Popular Posts

Wednesday, January 28, 2015

Perry Hatchet Job Continues; Lying Prosecutors; Grossly Incompetent Defense Lawyer; Thug Elite Athletes


I still believe that the prosecution against Rick Perry is a political hatchet job. For a more balanced treatment, two views actually see The Brief: Two Views on Continuation of Perry Legal Case

Holding Lying Prosecutors Responsible

Sidney Powell is a federal appellate lawyer who also has a very good blog - Seeking Justice : Prosecutorial Misconduct in the United States Legal System. I recommend her article about a lying prosecutor who denied under oath that he had a deal with a snitch:

Judges Kozinski, Fletcher & Wardlaw HAMMER California Attorney General’s Office Regarding State Prosecutor Who Lied Under Oath 


See a panel of serious Ninth Circuit Judges in action!  Watch this video, beginning at the 16 minute mark, and be sure to watch through to the end.  This case involves a clear violation of the Supreme Court’s decision in Napue.  This case presents conduct even worse than a Brady violation.  In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or “snitch.”


Ineffective Assistance of Counsel - Don't be That Lawyer

How would you like to be this lawyer, disbarred by the Kansas Supreme Court. The State had charged Mr. Hawver's client, a drug dealer, with two counts of capital murder. From the opinion In re. Hawver, 2014 BL 321677, Kan. No. 111,425, 11/14/14).  

All totaled, the respondent spent approximately 60 hours preparing for the capital murder trial.
Prior to trial, as part of the evidence of the felon in possession of a firearm charge, the prosecution agreed to enter into a stipulation that Cheatham had previously been convicted of a felony, rather than seek the admission of the details of Cheatham's voluntary manslaughter conviction. Despite the stipulation, during voir dire and again during his direct examination of Cheatham, the respondent informed the jury that Cheatham had previously been convicted of voluntary manslaughter. During trial, the respondent described Cheatham as a 'professional drug dealer' and a 'shooter of people.'

'Hawver then said he attempts to win cases by "telling the truth and letting the facts set, an understanding of the full scope of the presentation."'
During the closing argument, the respondent 'conceded that asking the jury to ignore Cheatham's background when determining guilt required "some sort of superhuman fiction."'

Hawver, by way of excusing his lack of preparation, stated that in addition to his busy law practice,  "I was a candidate for governor of the State of Kansas, and as such I was spending considerable time attending public appearances throughout the state of Kansas. I appeared at all political functions dress[ed] as President Thomas Jefferson."
In  an affidavit, he stated:
Mr. Cheatham did not have any funds with which to pay for my services nor did he have funds to pay for any investigation of his case. I agreed to represent Mr. Cheatham on the murder charges in exchange for his promise to pay $50, 000 for my time, if he was found not guilty on the charges.

I was without funds to conduct a pretrial investigation of the case. 

I never asked the court for time to investigate the case or to conduct an investigation of the client's life history. I believe if I had asked for additional time to prepare the case the judge would have granted such a request.

this capital murder trial began less than 3 months after preliminary hearing. I now understand that on average capital cases take 20 months to prepare for trial

My decision not to hire an investigator to assist in the investigation of the trial facts was because I had no funds with which to hire an investigator. 

The client did identify a possible alibi witness, but without funds to hire an investigator I was unable to locate this potential witness. I failed to ask for time to find this potential exonerating witness.

I admit that I did not provide effective assistance of counsel when I decided to forgo a comprehensive investigation of the trial facts

I did not have co-counsel during either the pretrial or the trial stages of this case. I

I admit I used a flawed and prejudicial argument in the penalty phase with a jury that had just determined my client had killed two women, and then attempted to kill a third. Despite my knowledge that the jury had found my client guilty beyond a reasonable doubt of double murder, I told the jury I thought the killer should be executed for the crimes. This argument was clearly prejudicial to my client, who the jury believed, as evidenced by their verdict, was the killer.

"34. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent was not competent to represent Cheatham.
'a. The respondent had not tried a murder case for 20 years and had no experience in death penalty cases.
'b. The respondent did not appreciate the differences between trying a murder case and trying a capital murder case.
'c. The respondent did not obtain any training to defend a capital murder case.
'd. The respondent did not reduce his other caseload in order to devote additional time to the representation of Cheatham.
'e. Throughout the period of representation, the respondent was running for Governor of the State of Kansas.
'f. The respondent was unfamiliar with the ABA Guidelines.
'g. The respondent failed to hire co-counsel, an investigator, consultants, a capital jury expert, a mitigation specialist, and expert witnesses.
'h. The respondent did not accept assistance from the Board of Indigents' Defense Services.
'i. The respondent failed to conduct a thorough investigation of the facts.
'j. The respondent failed to assemble a trial team.
'k. Rather than hire a mental health professional and without any experience, the respondent judged Cheatham to be mentally healthy.
'l. The respondent did not know that he could compel the attendance of out-of-state witnesses.
'm. The respondent failed to track the cell phone to determine Cheatham's location at the time of the murders.
'n. The respondent failed to properly investigate possible alibi witnesses. Additionally, the respondent failed to file a notice of alibi.
'o. The respondent was not familiar with how to death-qualify and life-qualify a jury.
'p. While the respondent was familiar with the Marsh decision, he failed to file a motion challenging the death penalty.
'q. The respondent did not prepare a legal representation plan.
'r. The respondent spent approximately 60 hours preparing for the capital murder trial.
's. During trial, the respondent described Cheatham as a "professional drug dealer" and a "shooter of people."
't. The respondent believed that the manslaughter conviction would be admitted during the guilt phase of the trial.
'u. The respondent was not familiar with capital jury instructions.
'v. The respondent did not conduct investigation for the sentencing phase.
'w. During the sentencing phase of the trial, the respondent presented only one mitigator-Cheatham's innocence.
'x. In the closing argument of the sentencing phase, after the same jury had concluded Cheatham was guilty of the murders, the respondent told the jury that they ought to execute the killer.'
The respondent failed to represent Cheatham with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
"KRPC 1.5 and KRPC 1.7(a)(2)
"35. KRPC 1.5 provides that '[a] lawyer's fee shall be reasonable.' KRPC 1.7(a)(2) provides:
'(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.'
"36. The respondent charged Cheatham a fee of $50, 000. The Kansas Supreme Court previously concluded that the fee was not a contingent fee, but rather a flat fee. Charging a flat attorney fee in a capital murder defense was unreasonable and created a conflict of interest.
"37. The ABA Guidelines 'unequivocally disapprove of flat fees in death penalty cases precisely because such fee arrangements pit the client's interests against the lawyer's interest in doing no "more than what is minimally necessary to qualify for the flat payment."' Despite the fact that Cheatham did not pay the fee, charging a flat fee in this case became a disincentive to the respondent to do more than what is minimally necessary to qualify for the flat payment. Accordingly, the hearing panel concludes that the respondent's flat fee was unreasonable and created a concurrent conflict of interest, in violation of KRPC 1.5 and KRPC 1.7(a)(2).
"KRPC 1.16(a)(1)
"38. A 'lawyer shall not represent a client . . . if the representation will result in a violation of the Kansas Rules of Professional Conduct.' KRPC 1.16(a)(1). In this case, accepting the representation of Cheatham resulted in a violation of KRPC 1.1. By accepting the representation of Cheatham, the respondent violated KRPC 1.1, as the respondent was not competent to represent a defendant in a capital murder case, as detailed in paragraph 34 above. The hearing panel concludes that the respondent violated KRPC 1.16(a)(1) in this regard.
"KRPC 8.4(d)
"39. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' The respondent engaged in conduct that is prejudicial to the administration of justice when he incompetently represented Cheatham in a capital murder case. As a direct result of the respondent's ineffectiveness, the Kansas Supreme Court reversed Cheatham's conviction for capital murder and the case will have to be tried again. Causing a retrial in a capital murder case is significant prejudice. Thus, the hearing panel concludes that the respondent violated KRPC 8.4(d).
"KRPC 8.4(g)
"40. 'It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he informed the jury during the guilt phase that Cheatham was a 'professional drug dealer' and a 'shooter of people.' Further, the respondent engaged in conduct that adversely reflects on his fitness to practice law when, during the sentencing phase of the jury trial, the respondent told the jury that they ought to execute the killer. The hearing panel concludes that the respondent violated KRPC 8.4(g).


2 Vanderbilt Football Players Found Guilty Of Rape Charges
from Huffington Post
The jury heard two weeks of dramatic testimony from a parade of witnesses, including police, former and current Vanderbilt students and the woman, who said she didn't remember what happened that night, only that she woke up in a strange dorm room. They also saw cellphone images from the night of the attack that Vandenburg sent to his friends as it was happening.
Despite the photos and video, and witnesses seeing the woman unconscious and at least partially naked in a dorm hallway, no one reported it.
Rumors about what happened quickly spread around campus, and the assault might have gone unnoticed had the university not stumbled onto the closed-circuit TV images several days later in an unrelated attempt to learn who damaged a dormitory door. The images showed players carrying an unconscious woman into an elevator and down a hallway, taking compromising pictures of her and then dragging her into the room

1 comment:

  1. Rick Perry is to national politics as Johnny Manziel is to professional football.

    ReplyDelete