Reminder: Hateful Racist Mass Murderers Have The Same Rights You Do

Dylann Roof, the white supremacist sentenced to death after killing nine black church members as an attempt to start a race war, asked a court to replace his appointed appellate lawyers because they “are my political and biological enemies.” The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals denied his request.

Roof’s pro se motion stated that his lawyers, Alexandra Yates and Sapna Mirchandani, “are Jewish and Indian, respectively. It is therefore quite literally impossible that they and I could have the same interests relating to my case.”  Roof had difficulties on the same basis with his court-appointed lawyer, David Bruck, during his trial. The murderer wrote  in his motion that Bruck is Jewish and “his ethnicity was a constant source of conflict even with my constant efforts to look past it.”

I have been shocked at the reaction of the legal profession, the news media and the public to the 4th Circuit’s ruling. It really does appear that all the education in the world, ethics rules, principles and the Constitution will still be steamrolled by hate and emotion, even when crucial, indeed existential values for our society are at stake. My trust and respect for all professions—all of them—have been grievously reduced by their conduct and ethics blindness over that past several months. No wonder the First Amendment is under attack. No wonder our institutions are being weakened to the point of collapse.

The public literally  not understand the principle I am going to explain now. Apparently naively, I thought lawyers, judges and law professors did. In the interest of clarity, I am going to do this in short, straightforward segments.

I. The Court’s ruling is not just wrong, but frighteningly wrong.

Roof, like all citizens accused of a crime, has a right to a competent, zealous legal defense. A  competent, zealous legal defense requires that the defendant be able to participate fully in that defense. If a defendant does not or cannot trust his lawyers, he cannot be assured of a competent, zealous legal defense.

II. A client has to trust his lawyer.

It doesn’t matter why a client doesn’t trust his lawyer, and the lawyer need not agree that the lack of trust is warranted. The question is whether a lawyer who is not trusted by his client can do an adequate job representing him. The answer is no. The Sixth Amendment, which guarantees a fair trial and legal representation in criminal cases, is not there for the lawyers, or courts, or government. It exits to protect the accused—all accused.

In a famous medical ethics case, an elderly Korean man in a hospital wanted his doctors, specialists in his malady, replaced because they were Japanese-Americans, and as a survivor of the horrors Japan inflicted on Korea, he was convinced that they would kill him. The hospital ethics committee held that he was an irrational bigot, and that he either had to accept the qualified physicians despite their race, or get out. The AMA disagreed. It said that the patient’s welfare is paramount in medical ethics, and a patient who does not trust his doctors—the reason doesn’t matter—will have his welfare and health endangered as a result.

The same principle should apply to Roof. A client who does not trust his lawyer will not, for example, be candid with him, or trust him to keep confidences.

Under the circumstances Roof described, the lawyers have an ethical obligation to withdraw. Two rules are involved:

Client-Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing. Continue reading

Ethics Heroes: The Orleans Public Defenders

foldersWhen is it your ethical duty to refuse to do your job? Here is one example.

The Orleans Public Defenders office finally decided to force the issue of under-funding for the defense of indigent criminals in the city, announcing last week that, as Chief Defender Derwyn Bunton warned nearly two months ago without any official response, it will begin refusing to handle serious felony cases in which defendants face lengthy or life sentences. Such cases include murder, attempted murder, forcible rape and armed robbery.

The office either needs more funding or reduced caseloads. The city must provide a lawyer for those charged who cannot afford counsel (The 6th Amendment and the Supreme Court insist) , but like almost every city in the nation, the funding for the New Orleans public defenders service is pitiful. With an inadequate staff of lawyers who must handle more cases than it is possible to defend competently, this creates both a Constitutional crisis and an ethical one.

Defense lawyers, like all lawyers, must do a competent job. The professional ethics rules require attorneys to control their workloads: Comment 2 to ABA Rule 1.3, which corresponds to the Louisiana rule, states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” Most public defenders offices know that their clients’ right to representation is being compromised by under-funding, but choose to soldier on, doing the best they can. Several years ago, one office even argued that their clients had “consented” to less than competent representation, because the alternative was no representation at all.  (The court did not agree.)

The American Bar Association addressed this problem in a formal opinion, and wrote, Continue reading

Jerry and Jared Remy, Parental Accountability, Hindsight Bias, and The Bad Seed

This is a tragic local story with vast ethics significance.

Father and son.

Father and son.

Long-time Boston Red Sox broadcaster Jerry Remy, a native Bostonian and former player who has been a vivid part of the Boston sports scene since 1977, was stunned by tragedy last summer when his oldest son, Jared, 35, allegedly murdered his girlfriend by stabbing her to death as their  ive-year-old daughter looked on. Prior to the incident, most New Englanders were unaware of Jared Remy’s problems, but his ugly past soon found its way into the newspapers.

A recent Boston Globe investigative report appeared to be the saga of a “bad seed” right out of a horror movie, for Jared Remy, son the popular, affable Jerry, had been arrested, and released, 19 times, for an assortment of alleged crimes, many of them violent. They included battering and threatening a high school girlfriend; pushing a pregnant girlfriend out of a moving car; texting death threats to her, and attempting to beat her up; threatening to kill yet another girlfriend;  terrorizing a fourth sufficiently that police were called to their apartment eight times; and involvement in steroid peddling and abuse. The Globe also obtained the testimony of a woman who alleges that Jared joined her in brutally beating a high school boy, causing him permanent brain injuries.

The Globe story (and others) raised the question of how and why the Massachusetts justice system kept releasing Jared. It is a valid question, not peculiar to his case, unfortunately. Many have speculated that Jared’s  status as the son of popular Boston sports figure played a part in getting him extraordinary leniency, but as Remy’s lawyer pointed out, several of the incidents also involved complainants and alleged victims who refused to testify or withdrew their complaints. In the realm of domestic abuse, evidently Jared Remy’s specialty, this is too common. The Globe writer, Eric Moskowitz, also insinuated that the Remys went too far in supporting their disturbed, violent and troubled son, who had learning disabilities and other clinical behavioral problems. They apparently paid for psychiatric treatment, counseling and legal fees, and helped with his rent and other expenses, though the extent of this has not been confirmed by the Remys, the only ones who could be authoritative on the topic. The rest is hearsay.

Jerry Remy, who has battled depression his whole adult life, withdrew from his role as color commentator after his son’s arrest, missing the Red Sox championship run. Outside of a brief statement condemning his son’s actions and expressing condolences to the parents of the victim, Jennifer Martel, Remy was silent until announcing this Spring that he would try returning to the broadcast booth for the upcoming season. Then, as Spring Training for the Red Sox ran down and Remy seemed, outwardly at least, capable as ever of being an affable presence with whom to watch the home team’s exploits,  the Globe story appeared. The revelations about Jared unleashed an unexpected (by me, at least) backlash against his father, and Bostonians in droves bombarded the sports radio talk shows, blogs and news media websites with the opinion that Remy should step down as Red Sox color man for cable broadcasts. How they reached this ethically indefensible position is instructive regarding how inept and unskilled most people are in day-to-day ethical analysis, how emotion becomes a substitute for objectivity and logic,  how hindsight bias makes experts and judges out of individuals with the credentials of neither, and also how ignorant most of the public is about the ethical obligations and duties of the legal profession.

Here are the reasons being cited for why Jerry Remy should give up his career:

Continue reading

Ethics Quiz: Is It Fair To Take A Criminal Defendant’s Constitutional Right Away If He Keeps Abusing It?

"Watch the pencil! WATCH THE PENCIL!!!"

Joshua Monson, standing trial in Washington State for drug charges and multiple criminal assaults, keeps stabbing his lawyers with pens and pencils  mid-trial. He just stabbed his third—the others withdrew because of the conflict of interest created when you are afraid that your client wants to kill you—so the judge ruled that Monson had forfeited his right to counsel under the 6th Amendment in the Bill of Rights. Judge David Kurtz said Monson will have to defend himself without the assistance of counsel and will be strapped to a special chair for the rest of the trial. Kurtz advised jurors to ignore the incident, the restraints and the absence of a lawyer.  Continue reading