Friday, November 14, 2014

In a rather unusual case, the Kansas Supreme Court has disbarred an attorney for ethical violations committed in the course of defending a client in a death penalty case.

Also unusual was the attire of the attorney in oral argument before the court. The Topeka Capital-Journal reported that he came dressed as Thomas Jefferson.

Dressed as Thomas Jefferson, 18th century Revolutionary War patriot, lawyer Ira Dennis Hawver faced the Kansas Supreme Court on Friday to answer disciplinary findings he provided ineffective assistance of counsel to a defendant sentenced to death.

Video here.

The attorney had no prior experience in death penalty cases. He devoted approximately 60 hours to preparing the case and had not tried a murder in twenty years.

in the proceedings, he repeatedy referred to his client as a "professional drug dealer" and a"shooter of people."

He was also distracted by his campaign for Governor.

His claim that his conduct was protected by the First Amendment failed to persuade

Many of the deficiencies the panel found involved nonexpressive conduct, including Hawver's failure to investigate for the guilt and penalty phases of Cheatham's case, inadequately preparing for trial, failure to file an alibi notice, failure to seek out or accept financial assistance for trial preparation, and failure to devote sufficient time to the case. The free speech guarantee extends to the spoken and written word and to conduct "'sufficiently imbued with elements of communication . . . .'" Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). But whether conduct is so imbued depends on whether the actor intended to convey a particular message and whether "'the likelihood was great that the message would be understood by those who viewed it.'" Johnson, 491 U.S. at 404. The nonexpressive conduct in this case clearly was not intended to convey any particular message, so it is not protected speech. Imposing attorney discipline for this nonexpressive conduct does not implicate First Amendment concerns.

On the other hand, some of the deficiencies involved expressive conduct, including telling potential jurors that Cheatham was a drug dealer and had previously been convicted of voluntary manslaughter for shooting and killing another person; telling the jury during the guilt phase it would take "superhuman" efforts to see past Cheatham's criminal history to find him not guilty; and telling the jury during the penalty phase that it should execute the person who committed the crimes for which it had just found Cheatham guilty. But this expressive conduct also was not protected speech.

A lawyer who undertakes a duty to act only in the client's best interests possesses no First Amendment interest in such in-court speech.

The court

In addition to the injury to the legal system found by the panel, it is important to note Hawver's misconduct actually injured Cheatham, who was "improperly advised by [an] unqualified lawyer[ ]" resulting in a deprivation of Cheatham's constitutional right to assistance of counsel... Moreover, Hawver's inadequate performance—particularly as to the penalty phase of Cheatham's trial—might have caused or contributed to the jury sentencing Cheatham to death.

In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel's conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.

But in this court's view the essentially uncontroverted findings and conclusions regarding Hawver's previous disciplinary history, his refusal to accept publicly financed resources to aid in his client's defense, and his inexplicable incompetence in handling Cheatham's case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer's course of conduct demonstrates "the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client"). We hold that disbarment is the appropriate discipline.

The client was granted a new trial last year.

From the order reversing the client's conviction

...we must determine whether this conflict adversely affected the adequacy of Hawver's performance. Cheatham maintains the financial disincentive under which Hawver labored was illustrated by his failure to adequately investigate and prepare the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We agree.

Hawver estimated he spent around 200 hours in defense of Cheatham. This is appallingly low for a death penalty case defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to retain an investigator or to assemble a defense team to adequately present Cheatham's case due to an unwillingness to invest the resources this would take. As a result, potential defense witnesses were never interviewed and possible leads, such as an unexplained foot print at the crime scene, were never pursued. Hawver admitted openly that he had no intention of spending his own funds to prepare the case and no intention of taking time away from his other cases or his political activities. Hawver obviously realized the questionable nature of his inattention because he had Cheatham acknowledge it in writing. In sum, Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy.

Hawver also failed to make himself available as an alibi witness for Cheatham by serving as his counsel. Cheatham notes that if called to testify, Hawver would have explained that on the day before the murders, Hawver had advised Cheatham to leave town because Hawver believed the police were looking for an excuse to arrest Cheatham. Similarly, Cheatham would have testified that he followed his counsel's advice and left for Chicago on the afternoon of December 13. And Hawver most certainly could have provided a measure of credibility to Cheatham's claim that he was in or on his way to Chicago at the time of the murders by taking the stand and recounting to the jury how he had advised Cheatham to get out of town. But that line of testimony was foreclosed because Hawver was serving as trial counsel.

Even so, Hawver attempted during closing argument to present this evidence by stating, “Now when I first got this case, I got a call from Phillip Cheatham in Chicago-“ but the State objected before he could finish because Hawver's argument was beyond the scope of admitted evidence. Clearly, Hawver recognized too late the contribution his testimony could have brought to the defense and attempted unsuccessfully to present it. But becoming an alibi witness would have required him to withdraw from the representation and forego any claim to a fee or the public attention garnered from serving as trial counsel in a double homicide trial.

We hold that under the circumstances presented the fee arrangement in this death penalty case created a conflict of interest for Hawver that adversely affected the representation of Cheatham in multiple respects. And we hold further that it is not necessary for Cheatham to show that he was actually prejudiced by Hawver's failure to adequately pursue his defense or withdraw and provide alibi support. Cheatham's convictions, therefore, must be reversed and the case remanded for a new trial.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2014/11/in-a-rather-unusual-case-the-kansas-supreme-court-has-disbarred-an-attorney-for-ethical-violations-committed-in-the-course-o.html