Ineffective Assistance of Client

Abraham Lincoln supposedly said something like: “A man who represents himself has a fool for a client.” Michael Lee Johnson--like Gomez Addams before him--said, “I am that fool!” He paid a very steep price for that choice: after a jury trial, he was convicted and sentenced to an astonishing 864 months’ imprisonment.

Now represented by the University of Michigan’s Federal Appellate Clinic on appeal, Johnson racked up a series of victories, including a new trial and reassignment to a different district judge. His case highlights the pitfalls of self-representation.

Johnson was charged with a bevy of crimes after he got into an argument with his girlfriend, including assault, unlawful imprisonment, domestic violence, and witness tampering. Although these are typically crimes prosecuted in state courts, Johnson was charged in federal court because his girlfriend was a member of the Chippewa tribe, and the apartment where most of the events took place was on the Isabella Reservation.

From the outset, Johnson struggled to trust his two court-appointed lawyers. He ultimately asked the court to represent himself.

At the final pretrial conference, the district court asked Johnson how he wished to handle his defense. Johnson declared that he would do a better job than his counsel. He announced that he had read Michigan court rules, federal statutes, and the Federal Rules of Evidence. The district court asked, “[W]hy do you think that without a legal education you are in a better position to make . . . the decision that you are a better lawyer than either [court appointed lawyer]? I mean, doesn’t that strike you as a little bit out there?” Undeterred, Johnson replied, “I don’t say that I’m a better lawyer. I’m sure these men have a lot more experience in a trial. It would be a David and Goliath, but I’m willing to take that opportunity. I’m willing to put my life on the line…” The district court admonished Johnson that self-representation is not advisable, even if it is constitutionally protected. Undeterred, Johnson decided to press ahead as his own lawyer. The district court appointed a third lawyer to act as standby counsel.

On appeal, Johnson argued that the district court failed to ask the questions necessary to determine that a person wishing to represent himself understands the potential perils of doing so. The Sixth Amendment guarantees the right to counsel and also the right to self-representation. To avoid unknowing waivers of the right to counsel, the Sixth Circuit requires district courts to ask people asking to proceed pro se a series of questions in the Bench Book for The United States District Judges, or at least something close to it. Before answering that question, the Sixth Circuit clarified that the standard of review for whether waiver of counsel is valid is de novo even if the pro se litigant does not object to the colloquy. This critical and long-unresolved question can be outcome-determinative, as it was for Johnson. Reviewing the validity of the waiver de novo makes sense because we cannot expect people to know whether and when to object while a judge is asking questions about the decision to represent themselves.

When the district court talked to Johnson about the decision to represent himself, it did not fully address the gravity of the charges and potential consequences. In fact, the judge did quite the opposite, suggesting that this was not the type of case where the potential penalties were 50–70 years. In fact, it was; Johnson was sentenced to 72 years in prison. Because the colloquy fell short of what is required, the Sixth Circuit reversed Johnson’s convictions and remanded for a new trial.

The majority was also unconvinced that Johnson effectively waived his right to counsel by behaving badly at trial. After all, it did not order Johnson to proceed as his own lawyer in response to any misconduct. The majority was also not persuaded, as Judge Siler was in dissent, that Johnson’s request to remove two attorneys an effective waiver because he was amenable to the assistance of standby counsel.

On his own, Johnson’s defense struggled from the outset. During voir dire of potential jurors, Johnson mentioned that he planned to call “a slew of witnesses.” After opening statements, however, it came to light that none of the witnesses had been subpoenaed and the court denied having received any witness list. Johnson believed his standby counsel would do that. He further explained that he had given witness lists to all three appointed attorneys and sent one to the district court. After realizing that he would not have any witnesses to testify on his behalf, Johnson asked for a continuance so that he could subpoena the witnesses. The district court refused.

The Sixth Circuit concluded that the district court’s failure to grant a continuance or to allow time to subpoena witnesses violated the Sixth Amendment’s right to compulsory process. The majority was troubled by the district judge’s failure to review the letters Johnson sent to determine whether he had, in fact, submitted a witness list. The majority also concluded that the district court should have directed standby counsel to file subpoenas and witnesses on Johnson’s behalf after he displayed obvious confusion about the process at the pretrial conference. Although Judge Siler acknowledged the confusion, he believed reversal was improper because Johnson had not made an offer of proof about what the witnesses would say if called to testify.

Without time to subpoena witnesses, Johnson was the one and only witness for the defense. What happened during that testimony illustrates one of the many perils of testifying at trial.

The government provided notice under Federal Rule of Evidence 404(b) of intent to call two of Johnson’s ex-girlfriends to testify about previous assaults. Before trial, the judge ruled that the testimony was admissible to show lack of accident only if Johnson admitted to committing the assaults against his girlfriend and denied intent to imprison or strangle her. Likely unaware that he could open the door to this testimony, Johnson stated on the stand that he had never restrained a woman. The government proceeded to call his ex-girlfriends who testified that he had strangled and barricaded them before. Because this testimony was now offered to discredit Johnson, the district court’s ultimate decision to allow this testimony was not an abuse of discretion.

After the jury found Johnson guilty, he faced the next challenge as a pro se litigant: sentencing. Johnson’s final Guidelines range was an astonishing 360–2,412 months (30–201 years) b based on an offense level of 38 and a criminal history category of VI.

Because Michigan law provided the substantive basis for the charges, the district court had to figure out the most analogous Guideline to use. The district court chose to apply U.S.S.G. § 2A1.6, which is the guideline applicable for federal kidnapping, abduction, and unlawful restraint. Without an objection, Johnson was stuck with plain-error review when he argued on appeal that Mich. Comp. Laws § 750.349b was punished less severely than kidnapping under federal law. The Sixth Circuit found no plain error because the Michigan statute was also a felony and punishable up to 15 years.

The Sixth Circuit also did not find that the district court impermissibly double counted by failing to group the eight witness-tampering counts. The problem for Johnson is that each witness-tampering count was treated as separate attempts to tamper with a witness.

At the sentencing hearing, the government sought a 100-year sentence. The victim asked that the court impose a life sentence.

For his part, Johnson maintained his innocence and asserted that various violations had occurred during the trial, but he did not make as sentence recommendation. His counsel suggested that mental health treatment was appropriate and emphasized the possibility of rehabilitation and redemption.

 Before imposing the 864-month (72-year) sentence, the district judge made only two comments. First, he said Johnson appeared to be incapable of discerning what is in his best interest. Second, the district judge commented that he could “not discern any sense of moral guardrails concerning [Johnson’s] behavior.”

On appeal, the majority found the district judge’s explanation of the sentence lacking. In other words, the sentence was procedurally unreasonable. In particular, the majority was troubled by the judge’s failure to consider rehabilitation and the potential benefit of mental health treatment. The fact that the sentence included a mental-health-treatment condition of supervised release was not enough to assure the majority that the judge adequately considered the rehabilitative purpose of a sentence because 72 years is effectively a life sentence.

The Sixth Circuit believed the original trial judge would have a hard time forgetting Johnson’s antics during the first trial, and thus ordered that the case be reassigned to a different judge.

Johnson was correct that his trial would be like David versus Goliath. Most federal criminal cases are. But on appeal, with the assistance of appellate counsel, Johnson landed three fatal blows. He now gets a new trial in front of a different judge. Maybe this time, he’ll have more effective counsel.


1 comment:

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