Wednesday, August 14, 2013

In Re Brown (Cal. Ct. App. - Aug. 14, 2013)

There are two surprising things about this case.  Or, more accurately, there are two things that should be surprising, and what's surprising is that they're not a surprise.

The facts are simple.  Jamall Brown gets convicted at trial of vandalism.  He receives a two-year sentence, which is doubled if he has a prior juvenile adjudication for robbery, which counts as a "serious" prior strike. Brown's defense attorney looks at a piece of paper the prosecutor shows him -- presumably, a document that reflects (accurately) that Brown was indeed charged with robbery five years ago -- and asks Brown if he was convicted, and Brown responds affirmatively.  As a result, Brown's attorney advises him to admit the prior strike, Brown does, and Brown's two-year sentence turns into four.

There's only one problem.  Brown was not, in fact, previously found guilty of robbery.

Yes, that was indeed the initial charge.  But it was later amended to include an additional charge of grand theft.  Dispositively, at trial, the judge found Brown guilty of that latter charge -- which doesn't count as a serious strike -- and dismissed the robbery count.


Now, you might think that this is a pretty straightforward case.  Brown received a two-year sentence for something he didn't do.  He's essentially innocent of that alleged conduct.  So of course he gets relief, right?

Fear not.  One of the surprises is not that the Court of Appeal keeps Brown in prison for four years despite the fact he's only earned two.  That would indeed be a surprise -- and a fairly shocking one -- but it doesn't happen.  The Court of Appeal grants him habeas relief.

But I was nonetheless surprised (or, in a perfect world, should have been surprised) by two things.

First, the California Attorney General's Office doesn't concede relief.  It instead aggressively argues that Brown should indeed remain in prison for four years based on a prior offense for which it admits Brown wasn't found guilty.

That's surprising.

The AG's Office argues that Brown has to stay in prison an unjustified two years because his attorney's performance wasn't ineffective.  It was reasonable, the AG argues, to rely upon the charging sheet and the recollection of his client.  So no ineffective assistance of counsel, the AG says, and hence no relief.

Justice Zelon crushes those arguments in her opinion.  Though she does so in a nice way.  It's not reasonable to rely upon an initial charging document, she holds, when what matters is the readily available document that reflects the offense (if any) for which the defendant was actually convicted.  It's similarly unreasonable to rely upon a lay client's recollection of what particular offense he was eventually found guilty given that these issues are often complex.  Particularly for (as here) someone who was sixteen years old at the time.  It may well be that the client thought he was convicted of X when he was actually convicted of Y, and while it may not matter to the client at the time (who just cares about how much time he has to serve), it may make a huge legal difference in the future.  Again, as here.

Which is why you need to actually go ahead and pull the sheet rather than taking someone's word for it.

Look, I understand why the AG's office might want to keep Brown locked up.  They probably think he's a bad guy.  They probably think he deserved four years in the first place.  They're probably somewhat pissed that the jury acquitted the guy of assault with a deadly weapon at trial and only convicted him of vandalism.  They want the dude in prison for a long time.  So they're not about to let the guy shave his "generous" four-year sentence down to two.

All that's understandable.  From an emotional perspective, anyway.  So it's perhaps not surprising to see the AG's Office not concede error.

But it should be surprising.  Because -- to reiterate -- Brown's innocent of the offense for which they've put him in prison for two additional years.  He doesn't have a prior serious strike.  Everyone admits that fact, the AG's Office included.  That Brown might "deserve" an extra two years in some moral sense doesn't matter a whit.  We are a nation of laws.  The law doesn't provide for an additional two years if the guy doesn't have a prior strike.  Brown doesn't.  End of story.

The nonexistent strike is no different than a nonexistent offense.  Imagine that Brown robbed someone by pointing a carrot at them, and the AG's Office thought Brown was a really bad guy.  But pointing a carrot only permitted a two-year sentence, but pointing a gun would authorize a "just" four-year sentence.  Would the AG's Office be ethically permitted to charge Brown with the additional element of using a gun during the robbery?

No way.  Absolutely no way.  Were the AG's Office to do so, everyone would justifiably go ballistic.  If you know someone's innocent under the law, you can't charge them with something you know to be untrue.

So too here.

So I understand what's going on.  The AG's Office thinks it might be able to persuade the Court of Appeal to deny relief.  Despite the fact that it knows that Brown was not, in fact, found guilty of a prior strike.  So it decides to so argue.  Thinking that it will thereby achieve a "just" result.

That's not surprising.

But it should be.

The second point is somewhat related to the first.  You'd think that there'd be an easy way for people to get out of prison (or shorten their sentences therein) if they didn't, in fact, commit the offense.  You'd think that it would be incredibly straightforward, at least when (as here) everyone agrees that a conviction or sentence is based upon an erroneous and untrue factual predicate.  The dude's legally innocent, after all.  Surely you can just say (and prove) that fact and be entitled to relief, no?


No, instead you have to jump through a plethora of procedural and doctrinal loopholes.  Which is why the Court of Appeal's opinion is structured the way it is.

You can't just say you're innocent.  God forbid we made it that easy.  No, instead, you have to prove -- as here -- that your counsel was ineffective.  That everyone agrees that you don't actually have the prior strike for which you received two years isn't enough.  We instead require you to also prove that your attorney was constitutionally ineffective for failing to find that out.  Otherwise you stay in prison.

That should strike us as bizarre.  Even though it doesn't.

Imagine, for the example, that the AG was right.  Imagine that it was okay ("reasonable") for the attorney to rely upon the charging document and the recollection of a sixteeen year old.  I'll even go beyond this:  for the purposes of argument, imagine that the attorney had pulled a minute order that reflected that his client had, in fact, been found guilty of robbery.  A minute order that we all now recognize is totally erroneous.

Under those set of facts, we really are going to require someone to spend an additional two years in prison for something he didn't do?!  When (1) the law says that you spend an additional two years in prison if you've previously been convicted of a serious strike, (2) this defendant was not previously convicted of a serious strike, then (3) what follows from (1) and (2) is that this defendant is required to spend an extra two years in prison?  That's the logic of our existing criminal justice system?

If so, that should be a surprise.

I've probably got a third "should-be" surprise in mind as well:  namely, the steadfast refusal of Brown's trial counsel to admit that he should have pulled the disposition order rather than relying on the charging sheet in advising his client to stipulate to the strike.  Just seems to me that you should fall on your sword on this one.  As well as realize, at least in retrospect, that what you did wasn't reasonable.

But two surprises is enough for one afternoon.

Even if none of 'em are really surprising.