By Matthew Keller
A quick review of some interesting cases decided by the Courts of Appeals in the past few weeks:
Ramos v. Racette (2d Cir. Aug. 9, 2013)
Starting with my home court, the Second Circuit, we have Ramos v. Racette. The petitioner in that case attempted to express his disapproval of the proceedings by taking the unusual step of both representing himself and absenting himself from trial. The trial judge appointed standby counsel, but then mistakenly introduced counsel to the jury as Ramos' "attorney" rather than as his "legal advisor" or some other term that did not convey the false impression that Ramos was represented by counsel.
Later in the trial, the prosecutor urged the court to correct its statement, and the court did so by instructung the jury that the man at counsel table was a "legal advisor." To be safe, counsel also spent the remainder of the trial in the gallery.
Ramos claimed that introduction of standby counsel as his attorney violated his clearly established Sixth Amendment rights to self-representation. He relied on Mckaskle v. Wiggins, a Supreme Court decision which had some helpful dicta, but which ultimately held that a defendant's right to represent himself is not violated where standby counsel's unsolicited involvement is "held within reasonable limits".
In affirming the district court's denial of the writ, the Second Circuit pointed out that the holding of Mckaskle did not actually help Ramos:
"The fleeting imposition of counsel upon a pro se defendant who has elected to abstain from participating at trial is a matter of first impression in this Court. . . .
Analysis of [Mckaskle] confirms that Ramos’s self-representation was not substantially disturbed by the court’s brief introduction of counsel."
At first glance this does not seem like a particularly compelling claim - you might wonder why the Court of Appeals granted a COA. I suspect the Second Circuit doesn't want defendants to think they can manufacture a postconviction claim simply by choosing a defense strategy of complete nonparticipation, and then attacking any attempt by the court to give them a fair trial as a violation of that constitutionally-protected strategy. It stands to reason that a court of law would want to shut that party down before sunset.
This is not an entirely cynical read of the decision. The "right to self-representation" is generally murky and could use some more discussion by the apppellate courts. Part of the reason for the murkiness is that the issue arises infrequently. Most indigent defendants would prefer to have a lawyer than to not have one (unless, that is, they want to martyr themselves for radical Islam). When it does come up, it seems to make judges uncomfortable because it directly conflicts with the centrality of defense counsel to a fair trial (as Justice Black put it in Gideon v. Wainright, "reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.")
So the right to self-representation is, in a way, a right to an unfair trial. It certainly is where, as here, the defendant himself chooses not to show up. The Second Circuit seems to have recognized this, implicitly acknowledging Ramos' right to a "concerted refusal to participate" in his trial and noting that "[a]ny presentation of a defense at all, no matter how limited, inherently disrupts" that right.
But the Circuit wouldn't (could not) endorse that strategy by granting the writ here. And it seems pretty clear that the Supreme Court hasn''t clearly established Ramos' right to it under these facts. An iron-clad right to an unfair trial presents certain risks to justice as we define it. Not to mention some thorny issues: how could harmless error analysis apply to violations of such a right? What does it mean for an error to create a probability of unfair proceedings when that's exactly what the defendant wanted?
Washington v. Sec'y PA Dep't of Corr. (3rd Circuit August 9, 2013)
Moving across the Hudson, the Third Circuit upheld a 2254 habeas grant on August 9. This was a Bruton issue that it appears the trial court simply ignored. The trial court allowed the prosecutor to introduce a codefendant's redacted confession replacing Washington’s name with “the driver,” when it was clear to everyone that Washington was the alleged driver.
The Third Circuit agreed that this was a pretty straightforward Confrontation violation (and indeed, that the "trial judge knew at the time of introduction [that the redaction] would be transparent to the jurors"). Nevertheless, the decision still spends an awful lot of time sorting through nationwide precedent (making this this is a good decision to read if you have a Bruton issue).
Spencer v. United States (11th Circuit, August 15, 2013)
Finally, we head down the east coast to Florida, where the Eleventh Circuit held in Spencer that § 2255 was an appropriate vehicle for raising a career offender issue* and that two intervening Supreme Court cases (Begay v. United States and Sykes v. United States) applied retroactively to overrule the sentencing court's conclusion that Spencer was a career offender.
* the Court makes sure we all understand the caveats: "We conclude that allowing a first, timely-filed motion under section 2255 where a new Supreme Court decision has been given retroactive effect, and where the prisoner has preserved the issue of career offender categorization at both original sentencing and appeal, will not create an unmanageable problem"
The Eleventh Circuit (by no means a liberal court) called the incorrect career offender designation here "a fundamental defect that inherently resulted in a complete miscarriage of justice." Lest we think the Court is getting soft, it also threw some meat to the Tea-Party deficit hawks, noting the cost of egregious mandatory minimums:
"And on the other side of the ledger, there is the annual cost to the taxpayers of keeping people in prison who should no longer be there. According to the Bureau of Prisons, that annual cost is $28,893.40 per prisoner. In Spencer’s case, according to the sentencing judge he was facing roughly half the sentence in the absence of career offender status. Thus, erroneously labeling him a career offender results in an annual taxpayer outlay of $28,893.40 for an extra 6 ¼ years. We do not know how many instances there are of defendants like him."
I fundamentally disagree that the biggest concern in unjustifiably keeping a man in jail for 6.5 years is the cost to taxpayers. But what do you want, we're talking about the Stand Your Ground capital of America. The law and order crowd and equal justice folks are on the same side on mandatory minimums - that's enough for me.