Who Needs To Be Present For The Evidence Anyway?

The adage is bad facts make bad law, but it usually applies to the underlying facts of the prosecution rather than the facts of what transpired during the course of a trial.  But the Second Circuit got a heaping pile of weird in United States v. Griffith.

On appeal . . ., Griffiths principally contends that he was denied his Sixth Amendment right to effective assistance of counsel when, after his attorney suffered two strokes following the close of evidence at trial, the District Court — instead of postponing trial indefinitely or granting a mistrial — appointed an attorney who had not witnessed the presentation of the evidence to deliver the defense summation.

What are the chances?  Not even an order from the trial judge, Alvin Hellerstein, could make Griffiths’ lawyer capable of giving summation. It’s unclear from the record whether such an order was issued, but the opinion makes clear that it didn’t work, leaving Griffiths in the odd position of having his attorney of choice, the one whose representation would otherwise be assured by the Sixth Amendment, standing there alone.

What to do?

Granted, Judge Hellerstein had a mess on his hands.  He couldn’t order the lawyer to be “unstroked,” as not even an Article III judge gets to change the course of medical history. Not even nunc pro tunc. How frustrating that must be? But there was a jury in the box, a case fully tried with only closings left to complete before getting to a verdict and sentence (see what I did there?).

Bust the trial and it starts all over again.  Waste the court’s time. Waste the jury’s time, as if that’s really a concern, but it sounds good as part of the explanation. Waste the prosecution’s time.  That’s a lot of expense on the government’s shoulders, and even if a lawyer having a stroke between testimony and summation is about as clearly manifest necessity as could be, there has to be a way to promote the more important concern of judicial economy.

The Court first suggested that the conclusion of the trial be adjourned for up to three weeks, but that required a commitment that defense counsel couldn’t make. That’s the funny thing about strokes. You never quite know when, if ever, the effects will be over and the stroke victim will be back to fighting form.  It’s not that the offer was ungracious, but that health works in mysterious ways.

And it wasn’t like Griffith wanted a mistrial either.  He refused to consent, suggesting that he was either pretty happy with the way the trial went, or suffering from delusions.  In either event, what Griffith wanted was to delay the completion of the trial until his lawyer was healthy enough to deliver the summation.  It would be a perfectly reasonable request, except for the fact that no one knew when that would be. What’s a judge to do?

Enter Ben.

The court appointed Ben Epstein from the CJA panel to clean up the mess.  Now Ben is an excellent lawyer, and certainly has the chops to deliver an excellent summation. But summing up a trial you didn’t see is, well, not normal.  And Ben, because he’s a such a good lawyer, realized the problem.

At a May 24, 2012 status conference, Epstein represented: “I’m ready and I believe that I can deliver an effective summation in the case. . . . My issue is this. . . . I don’t know if, by definition, I can render effective assistance of counsel based upon the fact that I never saw a single witness testify.”

The language here creates a level of fuzzy that makes it hard to figure out what to do. On the one hand, Ben clearly lays out the conundrum of a lawyer making a closing in a trial where he wasn’t present. On the other, he asserts that he “can deliver an effective summation.”

The judge took this and ran with it.

[Epstein] classified the issue as a “structural one.” Judge Hellerstein responded, “I felt, in appointing you . . . that you would be able to effectively[ ]represent Mr. Griffiths. . . . I can’t think of a particular demeanor issue that will control how one looks at the testimony that was presented.” Griffiths then renewed his motion “to continue the trial until Mr. Scharf becomes able to conduct his duties as defense counsel,” which the District Court denied.

So Ben closed, Griffiths was convicted and the case went to the circuit on appeal. After all, if the judge felt that there was nothing that couldn’t be gleaned from the transcript, no reason for the lawyer doing the summation to have actually been present at the trial.

This weird situation presents two fundamentally conflicting problems.  As Ben correctly notes, the problem wasn’t that his summation would likely be ineffective, in the Strickland sense, both because he’s more than capable of delivering a quality closing and, well, the requirements of Strickland for effective assistance of counsel are so low that it’s awfully hard not to meet the minimal threshold.

But the problem was a “structural” one.  The lawyer who tried the case should be, as a structural matter, the lawyer who sums up.  If not, then it pretty much lays waste to the whole demeanor argument at trial, which then makes the whole appellate deference to trial judges, “because they had the opportunity to hear the witness and observe his demeanor,” a very big, very unfunny, joke.  Except when the side getting smacked is the defense.

Griffiths points to no particularized prejudice suffered as a result of Epstein’s appointment as counsel to deliver the summation, and the record reveals no basis for finding such prejudice. Instead, Griffiths urges us to create a new category of per se ineffective assistance―where counsel delivers a summation without having witnessed the presentation of the evidence. There is no basis in law or logic for creating such a rule, as the facts of this case reveal. The fact that Griffiths’s replacement counsel―who was undisputedly competent and prepared―did not witness the presentation of evidence is not tantamount to having “no counsel at all,” nor does it present a “conflict of interest” that would prevent zealous representation, such that his representation could be deemed per se deficient.

So not only is it not a per se violation of the 6th Amendment, but there is “no basis in law or logic” for the lawyer delivering the closing to have been present at trial.  No doubt this will come as a surprise to most lawyers, but the big question will be whether the same rule applies when a defendant seeks to have a new lawyer do the summation when he realizes that the lawyer who tried his case sucks.  It strikes me that this rule may not prove useful as a two-way street.

6 thoughts on “Who Needs To Be Present For The Evidence Anyway?

  1. Turk

    Epstein’s comment that he could be effective, while not providing effective counsel, was brilliant.

    He gave the defendant two bites at the apple.

        1. SHG Post author

          It’s hard to say whether anything would have changed the outcome. Bear in mind that Strickland is so low a bar that dead lawyers are good enough to pass muster.

  2. Rick Horowitz

    This makes me so unbearably sad.

    It’s no wonder courts don’t have a problem with the fact that some police officers are moving straight from a hunch about guilt to execution, without all the intervening stuff. They’re taking their lead from the courts.

    I think you hit the nail right on the head about the deference issue as a natural logical step from their “reasoning.” But how do you even begin to prepare a summation for a case you haven’t seen?

    But what continually bothers me is this ongoing issue where, if you can’t show prejudice, you lose no matter what happened in the trial court. I mean, for perhaps 98% of the things that I can imagine violating some constitutional right, “prejudice is in the eye of the beholder.”

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