The trailblaizing U.S. Court of Appeals for the 11th Circuit cancels the 6th Amendment's right to counsel

I have just posted a blog about the 5th Circuit's endorsement of a criminal defense attorney-bashing by a known bully of a judge, putting a chill on the 6th Amendment right to counsel in criminal proceedings.

Yet, nothing comes close to what the 11th Circuit did - it simply cancelled the 6th Amendment right to counsel altogether.

Much has changed in civil rights litigation since the election of President Trump.

Standards of pleadings disappeared - when Trump is the defendant (even though it is us the American taxpayers are defendants when President Trump is sued in his individual capacity), that happened in immigration cases, see also here, that happened in the "denial-of-federal-fund" cases, but, since both types are federal civil cases, such changes of pleadings standards affect all court proceedings in federal court.

Yet, the pro-Clintonite public is ecstatic when any decision is made by federal courts against Trump, including glaringly unlawful decisions, and such decisions are celebrated as protection by federal judges of civil rights.

Of course, violating every rule, statute, precedent and test in the book to make a decision for the person based on the judge's own political views has nothing to do with the law.

And, of course, federal courts continue to do their main job, to which the public does not pay much attention  - until those decisions come to bite members of the public into their own rear ends in their own individual cases, but then it will be too late.

For example, federal courts continue to erode the right to counsel guaranteed to criminal defendants by the 6th Amendment, not that the public cares much because it is about "rights of criminals", while the popular opinion misses the point that ANYBODY can be MADE into "a criminal" (and the percentage of Americans convicted of crimes is at all-times high now) simply by violating that person's constitutional rights and manufacturing convictions while defendants do not have meaningful legal representation.

The three most recent cases, by the U.S. Court of Appeals for the 5th, 8th and 11th Circuits, stand out in respect of the courts' hypocrisy, incompetence and violation of their own oath of office to maintain, not destroy, the U.S. Constitution.

By the way, courts have no authority to CHANGE the U.S. Constitution by interpretation, and the 6th Amendment's right to counsel in criminal proceedings is quite clear and, as courts say, "unambiguous".


The U.S. Supreme Court ruled in many precedents that it means - and this is a very reasonable interpretation - that what is guaranteed under the 6th Amendment right to counsel is effective representation by counsel.

To be effective, counsel should:

1. be present;
2. be competent;
3. be diligent; and
4. be properly informed about material issues about innocence or mitigation of his client's guilt and issues of bias or disqualification of judges and prosecutors, as well as impeachment issues of the government's witnesses.

The U.S. Supreme Court has also ruled, under the Brady rule, that information about innocence, mitigation and impeachment of witnesses, must be disclosed to the defense before trial.

Of course, this rule is violated by prosecutors left and right, with no discipline against prosecutors and with complete immunity of prosecutors from lawsuit by victims of their misconduct.  But, at least this rule exists.

And, of course, the practical implementation of the rule of effective assistance by courts is watered down to having an attorney with a pulse and a law license present at the criminal proceedings, and that is good for most courts as effective representation of counsel.

An assigned defense counsel did no discovery, made no motions and no objections at trial?  No matter.  It is the "trial strategy", and, since the counsel was presumed competent, that trial strategy represented a lawful "waiver" of defendant's right to object, to conduct discovery and make those motions. Etc., etc., etc., in the same way.

Moreover, courts especially tend to look the other way when it comes to judicial and prosecutorial misconduct during criminal trials.

As I wrote in today's other blog, the 5th Circuit has put a chill on criminal defense by allowing a judge to sanction criminal defense attorneys for making objections not in the way the judge wanted it to be, and for refusing to change their objections through answering a judge's entrapping "yes or no" questions to which there were no "yes or no" answers.

When a criminal defense attorney for the indigent (a public defender), or any other criminal defense attorney, is afraid for his license to make an objection in the wrong way, he won't be making any objections, be assured of that.

So, it is the public that is suffering, but I do not see demonstrations in the streets in defense of the 6th Amendment or attorney William Hermesmeyer.

Moreover, the 6th Amendment was further eroded when the U.S. Court of Appeals for the 8th Circuit and the U.S. Supreme Court, the newest addition, Judge Gorsuch, included, rejected pleas to stay execution of Lee Ledell in Arkansas despite the fact that the presiding judge at Lee Ledell's criminal trial #ChrisPiazza (who is still on the bench) slept with one of the prosecutors in the office prosecuting Lee Ledell, #MelodyLaRue, without disclosure to Lee Ledell's counsel.

There cannot be an effective representation of counsel when the counsel does not know about an unconstitutional disqualifying conflict of interest between the presiding judge and the prosecuting office.

Under such circumstances, counsel could not move for recusal and disqualification of both the judge and the prosecuting office that sought, and was granted the death penalty sentence. 

The prosecutor who slept with the judge was nearly immediately promoted, then married the judge, who divorced for her, and is now happily practicing law in private practice.  Nobody was disciplined.  Lee Ledell was executed.  Everybody is happy.  But for Lee Ledell, but he is conveniently killed off and is not there to complain.

But, nobody yet, to my knowledge, considered whether counsel can provide effective assistance at a criminal trial when ABSENT from that trial.

One would presume that providing any assistance when absent is impossible.

And, one would presume that the trial must STOP when the defense counsel is not present.

Not so - decided the majority of the "en banc" panel of the U.S. Court of Appeals for the 11th Circuit in U.S. v Roy, an appeal as of right from the conviction in the Southern District of Florida, a federal court.

In its 281-page (!) opinion, including concurrence and dissent (which contradicts all lamentations of federal courts that pleadings should be shorter - apparently, judges could not fit their legal arguments in the same number of pages, 50 max for appellate court and 25 max for trial court on motions, that they allot to litigants), 8 out of 11 judges of the blessed 11th Circuit decided that the error to proceed to trial in the absence of the lawyer who was 6 minutes late to return from lunch, while the judge decided to continue the trial 1 minute early (altogether, the defense counsel was absent from the testimony of the forensic expert for 7 minutes), the error was "harmless".

Come again?

Maybe, we don't need defense counsel at criminal trials at all?  If continuing the criminal trial during a 7 minutes' absence of the defense counsel during which a forensic expert for prosecution was subject to direct examination that the defense counsel missed, is "harmless error", will 8 minutes will not be harmless error?  15 minutes? Half an hour?  When do we draw the line?

The point is that the defense counsel was absent during ANY PART of the testimony of prosecution's witness and could not, thus, properly form questions for cross-examination of that witness, and thus, the client was denied effective representation of counsel, through no fault of the client.

Moreover, since the judge started the trial not only in the absence of the defense counsel, but ONE MINUTE EARLY, that means that he judge did not care whether the defense counsel will or will not be present, and was extremely biased in favor of the prosecution, and was, in fact, helping the prosecution, and such a judge should have been removed from the case, and the case should have been retried in front of another judge.

But, as we know from Lee Ledell's case, even when the judge slept with a prosecutor from the prosecuting office without disclosing the fact to the defense, that was not enough to overturn the conviction, death sentence and even stay the execution.

The 11th Circuit ruled that, since it was the defense counsel's fault that he was late, the defendant simply waived his right to impeach the prosecution's witness, that's all.  As simple as that.

After some verbal gymnastics, this is what the court "concluded",

rejecting this argument by the dissent:

Not to mention that the defense counsel cannot prepare for cross-examination properly, having missed a large portion of the testimony - a lot can be said in 7 minutes.

And, you know what is absolutely missing from the 281-page opinion, from the majority, concurrence AND dissenting opinions?

Any mentioning of JUDICIAL MISCONDUCT, and PROSECUTORIAL MISCONDUCT which is actually the big hairy and filthy mammoth in the room.

Why, please, tell me, did the trial judge consider it possible to continue with the trial and deposition of a prosecution's witness in the absence of the defense counsel?

And why did the prosecutor consider it possible to do that without objection to the judge that it is improper to continue in the absence of the defense counsel, because the case will be reversed for 6th Amendment violation?

What is also interesting is that in the ABA article, the name of the defense attorney who was late from lunch - Jay Kirschner - was revealed, but the names of the trial judge and the trial prosecutor who knowingly continued the trial in the defense counsel's absence, in violation of the 6th Amendment, were not revealed.

Here are the names of these "heroes".

According to the public document, a docket report of the case in the trial court, the Southern District of Florida, the U.S. District Judge assigned to the case was Judge K. Michael Moore, a former career federal prosecutor and one time chief of U.S. Marshall's service, who is currently the Chief Judge of the U.S. District Court for the Southern District of Florida (of course, an ABA Journal article cannot dare implicate the Chief judge of a federal district court in glaring misconduct, conducting a criminal trial in the absence of defense counsel).

The prosecutor who continued with the case in the absence of the defense counsel was a pretty female Assistant U.S. Attorney Carmen M. Lineberger, obviously, judge K. Michael Moore could not say "no" to such a pretty face.
  

                             

According to ratings of judge Kevin Michael Moore on "The Robing Room" website, the judge is:

1) a pro-prosecution judge and a "brutal sentence" for even first-time non-violent offenders;

who disregards criminal procedure, prohibits voir dire questions to jurors and admits any evidence - apparently, of the prosecution:

2) that his judicial temperament and intellect leave much to be desired:

2) an anti-criminal defense judge; 

3) a cranky judge who considers his personal comforts higher than the law; and

4) a judge who has come to the bench through personal connections of his father to one of the former presidents; and, most importantly,

5) that Judge Moore is a control freak who sticks to timelines even when adjournments are needed to ensure fairness of proceedings

Now, Judge Moore has proven that not only he is a control-freak who would rather start a trial one minute early, expect a defense counsel to be there one minute early, and punish the criminal defendant for his counsel's being late to trial for 6 minutes by missing a portion of prosecution's case and not being able to prepare the opposition.

Yet, that is, ladies and gentlemen, not just a control-freak-ism, but a constitutional violation, denial to the criminal defendant of his right to counsel.

Which is exactly what the dissent said.

But, let's remember, this is an "en banc" decision, and 8 (eight) judges of the 11th Circuit endorsed the decision of Judge Moore that a criminal defendant has "waived" his counsel's preparation for cross-examination of a prosecution's witness if that counsel was late for the trial.

Yet, I am sure that if a judge is late for the trial or if a prosecutor is late for the trial, or if any of the jurors was late for the trial, the trial would not have started.

It is just for the defense attorney that such an "exception" was made.

And, did I mention that Judge K. Michael Moore is now the Chief Judge of that same court, and that a couple of years ago he "declined to comment" upon the developing story that a judge of his court slept with a prosecution's witness?

So, in Lee Ledell's case the presiding judge slept with a prosecutor, and the defendant was still executed, and the 8th Circuit court did not see it as any problem, nor did the U.S. Supreme Court.

In Chief Judge Moore's court, a judge was sleeping with a prosecution's witness, and Chief Judge Moore "declined to comment".

And, Chief Judge Moore himself, a former career prosecutor, caters to the prosecution to the point of holding a trial in the absence of the criminal defense attorney. And the 11th Circuit endorses this behavior.

So, what do we have left of the so-called due process and the 6th Amendment right to counsel?