Sunday, December 24, 2017

Case o' The Week: "Tend to Your own Knitting," Ninth Warns Gov't - Wells and CJA Appointments

“As Justice Louis D. Brandeis warned many years ago: ‘The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’ Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). 
  After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells' trial fundamentally unfair. Therefore, we reverse and remand for a new trial.”
  United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and partial dissent by Judge Tashima. Big win for former CD Cal AFPD Davina Chen (the case was reversed on grounds not reported here).

Facts: Wells was charged with death-eligible homicide counts. Id. at *3.
  Federal Defender Rich Curtner was appointed to represent Wells, and second CJA counsel was appointed under 18 USC § 3006A. Id. The government challenged the ex parte nature of the CJA appointment. Id.
  The government proceeded on the case with three attorneys.
  After the government confirmed it would not be seeking death, it moved to have the second CJA counsel removed. Id. FPD Curtner fought the motion, explaining he was managing an office in financial crisis because of sequestration, that another AFPD was not available to try the case, that CJA counsel had a relationship with the client and a deep understanding of discovery, and that if CJA counsel was removed it would be three government prosecutors against one public defender. Id.
  Despite FPD Curtner’s objections, the magistrate judge granted the government’s motion, CJA counsel was removed, and Wells was convicted after trial. Id. at *4.

Issue(s): “[ ] Wells challenges the district court’s removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty.” Id. at *4.

Held: Applying [a] deferential standard, we do not find that the removal of [CJA counsel] was reversible error, but neither can we accept without comment the Government’s interference in the status of Wells’ representation.” Id. at *5.
  “[W]e find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole counsel.” Id. at *6.
  “[O]f much greater concern to this Court, is the means by which the question of [CJA counsel’s] continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of [CJA counsel’s] appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. While such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. . . .
   The Government's decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” Id. at *6 (citations omitted) (emphasis added).

Of Note: What role should the government play in the question of CJA representation?
  The Ninth is unequivocal: “[I]n the future, the Government should tend to its own knitting.” Id. at *7.
  Wells is a seminal case on the need for independent and realistic assessment of the need for CJA counsel --and the USAO is to play no role in this assessment.
  Wells also calls out the injustice of the resource imbalances facing CJA counsel, calling out the “stacked deck” orchestrated by the government.
  A must-read for FPD and CJA counsel (and, as Judge Ngyuen warns, an opinion that DOJ should mull deeply). Id. at *29.

How to Use: When Death departs, so does Learned Counsel, right?
  Maybe not.
  The Ninth provides a sympathetic discussion of the procedure by which second CJA counsel can stay in a (former) capital case. Id. at *5. 
  RICO-wrestling CJA counsel should give this primer a very close read: seconds should stay, in some cases.

For Further Reading: The homicides on this remote Alaskan island have a vaguely Fargo-esque quality. 
  For an article describing the work feud that (allegedly) triggered the murders, see the article here

Image of James Wells from 

Steven Kalar, Federal Public Defender Northern District of California. Website at



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