From Ex Parte McCann, decided today by the Texas Court of Criminal Appeals:
Albert James Turner was charged with capital murder. At trial, he was represented by Patrick McCann and Tyrone Moncriffe. In June 2011, Turner was found guilty and sentenced to death. The trial court appointed counsel for Turner’s direct appeal and the Office of Capital Writs (“OCW”) to handle Turner’s postconviction writ. As part of its investigation, OCW asked Turner to authorize the release of his trial file from McCann. Turner refused to sign the release because OCW is a “state agency,” and he wanted to speak with his sister before moving forward. Lacking Turner’s authorization, McCann refused to release the file believing that his client was invoking his right to keep his privileged information confidential.
In response, OCW filed a motion asking the trial court to order McCann to turn the file over. After a hearing, the trial court ordered trial counsel to relinquish Turner’s trial file, and McCann refused. He then filed a motion in this Court for leave to file petitions for writs of mandamus and prohibition. While McCann’s motion was pending, OCW successfully withdrew as Turner’s habeas counsel. Subsequently, we dismissed McCann’s motion as moot because OCW, a “state agency,” no longer represented Turner. McCann v. Elliot, Nos. WR-76,984-01, WR-76,984-02, 2012 WL 752612 (Tex. Crim. App. Mar. 7, 2012) (per curiam) (not designated for publication).
The trial court then appointed new habeas counsel, James Rytting, to represent Turner in his postconviction application, and Rytting, like OCW, sought Turner’s trial file for investigatory purposes. Rytting stated that he visited Turner twice in person after his appointment, and he agreed that McCann’s characterization of Turner was correct in that Turner did not want the file turned over. Rytting also explained that, based on his visits with Turner, if McCann gave the file to Turner, Rytting would never see it. For his part, McCann continued to refuse to relinquish the trial file based on his understanding of his client’s wishes. In a second hearing, the trial court ordered McCann to turn over his file again. After failing to comply with the trial court’s second order, the court found McCann in contempt.
McCann sought mandamus relief. The case was fought on property-rights grounds, not privilege grounds (Turner had no privilege as to Rytting?). And the Court of Criminal Appeals explicitly affirmed that the file was the client’s property:
Assuming Turner is legally competent (as the trial court found in this case), he is entitled to choose not to turn over his trial file; and McCann, as Turner’s former counsel and agent, must honor that decision for the reasons that we have explained.
[I]f the client makes a voluntary decision not to turn over his or her file, a client’s former counsel is obligated to refuse to provide a copy of the client’s file to facilitate the work of successor counsel. This is because the agent (the client’s former attorney) may not relinquish dominion and control of the principal’s property without the principal’s permission absent circumstances inapplicable in this case (e.g., an attorney lien, incompetency).
The emphasis is mine. How the court jumps from “property” to “a copy of the client’s file” is by no means clear. Judge Price, dissenting, raises the question:
The Court addresses at length the wrongfulness of Judge Elliott’s order to McCann to turn over his client’s physical file, but curiously glosses over whether it would have been wrong, per Rytting’s explicit request, to simply order McCann to relinquish a copy of the file.
Judge Price wonders if maybe the property interest is an intellectual one? But a lawyer is allowed to keep a copy of the client’s file (by tradition, at least) when she returns the file to the client. If the lawyer can keep the client’s file, then presumably that doesn’t harm the client’s property interest. And if the question is one of property rights and not of privilege, how can the trial judge not have authority to order McCann to provide a copy of the file to writ counsel?
Judge Price would have denied mandamus because the law is not clear (mandamus requires that the petitioner have clear right to relief). And there is a good deal of vague handwaving in the majority opinion. I suspect that the court put more weight on the other element of mandamus—no adequate remedy at law: the court saw no way this issue could have been decided outside of mandamus. ((The court wrote, “although McCann could seek relief from the order of contempt through an application for writ of habeas corpus, that relief would not resolve the underlying issue of the trial judge’s order compelling McCann to relinquish Turner’s trial file.” I’m not sure that’s true. I think that in habeas McCann could challenge the legality of the order he was held in contempt for violating.))
It’s a good case for client self-determination, but there’s very little doubt what’s at stake here for Mr. Turner. His decision could torpedo his chances on habeas. As Judge Price writes:
[R]eviewing trial counsel’s files provides an array of advantages to initial state habeas corpus counsel by aiding him in his considerable investigatory task in addition to providing substance and depth to claims that might not otherwise stand a chance at succeeding.
And according to the majority:
[T]he trial judge is correct that certain deadlines have been triggered in this death-penalty case that cause Turner’s decision to severely damage his chances of success in postconviction proceedings.
Fortunately, though, in an earlier opinion (pdf) in Turner v. State—written by Judge Price—the Court of Criminal Appeals abated Turner’s direct appeal and remanded the case to the trial court for a determination of whether a retrospective competency evaluation is feasible. So Turner’s writ clock is not, for the moment, running.
The court in McCann notes that Rytting, McCann, “or another interested party with standing” could seek to have Turner found incompetent so that a guardian could decide what should be done with the file.
All of this puts the trial judge, Brady Elliott, in an interesting position: if he wants Rytting to have the file so that Rytting can prepare a writ—which is presumably what he wants, since it’s why he ordered McCann to produce the file and held McCann in contempt—he can find Turner incompetent.
But he has been ordered in Turner to determine if a retrospective competency evaluation is feasible, and the court in Turner did not say what would happen if a retrospective competency evaluation were not feasible, but if Turner is incompetent now and a retrospective competency determination is not feasible, then how can it be said that he was competent at trial?