Lawyer Says He Provided
Ineffective Assistance to His Client on Purpose

By Mary Alice Robbins
Texas Lawyer
New York Lawyer
October 31, 2007

Knowing that he could face disciplinary action, criminal-defense attorney Christopher Hoover says he did not participate in his client's 2004 trial for misdemeanor driving while intoxicated in the hope that an appellate court would rule the client received ineffective assistance of counsel and order a new trial. And the strategy worked.

In a 5-4 decision on Oct. 17, the Texas Court of Criminal Appeals held in Cannon v. State that Hoover's failure to participate in the trial denied Darrell Cannon's constitutional right to effective assistance of counsel.

"Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing," CCA Judge Charles Holcomb wrote for the majority.

Hoover, principal in Plano's Christopher N. Hoover P.C., contends that Collin County Court-at-Law No. 3 judge John O. Barry forced him to go to trial when he was not prepared to render effective counsel.

"The judge handcuffed me, and I really had no other choice," Hoover says of his decision not to participate in Cannon's trial.

Cannon knew Hoover intended not to take an active part in the trial proceedings. "I told Mr. Cannon that it was in his best interests not to participate in the trial, because we couldn't present a defense," Hoover says. "Mr. Cannon told me to do what I felt was in his best interests."

Hoover says he announced he was not ready for trial on the date the trial was scheduled. One of his chief concerns, Hoover says, was that an expert witness who was important to Cannon's defense was unavailable to testify at that time. According to the CCA's opinion, Hoover orally moved for a continuance, but the trial judge denied the motion.

Hoover says he had not alerted the trial court that a defense witness was unavailable, because seven cases were scheduled ahead of his case on that trial date and he had not expected to go to trial on the scheduled date. The eighth case typically is not reached, he says.

"I was not prepared to give Mr. Cannon the representation he hired me to do," Hoover says. A jury found Cannon guilty on Sept. 21, 2004.

Barry did not return three telephone calls seeking comment before presstime on Oct. 25.

Hoover says he was concerned that if he had done anything in the trial, an appellate court would not find Cannon received ineffective assistance. "If a gentleman can sleep through a trial, and that's called trial strategy, I was afraid to do anything at all," he says.

However, Hoover says he was fully aware that by refusing to provide Cannon a defense at trial the State Bar of Texas could discipline him.

"If I have to be thrown under the bus — the bus of the Court of Criminal Appeals or the Texas State Bar disciplinary committee — I have a duty to do that to protect my client," Hoover says.

Richardson solo John G. Tatum, Cannon's appellate attorney at the CCA, says Hoover "threw himself on his sword" to protect Cannon. "I know he ultimately was looking out for his client's interests," Tatum says. "He actually referred the case to me to do the appeal."

But John Roach, Collin County's criminal district attorney, says he's concerned that the CCA's finding of ineffective assistance of counsel in Cannon could encourage other defense attorneys to engage in the same kind of behavior.

"I think that could happen unless and until somebody is really slammed down hard for that kind of tactic," Roach says.

The CCA's opinion provided the following background on the case: Collin County prosecutors charged Cannon with misdemeanor DWI in December 2003 after he was involved in a one-vehicle accident. After several prior settings, the state brought Cannon to trial on Sept. 20, 2004. Shortly before jury selection was to begin, Hoover presented an oral motion for continuance and a written motion to recuse Barry. Hoover alleged in the recusal motion that Barry "was not fair and impartial" in an earlier trial in State v. Dixon in which Hoover served as defense counsel for Jason Dixon. Hoover further alleged in the recusal motion that Barry "appeared to personally attack" him during the Dixon trial.

The trial court, without hearing argument, denied the motion to recuse and Hoover's subsequent motion requesting that the recusal motion "be heard by a neutral judge." Hoover then announced that he would "be unable to effectively represent" Cannon and the trial court denied the oral motion for continuance. Jury selection began but Hoover declined to participate.

According to the CCA opinion, Hoover declined to enter a plea for Cannon, announcing instead that the defense was "not ready for trial" and could "not enter a plea at [that] particular time." The trial court entered a not guilty plea on Cannon's behalf, and the prosecution made its opening statement. Hoover declined to make an opening statement and declined to cross-examine any of the prosecution's witnesses or make any objections. After the prosecution rested, Hoover declined to offer a defense, and the trial court announced, on Cannon's behalf, that the "defendant rests."

The following day, Hoover presented the trial court with a written motion for continuance. The motion alleged the need for an expert in forensic breath testing, who was unavailable at that time, to testify as to whether the deployment of the air bag in Cannon's vehicle during the accident had affected his breath-test results.

"Defense counsel did not ask for a ruling on the written motion for continuance, however, and, so far as the record shows, the trial court did not make one," Holcomb noted in the CCA's opinion.

As noted in the CCA's opinion, Hoover also made an oral motion for an instructed verdict of "not guilty" on the ground that the prosecution's evidence was insufficient to prove that Cannon drove or operated the van involved in the accident or that he was intoxicated at that time. The trial court denied that motion but gave Hoover an opportunity to reopen the case and recall witnesses who had testified previously. Hoover again stated that he was inadequately prepared to render effective legal assistance and repeated his announcement that he was not ready for trial, Holcomb wrote. After the prosecution made its closing argument, Hoover declined to make an argument. The jury deliberated for 15 minutes before finding Cannon guilty. The trial court assessed Cannon's punishment at 90 days of confinement, probated for 18 months, and a fine of $1,000. [See the court's opinion.]

Represented by Plano solo Pamela J. Lakatos, Cannon appealed to the 5th Court of Appeals in Dallas, arguing for the first time that he was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution, because his trial counsel refused to participate in the trial. Lakatos says she knew when she took Cannon's case on appeal that Hoover had purposely sat out the trial.

"I saw Mr. Hoover do that," Lakatos says. "He was placed in a box."

Lakatos says Cannon's case was the eighth on the docket on the date it was scheduled for trial. The lawyers in the other cases announced they were ready for trial, she says.

"The judge decided Mr. Hoover's case would go," Lakatos says.

She notes she did not continue representing Cannon after the 5th Court ruled in the case because she did not have time to do a petition for discretionary review at the CCA.

Holcomb noted in the CCA's opinion that Cannon based his allegation of ineffective assistance in his appeals on the U.S. Supreme Court's 1984 decision in United States v. Cronic, a case in which the defendant's attorney withdrew shortly before trial and the trial court appointed a young attorney who had only 25 days to prepare for trial. In Cronic, the high court held that the right to effective assistance of counsel requires meaningful adversarial testing of the prosecution's case. Cannon also based his appeals on 1984's Strickland v. Washington, in which the U.S. Supreme Court held that an appellant claiming ineffective assistance of counsel must show that the trial attorney's performance was so deficient that an unfair verdict was returned.

In an unpublished opinion, the 5th Court affirmed the trial court in 2005, holding that Cannon did not meet the requirement under Cronic to show that his defense did not test the prosecution's case in any meaningful way. The Dallas appeals court also found that Cannon did not provide a record sufficient under Strickland to show that specific errors by Hoover hurt his defense.

"Although defense counsel at various times stated he was 'not ready,' 'unprepared' and 'could not effectively represent his client,' Appellant [Cannon] points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often the decision to not cross-examine is the result of wisdom acquired by experience in the combat of trial," retired Justice Sue Lagarde, sitting by assignment, wrote for the 5th Court. Justices Kerry FitzGerald and Molly Francis joined in the decision.

Cannon, represented by Tatum, filed a petition for discretionary review with the CCA in July 2005. In the usual case in which an ineffective-assistance claim is made, the record on appeal is not sufficient to show that a trial lawyer was so deficient and lacking in tactical or strategic decision-making to overcome the presumption that counsel's conduct was reasonable and professional, according to the CCA's opinion.

"This is one of those rare cases," Holcomb wrote.

The CCA held that Hoover's behavior, considered as a whole, denied Cannon his right to effective assistance.

"By his refusal to participate, defense counsel abandoned his role for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed," Holcomb wrote in the opinion.

CCA Presiding Judge Sharon Keller and Judges Lawrence Meyers, Mike Keasler and Barbara Hervey dissented without writing an opinion.

Tatum says the CCA's decision in Cannon is notable, because courts rarely find on direct appeal that a defendant has been denied his right to effective assistance of counsel. An ineffective-assistance claim generally is not developed well enough on direct appeal for a court to make that finding, he says. Defendants typically have more luck arguing ineffective-assistance claims when they file applications for writs of habeas corpus and trial courts hold hearings on the claims.

The CCA reversed the 5th Court's decision and remanded the case to the trial court for further proceedings.

Roach, the Collin County criminal district attorney, says that if the facts will support a conviction, prosecutors will retry Cannon. "You bet your boots we will," he says.

The CCA also directed its clerk to send a copy of the opinion in Cannon to the Office of the Chief Disciplinary Counsel of the State Bar of Texas for investigation.

Under Texas Disciplinary Rule of Professional Conduct 1.15(c), a lawyer shall continue representing a client, when ordered to do so, notwithstanding a good cause to terminate the representation, says University of Texas School of Law professor John Dzienkowski, who is not involved in Cannon. He adds that Rule 1.15(d) further requires that, upon termination of representation, a lawyer take steps to the extent reasonably possible to protect the client.

"It's hard to imagine exactly why he didn't present a case, didn't challenge anything," Dzienkowski says of Hoover.

Tatum, Cannon's appellate attorney, says Hoover's decision to sit on the sidelines during the trial was based on a concern that the trial court was not treating Cannon fairly.

Claude Ducloux, who represents clients in the State Bar's grievance process but who also is not involved in Cannon, says there is a difference between not participating in a trial for a legitimate reason and simply being unprepared, which is a violation of Rule 1.01 of the disciplinary rules.

But Ducloux, a principal in Austin's Hill, Ducloux, Carnes & Hopper, says the CCA majority found in Cannon that Hoover wasn't prepared for trial, and the court refused to speculate as to whether this was a tactic on Hoover's part.

Dzienkowski and Ducloux say the CCA had a duty to report such conduct to the chief disciplinary counsel. Canon 3D(2) of the Texas Code of Judicial Conduct requires a judge to report to the State Bar's disciplinary authority if the judge knows that a lawyer's violation of the disciplinary rules raises a substantial question about the lawyer's honesty, trustworthiness or fitness as a lawyer.

"The court is discharging its obligation to report this lawyer to the Bar for boycotting the trial procedure," Ducloux says.

But Lakatos says, "I find it very difficult to believe that the grievance committee, once they know the facts, will find Mr. Hoover violated the rules."

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