In Garza v. Idaho, Thomas and Gorsuch stated in their dissent that they felt Gideon v. Wainwright had been wrongly decided. What was their reasoning? IANAL, but my reading is that for originalist reasons, they said poor defendant have no right to counsel if they can’t pay. Is this considered a fringe interpretation?
My reading of the dissent is that it’s in fact an originalist argument, but slightly different from your reading: At common law in England, defendants had no right to legal counsel in felony cases, and this rule was controversial at the time of independence in England as well as America. So the intention of the drafters of the Sixth Amendment was to abrogate this common law rule with constitutional validity, thereby removing any contravening legal provision that restricted defendants from seeking legal counsel. In Gideon, however, the Supreme Court held not only that defendants in felony cases had a right to legal counsel at their own expense, but also that they were entitled to get it at the government’s expense, and this is where Gideon went beyond the original intention of the Amendment.
(Disclaimer: Although I’m a lawyer, and with an interest in American constitutional law, I’m not an American lawyer. Also, I don’t know whether the above is factually true - I’m only saying that this is how I understand the line of reasoning in the dissent.)
Hmmm… interesting case.
IANAL - Basically Garza made a plea deal which included a 10-year sentence, included waiving right to appeal, and included the state forgoing extra charges (including habitual offenser status).
After sentencing - for the sentence he agreed to - he instructed his lawyer to appeal to try to get his sentences concurrent (i.e. less than 10 years, “get me less tha I agreed to”), and the lawyer refused. The risk was that by challenging the deal, it would negate the agreement (i.e. the no appeal clause) he could end up putting the other charges and a worse sentence in play.
The lawyer claimed that not appealing was the safe and prudent course for the client. Garza claimed not doing what he said was “ineffective counsel”.
The majority seems to agree, that essentially when the client says “jump” the lawyer should jump as high as possible, whether it has any hope or not of succeeding, whether it presents high risk to the client or not - whether or not it was reasonable.
Thomas seems to be effectively saying “Hold on. Just because the lawyer does not do what the client asked, for clear and valid reasons, should not be considered ineffective counsel. Don’t create a new rule that says it does”
He then goes on to trace the history of the rule(s). At first, the sate did not get you a lawyer, did not pay for it. Originally ineffective counsel applied only if the counsel’s performance was incompetent or a farce. Then, the standard was reasonable, and it became more strict, to the point where (in his opinion) this case creates a rule where a lawyer failing to follow his client’s advice despite it being in his opinion very wrong - no valid grounds to appeal, no hope of success, will simply clog up the courts. The majority has now created a rule where everyone has the option to instruct their counsel to appeal (on the state’s tab) whether there are valid grounds or not, whether the defendant waived his right to appeal or not, and the counsel has no choice but to do so.
Then, in Strickland, the Court crafted the current standard for evaluating claims of ineffective assistance of counsel. Without discussing the original meaning of the Sixth Amendment, the Court stated that “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that iscritical to the ability of the adversarial system to produce just results.” 466 U. S., at 685. The Court thus held that, to succeed on an ineffective-assistance claim, the defendant must show (1) “that counsel’s representation fell belowan objective standard of reasonableness” and (2) “that there is a reasonable probability that, but for counsel’sunprofessional errors, the result of the proceeding would have been different.” Id., at 688, 694. The Court appliesthis standard in most situations, but, as it does today, ithas also created an increasing number of per se rules
…the ineffective-assistance standard apparently originated not in the Sixth Amendment, but in our Due Process Clause jurisprudence
The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court hastraditionally demonstrated in this area.
That last bit is weird. Essentially, the constitution does not guarantee you a given level of reliability in court proceedings? I would think th whole purpose of appeal and Supreme courts is to enforce a level or reliability, which is why the whole “ineffective counsel” bit came about.
The argument in the last bit is, essentially, that at some point a judgment in a criminal trial needs to be final. You don’t want to get into a situation where every convicted defendant can easily argue that counsel was ineffective to have the conviction struck down. This may lead to a retrial, but then the defendant could bring the same argument again to have the conviction in that retrial struck down, and so on as infinitum. At some point, the legal system needs to accept the judgment for what it is, even if the defence lawyer could have done a better job.
(I’m not saying I’m necessarily siding with this reasoning; I’m only saying this is what I think the argument is.)
This was Thomas’ argument up to that point and made a great deal of sense. He was specifically arguing that the Sixth Amendment made no provision for ineffective counsel, and any rules have been added later by a progressive accretion of court rulings seeting the bar for “ineffective” at lower and lower levels. He complains that now, the court has moved the bar even lower once again, and a lawyer saying “that’s a bad idea and I won’t do it”, when it’s a bad idea, risky for the client and he shouldn’t do it, has become “ineffective counsel”.
So you are right, he is not really arguing for the OP’s question that there should be no right to counsel, he’s saying that the criteria for effective counsel has been made so low that a lawyer saying “no” to his client automatically triggers that finding, and this should be rolled back a ways.
It occurs to me it will then be up to judges to tell the defendant it’s time to get off the legal merry-go-round. (Can the judge iorder a person to stop filing appeals, similar to the “vexacious litigant” situation?)
I dunno - considering this is Clarence Thomas we’re talking about, it’s not hard for me to picture that he might be in favor of arguing that the Sixth Amendment guarantees a defendant’s right to counsel, but not that the government’s under any obligation to provide one to him for free.
Texas courts have had no problem with defendants on trial for murder with counsel who were incompetent or who fell asleep during the trial. It’s not difficult for me to believe that conservatives wouldn’t be cool with defendants not getting a public defender at all! 
Well, as an ethical matter, I think when it comes to certain things, that’s absolutely true. If, for example, the client insists on pleading not guilty, and the attorney refuses to allow them to do that (or else they say they will withdraw as counsel) then that is both horrendously unethical and, I think, ineffective assistance of counsel. In general, as an ethical matter at least, while attorneys might get to make certain tactical decisions (for example, whether and how to ask Colonel Jessup if he ordered a code red), they don’t get to make strategic decisions, such as how to plead or whether to accept a deal.
I personally would think whether to file an appeal, especially if it’s an appeal of right, falls into the strategic decision category, a that an attorney who refuses to do so in spite of informing their client of the risks and their client persisting with the demand is acting both unethically and ineffectively. But that’s just me.
It appears the attorney’s logic was “this appeal has no hope in hell of winning, but does seriously offer the risk that you could get concurrent life sentences instead of the 10 years you agreed to”.
Can the court-appointed lawyer (I assume he was) walk away and ask the judge to get someone else to take over? When the case is over and the guy is sentenced, who is the judge who would decide about a replacement? What I don’t understand about this case is why the lawyer is still there if the sentence is pronounced?
Obviously a lawyer can refuse, for example, to call perp’s buddy Bob to testify knowing Bob is going to lie on the stand.
So, are you saying that the dissent did NOT say that Gideon’s provision of counsel for indigent defendants was wrong, it’s just that we don’t want to allow infinite do-overs? IOW, Thomas doesn’t have a problem with courts appointing counsel if a defendant can’t pay, or at least if he does, the dissent doesn’t say that, correct?
Not sure what Thomas thinks (assuming he does) but basically he said that the amendment says nothing about providing counsel or bad counsel being grounds for a do-over, and his complaint is that each successive case keeps lowering the bar. I think he was more concerned about the wider and wider latiitude given to using the “ineffective counsel” card rather than whether the state pays for the lawyer.
The right to get a lawyer paid for by the state, and the right to have the lawyer do an effective job, have been successive cases where the SCOTUS basically said, “it’s only fair if…” and that determined whether justice had truly been served.
But reading between the lines, if he’s a true originalist, then there is nothing in the constitution itself that guarantees a person has any right except to go find a lawyer on his own and have that lawyer argue for him in court proceedings.
Obviously, if you have to pay for your own lawyer, that creates one law for the rich and another for the poor. As Anatole France said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
I see these SovCit video where either the defendant fires the attorney to defend themselves since the attorney won’t challenge jurisdiction under the 6th Amendment (according to them, the 6th Amendment says there are only 2 jurisdictions: common law and admiralty law) or the attorney asks to be removed since they cannot give the defendant the bat-shit crazy defense they are demanding. If Thomas is saying we cannot consider that the attorney’s unwillingness to produce those defenses the SovCits demand cannot be considered “ineffective council” then he is 100% right.
True.
The defndant wanted to appeal after accepting a deal wich included not appealing. The lawyer told him no. He said that by appealing in contravention of his waiver of appeal, he was violating the deal, opening himself up to having the plea deal cancelled and his sentencing being re-opened, and possibly being tried also in federal court (no federal trial was part of the plea deal). So rather than getting his shorter sentence, he was more likley to get something additional up to life in prison. In the lawyer’s professional and experienced opinion, a really really bad idea.
It’s not bat-shit crazy plea like a SovCit, but it was a cynical attempt to change the deal after the fact, the lawyer told him essentially it was a very very bad idea and he (the lawyer) would not do it, could not do it in good conscience.
The majority decision seems to say that bad idea or not, high risk for the client or not, violation of an agreement or not, the lawyer must do the client’s bidding or is being an “ineffective counsel”. I assume they did not see the violation of a plea deal and waiver as a step too far (which, for example, subborning perjury would be) while Thomas logically seems to say this was not “ineffective counsel” and then rails about how the bar keeps getting lower and lower, meaning almost anything is becoming ineffective counsel and hence grounds for appeal. (Meaning presumably then the failure of the appeal may be grounds for appeal, rinse and repeat.)
It’s not merely that he did not do the client’s bidding: he refused to file notice of an appeal. On the orders of magnitude scale, it’s less “he refused to ask the victim’s grieving mother if maybe she killed her own son based on no evidence” (the kind of tactical decision that an attorney can make) and more “the client said he wanted to plead not guilty, but the attorney refused to allow him to do that because it would result in throwing out a likely more favorable plea deal” (which is absolutely forbidden: an attorney doesn’t get to decide for or overrule the client on what the plea is going to be).
While attorneys get a fair amount of latitude in how to represent a client, as an ethical matter at least clients get to make the major strategic decisions, even if counsel thinks it’s inadvisable.
One wonders if had the attorney agreed to this, backed out of the agreement (and doesn’t an attorney have certain guideline they must follow as an officer of the court?), filed the appeal and as a result this client got a worse prison sentence, would the court consider THAT ineffectual council since that decision hurt his client.
Also, client signed a waiver of appeals as part of the deal. Where does contradicting the signed waiver, actually filing the appeal, fall on the scale of things a lawyer should not do? Are they similarly bound by the waiver? is the court bound to hear an appeal in contradiction of a waiver?
I sort of see this as similar to suing to undo a completed contract. It’s settled. To what extent can a client change their mind after agreeing?
(I assume also, the lawyer cannot carry on if the client has told the lawyer “I did it” and then demands to be put on the stand to say he didn’t?)
Generally, a lawyer may not refuse representation just because the client won’t take his advice. The lawyer may withdraw because there are irreconcilable differences between lawyer and client, but a court is unlikely to allow withdrawal on those grounds in the middle of sentencing.
That seems to me to create a situation where filing the appeal is ineffective counsel because the negation of the plea deal would almost certainly make things worse, but not filing the appeal is ineffective counsel because the client wants it.
Where is the off ramp?
The off ramp is in, IMHO, the attorney’s ethical duty to the client. The attorney should not be the one who gets to decide whether to file an appeal of right and throw out a plea deal any more than the attorney is the one who gets to decide whether the client should accept a plea deal to begin with.
If the client says, “screw the deal, I want to plead not guilty and risk a trial” in spite of the attorney’s well-founded advice against doing that… the client gets to plead not guilty and risk a trial. Not that such a thing is physically possible, but if an attorney somehow managed to stand between the court and their client and enter a plea of guilty to get a very favorable plea deal despite the client’s wishes, you had better believe that would be both (1) ineffective assistance of counsel and (2) grossly unethical.
So, if (if) it’s an appeal right, the client wants to take it, and it is within the attorney’s scope of representation to file such an appeal (or file a notice of intent to do so), then… I think the failure to do so is both grossly unethical and at least ought to be considered ineffective assistance of counsel, whether it jeopardizes a favorable plea deal or not.
The thing I wonder about is why the client thought the appeal had a hope in hell if filed.
Also, what is the status of a plea deal in state court that includes an agreement from the federal prosecutor not to prosecute in the first place? Is this the form of a “gentleman’s agreement” or is it legally binding? I would think something that is done in a state court has no actual binding in federal court, is it just the prosecutor’s goodwill that stops him from proceeding? And the defendant’s elocution in state court now becomes fair game, plus from what I read he was only appealing the concurrency of the state sentences, not the guilty plea.
Could the state court even change the sentences to concurrent, or just send him back to lower court for resentencing? I assume technically they can decide whatever they feel like?
I must have missed this thread when it was live.
I would agree with @ASL_v2.0 ‘s approach here. Just as the client gets to decide to plead not guilty, the client should get to decide to appeal. The lawyer shouldn’t block the appeal, especially since there’s usually a pretty strict time limit for filing a notice of appeal.
Of course, in both cases, the decision to plead not guilty and the decision to appeal, the lawyer should paper their advice extensively, to make it clear that the client is making a decision against the advice of counsel.
However, I would think that once the notice of appeal is filed, preserving the client’s right to appeal, the lawyer could consider whether to withdraw from the case. If the lawyer was involved in negotiating the plea deal, they’re not in a good position to argue against the plea deal they themselves negotiated. Best to have a fresh set of eyes on the case for the appeal.
Withdrawing after the notice of appeal is filed wouldn’t prejudice the client in the way that trying to withdraw during sentencing at trial would do. There’s usually a considerable time lag between filing the notice of appeal and briefing the appeal for argument.
But, as always, IANAUSL, so I could be wrong.