New York Criminal Lawyer Scott Greenfield, always on the ball, brings us news out of Texas:
In Collin County (criminal-defense lawyers’ Thunderdome), criminal-defense lawyer Chris Hoover, faced with a judge who refused to recuse himself or to refer the recusal motion to the presiding judge (as required by statute), deliberately refused to participate in his client’s trial.
Chris moved for a continuance (denied); he announced “not ready”; he didn’t enter a plea; he didn’t make an opening statement; he didn’t cross-examine a single witness; he didn’t make a single objection; he didn’t offer a defense. The court announced that the defense rested, and then recessed for the day (at 1:00 in the afternoon). During the recess, Chris moved for a continuance based on the absence of an expert witness, but didn’t get a ruling on the motion. He moved for a directed verdict (denied). The trial court offered him the chance to reopen the evidence, and Chris declined, explaining that he was still not ready. The jury convicted Chris’s client and the judge discharged the jury. The judge set punishment at 90 days in jail, probated the sentence, and Chris pointed out: “At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months.”
On direct appeal, Texas’s Fifth Court of Appeals didn’t see any problem with Chris’s client being convicted this way:
Although defense counsel at various times stated he was ‘not ready,’ ‘unprepared,’ and ‘could not effectively represent his client,’ appellant points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often, [however,] the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.
Moreover, on the second day of trial, defense counsel did participate. Counsel moved for an instructed verdict due to the State’s failure to carry its burden of proof. He cited cases to the court and provided the court with copies of those cases. Counsel also pointed out to the trial court its mistake in sentencing which would have adversely affected his client. In light of the evidence against his client for which he may have had no defense, notwithstanding his comments, defense counsel’s actions could have been the product of a reasonable tactical judgment. Without a fully developed record, we could only speculate as to counsel’s strategy. This we refuse to do.
Chris’s client filed a petition for discretionary review to the Court of Criminal Appeals (Texas’s highest criminal court) with the help of a lawyer to whom Chris had referred him.
The Court of Criminal Appeals found Chris ineffective (opinion — Judge Keller dissented) resuming prejudice under U.S. v. Cronic because Chris entirely failed to subject the prosecution’s case to meaningful adversarial testing so that there was a constructive denial of the assistance of counsel altogethe.:
By his refusal to participate, defense counsel abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed.
. . . .
We are not persuaded by the State’s argument that holding as we do today will encourage other defense counsel to engage in the conduct condemned. Under the Disciplinary Rules of Professional Conduct, every defense counsel owes to his client his zealousness, competence, and diligence. A defense counsel failing in those obligations opens himself up to disciplinary proceedings as well as a civil suit for malpractice. Furthermore, a trial court can meet the threat of attorney non-participation by ascertaining whether the defendant understands the implications and probable consequences of his counsel’s conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving his right to the effective assistance of counsel.
We sustain appellant’s grounds for review, reverse the judgment of the court of appeals, and remand the case to the trial court for further proceedings consistent with this opinion.
Chris’s client gets a new trial, but all is not champagne and roses for Chris:
We also direct the Clerk of this Court to send a copy of this opinion to the Office of the Chief Disciplinary Counsel of the State Bar of Texas, so that officials therein may begin such investigation and take such action as they may deem appropriate.
The Collin County DA doesn’t see it this way (New York Lawyer article – free but registration required), the courts don’t see it this way, and the State Bar probably won’t see it that way, but by sticking his own neck out to stop the train when he thought his client was being railroaded, Chris acted in the highest traditions of the criminal defense bar.