoners on death row in Alabama are not guaranteed appointment of counsel in post-conviction proceedings. As a result, as noted by Supreme Court Justice Ruth Bader Ginsburg, “On occasion, some prisoners sentenced to death receive no post-conviction representation at all.”

After Alabama death row prisoner Ronald B. Smith, Jr.’s direct appeal was affirmed by the Alabama Court of Criminal Appeals and Alabama Supreme Court, he was contacted by the Equal Justice Initiative (EJI), a Montgomery-based nonprofit law firm that represents poor people and prisoners. The March 8, 2001 letter from EJI informed Smith that volunteer attorneys and law students were preparing a state post-conviction petition on his behalf. EJI’s caseload was too heavy to represent him, but the organization was seeking counsel and would send him the petition to file pro se if that effort failed.

EJI was able to convince Tennessee attorney William Massey to represent Smith in July 2001. Because Massey was not admitted to practice in Alabama, he recruited Alabama attorney C. Wade Johnson to act as local counsel. With Smith’s time limit under the AEDPA set to expire on October 2, 2001, his petition was filed on September 27.

Although it was unclear which attorney filed the petition, it was clear the petition was filed without the required $154 fee or a motion to proceed in forma pauperis. The clerk returned the petition on October 15, and it was not refiled until February 6, 2002. That filing occurred only after a state attorney called Johnson’s office to advise that Smith’s state limitations period was about to expire.

The petition was denied and eventually became final on July 15, 2005. Four days later, Smith filed a federal habeas petition. The Alabama federal district court dismissed the petition because it was not filed within the one-year statute of limitations required by AEDPA. The Eleventh Circuit Court of Appeals affirmed on December 28, 2012, holding that neither statutory nor equitable tolling applied.

The appellate court’s majority opinion and Judge Rosemary Barkett’s dissent reveal the problem with the doctrine that makes a client accountable for the actions and inactions of their attorney: In most cases, prisoners have no control or supervision over the work or conduct of their lawyer. Rather, they must trust the attorney is protecting their rights and acting in their best interests. Also, prisoners represented by counsel generally cannot file pro se pleadings in court in an effort to protect their own rights.

In some cases, the trust that prisoners must put in their attorneys is sadly misplaced. For example, Corey Maples, another Alabama death row prisoner, received legal assistance from the New York firm of Sullivan & Cromwell, one of the most prestigious law firms in the country.

“I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm,” Supreme Court Justice Samuel A. Alito, Jr. wrote of Sullivan & Cromwell in a concurrence in Maples’ appeal.

Maples’ attorneys completely missed the court filing deadline in his case after leaving the firm and effectively abandoning him. On appeal, the Supreme Court found cause to excuse the missed deadline and remanded the case for further proceedings. See: Maples v. Thomas, 132 S.Ct. 912 (2012).

But the conduct of Ronald Smith’s attorney, C. Wade Johnson, was far more egregious.

“From the beginning of his so-called representation of Smith, Johnson was on probation for a public intoxication conviction and was actively abusing prescription drugs and crystal methamphetamine,” wrote Eleventh Circuit Judge Barkett. A sworn affidavit from Johnson’s legal assistant said he would often arrive at the office intoxicated and sometimes had to be retrieved from his home to attend court hearings.

Within months of taking Smith’s case, Johnson was charged with nine counts of possession of a controlled substance. The Alabama State Bar placed him on disability inactive status and appointed a trustee to take over his cases. Johnson subsequently filed for bankruptcy, then committed suicide in August 2002.

Massey, Smith’s other attorney, never sought pro hac vice status, which made any filings he could have submitted to the court a “nullity” under Alabama law, since he wasn’t licensed to practice in that state. Yet the Eleventh Circuit majority held Smith had not been abandoned by counsel and was bound by the actions and inactions of Johnson and Massey.

Judge Barkett noted that “neither Massey nor Johnson ever meaningfully functioned as Smith’s attorneys.” She questioned the established doctrine of blaming clients for the mistakes of their counsel, and reaffirmed that notion in Smith’s case.

“I believe it is unjust and unequitable to require death row inmates to suffer the consequences of their attorneys’ negligence by denying them equitable tolling,” she stated. For that matter, it is unjust and unequitable for prisoners not sentenced to death, too.

Cases such as Smith’s and Maples’ call into question the real meaning of effective representation by counsel. It appears that so long as an attorney has entered a notice of appearance, courts accept that a defendant is receiving adequate representation. In one Texas case, the attorney was physically but not mentally present.

That case involved an attorney who was asleep as testimony and evidence was presented to prove his client’s guilt during a capital murder trial. [See: PLN, Dec. 1994, p.14]. On appeal, the Fifth Circuit held the defendant could not establish ineffective assistance because it could not be shown that he was prejudiced by his attorney napping during what is presumed to be the most important stage of any criminal case – the trial. The appellate court concluded that defendants do not have an absolute right to an attorney who stays awake. See: Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).

At least in that case, the ruling was reversed by the en banc Court of Appeals and the defendant’s conviction was reversed. Following remand he accepted a plea deal for three life sentences, avoiding the death penalty. See: Burdine v. Johnson, 262 F.3d 336, 338 (5th Cir. 2001) (en banc), cert. denied.

Each of these cases may seem insignificant to those who are not at the blunt end of the criminal justice system, but when the damage as a whole is considered, the erosion of constitutional guarantees such as effective representation by counsel threatens not only basic human rights but shakes the foundation of the democracy upon which our nation is based.

The U.S. Supreme Court denied certiorari review in Smith’s case on November 4, 2013, affirming the Eleventh Circuit’s finding that his attorneys’ failure to timely file his post-conviction petition meant he was simply out of luck. Smith remains on Alabama’s death row. See: Smith v. Commissioner, Alabama Department of Corrections,703 F.3d 1266 (11th Cir. 2012), cert. denied.

 

Additional source: The New York Times

 

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