Tuesday, April 28, 2015

Luna v. Kernan (9th Cir. - April 28, 2015)

I'm usually more than happy to call out attorneys who commit gross misconduct.  If nothing else, it's a good warning to those who might otherwise be to make similar mistakes.  Plus, in criminal cases, it sometimes highlights the sorry state of representation in far too many of these matters.

So imagine my thoughts when I read Judge Watford's comment that, in this federal habeas case, "the magistrate judge assigned to Luna’s case determined that, given the complexity of the legal issues involved, the interests of justice required appointment of counsel. [Ed: Habeas cases don't entitle the petitioner to appointed counsel.] Ordinarily, that’s a good thing for someone in Luna’s shoes. 'Sadly' though, as the magistrate judge later remarked, in this case Luna 'may have been better off without counsel.'”

Ouch.  It's pretty harsh to say that appointed counsel was worse than the lay petitioner himself spouting out legal pleadings filed from prison.

Yet it also seems accurate.  The petitioner here seemed to be doing a fairly decent job of navigating the complex procedural morass that is modern federal/state habeas.  Things only got screwed up once the attorney got involved.  And screwed up they did.  Royally.  Resulting in the filing of a habeas petition more than six years after the relevant federal deadline had passed.

I'll let you read the entirety of today's opinion by Judge Watford's for details.  Suffice it to say that when Judge Watford holds that these were no "garden variety" attorney errors -- which do not justify equitable tolling of the limitations period -- but were instead "egregious professional misconduct" (which might), there's more than ample support for such a conclusion.

So, normally, I'd be inclined not only to mention the case, but also the relevant attorney, Joseph Wiseman.  Someone who Judge Watford also repeatedly identifies by name in the opinion.

And I will.  (And just did.)

Yet, to be honest, while Mr. Wiseman clearly did wrong here, any notion of retribution seems to me inappropriate here.  Indeed, in truth, I feel a little bad for him.

Maybe my predicate assumptions in this regard are factually inaccurate, but I feel a little bad for Mr. Wiseman because (1) he seems to have tried to do the right thing, but was simply out of it with regard to various complicated procedural habeas issues, and (2) he either wasn't getting paid at all (because it was a habeas case) or was only getting paid a pittance (e.g., $90/hour).  So there's at least a nontrivial chance that Mr. Wiseman took on this case to do a "solid" for the magistrate judge (rather than to make bank), tried -- as best as I can tell from the letters he sent the client, etc. -- to do the right thing, but just was sufficiently confused or inexperienced that he made some (admittedly huge) procedural mistakes.

He's culpable for that, of course.  He shouldn't have done it.  And we might potentially want to give the client some relief from the resulting procedural bar.

But I've seen worse.  Much worse.  By lawyers who don't seem to care in the slightest.  As opposed to lawyers, like Mr. Wiseman here, who made mistakes, eventually seemed to realize them, and then  "request[ed] that the court appoint new counsel for Luna, candidly acknowledging that Luna might wish to seek equitable tolling on the basis of Wiseman’s handling of the case."

Does Mr. Wiseman need to brush up on habeas procedure?  Definitely.  Does it look like he could use a serious course in law firm management so he doesn't leave petitions hanging for months at a time? No doubt.  I hope, and expect, that after this experience, Mr. Wiseman will get on the stick.

But would I want to see Mr. Wiseman disbarred?  No way.  He made mistakes.  He'll pay for 'em.  Reputationally and otherwise.

But it is what it is.  I like that Judge Watford's opinion makes clear both the mistakes that were made here and that they're definitely not okay.  As well as might justify relief for the client.

But I'm okay with that largely being the end of the matter.

No one's perfect.  Sometimes not even close.