Judge Can’t Be Bumped Based on Administrative Role

Tuesday, July 24, 2017

Page 1

Ninth Circuit:

Judge Can’t Be Bumped Based on Administrative Role

Lawyer, a Critic of Indigent Defense Program Which Federal Judge Dale S. Fischer Heads, Rebuffed in Contention That Jurist Should Have Recused Herself in a Case Where the Attorney Was Defense Counsel

By a MetNews Staff Writer

ZOË J. DOLAN

Attorney

An attorney who is crusading against the way the U.S. District Court for the Central District of California is running its indigent defense program has lost her bid for a determination that the judge who is in charge of that program, Dale S. Fischer, should have recused herself from presiding in a case in which the detractor was defense counsel.

“Involvement by judges in the funding and oversight of defense counsel appointed under the Criminal Justice Act (CJA) does not create a personal bias or conflict of interest, nor the appearance of bias or conflict,” the Ninth U.S. Court of Appeals said Thursday in a memorandum opinion, adding:

“Grounds for recusal generally must be extrajudicial….CJA administration—like other administrative duties of judges—is a judicial matter that does not create a basis for recusal.”

The Los Angeles attorney who sought Fischer’s ouster from the case is Zoë J. Dolan, who has been at loggerheads with Fischer, chair of the court’s “CJA Committee.” Fischer in 2016 declined Dolan’s request that she recuse herself, and halt further proceedings in the case based on alleged infirmities in the CJA program, instead proceeding to sentence Dolan’s client, Charles Edward Doyle, on drug charges to which he had pled guilty.

Two Other Cases

In two other cases which Dolan handled both in the District Court and on appeal, the Ninth Circuit held Thursday, in a separate opinion, that the trial judges—Beverly Reid O’Connell, since deceased, and John A. Kronstadt—did not err in declining to halt the prosecutions based on the alleged structural error in the administration of the CJA.

Thom Mrozek, a spokesperson for the United States Attorney’s Office, commented yesterday:

“We believe the Ninth Circuit correctly ruled in the three cases because the appeals were not the appropriate vehicle to address defense counsel’s concerns with the implementation of the Criminal Justice Act. The defendants in these matters received effective representation, and none of them suffered any prejudice or injury.”

Dolan’s Argument

Dolan had argued in her District Court motion in Doyle’s case:

“As increasing numbers of the federal bench and bar are aware, the administration of the CJA in the Central District of California has turned against independence for the defense function as a result of the Court’s own arbitrariness and unpredictability. Efforts to reduce defense costs by the implementation of policies that hamper the defense function continue to snowball. This imbalance has caused ‘chilling effects’ and expectations of subjugation to a managerial agenda operating to the detriment of autonomous defense advocacy. The defense has challenged this state of affairs as unconstitutional and the Court has retaliated.

“…[F]urther prosecution should be precluded until the Court’s neutrality and defense independence are ensured. Voluntary recusal would be prudent here.”

The lawyer asserted that the district was impeding defenses by penny-pinching on amounts paid to appointed counsel and to expert witnesses.

Perception of Fischer

Dolan asserted that the “abuses” in this district “have become known throughout the nation’s legal community,” pointing to a discourse on March 3, 2016, between Judge David O. Carter of this district, a member of the local CJA Committee, and District Court Judge Kathleen Cardone of the Western District of Texas, during a hearing of the federal courts’ Ad Hoc Committee to Review the Criminal Justice Act Program, which Cardone chaired.

The lawyer quoted Cardone as saying at the hearing, held in San Francisco:

“We as a committee are hearing that there is a problem in your District... and people perceive Judge Fischer as the problem.”

Carter responded that he was slated to succeed Fischer as chair of the committee in the Central District of California, but lawyers’ concerns came to be addressed to him rather than her and, not wanting to undermine Fischer, he stepped aside. He said at the hearing:

“[S]he’s there forever, and she’s going to live to be 105.”

The lawyer complained in her motion:

“[I]n each case where the presumptive cap on attorney hours is exceeded—which occurs in a majority of cases in the Central District of California, and properly so, as the Court itself recognizes—appointed counsel are required to fill out a detailed, five-page Supplemental Information Statement for a Compensation Claim in Excess of the Statutory Case Maximum (the “CJA-26 Form”)….To add further exasperation to an already time- consuming task, the CJA-26 Form demands summaries of information that has already been submitted to the Court in the underlying attorney vouchers.”

Dolan had complained of this, and Fischer wrote to her on Aug. 4, 2016, saying:

“The CJA Committee has decided that if you do not provide the required CJA 26 forms and confirm that you are able to provide effective assistance of counsel to your present and any future CJA clients while complying with all requirements by August 26, 2016, you may be terminated from the panel.

“You will, of course, continue to represent your present clients unless removed by the presiding judges in those cases.”

She was ousted from the panel.

Oral Argument

During oral argument in Pasadena on July 9, in connection with Doyle’s case and the other two, Dolan said of the District Court:

“The court is controlling what the defense does, and decides what the defense does and decides what the defense should do and what the defense shouldn’t do, what’s compensable, what’s not compensable, and so forth….I don’t speak for anyone else on the panel—I’m no longer on the panel, as you know, they kicked me off because I called them out on this—but every time I sat down, every time I thought, ‘Jeez, I wonder if Judge Fischer’s going to pay me for this.’”

Dolan went on to comment:

“Judge Fischer, astonishingly, found in her ruling from the bench that she had no conflict. She didn’t bother to do any analysis on my motion to preclude further prosecution or to dismiss. She said, ‘No, I don’t have any financial interest in the particular outcome of this case.’

“But I think that really misapprehends, by inappropriately narrowing, what financial interest is.”

Lack of Serenity

Oral argument was animated. Circuit Judge Richard Paez, at the outset, was exasperated by Dolan’s unwillingness to concede that her clients personally suffered no detriment as the result of the way the Central District administers the CJA program, at times shouting.

Dolan remained calm, but at one point protested that Paez’s discourse ate up about three minutes of the 10 minutes allotted for her argument, which she noted was pared from the 30 minutes originally granted.

After Assistant U.S. Attorney Consuelo Woodhead argued for affirmance, Dolan was allotted a short time for rebuttal, and began by saying:

“Well, that’s a bunch of hogwash.”

Woodhead had asserted that all three defendants, in separate cases—Doyle, Antonio Anguiano, and Jennifer Cho—received “very favorable sentences” and “have no complaint,” and never uttered protests at the trial level.

Dolan insisted:

“My clients did articulate specific injury to them—both structural and individual error.”

Burden on Appellant

Although asserting that individual error had been shown, she declared earlier at the session that no need for such a showing was necessary, telling the judges: “Because we’re talking about structural error, I don’t need to show individual prejudice.”

In the opinion in the Doyle case, the panel—comprised of Paez, Ninth Circuit Judge Morgan Brenda Christen, and Third Circuit Judge D. Michael Fisher, sitting by designation—said:

“To the extent Doyle asserts that CJA administration itself constitutes structural error, and thereby requires reversal regardless of whether it affected his case, he is… incorrect. Defendants with appointed counsel are entitled to the effective assistance of that counsel, not to counsel of their choice or counsel funded via a mechanism of their choosing.”

Christen was unsuccessful in pressing Dolan for a “yes or no” answer to whether she was asserting ineffective assistance of counsel by her in the District Court, but the lawyer did, in the end, say: “I have not raised that issue.”

The opinion declares:

“Counsel for Doyle disclaimed any argument based on ineffective assistance of counsel. In any event, Doyle has not identified limitations on the representation he received or pointed to any particular harm he suffered as a result of the Central District’s CJA program. Therefore, regardless of the precise contours of Doyle’s claims or of the relief that he seeks, the district court did not abuse its discretion in denying Doyle’s motion to preclude further prosecution.”

The opinion also says that due process was not offended by the matter being heard in the Central District of California owing to the lack of any demonstrated “substantial pecuniary interest” by the court in the outcome of cases or any “strong institutional interest” in the judges “ruling a particular way.”

Anguiano, Cho

In the opinion in the cases of Anguiano and Cho, the panel declared that prejudice was not demonstrated by the judges’ decisions to continue the cases to await the outcome of the appellate challenge to the way the district is administering the CJA program, that an order enjoining further prosecution in either case was not warranted, and that bias of the District Court was not established.

The opinion also says:

“[T]o the extent the defendants assert violations of their right to counsel based on alleged judicial interference with the independence of the defense, their arguments are not persuasive. The fact that the judiciary administers the CJA program does not in itself violate the defendants’ right to counsel. Furthermore, with respect to their own cases, the defendants’ generalized complaints do not show they were denied independent counsel.”

The cases are U.S. v. Doyle, No. 17-50001, U.S. v. Anguiano, No. 16-50448, and U.S. v. Cho, No. 17-50023.

Dolan’s Prior Representation

Dolan gained attention internationally in connection with her participation in the defense of Osama bin Laden’s son-in-law in connection with the Sept. 11, 2011 attacks on the U.S. He was convicted March 26, 2014 in U.S. District Court in Manhattan of “conspiring to kill Americans and providing material support to terrorists,” and later sentenced to life in prison.

Prior to trial, the New York Times reported, on Feb. 21, 2014:

“When the terrorism trial of Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden, begins next month in Manhattan, his defense team will include one lawyer with a particularly interesting background.

“Zoë J. Dolan is proficient in Arabic, has lived in the Middle East and is the only member of the defense team with a government security clearance, entitling her to review classified discovery materials in the case and attend classified hearings.

“But Ms. Dolan, 36, has another distinguishing attribute: She is transgender, an aspect of her personal life that she says she has not raised with Mr. Abu Ghaith or any other client.

“ ‘I think my clients in criminal cases just want the best lawyer for their case,’ Ms. Dolan said in an interview. ‘It doesn’t matter whether that person is a man, woman or an alien.’ ”

Dolan, whose law office is on Hollywood Boulevard near Grauman’s Chinese Theater, gained her law degree from the University of California, Hastings College of the Law in 1998. She was first admitted to the State Bar of New York, practiced in New York, and then became a member of the State Bar of California in 2012, moving here.