Public defenders prevail in right to counsel cases

Michigan appellate defender one of two first-timers who won

By Correy Stephenson
The Daily Record Newswire
 
In March of this year, the U.S. Supreme Court extended the right to effective counsel to the plea stage of criminal proceedings in a pair of cases, Lafler v. Cooper and Missouri v. Frye.

In both cases, appellate public defenders argued on behalf of their clients before the highest court in the land for the first time in their careers — and won.

Missouri Assistant Public Defender Emmett D. Queener, an appellate attorney for 21 years, said the experience was both “exciting and terrifying at the same time.”

When first assigned the case, Queener didn’t expect to be arguing in front of the Supreme Court.

But as he reviewed the record, he began to realize the import of the case. And when he eventually filed his petition for certiorari, Queener discovered the justices had granted cert on the exact same issue in a 2006 case that was dismissed as moot before they heard oral argument.

The pressure of handling a case that could impact the rights of defendants across the country weighed on Queener. “I’m just used to making bad law in Missouri, not all 50 states and however many territories,” he
joked.

But once he stepped up to the podium, all the hard work and preparation paid off, and he presented an oral argument that led to a 5-4 decision in his favor.

Queener, who also worked as a city attorney and for the department of Health and Human Services before finding his “true love” in appellate work, said that he enjoyed the experience of handling a case before the Supreme Court. But, he added, “it was a once in a lifetime experience and once in a lifetime was enough.”

Michigan Appellate Defender Valerie R. Newman also didn’t expect a trip to Washington, D.C. when she began her nine-year fight for Anthony Cooper.

“I find criminal defense attorneys at the trial level often don’t do an adequate job of explaining the ramifications of [plea deals] but it is usually very difficult to prove,” she explained. The Cooper case was unique in that a clear record showed defense counsel had mistakenly advised the defendant, who even wrote a letter to the judge asking to take the plea deal.

An “eternal optimist” who originally intended to be a prosecutor, Newman was “demoralized” after oral argument.

“Nothing can prepare you for that experience,” she said. “I expected intellectual debate and very tough questioning but the vehemence and the manner in which it came out I found disconcerting. I had no idea if I had won or lost when I walked out of there.”

Newman ultimately prevailed in a 5-4 ruling authored by Justice Anthony Kennedy.

Although the Frye case continues — Queener said he is waiting on a date for oral argument before the federal district court to determine whether the prosecutor would have stood by the plea offer even though the defendant subsequently was charged with another drunk driving offense — Newman’s client has already been paroled.

The decisions are “the right thing for the criminal justice system,” Newman said. “We can’t have a system where attorneys are deficient and people are suffering and [we] say, ‘Tough luck, we’re not going to do anything about it.’”

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