Home » In Focus » USA v Hicks – Five Attorney Pile-up Leaves 6th Amendment in ICU

USA v Hicks – Five Attorney Pile-up Leaves 6th Amendment in ICU

I recently attended the trial of Jade Hicks (CR 09-1976 JH US District NM) for 2 felony assault counts, one of which alleges with a deadly weapon, to wit: beer stein, held in the US District Court in Albuquerque. This case gained some publicity as the beer stein incident during Oktoberfest 2007 at Holloman AFB. This case caught my attention when a relative of the Defendant informed me that the trial had been moved to Albuquerque from Las Cruces and not at the request of the Defendant. Thinking this odd I decided to attend the trial at the last minute. What jumped out at me during the trial and my initial review of other case documents was that the Government was lying to the judge about the words in its own evidentiary proffers brought by Assistant US Attorneys Shana Pennington and Jennifer Rozzoni in front of US District Judge Judith Herrera. The effect of these misrepresentations, when coupled with defense attorneys who appeared to merely to be in attendance at the trial, was a redefining of “No” into “Yes” trampling most existing law in most areas the tribunal trod. This is by no means my last word on this case – duh. What I urge the reader to focus on is not the guilt or innocence of the Defendant, but rather the means by which the prosecution secured the conviction in this case. If these tactics are ratified those of you concerned with your rights have one less concern in your lives.

Let me start by reiterating that the guilt or innocence of the accused is not on trial here. What we need be concerned with here is the process, for without integrity and uniformity of the judicial system, we have nothing more than anarchy. There is nothing otherwise unique in what will be referred as the “State Action” throughout. It just happens to be a criminal action in this case (vandalism – Crim. Dmg > $1k). In this case judgments of state courts are rendered meaningless by judicial fiat from the District Bench. The real problem along the way was the defense counsel who abdicated their duty to:

In a long line of cases that includes Powell v. Alabama, 287 U. S. 45 (1932), Johnson v. Zerbst, 304 U. S. 458 (1938), and Gideon v. Wainwright, 372 U. S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through

Page 466 U. S. 685

the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled. Adams v. United States ex rel. McCann, 317 U. S. 269, 317 U. S. 275, 317 U. S. 276 (1942)
– STRICKLAND V. WASHINGTON, 466 U. S. 668 (1984) — US Supreme Court

OK, let’s test that using the documents in the case. Government’s exhibit #1 (View Document) is a Plea and Disposition agreement from the 12th Judicial District Court of New Mexico reflecting a No Contest plea in the State Action. But hold on Mike, don’t the Federal Rules of Evidence prohibit the use of No Contest or “nolo contendere” in federal parlance, pleas against the person making the plea? Let’s see.

FRE 410

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

It would seem this plea of No Contest is not admissible against the Defendant for the purposes of impeachment, so how did it get in? When reviewing evidence preliminary to its admission FRE 104 applies.

Rule 104. Preliminary Questions

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Guess what? The Supreme Court had something to say on that issue as well:

Rules 410 and 11(e)(6) “creat[e], in effect, a privilege of the defendant,” 2 J. Weinstein & M. Berger, Weinstein’s Evidence ¶410[05], p. 410-43 (1994), and, like other evidentiary privileges, this one may be waived or varied at the defendant’s request.
– United States v. Mezzanatto (93-1340), 513 U.S. 196 (1995)

So if the Court cannot consider this “evidence” absent a waiver we have to ask why on earth would a defense attorney waive an absolute bar to the use of this plea agreement to impeach his client? That is best explained by the Government’s own documents. In its UNITED STATES’ RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTION the Government says in FACTUAL BACKGROUND – p2 line 1 (View Document)

These convictions arise out of the defendant’s plea of guilty pursuant to a Plea and Disposition Agreement (attached hereto as Exhibit 1).

Beginning to get the picture? The Government told the judge and the Defense Attorney the document was a guilty plea though it says:

Plea: The defendant agrees to plead no contest to the following offenses:

on line 2. Continuing in the Judge’s findings under the law that includes this on page 2:

That the defendant understands the following constitutional rights which the defendant gives up by pleading no contest:

On page 3 it ends with:

On the basis of these findings, I conclude that the defendant knowingly, voluntarily and intelligently pleads no contest to the above charges and accepts such plea. These findings shall be made a part of the record in the above-styled case.

Can we first agree the Defense Attorney had a couple of ways to keep this out of the trial? All we lack is an understanding of why Donald Morrison did not raise any of this? He certainly paid a lot of lip service to excluding this privileged “evidence” in his Motion in limine (View Document) where he stipulates to two “felony convictions”. Presumably the Government has offered the Judgment and Sentence from the District Court here, right? Well, no. That was the reason for lying to the judge about the terms of the plea. The Defendant was subject to a Conditional Discharge (View Document), a New Mexico procedure where, for certain first time felonies, including the vandalism subject of the State Action, the Judge makes no entry of judgment, sets conditions that include restitution. An entry of judgment of guilt is only entered in the event the dischargee violates the terms of the discharge. Therefore it generates no conviction document hence no judgment to support the conviction. In fact the Conditional Discharge Order (View Document) offered as Government’s Exhibit #2 contains the following in bold type:
IT IS THE ORDER OF THE COURT that the judgment of guilt be withheld pursuant to §31-20-13, NMSA 1978 and a Conditional Discharge is entered in this matter

That seems more like evidence there was no conviction, but it does contain a reflection of a guilty plea which seemed odd since the same document says:

Defendant having previously entered a guilty plea on September 2, 2008 pursuant to a Plea and Disposition Agreement

You would think the Defense Attorney would have questioned that or maybe even had it corrected. The obvious question is why the Government is willing to lie to the Court and exploit a clerical error to turn the No Contest plea into a Guilty plea?

A guilty plea is not privileged or inadmissible in the way a No Contest plea is. Fortunately for us the Assistant US Attorney Shana Pennington likes to ramble on in anticipation of the other side, so she provides her motive:

In United States v. Turner, 497 F.2d 406 (10th Cir. 1974), the Tenth Circuit stressed that, even though a defendant’s prior conviction was a deferred sentence, it still constituted a “conviction” for purposes of Rule 609. This is because, as the Tenth Circuit explained, “a guilty plea is a confession of guilt and amounts to a conviction.” Id. at 407.
– UNITED STATES’ RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTION – III. The Prior Convictions Satisfy All Other Rule 609 Requirements. – p7

[15] We find that Turner’s guilty plea does amount to a conviction, and was admissible for impeachment purposes.
– United States v. Turner, 497 F.2d 406 (10th Cir. 04/08/1974)

In a subsequent case the 10th Circuit clarified its holding in Turner:

[23] Also, evidentiary matters in the federal courts are peculiarly matters for determination by such courts. Thus in United States v. Turner, 497 F.2d 406 (10th Cir.), we held that the defendant could be impeached as a consequence of the plea under 22 O.S.Supp.1973
– United States v. Stober, 604 F.2d 1274 (10th Cir. 08/03/1979)

Pennington goes on to assert:

The Tenth Circuit more recently reaffirmed this 1974 ruling when it held that it was proper for a district court to admit as impeachment evidence under Rule 609 a guilty plea to a felony charge (conspiracy to commit grand larceny). United States v. Sutton, 1998 WL 67318 (10th Cir. Feb. 18, 1998) (unpublished decision) (attached hereto as Exhibit 4).
– UNITED STATES’ RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTION – III. The Prior Convictions Satisfy All Other Rule 609 Requirements. – p7

[17]We held in United States v.Turner, 497 F.2d 406, 407 (10th Cir. 1974), that a guilty plea on Oklahoma state charges is treated as a conviction even if it results in a deferred sentence.
– [U] United States v. Sutton, 139 F.3d 913 (10th Cir.) UNPUBLISHED

In both Sutton and Turner the Government found itself in much the same position as it does here with no judgment of conviction upon which to impeach the testimony of the witness, but they can use the Guilty Plea as evidence of a conviction. That works since a Guilty plea is not privileged or excluded like a No Contest plea. It is so right out there in your face how is it possible that Morrison missed this entirely instead banking his whole case to have the “convictions” kept from the jury on the probative/prejudicial balancing test after stipulating what court after court, including the 10th Circuit en banc in Stober have said does not amount to a conviction by way of judgment. Even Turner, which the Government cites as authority, specified what it was allowing and what the law was:

Turner correctly contends that a deferred sentence is not a “conviction” under Oklahoma law….

…Federal cases interpret the common law as allowing evidence of other convictions for impeachment purposes, 8 Moore’s Fed. Practice 26-3 (Supp. 1973), and hold that a guilty plea is a confession of guilt and amounts to a conviction…

…We find that Turner’s guilty plea does amount to a conviction, and was admissible for impeachment purposes.
– United States v. Turner, 497 F.2d 406 (10th Cir. 04/08/1974)

All of this case law is about Guilty pleas. Why not bring the case law for No Contest Pleas instead of just calling the No Contest plea a Guilty Plea and hoping or assuming everyone would just take her word for it? The short answer is that the closest you will get to that is the case in the next paragraph of Stober after explaining Turner:

In United States v. Dotson, 555 F.2d 134 (5th Cir.), the Fifth Circuit held that where a district court had accepted a Nolo plea “specifically withholding any adjudication of guilt,” there was no “conviction.” See also Lott v. United States, 367 U.S. 421, 81 S. Ct. 1563, 6 L. Ed. 2d 940 (a question under Rule 34).
– United States v. Stober, 604 F.2d 1274 (10th Cir. 08/03/1979)

So why would the government resort to such a dirty tactic Mike? Surely they have plenty of evidence, right? Not exactly. The only physical evidence presented was a replica beer stein and a few low quality photos of the alleged victim taken days after the incident. None of the police officers present at the scene were available instead represented by a Holloman AFB Detective testifying to what he heard. The case, as stated by the Government, came down to a she said/she said asserting:

The United States anticipates that the primary issue in this trial will be a credibility determination between Padilla and the
defendant. Because credibility is such a central issue, this factor favors admission of this evidence.
– UNITED STATES’ RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTION – II. The Probative Value of The Conviction Evidence Outweighs Any Prejudicial Effect. – p6 (View Document)

Surely motive is apparent. The next question following the prosecutorial misconduct we see here is how the defense allowed this to happen? The Government and the record agree that Morrison’s Motion in limine (View Document) was filed well after the discovery deadline and only 3 days before the original trial date:

Despite having given notice of its intent to use these convictions at trial back on June 8, 2009, and in contravention of this Court’s deadline for filing motions in limine of September 7, 2009, at 4:15 p.m. on September 16, 2009, less than three working days before trial, the defendant filed the motion in limine at issue.
– UNITED STATES’ RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTION – p2 (View Document)

The Supreme Court said this:

“While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.”
– UNITED STATES V. CRONIC, 466 U. S. 648 (1984)

The government countered that a conditional discharge plea or order does not amount to a “conviction” necessary to remove a defendant from the charging phase under New Mexico law. In addition, it argued that Moody was still “under indictment” for purposes of state law because he could be subject to conviction and imprisonment for more than one year if he violated the terms of his parole.
– United States v. Moody, 242 F.3d 391, 242 F.3d 391 (10th Cir. 12/05/2000) UNPUBLISHED

The 6th Amendment guarantees the right to the assistance of counsel in criminal proceedings.

The right to the effective assistance of counsel is the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted, the kind of testing envisioned by the Sixth Amendment has occurred.
– UNITED STATES V. CRONIC, 466 U. S. 648 (1984)

Under Strickland the standard for effective assistance of counsel is:

The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case.
– STRICKLAND V. WASHINGTON, 466 U. S. 668 (1984)

In my simple mind I am thinking that since Morrison was concerned with sending his client to the stand as a convicted felon a reasonably competent defense attorney would know that FRE 410 and Mezzanatto tossed the No Contest plea or, in the alternative in deference to their legal education, that they did know and were merely negligent by not bothering to read Government Exhibit #1 deciding on the stipulation crucible for a defense strategy. Compounding this was the remarkable fact that Morrison, having stipulated days before that the Conditional Discharge was a conviction and waived in the No Contest plea as a Guilty Plea, never objected to the use of the term Guilty Plea by the Government on cross examination.

Imagine you take the stand where your lawyer has dropped the ball so bad you are asked by the prosecutor, “Then why did you plead Guilty?” You know that paper she is shaking in the air says No Contest, but the judge ruled otherwise. How do you answer that for a jury with a prosecutor badgering without being accused of lying?

At the end of the day it seemed the Government’s witnesses were not so good. For example Adrian Guerra, boyfriend of the alleged victim, was so badly discredited upon his own words that, in the Government’s rebuttal close, the very last word, Government, referring to Guerra urged the jury to just ignore his testimony like he never testified.

What really tipped the scales so as to flip it was when the Defense managed to allow in not only the circumstances of the underlying offense, but also, due to Defense Counsel’s lack of factual information, a portrayal to the jury of circumstances clearly not supported by the record in the State Action.

The number and severity of the errors not only meet the threshold for a textbook showing under Strickland pitting Sarah Padilla, unvetted by the defense, against Jade Hicks who, the Government, thanks to Mr. Morrison, was able to portray as a violent felon in a trial.

How a trial such as this one could stand upon review is beyond me. It would appear that the error, as is often the case, hits directly at the point at which ineffective assistance of counsel, prosecutorial misconduct and a judge trusting the lawyers not to lie to her meet. I think about this:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
– Berger v. United States, 295 U.S. 78 (1935)

Part 2 – USA v Hicks – Justice on Life Support