United States v. Yepiz et al., — F.3d —, 2016 WL 7367827 (9th Cir. Dec. 20, 2016): District court’s inscrutable rejection of defendant’s pro se letter requesting substitute counsel breached Sixth Amendment; government breached Brady v. Maryland by failing to turn over evidence impeaching key witness
Q. Is there any reason for a district judge to worry about handing a signature stamp to a staffer and authorizing her to use it to deal with improperly-filed pro se letters from represented criminal defendants?
A. Yes. Bad things can happen if such a letter is mishandled.
Q. Okay, “bad” things, sure – but we’re not talking about “reversal-of-the-outcome-of-a-two-and-a-half-month-gang/RICO-trial” bad, right?
Manual Yepiz was charged – along with many, many others – with being a member of the southern California “Vineland Boys” gang. The charges in the 78-count indictment included racketeering, attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana. Four months before the trial began, Mr. Yepiz wrote the judge a letter expressing “great concern” about the “financial differences” he was having with his privately-retained counsel. The letter asserted that the attorney was demanding much more money than he had earlier stated he would need, and that Mr. Yepiz’ family could not afford him. The letter asked the court to appoint a “panel attorney” (i.e., a private attorney who would be paid by the government) immediately, so that the trial could continue as scheduled. The court ordered the letter “returned to counsel” with a “Notice of Document Discrepancies” indicating that letter was not to be filed. The only explanation provided for the non-filing was a docket description stating: “Parties should not write letter [sic] to Judge.” The month before trial, Mr. Yepiz wrote two more letters raising concerns about his counsel. The court convened a hearing to address the issue, at which the judge appeared to be unaware of Mr. Yepiz’ first letter. The judge denied Mr. Yepiz’ request for substitute counsel as “untimely,” asserting that it had been “filed on the eve of trial.” Mr. Yepiz sent the court a fourth letter in the midst of trial, complaining that his counsel had “lost interest” in defending him because he had “run out of money.” Mr. Yepiz was convicted on most counts and appealed, arguing that the district court’s handling of his requests had violated his Sixth Amendment right to the assistance of counsel. The Ninth Circuit agreed, stressing that the district court had a duty to inquire into the problems between Mr. Yepiz and his counsel when they were first raised, four months before the trial began. The Ninth Circuit acknowledged that Mr. Yepiz’ first letter did not comply with the district court’s rules – which prohibit represented parties from communicating directly with the judge – but was unconvinced that the district court’s notice indicating that “[p]arties should not write letter [sic] to Judge” effectively conveyed to Mr. Yepiz that this was the reason for the letter’s return. Had the district court provided a proper explanation, Mr. Yepiz could have directed his counsel to file a timely motion to withdraw four months before trial, when a substitution of counsel would not have affected the trial schedule, and thus Mr. Yepiz would have been entitled to switch counsel for any reason or no reason. The Ninth Circuit found structural error, vacated Mr. Yepiz’ convictions, and remanded the case for a new trial. In a separate holding, the panel found merit in the appellants’ joint Brady claim, which challenged the government’s late disclosure of evidence that a key government witness had a substantially cozier relationship with the government than he had acknowledged on the stand. Judge Nguyen dissented from the majority’s Sixth Amendment holding, disagreeing with the majority’s refusal to engage in harmless error analysis. Judge Nguyen noted that Mr. Yepiz’ first letter “may have been bounced by court staff without the judge’s involvement,” and observed that the fact that the judge’s signature was on the court’s Notice of Document Discrepancies did not confirm that the judge actually saw the letter, “as most judges have signature stamps for their courtroom deputy’s use.”
In short, to paraphrase the Burgermeister Meisterburger: It’s a difficult responsibility/That is assigned to the judge’s courtroom deputy/And the Ninth Circuit has now made it plain it to see/That pro se letters must be handled carefully.
(Congratulations to Verna Wefald of Pasadena, California; Phillip A. Trevino of Los Angeles, California; Shawn Perez of Las Vegas, Nevada; Phillip Dietch of Santa Monica, California; Donald C. Randolph and Ann-Marissa Cook of Santa Monica, California; Diane Berley of West Hills, California; Adam Axelrad of Los Angeles, California; Gary P. Burcham of San Diego, California; and Katherine Kimball Windsor of Pasadena, California.)
(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)