Mimesis Law
28 March 2017

Sixth Circuit: This Is Your Defense, Take It Or Leave It

February 3, 2017 (Fault Lines) – Prosecutors get beat up a lot for courtroom injustices. Some even suggest judges are to blame. Or gullible jurors. But what about defense lawyers?

Defense lawyers shouldn’t play any part in making cracks in our justice system. But they do. Ineffective assistance of counsel is a common claim. But judges actually protect lazy defense lawyers just as often as they back up the other side. The same system that will suspend a law license for failing to return a client’s 27th call within 25 minutes will gladly endorse an utter lack of preparation in a trial. Go figure.

The Sixth Circuit is the latest appellate court to make the message clear: if a defense lawyer phones it in, no court is really going to give a shit. The guy is guilty right? Constitutional rights are great on a law school exam, but they can really clutter up the actual justice system.

Omar Pouncy got arrested for a couple of Michigan carjackings back around 2005. Not surprisingly, Pouncy said he didn’t do it. To the cynical out there, that’s what they all say. But to the criminal defense lawyers out there, that’s how they should all be treated. The presumption of innocence is an academic idea if lawyers don’t bust their ass right up to the verdict, regardless of how tough the case is.

Pouncy’s court-appointed attorney, Michael Breczinski, showed up the day before trial in January of 2006 and told the court he had not talked to most of Pouncy’s witnesses. A few weeks later, Pouncy was up for trial again. His lawyer still wasn’t ready.

Pouncy told the judge he had given his lawyer alibi witnesses, but his lawyer had not talked to him and had not contacted the witnesses. Pouncy was worried his lawyer wasn’t ready for trial. Again, a common complaint. But in this case, the lawyer agreed he probably wasn’t ready for a trial.

The trial judge didn’t seem too concerned with Pouncy’s doubts about his lawyer. In fact, he told him to let it go, more or less.

THE COURT: [Breczinksi’s] been practicin’ law longer than you’ve been [alive] okay? If you go and take an automobile to get the transmission rebuilt, you don’t go in there and ask the guy who’s rebuildin’ the transmission every detail that he’s doin. You bring the car in, you drop it off and you come back and pick it up….[Y]ou’re in a position where you really don’t have a, a way of judging whether he’s a good lawyer or not. And that’s just the bottom line.

Interesting analogy. Especially if you have, in fact, ever dropped your car off to get the transmission rebuilt. You better damn sure watch what gets done to it. Of course, a few thousand extra bucks on your trusty rust bucket is a little different from staring at the world through prison bars for the next few decades.

Pouncy’s lawyer agreed he wasn’t really sure what his investigator had done so far. He wasn’t even sure what Pouncy was facing if he went to trial or took a plea. The lawyer also missed the importance of a critical recorded phone call.

As trial started, Pouncy decided to represent himself. Traditional wisdom says if you represent yourself, you have a fool for a lawyer. But better a fool that knows a little about your case. Pouncy was unsuccessful defending himself and got 586 to 824 months in prison. For you mathematically challenged, that’s about 48 to 68 years. Saying it in months seems to be the new trend. Someone must think it’s a little more palatable than years. But in any event, it’s a shitload of time in prison.

Pouncy wound his way through the Michigan state courts, receiving the expected lack of sympathy for his plight. While he didn’t actually raise the issue, that his waiver of counsel was involuntary because his lawyer wasn’t ready, he came close.

Pouncy argued in state court his lawyer was ineffective for failing to present an alibi defense and the trial court was wrong to deny a continuance so Pouncy could find a new lawyer. Rejected, of course. The state courts made this finding of fact, which will become important later on:

…the record shows Breczinski hired an investigator for the specific purpose of tracking down and interviewing potential witnesses. The investigator met with [Pouncy] to collect names of potential witnesses. [Pouncy] conceded that he only gave the investigator the name and number for one potential witness. The investigation apparently revealed no legitimate potential for an alibi defense. Therefore, Breczinski was not ineffective for failing to raise a futile defense.

To address your thoughts of “who cares about some carjacker and his stupid made-up defense,” the case is not quite that simple. Pouncy later presented evidence he was in jail at the time of one of the robberies. He also found evidence that a phone call threatening a witness came from the guy Pouncy said committed the crime, not Pouncy. And to ice the cake, that guy was the guy two of the witnesses identified at trial.

We call these kinds of things “stuff a prepared trial lawyer can use to win a criminal case.” And more seriously, things that cast doubt on whether the right man is serving almost a thousand months in prison.

After filing for habeas relief, the district court held Pouncy’s choice to represent himself was actually no choice at all. Pointing out various facts that revealed Pouncy’s lawyer wasn’t ready for trial, the district court concluded Pouncy faced a “Hobson’s choice.” Which is a fancy way of saying he could take his lawyer or leave his lawyer, and lose either way. But that was that.

The Sixth Circuit Court of Appeals brought everybody back to earth, of course. Depending on whether you hate Thomas Jefferson or love him, you will think the decision was a lazy way to keep the wrong people in jail or a great way to avoid inconveniencing the federal courts.

Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which has little to do with terrorists or the death penalty and everything to do with politics, a habeas court is actually just a rubber stamper. And don’t you forget it.

Under AEDPA, Congress decided to make sure no one hurt state courts’ feelings by actually making them do their job. If the state court had already ruled on a fact or an argument, you are stuck with it. Even if it was wrong. Just as long as it wasn’t really wrong.

The Sixth Circuit was hesitant to rule for Pouncy because it didn’t think the Supreme Court had ever been faced with a person who had to represent themselves because their lawyer wasn’t ready. No clearly established law for Pouncy, no help for Pouncy. And you aren’t really entitled to a good lawyer, just a good enough lawyer.

The problem here is simple. The defense investigator hadn’t finished his investigation at the time of trial. That didn’t matter because everyone knew there was no question Pouncy was guilty. Except that later it turned out maybe he wasn’t guilty.

Now we will never know, because the only courts that could help him can’t help him. State post-conviction courts just don’t care and federal post-conviction courts have been ordered by Congress not to care.

The solution is to not get to those courts. Criminal defense work is hard. Criminal defense trial work is even harder, maybe the hardest work there is in the law. And it’s not for everybody. But if you choose to do it, put in the time and effort to do it right. Because no one is going to fix your mistakes.

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  • Daniel
    3 February 2017 at 2:18 pm - Reply

    I used to work as a staff clerk on the Seventh Circuit handling habeas petitions and it is very true that AEDPA creates a nearly insurmountable barrier to challenges under 18 USC 2254. Moreover, if AEDPA was intended to create judicial efficiency, it has completely backfired. More time and resources was spent unspooling the web of procedural arguments and arguments over “clearly established” law than and hearing on the merits. AEDPA is terrible policy no matter where you stand politically.