Unwaveringly Unwaiving


Some years ago I got a call from a bureaucrat with the federal courts here in town: would I like to help handle the illegal reentry docket?

By "handle the illegal reentry docket," I thought she meant, "defend people charged with illegal reentry"—I'm one of the few federal criminal-defense lawyers in Houston who speak Spanish well, so it made some sense for the court to ask me to represent some of the (mostly-Spanish-speaking) defendants charged with returning after deportation.

But as the conversation developed, it turned out that by "handle the illegal reentry docket" the government functionary didn't mean "defend people." At the time Magistrate Judge Nancy Johnson was the judge responsible for that docket; also at the time Judge Johnson's husband Tim was the acting United States Attorney. So, explained the bureaucrat, the first thing I would do in "handling" each case would be to waive any objection to Magistrate Johnson, who had a presumptive conflict of interest, handling the magistrate-judging in the case. That's about where she lost me.

Why waive the conflict of interest? It would do the client no harm to do the opposite—to make a big stink about the conflict. Worst-case scenario, another magistrate judge handles the magistrate stuff. Judge Johnson is an okay magistrate, I suppose, but she's no gift to the accused.

I'm sure Judge Johnson found other takers, lawyers willing to commit, before even taking the cases, to getting the clients to give up their rights. But that's not for me. Nowhere in my copy of the Sixth Amendment does it say, "go along to get along."

This morning I had a counsel determination hearing before Judge Johnson. My client is, according to the Government, undocumented. He has been indicted for a 10-year-to-life cocaine conspiracy, as have the two codefendants who were in court with him.

Judge Johnson asked the lawyers for the three why they wanted a detention hearing. She was surprised and irked that these three defendants, for whom 18 USC §3142(e) provides a presumption of detention (because the indictment is proof that there is probable cause to believe that they have committed a drug offense with a maximum punishment of at least 10 years) and whom the Government said had an immigration hold (so that if they made bond on the cocaine case, they would go into ICE custody anyway, and wouldn't get credit for time in custody) would not simply give up their right to make the government prove it, as required by the statute.

Norm explained that his client might be able to get an immigration bond, Daphne explained that her client had a right to explore the strength of the case against him, and I explained that I don't waive detention hearings except in specific narrow circumstances, none of which existed here; that if the prosecutor expected me to start lying down now, he was mistaken; and that I would rather my client had the choice of making a bond or not.

If my client wanted to waive a hearing, I would advise him on it, but a detention hearing costs my client nothing. The court and prosecutor are inconvenienced by it, sure, but no part of my job is to make their lives easier. I'm not going to be a court apparatchik when I'm hired to do a job any more than I would if I were appointed and getting paid by the hour for fighting with the Government.

Apparently neither the judge nor prosecutor Rick Hanes (no relation to The Real Richard Haynes) had ever heard of an allegedly-undocumented person indicted for a ten-to-life dope case insisting on a detention hearing.

We spent a good chunk of time discussing whether and on what terms the accused get to have a hearing. Haynes thinks, and Judge Johnson agrees (at least until she reads U.S. v. Jackson, 845 F.2d 1262 (5th Cir. 1988)) that the Government can rest on the presumption created by the defendants' indictment.

We'll get our hearing, but the judge made it clear that she's not happy and she's not going to make it easy for us.

For all of this, I lay the blame squarely on the federal criminal defense bar. Judges, like puppies and children, require consistent patient training. When 99% of the lawyers in a jurisdiction are in the habit of giving up their clients' valuable rights to make things a little easier for the courts/the Government/themselves, the courts and prosecutors learn that they don't have to do their jobs, and are affronted, as they were today, when the other one percent show up and insist that everybody do the job that the Constitution and the statutes require of her.

The essence of the judge's argument was that our clients should waive their detention hearings because they were going to be detained anyway. But saying that a client should waive a detention hearing merely because his detention is inevitable is like saying a client should plead guilty merely because the evidence against him is overwhelming: if the outcome of a hearing or trial couldn't possibly be worse than the outcome of a waiver, waiver is irrational. (It may be rational for the lawyers, but their interests aren't supposed to guide the defense's decisions.)

If every criminal-defense lawyer in town (including the assistant public defenders) conducted a thorough detention hearing in every case and otherwise exerted every client's every right unless doing so would harm the client, Judge Johnson wouldn't even have blinked at three lawyers standing up before her and refusing to get their clients waive, and she'd never have had the gall to ask lawyers to commit to waiving their clients' rights to impartial magistrates for the privilege of "handling the illegal reentry docket."

Remember this the next time you're thinking of counseling your client to give up some right: we get the justice system we deserve.


2 responses to “Unwaveringly Unwaiving”

  1. If there was a “Like this” button a la Facebook, I would’ve clicked it.
    Defending folks in federal court is already difficult enough without paving the way for the US Attorney and prosecution-minded judges to help them put your client away for as long as possible.
    Everyone who’s defended two federal cases knows that “plea bargaining” doesn’t exist / is a joke. (“OK, here’s the deal. The Government will drop 65 counts of the 66 count indictment, if you plead to Count 1.” “Wow, only one Count?” “Yep. The conspiracy count.”) Sometimes, the only leverage one has is to learn as much about the case as possible so as to make an informed decision during plea negotiations about going to trial or fashioning a good response to the PSIR, and that means not waiving detention hearings, or anything else. In more cases than one would think, there is very little, if any, downside to going to trial in light of the USSG. It’s important to know, very early on, whether that reduction for “acceptance of responsibility” is going to make a difference in the long run. Often, “relevant conduct” in the PSIR is what will sink our clients.
    (That’s why the AUSA offers a plea to “count 1” — the conspiracy count — so often. Guess which count allows the Probation Officer to cram the PSIR with as much “relevant conduct” as possible?)
    In any event, amen, brother, to your post. Preach on.
    Brad Frye
    Houston

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