Mimesis Law
25 August 2019

Pro Se Omar Pouncy: Rabbit or Duck?

Feb. 18, 2016 (Mimesis Law) — Omar Pouncy, a prisoner in the Michigan Department of Corrections, might have a chance of getting out.

When Omar Pouncy acted as his own attorney, he was 18 years old and facing what amounted to a life sentence.

He was in a Flint courtroom in early 2006, charged with a total of five counts of carjacking and armed robbery, plus a host of weapons charges.

Yet Pouncy felt he had no choice but to argue for himself. His attorney was failing him, and a judge refused to appoint him another, court records show.

In a habeas action, U.S. District Judge Matthew Leitman ordered the State to either retry Pouncy or release him. (The State is appealing the decision.) The primary issue in the habeas claim was whether Pouncy was, in effect, forced to represent himself because his attorney was unprepared for trial. Judge Leitman summarized the issue this way:

Breczinski [Pouncy’s lawyer] did not try to hide his lack of preparation. On the contrary, as described in detail above, he candidly told the trial judge that he could not attest that he was prepared because he did not have the final written report of the investigator whom he had hired on Pouncy’s behalf. Breczinski acknowledged that he simply did not know whether his investigator had completed his review of (and follow-up on) the large volume of material and the “number of leads” that Breczinski had provided to him. Critically, the unfinished investigation did not relate to some tangential matter; it related to the primary defenses that Pouncy wished to raise at trial: alibi and mistaken identity.

Moreover, Breczinski never disputed Pouncy’s repeated assertions that Breczinski never spent more than fifteen minutes speaking with him until the morning of trial. … Breczinski gave no indication that he spent the necessary time with Pouncy to carefully explore the facts of the case, anticipated witness testimony, and/or important strategic issues and decisions.

Simply put, there can be no serious dispute on this record that Breczinski was entirely unprepared for trial. Indeed, during the most recent hearing in this case, the Court pressed counsel for Respondent to identify evidence in the record that Breczinski was prepared for trial, and counsel could say no more than that Breczinski “was there” and “making arguments. Counsel for Respondent could not say that Breczinski’s arguments evidenced any real preparation; in fact, they did not. [B]eing prepared requires far more than just being present and speaking.

Seems obvious, right? Except, the Michigan Court of Appeals looked at the same issue and it came out this way:

At the beginning of trial, defendant expressed dissatisfaction with his appointed attorney. Defendant claimed that he and his attorney Michael Breczinski were “really not on the same page.” Defendant indicated that he was not comfortable with Breczinski’s representation because Breczinski had not filed some requested motions or an alibi notice and the longest contact he had had with Breczinski was a 15-minute conversation on the day of trial. Defendant requested replacement counsel. The trial court explained that Breczinski could not file legal documents without a proper basis and that defendant did not have the knowledge or experience to know whether the requested motions were proper. The trial court also assured defendant that Breczinski was a very experienced attorney. The trial court denied defendant’s request for new counsel, noting that “we’re here on the day of trial, we got a jury downstairs that’s ready to go and we’re gonna try this case today[.]” Although the trial court denied defendant’s request, it still inquired about the efforts Breczinski had taken with regard to defendant’s alibi and other matters. Breczinski explained that he had taken steps to investigate defendant’s alibi and address the other issues raised by defendant.

The trial court did not clearly err when it determined that defendant knowingly, intelligently and voluntarily waived his right to counsel. Therefore, the trial court did not err when it permitted defendant to represent himself.

The Court of Appeal’s goal in its opinion is to defend the indefensible. Take, for example, the line where they say that Breczinski had “taken steps to investigate defendant’s alibi.” He did, but the key point is that on the morning of trial, Breczinski still didn’t know what the investigator had turned up.

The trial judge also assured Pouncy that, “Breczinski was a very experienced attorney.” So what? Clarence Darrow on his best day would have to spend more 15 minutes with the defendant to be able to try a case effectively. The Court of Appeals, then, was basically trying to paper over an abysmal performance by resorting to the hoary old dodges of “it might have been trial strategy” and “the burden of proof has shifted.” In short, for the Michigan Court of Appeals, Breczinski’s warm body was enough.

But not for Judge Leitman. It’s sad that it had to come down to a habeas action, but he realized the obvious: that Breczinski’s just showing up wasn’t enough. Judge Leitman wasn’t just trying to preserve an ill-gotten conviction. He was ensuring that Pouncy was afforded his consititutional rights. Judges are as prone as anyone else to indulging in a posteriori reasoning, coming up with rationalizations for a preferred result. It’s just that we pay judges for their logic and reasoning faculties. It’s their raison d’etre, and they should be held to a higher standard.

One the frustrations defendants run into when dealing with the criminal justice system that it’s impossible to get a straight answer to many of their questions. A lawyer’s favorite response to most questions is “it depends.” But what does it depend on? Phrased another way, “law is just the opinion of the man with the biggest gun.”[1] We’re talking about metaphorical guns here, but usually that’s the judge.

“Was the evidence gathered as the result of an illegal search?” “It depends on how the judge rules.”

“Why is the prosecutor allowed to bring that up?” “Because the judge overruled my objection.”

“Why am I going to prison?”

Well, you get the idea.

Have you ever seen this picture? Are you looking at a rabbit or a duck? The Michigan Court of Appeals looked at Pouncy’s case and saw a rabbit. Judge Leitman saw a duck. This case is a stark example on how fluid the law is. Two different sets of judges saw the exact same record and came to exactly opposite conclusions, even though our metaphorical animal layed eggs, walked funny, and quacked.

The foundation of a civilized society is the rule of law. But where the rubber meets the road, the law depends on whether the judge sees (or wants to see) a rabbit or a duck.

[1] Neal Stephenson, The Big U (1984)

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