Lawyer who filed late appeal showed 'obstinate incompetence,' Kozinski says
A well-known federal appeals judge is criticizing a criminal defense lawyer for “obstinate incompetence” in his representation of a murder defendant on appeal.
Judge Alex Kozinski criticized lawyer Gregory Mitts while concurring in a decision (PDF) to give Mitts’ client a chance to show he was entitled to pursue a habeas appeal, though Mitts filed it 10 months late, report Courthouse News Service and the Los Angeles Times.
The decision by the San Francisco-based 9th U.S. Circuit Court of Appeals found that Mitts was “grossly negligent” in his representation of Rowan Brooks, and Brooks should be given a chance to show he diligently pursued his rights.
Brooks had retained Mitts in March 2010 and sent the lawyer a letter suggesting how the case might be handled. According to Kozinski, Mitts “sent an imperious response admonishing Brooks not to ‘micromanage’ the case from prison.” Mitts mentioned that the California Supreme Court had denied Brooks’ pending appeal and assured Brooks that he was aware of the deadline for filing a habeas petition.
“That turned out to be untrue,” Kozinski said. “Brooks’ federal habeas deadline expired just days after Mitts wrote to Brooks, but Mitts sat on his thumbs. Over the next year, Mitts systematically ignored a stream of letters that Brooks sent inquiring about the status of his case.”
At one point, Brooks even sent Mitts a list a questions to which Mitts could provide yes or no answers with brief explanations. But Mitts didn’t act until August 2011, when he filed a habeas petition 10 months after the deadline expired. The federal court issued an order to show cause why the petition shouldn’t be dismissed as untimely, but Mitts didn’t reply or tell Brooks about the order.
“A lawyer who comports himself as Mitts did,” Kozinski wrote, “is not only a hazard to clients, but also a menace to the profession and to the courts. Mitts’ actions consumed countless hours of this court’s and the district court’s time in dealing with his obstinate incompetence. If Mitts was so lackadaisical in Brooks’ case, we can only imagine what problems he’s caused, or is likely to cause, other clients.
“Potential clients, who will put their lives in Mitts’ hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes.”
Kozinski said he is unaware of any disciplinary action against Mitts, and the State Bar of California may not be aware of his behavior. “Perhaps now it will be,” Kozinski wrote.
The Los Angeles Times and Courthouse News Service were unable to reach Mitts for comment.
