Wednesday Writs for 3/6

[L1]: Our Case of the Week is hot off the press- as in, just issued last week. The case, Garza v. Idaho, involves a matter of ineffective assistance of counsel, but the dissent is the more noteworthy news. Gilberto Garza, Jr. pleaded guilty in Idaho state court in two separate plea agreements to state charges. Each of the agreements contained a clause in which Mr. Garza waived his right to appeal his convictions. Nevertheless, after sentencing, Mr. Garza had a change of heart and instructed his attorney to appeal. According to the record, the defendant repeatedly contacted his attorney to reiterate his wishes. His lawyer, citing the waiver of rights, declined to do so, and the deadline for filing the appeal past. A few months later, Garza filed a motion with the Idaho trial court. He alleged that his lawyer had rendered ineffective assistance by failing to file an appeal on his behalf. The trial court denied the motion, as did the state’s appellate and supreme courts. The issue under consideration was “presumption of prejudice”. Normally, when a defendant argues ineffective assistance of counsel, he or she must show not only that their lawyer was inadequate, but that the deficiency was prejudicial to the offense. In some instances, however, there is a presumption that the lack of competent counsel is prejudicial, such as being denied counsel at a “critical stage” of trial. This is “presumption of prejudice.” Here, the lower courts ruled that the presumption of prejudice did not exist when Garza’s lawyer failed to file his appeal because Garza had waived that right.

In a 6-3 decision, authored by Justice Sotomayor and joined by her liberal brethren, as well as Justices Roberts and Kavanaugh, SCOTUS overturned Idaho and ruled that the presumption of prejudice applies when “constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken”, whether or not there was a waiver. The Court reasoned that the defendant does not waive all rights in the waiver of appeal; for instance, he or she retains the right to challenge the validity and voluntariness of the waiver itself (precisely Garza’s contention).

The dissent by Justice Thomas, an unwaveringly hardcore originalist, is the bigger story here. Not only does he disagree with the majority’s holding that failure to file an appeal is per se deficient and prejudicial, he goes a step further and expresses his skepticism that the defendant had any right to counsel, at least as we commonly understand that concept. According to Thomas’s analysis, the Sixth Amendment simply meant that a defendant could not be prohibited from having a lawyer, not that there was an affirmative right to be provided counsel at taxpayer expense, let alone a right to effective counsel. Writes Justice Thomas: “…the Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.” This is a rejection of Gideon v. Wainright, the 1963 landmark case which guaranteed court-appointed counsel for indigent defendants. (Fun fact: even this right is limited; in West Virginia, for example, if you make more than $1200 per month, you will not qualify for an appointed lawyer.) From there, Thomas goes on to criticize subsequent holdings which clarified the right to counsel was also a right to representation that is “within the range of competence demanded of attorneys in criminal cases.” Thomas writes “The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability.”

In other words, beggars can’t be choosers. (Gorsuch joined the dissent in full; Alito joined in part, but not the part in which Thomas attacks the right to counsel.)

[L2]: In other SCOTUS news, the opinions of dead federal judges don’t count, at least not if he or she dies before their ruling is officially announced.

[L3]: The US State Department says only one of two twin boys, born four minutes apart, is a citizen of the United States. The parents of the boys are a gay married couple, who each fertilized an egg implanted in a surrogate. One of the men is a citizen; the other is Israeli. The State Department took the position that the boy with the Israeli father’s DNA is not a citizen, but a federal judge in California ruled in favor of the family on the basis of a settled axiom of the law: children born within a marriage are presumptively the children of the marriage.

[L4]: Are you smarter than a robot? Not if you are confused by legalese. which AI companies say their technology understands better than humans.

[L5]: Harvey Weinstein is having trouble finding a token female to add to his legal team. Maybe he should try not calling them “skirts”. Just a thought.

[L6]: Whether you are pro-life or fall on the pro-choice side, I think we can all agree that calling pregnant women “the host body” is a poor way to win hearts and minds when advocating for an anti-abortion bill.

[L7]: Several weeks ago we linked to a story about the State of California’s plans to strip a biker gang of its trademark as part of its forfeiture action following a RICO case. A federal judge has ruled that they may not do so; the Mongols may keep their logo. The government says they may appeal.

[L8]: Team building exercises are a scourge common in the workplace; however, taking newly hired lawyers to an Amsterdam sex show may be a bit over the line. Maybe stick with the trust fall.

[L9]: Our Dumb Criminal of the Week is from right here in my home state, in which an enterprising criminal defendant forged himself a pardon from the governor- and sent it to the judge. (Yes, both the defendant and the governor are named “Justice”.)

[L10]: Lawyers make for good jokes, especially these days with folks like Avenatti, Pirro, Dershowitz, and Giuliani in the spotlight. Would they represent current celebrity criminal defendants Robert Kraft and Jussie Smollet? Ask Saturday Night Live: