U.S. Court of Appeals for the 4th Circuit

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

/ Jack Marshall / 28 Comments

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 →

Justice vs. Process: The Case Of The Final, Mandatory, Unjust Sentence

/ Jack Marshall / 18 Comments

African American in Prison

A full panel of the U.S. Court of Appeals for the 4th Circuit, fifteen judges in all, heard arguments this week  regarding whether they have the power to do anything about Raymond Surratt Jr.’s mandatory life sentence, which just about everybody—-the sentencing judge, Surratt’s defense lawyers and government prosecutors—agrees is unjust.

Until the Surratt case, no federal appellate court has faced the question of  whether a court it has a route to correcting a mistake of its own making when the error is as severe as a mandatory life sentence. The North Carolina father of two is incarcerated at a federal facility in Virginia for a 2005 cocaine conviction. If Surratt were sentenced today, he would face a mandatory minimum penalty of only ten years in prison. If he had been sentenced under current laws in 2005 rather than the laws then in effect, he would be out of jail by now.

Surratt pleaded guilty in 2005 to conspiring to distribute at least 50 grams of cocaine in western North Carolina. The judge said he had no choice under sentencing guidelines other than  to give him a mandatory life sentence because of Surratt’s earlier drug convictions. The judge called the penalty “undeserved and unjust.”

The conviction and sentence were upheld after Surratt’s  appeals. Now he has no appeals left. But in 2011, the 4th Circuit, which includes North Carolina, overruled past practice, meaning that it held that prior convictions as in Surratt’s case should not trigger a mandatory life term.

Now, I know that non-lawyers react to this by thinking, “So what’s the problem? Let him out!” That’s in line with the reaction they have when they hear about a defense lawyer who knows his mad-dog killer defendant is guilty of a heinous, bloody crime (“So tell the judge!”). However, the law can’t be changed on the fly, and the fact that a result may be obviously wrong doesn’t change the importance of addressing it within existing procedures, rules and laws. In this case, no more appeals means no more appeals.

The Surratt case involves the important judicial principle of finality. Prof. Steven H. Goldblatt, who runs Georgetown Law Center’s  appellate litigation clinic, told the court that finality is of vital importance to the legal system. Agreeing, a majority of the Fourth Circuit panel said last year that… Continue reading →