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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

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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.

Not Ready

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."

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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.

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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 Rules

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

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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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