Criminal defendants have “the right to the effective assistance of counsel.” Strickland v Washington, 466 US 668, 686 (1984). Generally, this means that a defendant is entitled to reversal of an otherwise valid conviction if (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) that the deficiency was “prejudicial to the defense.” Id. at 678-88, 692. However, in some circumstances, the defendant does not need to show prejudice, as it is automatically presumed in these situations. This is true “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken. Roe v Flores-Ortega, 528 US 470, 484 (2000).
In Garza v Idaho, 586 US ____ (2019), the United States Supreme Court held that a trial attorney was ineffective for failing to file a notice of appeal as requested by Mr. Garza. As part of Mr. Garza’s plea agreement in which he “waived his right to appeal.” After he was sentenced, Mr. Garza told his trial attorney that he wanted to appeal, and “in the days that followed, he . . . continuously reminded his attorney of this directive via phone calls and letters.” However, the trial lawyer refused, advising Mr. Garza “that an appeal was problematic because he waived his right to appeal.” A few months later, Mr. Garza attempted to preserve his appellate rights in the court where he’d been convicted; however, the trial court denied his request. Both the Idaho Court of Appeals and the Idaho Supreme Court affirmed, holding that “Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; [the Idaho Supreme Court] concluded that the could not.”
The State of Idaho argued that the presumption of prejudice from Flores-Ortega did not apply in this case, because Mr. Garza had waived his right to appeal as part of his plea agreement. However, the United States Supreme Court disagreed, noting that “no appeal waiver serves as an absolute bar to all appellate claims.” Therefore, even though Mr. Garza had agrees to waive most of his appellate rights, he still had the right to file a notice to preserve his appeal and to explore whether there existed any issues on appeal that were not waived as part of his plea agreement.
The Court reaffirmed that “filing such a notice is a purely ministerial task that imposes no great burden on counsel.” Flores-Ortega, 528 US at 474. Therefore, when the trial attorney failed to perform such a small task, counsel performance was unreasonable. To emphasize this point, the Court said, “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Adding this to the fact that prejudice was presumed because Mr. Garza had been denied his appeal, the Court concluded that Mr. Garza had been denied is right to effective assistance of counsel.
A few things are notable about this case in my opinion:
First, it would seem that this case provides clear instruction to trial lawyers that, if your client requests that you submit a request for an appeal, you must do so. I point this out, because I have encountered several cases in which the trial lawyer simply said that they did not want to do so, they were afraid that doing so would cause them to be liable for any errors in the process, or because they believed that it exceeded the scope of their representation. In Michigan, the process of preserving an appeal for a criminal defendant requires only the submission of a one-page (in most cases, a half-page) form to the court clerk. There is no reason for a client-centered defense attorney, who presumably works in the local courthouse several times per week, to refuse to deliver the appeals request form, on behalf of a client, if the client so requests. According to the Supreme Court, it appears that such refusal likely amounts to ineffective assistance of counsel.
In Michigan, it is unlikely that a defendant would encounter a plea agreement similar to Mr. Garza’s. When a defendant in Michigan enters a plea, he or she automatically gives up the right to file a claim of appeal. However, that person may still file an application for leave to appeal, which is essentially a request that the Court of Appeals review the conviction or sentence, despite the plea. In my career, I have seen several of these applications granted and I have obtained favorable outcomes on appeal for clients who had pleaded guilty or no contest. Additionally, the Michigan Court of Appeals has held that it is unconstitutional to enter a plea agreement in which the defendant waives his right to court appointed appellate counsel. People v Billings, 283 Mich App 538, 545 (2009). So, when a defendant has pleaded guilty or no contest, effectively waiving his right to an automatic appeal, he or she does not (and really cannot) waive the right to request that the case be reviewed by an appellate attorney.
What the legal community has, in the last couple days, emphasized about the Garza opinion is the justices that signed on, and those who did not sign on to the opinion. The majority opinion was adopted by 6 of the justices, including all four of the “liberal” justices (Sotomayor, Ginsburg, Breyer, and Kagan) as well as Chief Justice Roberts and Justice Kavanaugh. I am encouraged to see Roberts and Kavanaugh, despite their reputation as being conservative, standing behind the right of criminal defendants to be represented by effective, court-appointed attorneys.
However, as many in the legal community, I am disturbed by the dissent, which was authored by Justice Thomas, and signed in full by Justice Gorsuch and in part by Justice Alito. In fairness, I should point out that Justice Alito distanced himself from the most obscene portion of the dissent. In this third part of their dissent, Thomas and Gorsuch appear to argue for restrictions to, if not the elimination of, the right to competent court appointed counsel in criminal cases. For these two justices, low-income people should not necessarily be guaranteed the right to professional assistance in navigating a criminal justice system that is confusing even for many lawyers. If a person is accused of a crime, that person must either come up with the money to hire their own lawyer, beg a lawyer to work for free, or rely on the generosity of the State or local government to provide assistance. What is most important, under this view, is that the criminal justice system be as efficient and cost-effective as the State wants it to be, without regard for the justice or accuracy of the outcome. If innocent people go to prison, then at least the State can be assured that it saved a few bucks in attorney fees.
However, beyond the obvious idea of basic fairness, this view misses the fact that even a year’s incarceration of an innocent person costs the State considerably more than the cost of appointing an attorney to prevent that unjust outcome. In Michigan, the average cost per inmate, of incarceration, is about $36,000 per year. Meanwhile, a typical court-appointed attorney fee bill ranges anywhere from less than $100 up to a few thousand dollars in the majority of cases. In Monroe County’s 2018-19 budget, for example, the county allocated $879,500 for court appointed representation. In short, the cost of one wrongful conviction that entails a sentence of 25 years in prison exceeds the entire cost court appointed representation in Monroe County for all defendants in a given year. It can hardly be suggested that a system designed to ensure access to a relatively fair and accurate system provides an unreasonable financial drain on states.
But Justice Thomas and Justice Gorsuch would apparently embrace the opportunity to reverse this important right, undermining the Supreme Court’s decisions in Gideon v Wainwright¸ 372 US 335 (1963), which guaranteed the right to court-appointed counsel for low-income accused persons and in Strickland, which requires defense attorneys to be held to a basic standard of competence. I can only hope that their elitist cynicism does not spread to the rest of the Supreme Court.
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