Become a Patron! 



Excerpted from: Sheri Lynn Johnson, Racial Antagonism, Sexual Betrayal, Graft, and More: Rethinking and Remedying the Universe of Defense Counsel Failings, 97 Washington University Law Review 57 (2019) (254 Footnotes) (Full Document)


SheriLynnJohnsonIs a defendant entitled to a new trial when his counsel has repeatedly spouted ugly racial stereotypes and used racial epithets in referring to his clients? Or should a reviewing court require the defendant to show how he was "prejudiced" by that lawyer's racial antagonism? In June of 2018, Ellis v. Harrison held that unless defense counsel had expressed his racist views to the defendant himself, no conflict will be presumed. The defendant must show both deficient performance and prejudice to establish a Sixth Amendment violation. In January of 2019, the Ninth Circuit granted rehearing en banc.

At first, this may look like just another case where a liberal circuit grants en banc review of a conservative panel's decision. But the Ellis panel was not conservative: all three judges were Democratic appointees. And accompanying the per curiam opinion was a remarkable concurrence--signed by all three judges--that began by virtually begging for an en banc review and reversal:

If we were writing on a blank slate, I would vote to grant relief Of the constitutional rights given to a criminal defendant, none is more important than the Sixth Amendment right to counsel. By allowing Ellis's conviction to stand, we make a mockery of that right. Moreover, in the course of her concurrence, Judge Nguyen described and deplored the comments made by defense counsel, distinguished counsel's attitudes from run-of-the-mill racism, referred to the race of the panel members and advocates in the case, and observed that the increasing diversity in the legal profession had failed to eradicate racial bias. She ended by stating that circuit precedent tied her hands, requiring denial of relief.

Will en banc review provide a simple answer? No. The oral argument makes clear that the Ninth Circuit, though sympathetic to the merits of the claim, is troubled by a host of procedural issues. But even were those obstacles to be overcome, grant of certiorari following a liberal criminal procedure decision, particularly from the Ninth Circuit, would not be unexpected. And then, even if the Supreme Court were willing to view the case more generously than most criminal procedure claims because it involves race--which four recent cases suggest it might--a swamp of lawyer misconduct beyond racial antagonism lies ahead. Any decision by the Ninth Circuit or the Supreme Court will likely implicate misconduct in forms other than racial antagonism.

What should happen if a lawyer sleeps during parts of the trial--or is sleeping with the prosecutor? If defense counsel was mentally ill or intoxicated during the trial, should a court measure her performance by the deferential standards that apply to most ineffective assistance of counsel claims? Or should that court, after ascertaining those facts, simply grant the defendant a new trial? What about defendants represented by lawyers who aim to profit by securing media rights to their client's case? Or defendants represented by lawyers seeking employment with the district attorney's office?

No one doubts that lawyers should refrain from the use of racial slurs, from sleeping during trial, from "sleeping with the enemy," from representing clients while mentally ill, from intoxication in the courtroom, or from securing illicit gains through the travails of their clients. Such prohibitions are generally imposed by rules of professional ethics, but those rules do not address the consequences for the criminal defendant whose lawyer ignored them. Cases raising these and similar questions are rife in the lower courts.

To date, the Supreme Court has not considered the appropriate remedies for any of these transgressions. Its precedents do, however, establish three categories of counsel failure, each with a different standard for judging whether the failure harmed the defendant enough to demand a new trial: the truant, the torn, and the terrible. Under claims governed by United States v. Cronic, a defendant who proves that his lawyer was "truant," that is, absent or constructively absent, need show no more. This is the most defendant-friendly, but least common, category. A slightly larger category, defendants with "torn" lawyers, must, pursuant to Cuyler v. Sullivan, show the existence of a conflict of interest, and show that the existing conflict "adversely affected" the lawyer's performance. But by far the largest category of counsel failure claims, those involving present, presumptively loyal, but just plain terrible lawyers, are governed by the harsh standard of Strickland v. Washington, which requires proof that trial counsel was incompetent, and proof of "prejudice"--a "reasonable likelihood" that competent representation would have resulted in a different verdict.

Years after the verdict, the difficulty in assessing that likelihood combined with the judicial drive toward finality means that many lower courts refuse to find prejudice under Strickland even in the face of grave malfeasance by counsel. Consequently, determining into which category a particular form of counsel failure falls--and therefore whether any proof of prejudice is required--is often outcome-determinative. Nonetheless, the Supreme Court has provided only a few examples of these categories, eschewing both catalogues and theories. Not surprisingly, lower courts have responded in ways that seem arbitrary.

Calvin Burdine's case provides a striking example of arbitrary determination of a Cronic claim of constructive absence. The Texas Court of Criminal Appeals and a panel of the Fifth Circuit Court of Appeals were excoriated for ruling that even when a capital defendant's lawyer slept through significant portions of his trial, a new trial was not automatic, but required the defendant to shoulder the burden of proving that he was prejudiced by those naps. Public response to this ruling was very critical; put in layperson's terms, it was astonishing to learn that, if charged with a crime, a person would be entitled to a lawyer, but not necessarily one who was awake. The Fifth Circuit Court of Appeals sitting en banc was therefore applauded for concluding that a sleeping lawyer was tantamount to no lawyer at all, and mandated reversal. What did not reach the public or the press, however, was the Fifth Circuit's insistence that drunk lawyers and mentally ill lawyers were horses of a different color, and consequently, that the demonstration of a lawyer's intoxication or paranoia would not suffice for reversal. A layperson might have thought the right to a lawyer implied a sane and sober lawyer, as well as one able to stay awake.

The Supreme Court's response to Burdine only deepens the apparent arbitrariness of the constructive absence category. The Court held the petition for certiorari in Burdine pending its determination of Bell v. Cone, another case in which the lower court had determined that the Cronic constructive absence standard applied. The Supreme Court reversed the lower court in Cone, explaining that defense counsel's failure to oppose the prosecution at specific points--rather than throughout the sentencing proceeding--made the case one governed by Strickland (where prejudice must be proved), and not by Cronic (where prejudice would be presumed). This would seem to imply that falling asleep only during portions of a trial should be governed by Strickland and not by Cronic--which would mean that the Fifth Circuit's decision in Burdine was wrong. Nonetheless, the Supreme Court denied certiorari in Burdine.

Another case from the Fifth Circuit, that of Betty Lou Beets, makes clear that the application of the category of conflicted lawyers is as arbitrary as the application of the constructively absent lawyers category. Beets was charged with the murder of her husband for pecuniary gain, and part of the State's proof of motive was evidence that she sought to obtain insurance benefits for her husband's death. Her lawyer, however, could have testified that he himself had informed Beets of such benefits after her husband's disappearance, and her subsequent interest or inquiry into benefits was attributable to this post-crime information. But a lawyer cannot be both an advocate and a witness, and Beets's lawyer did not withdraw. Why not? Probably because he had a formal contract with Beets that exchanged his legal services for the media rights to her story, rights that would vest when she was executed. The district court found that this contract created a conflict and granted relief.

Although the Fifth Circuit agreed that Beets would prevail were Cuyler applicable, and also castigated the lawyer's decision to enter into the contract as a breach of his ethical obligations, it reversed the grant of relief. It reasoned that Strickland rather than Cuyler should be applied, because, unlike in multiple representation cases where the lawyer may be "immobilized by conflicting ethical duties among clients, a lawyer who represents only one client is obliged to advance the client's best interest despite his own interest or desires." Thus, because a lawyer should place his client's interests above his own, the Fifth Circuit presumed that the lawyer in fact did so--despite the fact that this same lawyer should not have entered into a situation that placed his client's interests in opposition to his own, but nevertheless did so. Beets has become the leading case in the Fifth Circuit on the question of what constitutes a conflict sufficient to trigger the Cuyler standard; that position was bolstered by the Supreme Court's passing reference to Beets in Mickens v. Taylor, its own most recent case applying--but declining to define--Cuyler's boundaries.

Despite the fact that the Supreme Court decided Cronic thirty-five years ago, and Cuyler almost forty, lower court opinions reflect widespread disagreement on the kinds of lawyer failure each encompasses. Mickens has done nothing to alleviate the confusion about conflict cases, and Cone has set the rule for only a small subset of the Cronic cases. This article aims to rethink the categories of counsel failure; no article to date does so. Perhaps Ellis v. Harrison will provide the motivation to sort out the forms of counsel failure, and perhaps this article might provide help in doing so.

Part I will first summarize the Supreme Court's Sixth Amendment right to counsel jurisprudence, paying particular attention to the Court's descriptions of the purpose of the right and its comments regarding the three counsel failure categories.

Part II then samples lower court attempts to place species of counsel failure into the three categories.

Part III will consider what the rationale behind Cronic suggests about the criteria by which courts should separate out the constructively absent lawyer from the merely bad one, and then apply the resulting insight to racially antagonistic, sleeping, intoxicated and mentally ill lawyers.

Part IV does the same thing for conflicted lawyers, proposing a touchstone for identifying Cuyler cases, and applying it to two other identifiable groups of conflicted loyalties: extreme psychological barriers to loyalty, such as animosity, and large personal opportunity costs, such as extraordinary countervailing financial or romantic incentives.

[. . .]

I hope this article has at least convinced the reader that it is time to rethink the categories of counsel failure. In deciding whether to require a showing of a "reasonable likelihood of a different result," or an "adverse effect," or simply to presume prejudice, we need to focus on the purposes of the Sixth Amendment promise of the right to the "assistance of counsel" rather than on arbitrary categories untethered to those purposes. I think a focus on those purposes points toward lawyerly judgment and loyalty. When loyalty has been significantly compromised--for whatever reason--a defendant should receive a new trial if he can show that the compromised loyalty caused any adverse effect on his lawyer's performance. When lawyerly judgment has not been exercised--for whatever reason--a new trial should be automatic.

I remember here my client Ricky Drayton, executed by the State of South Carolina, my clients Emanuel Hammond and Curtis Osborne, executed by the State of Georgia, and my colleague John Blume's client, Betty Lou Beets, executed by the State of Texas. I trace my interest in the subject of this article to the outrageous behavior of their "lawyers." In each of these four cases, the failures of trial counsel were not due to sloth, or ignorance, or stupidity, which are travesties enough, but to something more fundamental: the lack of lawyerly judgment directed toward saving their lives.

Emanuel and Betty Lou were both, in my view, represented by conflicted, badly torn lawyers, both of whom sold their skills--and loyalty-- for media rights to their client's stories. Emanuel's lawyer, who had never previously tried a felony, let alone a murder case, should never have represented any capital defendant; his judgment of his own capability appears to have been twisted by the lure of rights to a blockbuster. Betty Lou's lawyer held onto the media rights that he had negotiated as his fee instead of stepping down as her lawyer and testifying that she was unaware of the potential for pecuniary gain, and therefore not guilty of capital murder--his judgment of the importance of the testimony forfeited by that choice was equally warped by self-interest.

Curtis and Ricky, were, in my view, represented by constructively absent-- truant--lawyers. When Curtis's lawyer, speaking to another client, said, "That little ndeserves the chair," and boasted that he would hire no experts for Curtis, he was worse than no lawyer at all. And Ricky's lawyer, who argued to the jurors that Ricky, a man who could not read, "could have climbed the ladder of success, but chose not to," then reassured them, "You want to sentence him to death, O.K."--that "lawyer" too was worse than no lawyer at all.

What those four lawyers did shames them. The affirmances of their convictions and death sentences--and their executions--shame us all. It's time to rethink counsel failures, and align the Cronic and Cuyler categories with the purposes of the Sixth Amendment.

Please visit my  Patreon Page