Friday, May 05, 2006

Is Anyone Really Listening?

Do judges really listen to defense lawyers and give deference to their opinions, particularly where the subject matter relates to the defense lawyer’s opinion as an officer of the court? Two Sixth Circuit cases that were decided in April shed some light on this burning question.

First, the question came up in the context of a competency issue from a state court proceeding in Filiaggi v. Bagley, 04-3513 (4/14/06). In Filiaggi, the stun belt defendant was to wear during his state murder trial accidentally discharged. As a result, the defendant was evaluated by a psychologist who concluded that he was competent, but that further testing may be warranted. Based upon this information, and the testimony from a deputy guarding the defendant, the court decided that he was competent and proceeded to trial. The defendant’s two attorneys (one of whom was also a medical doctor!) then repeatedly, and incessantly, requested further psychological testing of the defendant because they both felt that defendant was incompetent to stand trial. All requests for further competency evaluations were denied and defendant was ultimately convicted and sentenced to death.

On appeal to the Sixth Circuit from the denial of the habeas petition, Judges Batchelder and Gibbons ruled that no further competency testing or hearing was required and affirmed the conviction. In so holding, the court noted: "Although the evidence before the court was mixed, evidence in favor of finding [the defendant] incompetent came solely from his attorneys." Id.

Judge Cole, writing in dissent, took the majority to task for discrediting the representations of the two attorneys for the defendant: ""Yet when defense counsel – one of whom was a licensed physician and all of whom were, in the words of the Ohio Supreme Court, ‘officers of the court whose assertions cannot be dismissed,’ – repeatedly asked for further evaluation upon specific, verifiable, and relevant bases, the trial court repeatedly denied the requests." Id.

Although the Sixth Circuit majority in Filiaggi completely discredited the two defense attorneys’ opinions, the court took a much more favorable view of a defense attorney’s judgment in Gillard v. Mitchell, 03-4261 (4/26/06). Defendant and his brother were being investigated for murder. An attorney undertook representation of the brother during the course of the state investigation, and the brother ultimately was not prosecuted. Defendant, however, was charged with murder and the same attorney represented him throughout his court proceedings. At defendant’s state murder trial, the attorney called the brother as a witness. The prosecutor objected, claiming that the attorney may have a conflict of interest. The attorney told the court that he did not feel a conflict existed. Based upon the attorney’s representation, the court allowed him to proceed. Nonetheless, just to be safe, the court appointed separate counsel for the brother during his testimony.

Eventually, in a habeas petition, defendant claimed that his attorney acted under an actual conflict of interest and that he was ineffective for failing to raise the defense that the brother, not defendant, was the perpetrator of the offense. The district court granted habeas relief on this ground. On appeal Judges Siler, Daughtrey, and Sutton found that the attorney was not operating under an actual conflict of interest. The miraculous nature of this conclusion aside, of importance for this blog is that the court emphasized how the trial court "properly deferred to [the attorney’s] judgment that no conflict existed." Id.

It would seem that an attorney’s concern that her client may be incompetent and an attorney’s opinion regarding a conflict of interest among her clients both are matters that rely on the attorney’s representations as an officer of the court, as opposed to the attorney’s role as advocate. Yet in Gillard, the attorney’s opinion that he had no conflict (when it would appear that he obviously did) was entitled to deference, while in Filiaggi, the two attorneys concerns that their client was not competent to proceed were discredited. Reading the two decisions, one is left with the distinct feeling that a defense attorney’s opinion is important when it happens to fit within the court’s agenda in deciding the case, but that it otherwise may be completely disregarded. Or maybe I read too much into this, and should simply remind myself of the important, unwritten, long-standing principle of jurisprudence: The law is always construed against the obviously guilty defendant.