Comments on Akbar, pt. 1: Counsel qualifications

Over the next week, I’ll offer up some commentary on the recent unpublished opinion in Akbar.  This post deals with counsel qualifications. 

I think the Akbar court engaged in unnecessary and incorrect dicta when discussing counsel qualifications.  The discussion came up in the context of ineffective assistance of counsel. 

The court starts by giving an accurate statement of the current law:  when the legislature or executive has not otherwise implemented qualification standards, the Constitution does not mandate entry qualifications. 

The federal government is bound by the “learned counsel” statute, 18 U.S.C. § 3005, and typically if a counsel is appointed that is not learned, that issue is litigated prior to trial.  (The court calls 3005 “instructive,” but it is not “instructive” in federal courts – it is binding).   Many states have qualification standards.  When the executive or legislature mandate qualifications, then the accused has a prospective issue to litigate at the trial. 

We don’t have any.  So, we don’t look prospectively. 

Rather, we look retrospectively: did the actual performance by the counsel fall measurably below expected standards.

The court noted all of that (more or less), and should have stopped there and turned to analyzing the counsels’ actual performance against expected standards.   However, the court then went on to discuss the counsels’ qualifications and found that the counsel “were well-qualified to handle a capital case” (emphasis added).   Later in the opinion, in two spots, the court actually says it grants deference to the decisions made by these “qualified counsel” (pp. 26, 50).  While all of this is dicta in an unpublished opinion, I think the court was wrong when it used the word well in well-qualified, and according to federal standards, the counsel were not qualified at all.

First, the court never tells us what standard they use to define “qualified counsel.”  They mention the ABA Guidelines and appear to be applying facts against the factors found in Guideline 5.1.B.2.  Contrary to common understanding, the Guidelines do not actually contain a standard.  What the Guidelines do is direct the “Responsible Agency” (as in, the Army) to develop qualification standards, and then the Guidelines provide guidance on how to develop those standards.   The jurisdiction then needs to set up an appointment roster of these qualified counsel that is large enough to handle the work in that jurisdiction. 

According to the Guidelines, every counsel needs to have “demonstrated a commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases,” undergo rigorous training (much more than attending a single capital litigation course – see Guideline 8.1), and then to be on the roster, the attorneys need to have demonstrated that they have certain skills (this list of skills is what the court appears to have relied upon the most).   

Here is the discussion of the counsels’ experience:

“MAJ DB possessed an L.L.M. in military law from The Judge Advocate General’s Legal Center and School, with a specialty in criminal law. He also possessed significant military justice experience, to include experience with capital cases. For one year, MAJ DB worked as a government appellate counsel for the Army, where he briefed approximately fifty appellate cases dealing with a variety of issues to include a variety of expert witnesses. In anticipation of handling the case of United States v. Kreutzer, a capital case pending appeal at the time, MAJ DB attended a capital litigation course. Additionally MAJ DB, served in the Trial Counsel Assistance Program (TCAP) providing training to trial counsel at various military installations and rendering advice in the case of United States v. Ronghi, where a capital referral was contemplated. After leaving TCAP, MAJ DB was assigned as a branch chief at the Government Appellate Division where he participated in strategy sessions and reviewed and edited the government brief for United States v. Murphy, a capital case, on appeal. He also reviewed and edited the government briefs in United States v. Kreutzer in addition to hundreds of other appellate briefs. MAJ DB has argued approximately seven cases before CAAF and approximately seven cases before this court.

“CPT DC gained experience using collateral resources in the Army, Department of Defense, and civilian sector to assist in the investigation and defense of cases. In September 2003, CPT DC attended a week-long death penalty course designed to prepare an attorney to try and defend a capital case.”

The court included some discussion of things they did after appointment, but what we are concerned about is qualifications at appointment (more on this in a second).

Recognizing that we should not be in this discussion at all, because we do not have appointment standards and should only be looking at performance, indulge me and do this:  go to the ABA Guidelines, look at the list in 5.1 (remembering that these are guidelines for somebody else to develop qualification standards) and see if you think these counsel should have been, essentially, placed on the appointment roster.  You may decide that they were qualified to be placed on the appointment roster.  They might have been.  However, I’m not sure they were well qualified.  (Note the discussion in 5.1 about skill in voir dire – more on this in a later post).

Now let’s turn to the federal standard, itself referenced by the court.  If the court had looked to the “learned counsel” language in 3005, the two appointed counsel could not have been qualified as learned counsel.  According to the law, at least one of the appointed counsel must be learned counsel.  The phrase “learned counsel” has been interpreted by federal courts and administrators to mean “experience in and knowledgeable about the defense of death penalty cases,” and further defined as “distinguished prior experience in trial, appeal, or post-conviction review of federal death penalty cases” (emphasis added)  See here, p. 90; here, p. 7; Wilson, 354 F. Supp. 2d 246; Morrison, 2006 U.S. Dist. LEXIS 92820; Massino, 302 F. Supp. 2d 1; Miranda, 148 F. Supp. 2d 292; Fields, 483 F.3d 313.

Applying the federal standard, neither appointed counsel were qualified, much less well-qualified, to defend a capital case.  According to the opinion, the lead counsel had attended a capital case in anticipation of being the government attorney on the appeal of a capital case (but appears he did not work that case); served in TCAP and gave advice to the trial team on a case that was anticipated to go capital but did not; and later served as a government appellate counsel where he participated in strategy sessions and reviewed briefs that were filed in a capital case.  None of that was defense work, and none was as an actual member of a capital defense team (or government team).  The other appointed counsel attended a capital course for defense counsel.  None of this amounts to “distinguished prior experience” as a capital defense counsel. 

The point of this discussion is not to disparage either of these counsel, both of who were appointed to the case by the larger institution, and who had the experience that the larger institution had given them (it is what it is).  I was appointed to represent an accused in a capital case, and I didn’t even have the experience of the lead counsel in Akbar.  In my case, I had a member of the team that provides federal courts with recommendations on learned counsel tell the court that he would “absolutely not” recommend me serve as the lead counsel in a capital case.

The point is to say that the court here got it wrong when it said they were well-qualified to serve as capital defense counsel.  By using that word – well – the court risked lowering our institutional norm of who should be defending these cases.  If these counsel were well qualified, then others with even less experience or skill might also be qualified (although not well qualified). 

Consider if we applied the same reasoning to a doctor that was going to be appointed to conduct brain surgery.  Would we say she was well-qualified to conduct brain surgery because she had an M.D., had read some AARs of other brain surgeries, and had been to a lecture-based short course on how to conduct brain surgery?  No.  We would say that she would need to have previous experience conducting actual brain surgeries, under the supervision of others who were experts in brain surgery.  I think we should approach capital cases the same way.  How comfortable would you be if your surgeon had never done this type of surgery before, but told you, “Don’t worry, I attended a conference on this once and talked to someone else about how to do them.”

Again, the court should have never gone there.  Because we don’t have any qualification standards, the law is that we look at their performance, not their entry qualifications.  In future posts, we will take a look at how the court evaluated their performance.

Okay, so on appeal, we should look at the problem retrospectively.  So what do you do if you are a defense counsel that does not have previous distinguished experience in a capital case and now find yourself appointed as the lead counsel in a capital case?  What do you need to do when you are in that prospective position?

You can file a motion for the appointment of learned counsel and try to get an extension of 3005 to your case via the Equal Protection Clause or Art. 36. 

I think more importantly, you need to look at your ethical obligations.  If you knew nothing about corporate mergers, could you ethically take on Wells Fargo as a client and try to do the paperwork on their merger with Wachovia?

I found myself in that spot, and I filed a motion to withdraw because I did not believe I could satisfy Rule 1.1: Competence.  Under that rule, the Army (and probably your state bar) says that you must have the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  The Comment expands on that, saying that “In most instances, the required proficiency is that generally afforded to clients by other lawyers in similar matters.  Experience in a particular field of law may be required in some circumstances.”   That to me meant I needed be as good as the other “learned counsel” that are out there.

The Comment says you can still represent the client, but you need to study and consult with others.  The Akbar court appears to be aware of this language because they pointed out that the counsel read law review articles and consulted with experts after appointment.  (Their actions in doing that are not relevant towards their appointment, but what they learned may inform the court later on what the actual performance standard is that they needed to live up to).

In my case, my argument was that I needed more time to prepare or else I could not live up to my 1.1 obligations and so would need to withdraw.  I ended up getting a continuance.  

By filing the motion, you protect yourself from potential ethical issues with your state bar.

Ultimately, I think this is where we will end up with the counsel qualification problem.  We will have counsel that do not meet “learned counsel” standards and will need to give them more time to work the case and more resources and training as they figure things out as they go.  That is where the analogy to brain surgery ends – brain surgeons can’t keep the skull cracked for three years as they figure out what to do, and don’t have the chance to petition a court so that they can correct a mistake as the surgery goes alone.  Their patient dies; our trial just takes longer.

LTC Carpenter