Mid-Life Crisis: Gideon Turns 50

By David Rangaviz

In re Kimmick, 2013 VT 43

Today’s case is about the scope of the right to counsel.

This year marks the fiftieth anniversary of the Supreme Court’s opinion in Gideon v. Wainwright, in which the Court decided that indigent criminal defendants have a right to counsel in state courts when they are unable to afford their own attorney.  This anniversary provides a moment for reflection.

Today, the public defender system in this country is broken.  For many defendants, the “right” rings hollow, legitimating an era of mass incarceration in which public defenders are spread increasingly thin by exploding caseloads and shrinking budgets.  At the federal level, the sequestration’s recent budget cuts have greatly exacerbated the problem, triggering mass layoffs in federal defenders’ offices across the country.  And every dollar cut from public defender budgets offers only illusory savings—it requires the use of more private attorneys, who cost more and get worse outcomes.  The likely result, higher sentences, just shifts the problem onto the ballooning corrections budget.  The cuts are penny wise and pound foolish.

(If you have HBO and 90 minutes to spare, watch this documentary.)

But the right to counsel—effective counsel—in criminal proceedings is of a constitutional magnitude, embodied in the Sixth Amendment to the U.S. Constitution:  “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.”  As such, the work that public defenders do is not optional. Budget cuts simply mean that they must do more with less.  Actually doing less (i.e., leaving poor defendants to fend for themselves) would violate the Constitution.

This constitutional right to counsel, and thus the work of public defenders, extends only to all “critical stages” of a criminal proceeding—from the time the proceedings begin through the first level of appeal.  After the first appeal, however, the right to counsel for indigent defendants is extinguished.  Despite this temporal limitation, as I have previously written, criminal cases rarely end with the first appeal.  This means that, in filing further appeals, habeas corpus petitions, or other petitions for post-conviction relief, indigent defendants must go it alone and proceed pro se (meaning, in Latin, “for himself”).

In drawing this line, courts typically reason that, having had the benefit of counsel through one appeal, all potentially-meritorious legal issues will have been identified and analyzed (both by counsel and an appellate judicial decision), thus limiting the need for the prisoner to conduct any subsequent legal research from scratch on their own.

Of course, this rationale makes no sense whatsoever when the habeas corpus proceeding itself is the first opportunity to address an issue.  A challenge to the effectiveness of trial or appellate counsel, by way of example, is typically first raised in habeas proceedings.

This places indigent defendants in a catch-22: They have a right to effective counsel through the first appeal, but if they are convicted and want to argue their prior counsel was ineffective, they must act alone.  In this way, any effort to validate the right to counsel must begin—and, usually, end—with poor defendants at a distinct disadvantage.  They have to act as their own lawyers.  And consider who these lawyers (née defendants) are: 68% of the state prison population nationwide did not complete high school and 16% are mentally ill.  Given the particular procedural complexities of habeas corpus law, which are dizzying to even many experienced lawyers, this limitation cuts a gaping hole in the right to counsel.

In this system, just as crazy pilots keep flying, ineffective lawyers are almost never identified as such.

The Vermont legislature, however, has stepped into the breach.  Despite the lack of a constitutional mandate, the legislature has established a limited statutory right to counsel in post-conviction proceedings.  Under 13 V.S.A. § 5233(a)(3), an indigent defendant is entitled “[t]o be represented in any other postconviction proceeding . . . where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument . . . .”  In other words, if you are poor and an attorney thinks you have a decent, “nonfrivolous argument,” you have a right to counsel in post-conviction proceedings in Vermont state court.

But what is the procedure for making this decision?  Can an attorney just “veto” a defendant’s right to counsel—by finding all arguments frivolous—with no judicial review of that decision?

Today’s opinion raises these questions, but opts not to answer them.

The underlying facts are tragic.  Petitioner was initially charged with second-degree murder in the 2004 death of his ex-wife, but negotiated a guilty plea to the lesser offense of manslaughter.  (More facts are available here and here if you are interested.)  Petitioner was sentenced to 14–15 years imprisonment.  He appealed, raising a number of issues related to victim-impact testimony at sentencing.  SCOV affirmed the sentence in January 2007.

In April 2008, Petitioner, proceeding pro se, filed for post-conviction relief (“PCR”), arguing that his counsel had been ineffective.  Petitioner claimed chiefly that his counsel had violated his rights during the sentencing hearing by forcing him not to testify about his ex-wife’s alcoholism and violent propensities.  Such testimony, by Petitioner’s estimation, would have convinced the court that he acted in self-defense, potentially reducing the sentence that might have been imposed.

The trial court then appointed Petitioner an attorney.  That attorney began negotiations with the State’s Attorney, who quickly agreed to re-open sentencing and hold a new hearing, but Petitioner rejected the offer.  In June 2008, Petitioner’s first PCR attorney withdrew.

So new counsel was appointed and the case continued.  Almost two years later, after counsel had already deposed Petitioner’s sentencing counsel and tried to locate an expert witness, Petitioner’s second lawyer moved to withdraw, arguing that his work had not revealed any non-frivolous claims.  Another attorney, as well as the Vermont Defender General’s office (the state public defender in Vermont), agreed that Petitioner’s case did not meet the “non-frivolous” requirement for appointment of counsel under the statute.  As a result, the Defender General “would not pay for further representation of petitioner.”  After Petitioner amended his PCR petition, the trial court ordered counsel to take a second look, but his conclusion as to its frivolousness (in his words) “remain[ed] unchanged.”

Petitioner wanted to keep his lawyer, so he argued that, by representing him for such a lengthy period (almost two years), counsel had waived the right to withdraw.  The trial court disagreed, permitting counsel to withdraw and thus effectively forcing Petitioner to represent himself.  On the merits, the trial court rejected Petitioner’s argument, concluding that his sentencing counsel had been effective, and declined to disturb the sentence or hold a new hearing.

On appeal to the SCOV, Petitioner reaffirms his argument that PCR counsel should not have been allowed to withdraw, and argues that the screening mechanism for determining whether an individual has a right to appointed counsel in post-conviction proceedings violates due process.  On the merits, of course, Petitioner also continues to assert that his counsel was ineffective during sentencing.

In a unanimous opinion with two separate concurrences, the SCOV affirms, rejecting all of Petitioner’s arguments.

The SCOV concludes that whatever the standard is for withdrawal from PCR representation—which it feels no need to establish definitively—it was amply met in this case.  Counsel told the trial court the reasons for his withdrawal—no expert would testify in support of Petitioner’s claims and the deposition of sentencing counsel made it even clearer that he had done nothing wrong.  This conclusion was shared by another attorney, as well as the Defender General’s office.  Because the trial court’s decision to allow the withdrawal was “neither arbitrary nor uninformed,” and thus “fully consistent with any minimal due process protections” that apply, SCOV affirms the trial court’s decision allowing withdrawal.

That sound you hear is the collective sigh of relief from nearly every member of the bar.

Turning briefly to the merits, the SCOV has no trouble dispensing with Petitioner’s argument concerning counsel’s ineffectiveness.  Because the record at sentencing was replete with references to the victim’s alcohol problems, Petitioner’s testimony would have been cumulative of other evidence provided, so he cannot show that any “prejudice” resulted from counsel’s refusal to allow him to testify about her history of alcohol abuse.  Reviewing the record, the SCOV notes that the sentencing court actually seemed to resent Petitioner’s “blame the victim” defense, which means that counsel’s refusal to allow Petitioner to pile on additional testimony, far from harming his case, “likely redounded to his benefit.”

Writing separately, and only for himself, Justice Dooley notes the particular difficulty of applying the standard for withdrawal from the Vermont statute without judicial oversight.  The lesson from today’s case, in his view, is that “appointed counsel can disclose the steps in this representation, and in forming counsel’s opinion on merit, without injuring the client.”  But the withdrawal process “remains broken”—certain factors make it seem as though Petitioner’s claim may have had at least some degree of merit (making it, even if not meritorious, at least “nonfrivolous”), and, in any event, the delays in PCR representation decisions “remain unacceptable for any justice system.”  Dooley urges the rest of his colleagues to consider imposing a rigid timeframe for review of the merits of PCR petitions, with retention of a case beyond that timeframe resulting in a waiver of the right to withdraw.

Justice Burgess, also writing separately and joined by Superior Court Judge Bent (sitting on the SCOV by special assignment), goes the other way.  In Burgess’s view, the trial court could basically reach whatever conclusion it wanted with regard to Petitioner’s claims “once petitioner refused relief” (i.e., rejected the offer of a new sentencing hearing).  Rejection of this offer “rendered continued litigation of his claim frivolous and wasteful, if not moot.”  By turning down the new hearing, Petitioner lost any statutory right to counsel.

As I said at the outset, today’s case raises more questions than it answers.  While Justices Dooley and Burgess propose their own (very different) answers, the standard for attorney withdrawals going forward remains unsettled.  What amount of judicial oversight is necessary in determining whether a PCR petition is “nonfrivolous” so as to trigger the right to counsel?  How long is too long to make this decision?

On principle, Justice Dooley hits the nail squarely on the head in his concurrence.  Contrary to Justice Burgess’s argument, the offer of a new sentencing hearing did not extinguish Petitioner’s claims.  If anything, it revealed their merit, as it shows that the State’s Attorney was eager to give him relief and avoid having to oppose his petition.  Also, the trial court’s lengthy and detailed analysis of Petitioner’s claims, though rejecting them, does indicate their arguable merit.  By setting a hard-and-fast deadline for waiver, SCOV would encourage PCR attorneys to review the merits of their cases in a timely fashion to screen out frivolous cases in favor of those likely to be of merit.

As noted, there are countervailing budgetary considerations.  Expansion of the right to counsel into more PCR petitions, and forcing public defenders to justify every withdrawal by an exacting deadline, only increases their caseloads and exacerbates an already-critical lack of resources.  On the other hand, declining to impose strict judicial oversight may further erode the right to an attorney.  As the SCOTUS counsels: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

But what happens when such constitutional dictates run headlong into budgetary constraints?  Will the Constitution have to bend so our budgets don’t break? 

Considering the state of Gideon at 50, maybe it already has.