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Has justice been weakened by a recent court ruling?

You have my permission to skip this blog entry …

Today’s blog entry is a rather esoteric one that may be far from most reader’s  mainstream interests. Therefore, you have my permission to hit your browser button and go on to more interesting fare.

I am writing this entry because I feel that we, the people, are being overwhelmed by a nation of lawyers that continually introduce increasing complexity in the law so as to manipulate fair-minded decisions to their advantage.

Diminishment in our protections under the law?

The central premise of this blog entry is that while some defendants are trying to introduce trial-delaying tactics or produce deliberate reversible errors by gaming the system, the Court’s response to these tactics may represent a diminishment in our protections under the law.

As a non-lawyer, I am forced to rely on common-sense and plain language to interpret that arcane and mysterious realm of knowledge known as the law. It is my opinion that all laws and legal rulings deriving from the laws should be clear and unambiguous and be able to be understood by ordinary citizens without the intervention of  legal acolytes. After all, it is OUR law and OUR justice that is at stake. 

Gaming the system …

There is no doubt in my mind, that certain criminal defendants attempt to delay the imposition of justice by  gaming the system using frequent changes of defense counsel; especially where new counsel will require a significant amount of time to become familiar with the case and re-interview witnesses and experts if required.

Or, even worse, deliberately setting the stage for reversible errors which will either nullify the Court’s findings or force an expensive re-trial.

The quality of defense is in direct proportion to the dollars spent …

In spite of protestation by the Court and the lawyers who serve as “officers of the Court,” the quality of one’s defense is often proportional to the amount of money available to be spent. Supportive expert witnesses, expensive forensic testing and elaborate presentation technology and graphics are not cheap.

However, I am not complaining about those who are wealthy enough to hire top-notch representation to literally twist the opposing counsel and the Court into knots, I am more concerned with the Court-appointed lawyers who are assigned to indigent or incompetent defendants.

Right to competent counsel …

However, even in cases involving appointed legal counsel provided to defendants who cannot afford counsel, it is assumed that the defendant has a right to competent counsel without a conflict of interest. But what about the potential for extra-legal considerations such as the inability to work with counsel due to a personality conflict or the defendant’s belief that their appointed counsel is somewhat lacking in the necessary skills and/or commitment to their defense?

The Ruling which prompted this blog entry …

Which is why I am questioning the recent ruling from the full Eleventh United States Circuit Court of Appeals which has ruled unanimously that a criminal defendant’s rejection of their appointed counsel can amount to a waiver of their right to counsel altogether.

Can this ruling be used as a judicial bludgeon to compel defendants into accepting less than adequate counsel per the whim of the court or the availably of a warm body with a bar card?

Does this lessen a defendant’s rights to be represented by counsel under our existing laws?

According to a published report in the …

“That conclusion came in the court's reinstatement of two convictions—one of a man accused of making a series of bomb threats in Macon and another man accused in the death of his 3-month-old daughter in DeKalb County.”

“Prior panels had found that the defendants had been deprived of their constitutional right to counsel when trial judges allowed them to represent themselves despite their indications they wanted a free lawyer—just not the one they had been assigned.”

“The decisions may give trial judges some comfort about defendants who represent themselves even when they vacillate over whether that's what they want to do.”

The Edwards Rule?

It seems that I am not the only one questioning the impact of the ruling.

“Moreover, a U.S. Supreme Court decision in June could still curb judges' exercise of their freedom to take defendants' refusal to get along with appointed counsel as a waiver of the right to a lawyer.”

“In Indiana v. Edwards, 128 S.Ct. 2379, the high court held that judges may force mentally ill defendants to accept a lawyer's help when the defendants ‘are not competent to conduct trial proceedings by themselves.’”

Hopefully we'll see more application of the Edwards rule that you can't fire your trial counsel,” said Columbus attorney William J. Mason, who represented Garey at the 11th Circuit. “And this would have been a nice one to start with.”

I am unsure if this is a self-serving statement by a lawyer or a supportable position.

“Garey had asked U.S. District Judge Clay D. Land to disqualify his appointed lawyer, Scott C. Huggins of Macon, contending that Huggins' law office had been one of the targets in the alleged 2003 bomb threats. Land found there was no conflict of interest and gave Garey two choices: keep Huggins or represent yourself.”

It seems to me, being a non-lawyer and not having reviewed the testimony of the case, that just considering the fact that the defendant may have engaged in illegal activities which would have left me and my colleagues dead and our families in a world of hurt, that I might  be somewhat, sub-consciously, inclined to convict the defendant and thus be less than sympathetic to his defense. A common-sense observation based on human nature.

Mitigating factors?

“Garey, who has been described by his current counsel as being paranoid schizophrenic and by the 11th Circuit as having paranoid personality disorder, said he would ‘involuntarily’ act as his own lawyer. After a jury trial in which Huggins served as stand-by counsel Garey was found guilty on various counts, including obstruction of justice and threatening to use a weapon of mass destruction, and sentenced to 30 years in prison.”

“Garey appealed, and in April 2007, 11th Circuit Judge Stanley F. Birch Jr., joined by a federal district judge visiting from Florida, wrote that Garey deserved a new trial because his actions were insufficient to invoke his right to self-representation. Judge Susan H. Black dissented.”

Dissenting opinion …

“Today we recognize it is possible for a valid waiver of counsel to occur not only when a cooperative defendant affirmatively invokes his right to self-representation,” wrote Black, “but also when an uncooperative defendant rejects the only counsel to which he is constitutionally entitled, understanding his only alternative is self-representation with its many attendant dangers.”

-- Judge Susan H. Black

“She explained that the court didn't mean to encourage judges to make uncooperative defendants represent themselves—judges simply have discretion to conclude a defendant has waived his right to counsel, she wrote.”

“Noting the recent high court decision allowing judges to order defendants to keep their lawyers, Black wrote, ‘Our decision today is meant to provide trial courts with guidance and discretion—not to force courts to discharge counsel against their better judgment.’”

For the technical details and a more comprehensive recitation of the law, the link to the well-researched and well-written Daily Report can be found below in the Reference Links section.

It is not that I dispute the law …

In this particular case, I am not disputing the existing law, the applications of the law, the facts of the cited case(s), the competency of the counsel or the discretion of the Judges to deny a change of counsel. What I am questioning is how an indigent defendant can secure adequate counsel and what methodology must be employed to insure that the counsel is capable and adequate to mount a Constitutionally-mandated defense.

I want to know how one protects one’s interests when there appears to be an inadequacy of counsel that comes from a lack of legal knowledge, experience, lack of funds – but most importantly, any inability, subconscious or not, from being able to mount an adequate response in protection of the defendant. Which includes a personality conflict with assigned counsel which could prejudice the defendant’s right to a complete defense and fair trial.

I always fear the application of precedents which were derived to protect those who are not capable of defending themselves, due to drugs, mental condition or temperament, to ordinary unsuspecting citizens who may have an overworked, unsympathetic member of the bar assigned to work the case pro bono.

Anyway, that’s my musing for today.

What can YOU do?

While it is time-consuming and somewhat tedious, I believe that all citizens should be more aware of what is occurring in our legal system which acts in the name of all people. Especially when limited rulings meant for a particular situation are used to cast a wider net and result in unintended consequences. It is these breaches of common sense that result in the gradual erosion of our liberties.

By way of example, I cite the RICO (Racketeer Influenced Corrupt Organizations) statute which has been used to prosecute any number of cases far from its intended purpose of providing a legal tool to be used against organized crime. Thus we find CEOs and employees of corporations being charged under this onerous statute to force some form of settlement even though there isn’t even a whiff or hint of organized crime.

Another example is the prosecutor’s practice of making deals with corporations to provide corporate leniency in return for their waiving the legal rights of their employees when they “voluntarily” surrender so-called protected legal opinions, work products and other information detrimental to the employee’s defense as well as denying the employee corporate funding of their defense.

There is no doubt in my mind that the law has become increasingly perverted as prosecutions are undertaken for political reasons, personal ambition and the necessity to secure large penalties to prove that the public service sector is doing their job in curtailing crime.

No greater illustration of the inappropriate behavior can be found than Eliot Spitzer whose activities forced many innocent people to plead to lesser charges or pay outrageous fines, penalties and assessments because Spitzer threatened their loved ones based on flimsy technicalities like jointly-signed taxed returns. Or the Duke Rape case where the prosecutor’s outrageous behavior in refusing to examine all of the evidence prior to charging led to life-altering consequences for the defendants and outrageous costs to the community.

We need to remain vigilant and aware of how our government is acting in our name. And this goes far beyond the law – and into the actions of all government departments. The days when public servants have become self-serving proponents of their own power-grabbing strategies is becoming increasingly near. Soon, the public sector will be able to out-legislate and out-vote the citizens who elected them. And then we are all screwed!

-- steve

Quote of the Day: “If you have ten thousand regulations you destroy all respect for the law.” – Winston Churchill

A reminder from a large improvement can result from a small change…

The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane. -- Marcus Aurelius

Reference Links:

11th Circuit: Firing counsel equals waiving right to one - Daily Report

For those wishing to read the actual opinions:

U.S.v. Garey (Aug. 20, 2008)|11 Circuit Court of Appeals

Jones v. Walker (Aug. 20, 2008)|11 Circuit Court of Appeals

“Nullius in verba”-- take nobody's word for it!
"Acta non verba" -- actions not words

“Beware of false knowledge; it is more dangerous than ignorance.”-- George Bernard Shaw

“Progressive, liberal, Socialist, Marxist, Democratic Socialist -- they are all COMMUNISTS.”

“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS

"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius

“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell

“Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar

“Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS