No Lawyer, No-Brainer, You Get a New Trial, Right?

This seems like a no-brainer, you are represented in court by a fake attorney, your 6th amendment rights to counsel have been violated and your conviction should be reversed, right?  Well according to the Denver Post, . . . not necessarily?  Huh?

Gwen Bergman was convicted of a murder for hire and is doing 9 years after being represented by Howard Kieffer, a con man and imposter attorney (see pic.)  Kieffer is about to go on trial for fraud.  The con man tood $70,000 for "reperesenting" Mrs. Bergman.  He apparently had represented a dozen or more folks in federal courts in and about Colorado and North Dakota.  Here's an exceprt from Felisa Cardona's report:  

"A murder-for-hire convict represented in court by a fake attorney lost an appeal to have her conviction and nine-year prison sentence overturned.

But a three-judge panel on the 10th U.S. Circuit Court of Appeals ruled Gwen Bergman's Sixth Amendment right to counsel was violated during an Oct. 23, 2007, hearing when she was found mentally competent to stand trial.  As a remedy, the appellate court sent Bergman's case back to Senior U.S. District Judge Walker D. Miller to conduct an evidentiary hearing and make a 'retrospective' competency determination to find whether he believes she was of sound mind at the time. If Miller finds Bergman was incompetent, he must throw out her conviction and order a new trial. If he finds she was competent, Miller could still order a new trial.  In her appeal, Bergman argued that her sentence was unreasonably long, but the judges indicated if Miller decides not to conduct a new trial, her prison sentence will stand.

Circuit Judge Jerome A. Holmes dissented from the remedy decided upon by circuit judges Bobby R. Baldock and Eugene Edward Siler Jr. in the opinion published March 25.  Holmes wrote that a retrospective competency determination would be nearly impossible to do given that three years have passed since the competency hearing.  'I would vacate Ms. Bergman's convictions and remand the case for a new trial,' he wrote. The impostor attorney, Howard O. Kieffer, advised Bergman to go forward with a trial — a move that contradicted what prior defense lawyers advised her to do.  Bergman, who lived in Aspen, was convicted in May 2008 of trying to hire a hit man to kill her son's father."
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You see, this seems like a no-brainer to me, but I'm a bad attorney--so I concede that I don't have the brain power of these high-toned federal appellate jurists.  It seems to me that you get convicted of a crime after being represented in a murder case by a non-lawyer, your Sixth amendment rights have been violated, you get a new trial.  Automatic. End of story.

Speedy Trial

From the Billings Gazette this report on the effect of a 4 year delay on the prosecution of DWI vehicular triple homicide;  prosecution delays and the judge’s error led to the dismissal of charges in a drunken-driving crash that killed three people in Petroleum County, Montana--this is from Diane Cochrane's article:

"District Court Judge E. Wayne Phillips dismissed the case against Troy Jay Child because more than four years passed between the Sept. 15, 2005, wreck and the date set for trial.  'Stepping back and viewing the
entirety of the delays in this case, the Court cannot help but being struck by the total of 1,605 days of delay,' Phillips wrote in a 15-page order. 'That is reprehensible.'  The judge was responsible for some of the delay.  His decision will not be appealed, an official said.

'I don’t know how to describe it,' said Nancy Nelson, whose son, Jim, died in the crash. 'We’re just totally aggravated over the whole deal. It’s been one nightmare after another since the wreck.'

[Troy Jay]Child was accused of being behind the wheel of Jim Nelson’s 2003 Chevrolet pickup when it went off Highway 200 at a curve east of Winnett and then rolled.  The force of the crash separated the cab and front fenders from the frame of the pickup.   Investigators determined that the truck was traveling 20 mph over the posted speed limit and that all four people inside were intoxicated, according to documents filed by Petroleum County Attorney Monte Boettger.  Three people were ejected from the truck and died at the scene. They were Donald Schmidt, 61, and his son Dean Schmidt, 35, of Mandan, N.D., and Nelson, 33, of Hungry Horse.

Phillips dismissed the case [ . . . ] after Child’s public defender, Douglas Day, filed a motion claiming Child’s right to a speedy trial had been violated."
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Gee, talk about public officials not living up to the competence part of the deal.

Right to Counsel

Following up on yesterday's post on Presley v. Ga., the Tennessean is reporting on that State's high court decision upholding the right to counsel even when the defendant is a shit head.  Tommy Holmes a Memphis area convicted rapist was deprived of counsel at trial because his lawyer "felt threatened," and the trial court let him.  Amazingly, the court of appeals that looked at this case upheld the trial court decision to throw this guy to the wolves without counsel.

Now look, there is nothing in the Sixth Amendment that says right to the Assistance of Counsel, unless the defendant is an asshole.  While you can envision, steps to insure the safety of counsel--aren't the criminally accused in this country presumed innocent?  Why would any court think it is constitutionally permissiable to deprive a criminal suspect of their constitutional rights?  And by the way, no documented threats on the record supported the trial decision to deprive this man of his rights, so folks we are back to the very thing I point out again and again,, tough Judges depriving people of their rights cost the taxpayers, time, money, oh and their safety.

Public Trials, Dammit!

The United States Supreme Court published a Per Curiam decision yesterday in Presley v. Georgia, reversing a Georgia trial court conviction for cocaine trafficking because the trial court prohibited the public from voir dire.  That's right folks, we the people have a right to watch our government do what our government does even really important stuff like picking a jury; seriously, Georgia, wtf?!

The Supreme Court per curiam (by the court--meaning the decision was by the whole court and not by a specifiic Justice) found the exclusion of the public violative of the Sixth and Fourteenth Amendments of the U.S. Constitution.  We talk about the Fourteenth Amendment (substantive and procedural due process, and equal protection) all the time on Bad Lawyer but, I don't know that we have been specific about the Sixth Amendment, it commands:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall hae been committed, which district shall have neen previously ascertained by law, and to be informed of the nature and cause of the accusation;  to be confronted with the witnesses against him;  to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defen[s]e.

Pretty cool, huh? 

A trial as we discussed before, a trial begins with jury selection.  Why a Georgia trial court, and why the Georgia Supreme Court thought the Sixth Amendment was inapplicable to Mr. Presley is dumbfounding.  Oh, one U.S. Supreme Court Justice did write, it was a dissent, and it wasn't 'Nino (although he joined--as pointed out by Deraj,) you'll have to read the opinion for yourself to find out who--it's my way of making you look at the real thing.