Judge Davis says no

In “Judging the ‘Minnesota men,'” I wrote about Judge Michael Davis’s experimental sentencing program in the Minnesota ISIS wannabe cases. Based on Andy McCarthy’s comments on the program (quoted in the article), I’m skeptical of it. Yet I like and respect Judge Davis. He has capably handled the Somali terrorism cases for several years now. I think it’s fair to say that he doesn’t suffer fools gladly. (The thumbnail photograph on the home page is of Judge Davis.)

In 2015 ten cases were filed against “Minnesota men” based on their efforts to recruit and/or join ISIS. Four of the ten defendants have pleaded guilty to various charges, while five cases are set for trial before Judge Davis on May 9. The cases of the four who have pleaded guilty are subject to the experimental sentencing program that Judge Davis has adopted.

With trial impending, defendant Hamza Ahmed sought to substitute Minneapolis attorney Mitchell Robinson for his court-appointed counsel. The Star Tribune reports that Judge Davis has now denied the defendant’s motion. The Star Tribune story prompted me to look up Judge Davis’s order on the court’s electronic filing system. It adds some interesting details.

In the March 21 order denying the motion, Judge Davis summarizes his decision as follows: “The Court will not allow the substitution of an attorney in this matter and at this late date who has been publicly reprimanded for ineffective assistance of counsel in a serious criminal matter, that resulted in his client serving nine years of a sentence that was later vacated.”

The Star Tribune reports Judge Davis’s decision this way:

Davis said the swap would “delay the trial or other progress of the case.”

Davis noted that Robinson has been reprimanded by the Minnesota Supreme Court and did not disclose it to Ahmed or his family.

And in a drug case in Texas, Davis concluded, Robinson’s client served nine years in federal prison before a judge granted a new trial, citing Robinson’s lack of preparation and failure to present exculpatory evidence. A judge wound up vacating the client’s sentence.

In his order Judge Davis had a bit more to say about Robinson’s reprimand by the Minnesota Supreme Court:

The Court also inquired of Mr. Robinson of whether he had informed the Defendant that he had recently been publicly reprimanded by the Minnesota Supreme Court for failing to competently and diligently represent and
communicate with a client in a criminal matter and for failing to diligently represent and communicate with a client in an immigration matter.  Mr. Robinson replied that he had not informed the Defendant of such fact.  This causes the Court great concern as the Order issuing the public reprimand of Mr. Robinson issued by the Minnesota Supreme Court does not give the public notice of the severity of the underlying conduct.

The criminal case involved Robinson’s ineffective assistance of counsel in a case summarized in detail by the St. Paul Pioneer Press here. Judge Davis’s order states (footnote omitted):

The criminal matter…involved a criminal case tried in the Western District of Texas.  Mr. Robinson represented Maria Hernandez at her trial on multiple drug offenses, which resulted in guilty verdicts for which she was sentenced to 204 months in prison.  Her habeas petition was later granted and a new trial ordered based on ineffective assistance of counsel in that Mr. Robinson had engaged in no pretrial preparation and conducted no investigation on behalf of his client.  At the time she was granted habeas relief, Ms. Hernandez had already served nine years of her sentence.

Here the Star Tribune draws on the Judge Davis’s order recounting the substitution hearing:

At a hearing Friday [March 17] in Minneapolis, Davis questioned Ahmed about his reasons and queried Robinson about his preparation for the terror-recruitment trial.

Ahmed told Davis that he had no irreconcilable conflicts or breakdown of communications with Murray, his lawyer since February 2015.

When asked by Davis if he had reviewed the discovery in the case — which includes roughly 28,000 pages of documents and more than 700 video files — Robinson only said “he believed the facts were straightforward and that he didn’t see it as an extraordinarily complicated case.”

In his order, Judge Davis drily observes: “[Robinson] did not affirmatively state that he had reviewed all of the discovery.” In the following paragraph he adds: “The Court further inquired of Mr. Robinson whether he had experience trying complex criminal cases, and he was not able to provide any clear example other than a criminal case he tried in 1999 that involved charges of conspiracy, false statements and false tax returns.”

Back to the Star Tribune story:

Davis questioned whether Robinson even planned to try Ahmed’s case, citing a retainer agreement that did not include trial fees.

Davis wrote Monday that he hoped his order would shed light on the issue of defendants repeatedly “retaining private attorneys that charge high fees and who have little or no experience, or have been disciplined by the court.”

Robinson told reporters Friday that Ahmed’s family sought his representation because they weren’t eager to go to trial and hoped he would negotiate a deal. In the Texas case that resulted in a reprimand, Robinson admitted that he didn’t think he needed to conduct any pretrial investigation because he thought the government was not going to proceed with trial.

All things considered, I’m guessing that Mr. Robinson probably regrets his having agreed to undertake Ahmed’s representation.