Argument preview: Replacing habeas counsel for death row inmates

How easy should it be for someone on death row, challenging his state court conviction or sentence in federal court, to get his court-appointed lawyer replaced by another one?

California, supported by twenty-five states, contends that the Court of Appeals for the Ninth Circuit has made it much too easy.  As the states frame the case, the question is whether the condemned prisoner is entitled to a replacement lawyer “just because he expresses dissatisfaction and alleges that his counsel was failing to pursue important evidence.”  Death row inmate Kenneth Clair, represented at the Court by former Solicitor General Seth Waxman, agrees that the answer to that question is plainly “no,” but argues that the “question itself has nothing to do with the facts of this case or the court of appeals’ holding.”  Much of the battle in the Supreme Court in Martel v. Clair, scheduled for oral argument on December 6, then, is likely to be about how to characterize what the court of appeals did in this case, with California portraying the decision as establishing a far-reaching and overly generous standard for replacement of counsel, and the inmate portraying the decision as a narrow and reasonable response to a unique situation. Although criminal defendants have a federal constitutional right to counsel at trial, as well as on a first appeal as of right, they do not have a constitutional right to counsel for further proceedings challenging their conviction or sentence.  They do not have a federal constitutional right to counsel to pursue certiorari in the Supreme Court of the United States, nor in other state court post-conviction proceedings or federal habeas corpus proceedings.  Congress, however, has enacted statutes that allow federal courts to appoint counsel in federal habeas corpus proceedings, and require federal courts to appoint counsel, upon motion, if an indigent habeas petitioner is facing a death sentence.

In 1987, Kenneth Clair was convicted of the 1984 murder of Linda Rogers.  He death sentence was affirmed by the California Supreme Court in 1992.  He began habeas proceedings in federal district court in 1993, and counsel was appointed to represent him.  In 2004, the federal district court conducted an evidentiary hearing, and in March 2005, while the parties were waiting for the court’s decision, Clair wrote to the district judge stating that he no longer wanted to be represented by his appointed counsel.  He complained, among other things, that his counsel had failed to locate an alibi witness and discouraged others from assisting with the case. In response to the district judge’s inquiry into the matter, appointed counsel informed the court that Clair had met with counsel and agreed to counsel’s continued representation.  In June 2005, before the district court ruled on his habeas petition, Clair again wrote to the district judge complaining about his appointed counsel.  This time he added that his counsel was making no effort to analyze previously missing physical evidence that had recently been located.

On June 30, 2005, the district judge denied Clair’s request to replace his lawyer, stating simply:

It does not appear to the Court that a change of counsel is appropriate.  It appears that Petitioner’s counsel is doing a proper job. No conflict of interest or inadequacy of counsel is shown.

That same day, the district judge denied all relief on Clair’s habeas petition.  The next day, the district judge retired.

On appeal, in response to an order by the Ninth Circuit, Clair’s counsel indicated that the attorney-client relationship had broken down to such an extent that substitution of counsel would be appropriate.  The court of appeals then appointed new counsel.  That new counsel not only pursued the appeal, but also sought to file a motion pursuant to Federal Rule of Civil Procedure 60(b) that the district court declined to consider.  After briefing by new counsel, the court of appeals concluded that the district judge had abused his discretion in denying Clair’s request for replacement counsel.  It reasoned that although Congress has not provided a statutory standard for courts to apply when death row inmates seek to change their appointed counsel, it has provided a statutory standard — “the interests of justice” — for courts to apply when other prisoners seek to change appointed counsel, and it could not have intended a lower standard for death row inmates.  It concluded that the district judge could not have plausibly made a determination whether changing counsel was in the interests of justice without making some inquiry into Clair’s allegations and that by failing to do so, he abused his discretion.

But rather than remand the case for the district court to make that inquiry and decide whether the interests of justice called for changing counsel, the court of appeals decided to treat the lawyer whom the court of appeals had appointed “as if he were the counsel who might have been appointed had the district court properly exercised its discretion in response to Clair’s request for new counsel.”  It did so because it faced what it described as a “conundrum” caused by the fact that Clair already had new counsel and the district judge had retired.  As a result, it directed the new counsel to “consult with Clair and determine what actions and submissions to the district court, if any, would be appropriate before the district court rules anew on Clair’s habeas petition, and then proceed accordingly.”  In addition, it directed that the district court “consider any such submissions, including any requests from counsel to amend the petition to add claims based on or related to the alleged new physical evidence, as if they had been made prior to the ruling on the writ.”

California complains that this ruling effectively allowed Clair to reopen his habeas petition, years after it was filed, months after an evidentiary hearing, and while the parties were awaiting the court’s ruling, simply by sending the judge a letter complaining about his counsel.  It fears that allowing substitution in such circumstances extends an open invitation to death row inmates to file “Clair motions” and thereby raise new claims that would otherwise be barred by doctrines that severely limit successive habeas petitions.  It argues that counsel in capital habeas cases should be replaced only in three narrow circumstances: if the lawyer lacks the statutory qualifications required for appointment, if there is a disabling conflict of interest, or if the lawyer has totally abandoned his client.

Clair counters that California’s proposed standard has no basis in the text, history, or purpose of the statute, and makes no practical sense.  He argues that a motion by a death row inmate seeking replacement counsel, “like countless other matters pertaining to the conduct of litigation, is committed to the district court’s sound discretion, to be exercised in ‘the interests of justice.’”  California’s standard would seem to hamstring district judges in dealing with the everyday problems that arise in litigation:  for example, what would happen under California’s standard if appointed counsel moves across the country to a completely different job, and it is clear that it would make more sense to replace him rather than insist that he continue in the case?

Seeking to portray the decision narrowly, Clair argues that the court of appeals did not hold that Clair was entitled to new counsel based on his complaints, but rather only that the district judge needed to make some minimal inquiry – such as by directing Clair’s counsel to explain himself – to have enough information to properly exercise his discretion.  Indeed, Clair concedes that in the ordinary case, the proper response by a court of appeals to such a failure by a district judge might well be a remand to conduct that inquiry.  But in the idiosyncratic circumstances of this case, where new counsel had already been appointed some five years earlier and the trial judge had retired, Clair argues that such a remand would have made no sense.  In a final attempt at narrowing, Clair urges that the court of appeals did not license Clair’s new counsel to add new claims or introduce evidence, but only to seek the permission of the district court to do so.

The Court has long been impatient with delays in capital cases; it may well be frustrated that this habeas petition that was filed in 1993 – prior to the Antiterrorism and Effective Death Penalty Act of 1996 and therefore not governed by that statute – a has yet to be resolved and that Clair, sentenced to death in 1987 for a 1984 murder, is still litigating challenges to his conviction and sentence.  The Court seems unlikely to adopt the narrow standard for replacement of counsel suggested by California, but it may well conclude that the district judge knew enough about the case to exercise his discretion as he did or that the court of appeals was wrong to do anything more than to remand for a proper exercise of that discretion.  But Seth Waxman, advocating on Clair’s behalf, has done a masterful job of “seizing the inch,” as Judge Harold Leventhal often advised, in trying to hold onto a victory by making it as narrow as possible.