Too Great Expectations

In a scathing post at The Atlantic, Andrew Cohen wrote of the travesty inflicted on Terrence Miller, both at trial and appeal.

In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller’s case only four days before trial. He never spoke to any witnesses, or to Miller’s former attorney, or to investigators in the public defender’s office. He didn’t know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the “higher ups” in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge’s frustration.

Before Cohen wrote it, Gideon ripped the decision to shreds.  There isn’t any question that what happened to Terrence Miller was fundamentally wrong on many levels, as both Cohen and Gideon agreed. Cohen blamed not only the judges, up and down the line, but everyone:

No One Stood Up For Miller

So much went wrong in the case of Terrence Miller that it’s hard to know where to begin. No one involved in the process acted to protect his constitutional rights.

That “no one” included his public defender, who twice tried to get the judge to relent in his demand that the case go to trial immediately because he was woefully unprepared. The judge refused. Gideon was even more harsh in his criticism:

The fuck is wrong with you? You’ve spent the last 7+ years doing juvenile work and your experience with criminal before that is meager. You just get transferred to another unit. Another office. Another court, another judge, another whole field of law. On Thursday you’re told you’re starting trial on Monday for a client whom you’ve never met.

Listen to me.

You’re not ready. You’re never ready in those circumstances. You stand up and you say – because you believe in justice, right? You believe in the noble principles we claim to believe in? – so you stand up and say “with all due respect, judge, I’m not starting. You can do what you like, but I’m not start. I’m not ready. I don’t know you think I could be ready in three days. You can hold me in contempt, but I will not participate in this. I’m not ready.”

Let’s get one thing straight at the outset, what Gideon urges is the course of action that both ethics and guts demand.  Throwing a lawyer into trial unprepared has happened before, and Brian Jones handled it the way one would hope a lawyer would.  Not only does he deserve our appreciation for his fortitude, but he is a model of how a criminal defense lawyer, whether public defender or not, should stand firm for his client.

So the PD in Miller failed to demonstrate the strength of Brian Jones.  He doesn’t win any medals, but should he have been hung out to dry? No, he wasn’t prepared. No, he was unlikely capable of trying the case. Yes, he should have refused to be complicit in the violation of Terrence Miller’s constitutional right to effective counsel.  And he should have been prepared to suffer the consequence: being held in contempt.

But it is wrong to place the burden of being jailed for refusal on the shoulders of the public defender.  This is where Cohen goes too far, and, I fear, mistakes the relative duties of the participants in the system.  Had the public defender taken the bullet for his client, we would all cheer his bravery and boldness.  That he tried his best to persuade the court to adjourn the trial and failed, however, doesn’t make him scum, or responsible for the court’s deliberate decision to undermine Miller’s right to counsel.

It’s a nuanced distinction, but an important one.  He did not do so well that he gets an award. He did not do so poorly that he deserved a pundit’s disapprobation.

Almost anything that goes awry in a criminal case can be ultimately traced to the criminal defense lawyer.  That he’s an easy target is part of the job, and we take it in stride. But in analyzing it after-the-fact, it’s important that we not lose track of where the duty lies and dump on the easy target for not going above and beyond.

This was the problem with the Supreme Court’s Padilla decision, placing the legal burden of informing defendants of collateral consequences of a plea on defense counsel rather than on the judge, who is charged with assuring that every defendant receives his constitutional rights.  There is no disagreement that someone should do it, and there is no doubt that a good defense lawyer would and should do it, but the burden of doing it should have been placed on the judge’s shoulder.

The same is true here. So the PD didn’t court contempt for Terrence Miller. Others would have done so, just because.  Gideon would have. I would have. Cohen would probably believe he would have, though writers don’t often get put to the test. But the failure here was the judge, not the public defender.

By such a scorched earth approach, it deflects responsibility from the courts, who have the unquestioned duty to assure that a defendant’s constitutional rights are honored, and places it on a lawyer who tried, even though he didn’t try hard enough.  Let’s place blame where it belongs so that judges do their job and not slough it off on the public defender to take the bullet.

5 comments on “Too Great Expectations

  1. Jim Majkowski

    From the linked opinion:

    “Defendant was not deprived of competent counsel. He had a meeting with his attorney, albeit one constrained in duration and conducted in a less than optimal location, prior to his suppression hearing. Following that hearing and before the commencement of trial the next day, defendant met in private with his counsel at the attorney’s office. The attorney claimed he was prepared and
    conducted a vigorous defense, and no prejudice was found
    . Therefore, there was no oppression,
    harassment, or egregious deprivation in this case.” (Emphasis added)

    I was frankly astonished that the basis of affirmance was not “harmless error.” But it seems to me that the opinion paints a very different picture of the events. Any other thoughts?

    1. SHG Post author

      That happens a lot in appellate decisions. It’s much easier to write words that support the opinion that address inconvenient facts. When you’re the lawyer who tried a case, reading the appellate affirmance is often a fascinating indulgence in fiction.

      1. Jim Majkowski

        Not news to me or, I suspect, much of your fanbase (you rate more than a mere audience). Have you ever read a master’s report in a judicial discipline proceeding? Those, too, make some fascinating reading. I keep trying to remember to keep copies for use in criminal cases tried by the judge.

        One thing I do wonder. Why did the trial judge not question the person who assigned this fellow to this case?

        1. SHG Post author

          I kinda wonder why the person who assigned the PD didn’t show up in the courtroom and defend him. I know that if this had happened elsewhere, the judge would have had the head guy to hold in contempt if he wanted to go to the mat.

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