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When a lawyer is making\u00a0what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline,\u00a0using a question to\u00a0suggest a more fruitful line of attack.\u00a0 An astute lawyer\u00a0will follow the judge’s cue and adapt his or her argument accordingly.<\/p>\n
Such does not seem to be the case with the\u00a0lawyer in\u00a0United States v. Foster <\/em><\/a>(No. 08-1914).<\/p>\n Last year, in United States v. Smith, <\/em>544 F.3d 781 (7th Cir. 2008),\u00a0the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.\u00a0 Darryl Foster, however, was given the\u00a0ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana.\u00a0 Looks like a slam-dunk issue on appeal, right?\u00a0 <\/p>\n To be sure, the briefs in Foster <\/em>were submitted before Smith <\/em>was decided, which might possibly excuse defense counsel’s failure to challenge the ACCA sentence in his written filings.\u00a0 On the other hand, briefing\u00a0occurred after the Supreme Court’s decision in Begay v. United States, <\/em>128 S. Ct. 1581 (2008), which threw open the whole question of which prior convictions count as “crimes of violence” and paved the way for Smith.<\/em>\u00a0\u00a0In the aftermath of\u00a0Begay,<\/em> it is hard to see why any\u00a0defendant with an ACCA sentence and a pending appeal would not raise the “crime of violence” issue.<\/p>\n Nor was Foster’s lawyer holding back on ACCA in his brief in order to push an even\u00a0stronger issue.\u00a0 His brief focused only on whether the evidence was sufficient to support a different sentence enhancement — a line of attack the Seventh Circuit later characterized as “frivolous.”<\/p>\n Whether or not there was a good excuse for the counsel’s failure to raise the ACCA issue at the briefing stage, it is hard to see\u00a0any justification\u00a0for what happened at oral argument, which occurred nearly three full months after\u00a0Smith <\/em>was decided.\u00a0 With Foster’s lawyer continuing to push the same losing argument he had put in the brief\u00a0— or perhaps “push” is too strong a word, as\u00a0we are told that “Foster’s attorney all but admitted the folly of this appeal during oral argument” — the court advised him of its holding in Smith <\/em>and invited him “to consider the appropriateness of Foster’s ACCA enhancement.”\u00a0 The lifeline was tossed . . . and Foster’s lawyer declined to take it.\u00a0 His response: “I think the case law is clear that firing a handgun in and of itself under the circumstances of a case such as this is, can be considered a crime of violence.”\u00a0<\/p>\n In light of\u00a0counsel’s express waiver of the issue, the Seventh Circuit (per Judge Cudahy) refused to consider it: “We cannot make a party’s arguments for him, or force him to make arguments he seems determined not to raise.”<\/p>\n The case raises difficult questions about the waiver doctrine and the limits of the adversarial system.\u00a0 The Seventh Circuit framed the issue as one of party autonomy (“We cannot . . . force him to make arguments he seems determined not to raise.”), and I am quite sympathetic to the basic principle of antipaternalism.\u00a0 One of my favorite cases to teach in Crim Pro is Faretta v. California<\/em>, 422 U.S. 806 (1975), which recognized the right of defendants to represent themselves at trial — even if it means that they face a greater risk of conviction as a result.\u00a0 As I see it, Faretta <\/em>stands for the proposition that defendants have legitimate interests not just in maximizing their chances of a favorable outcome, but also in ensuring that their cases are presented in ways that are consistent with their personal values and beliefs.\u00a0 Defendants should not be required to present defenses with which they disagree.\u00a0<\/p>\n But it seems a bit odd to invoke antipaternalism in Foster<\/em>.\u00a0 It is hard to believe there was an informed decision by Foster to\u00a0surrender a strategic opportunity, as there was by Faretta\u00a0in surrendering his right to counsel.\u00a0 Why challenge one sentence enhancement on appeal, but not the other?\u00a0 Instead, this seems pretty clearly an instance\u00a0of uninformed waiver\u00a0— counsel simply did not understand that the governing law had recently changed in ways that mattered to his client’s case.\u00a0 Whatever we might say about the importance of respecting\u00a0informed choices,\u00a0decisions that are based on a mistake\u00a0are not entitled to the same deference.<\/p>\n The real animating value in Foster<\/em> is not autonomy, but efficiency.\u00a0 In Foster <\/em>itself, it would not have been hard for the Seventh Circuit to make the argument that the lawyer did not make, but where would the line be drawn in future cases?\u00a0 Making the lawyers’ arguments for them would obviously impose a heavy burden on the court — even more so to the extent that the court would\u00a0have to\u00a0disentangle which waivers were truly informed and which were due to misunderstanding.\u00a0 It is much easier\u00a0to indulge the legal fiction that the client has given informed consent whenever the lawyer waives a potentially winning\u00a0argument.\u00a0 Easier on the court, that is.\u00a0 When the costs of defendants sitting in prison for unnecessarily long periods of time are factored in, it may not be so clear which\u00a0direction the efficiency\u00a0value cuts.<\/p>\n Other new criminal cases last week were:<\/p>\n United States v. Cox <\/a><\/em>(No. 08-1807) (Wood, J.) (“[T]he Government need not prove in a prosecution under 18 U.S.C. \u00a7 2423(a) that the defendant knew that the person being transported was under the age of 18.”).<\/p>\n United States v. Gear <\/a><\/em>(Nos. 07-4038 & 07-4039) (per curiam) (holding that prior conviction for reckless discharge of a firearm in violation of 720 ILCS 5\/24-1.5(a) does not trigger\u00a0sentencing guidelines enhancements based on prior convictions for crimes of violence).<\/p>\n United States v. Dooley <\/a><\/em>(No. 08-4131) (Ripple, J.) (reversing defendant’s conviction on wire fraud count based on lack of causal connection between defendant’s actions and communication at issue).<\/p>\n