EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 9, 2012

Things To Do In Denver When You're Dead: Court Considers Appeal Of Woman Represented By Fake Attorney

According to an article in the Denver Post, "[e]ver since Gwen Bergman learned that the man who represented her during her murder-for-hire trial was a fake lawyer, she has been fighting to have her conviction tossed out." Specifically, "Bergman was convicted in May 2008 of trying to hire a hit man to kill her son's father." This conviction came after a bench trial where Bergman was represented by Howard O. Kieffer, whom Bergman and her family hired, not knowing he was an ex-con who never attended law school." 

After Bergman was convicted, "a Denver Post investigation uncovered Kieffer's true identity and notified Bergman that he was a fake." Accordingly, Bergman has asked that he conviction be thrown out, and "U.S. District Judge William J. Martinez this week held a two-day evidentiary hearing to decide whether Bergman's Sixth Amendment right to counsel was violated." According to the Denver Post article,

A mistrial would seem a likely outcome for a person who didn't have a real lawyer, but the government says Bergman had adequate representation during the trial because Kieffer hired a licensed attorney to help him with the case.

That attorney, "EJ Hurst II, testified this week that he wasn't competent to represent [Bergman]." He said he was acting only in a paralegal capacity and that he agreed to a low hourly wage to do research."

"Would you say you were competent to try a federal criminal case?" asked Bergman's attorney, Phil Cherner.

"I would not," Hurst said. "I only had a law-school course on federal rules of evidence."

"Did you provide effective assistance?" Cherner asked.

"I do not believe I provided competent counsel," Hurst said.

So, will Bergman win, or will the court "put a dagger in the hearts of the public that holds the trust in our courts," as Bergman's attorney put it?

It seems pretty clear to me that Bergman will win, but let's dig into the details. Judge Martinez conducted the hearing after the case was remanded to him by the Tenth Circuit's opinion in United States v. Bergman, 599 F.3d 1142 (10th Cir. 2010). If I'm reading Bergman correctly, Bergman was initially found incompetent to stand trial before later being deemed competent to stand trial. At both of these competency hearings, Bergman was solely "represented" by Kieffer. Thereafter, Kieffer brought in Hurst before the start of Bergman's bench trial, with the exact level of Hurst's participation being unclear.

Accordingly, the Tenth Circuit found that Bergman's Sixth Amendment right to counsel was violated at the competency hearings. And it did so by relying upon Solina v. United States, 709 F.2d 160 (2nd Cir.1983), to "adopt a narrow per se rule of ineffectiveness where a defendant is, unbeknownst to him, represented by someone who has not been admitted to any bar based on his 'failure to ever meet the substantive requirements for the practice of law.'" In other words, a defendant like Bergman is automatically denied the effective assistance of counsel when she is represented by someone who was never a lawyer (although the same might not be the case if she is represented by, say, a Jeff Winger).

The Tenth Circuit, however, did not decide whether Bergman was denied the effective assistance of counsel at trial, instead, finding that "[f]urther development of the record is required...." That development was part of what went on during Judge Martinez's evidentiary hearing, which was directed toward, inter alia, gathering "additional information regarding the extent of Hurst's representation of Bergman...." Those findings could lead to a new trial based upon Bergman not receiving the effective assistance of counsel at trial.

Of course, the district court could also grant a new trial based upon Bergman's Sixth Amendment right to counsel being violated at the competency hearings. And, according to a dissenting judge in Bergman, this violation alone should have been enough to award her a new trial.

According to the majority, though, to award Bergman a new trial, it also had to "determine whether Bergman's Sixth Amendment violation resulted in the district court erroneously concluding that she was competent to stand trial." Therefore, another reason for the remand was to determine whether the district court "can make a retrospective competency determination," looking at the following factors:

(1) the passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial.

And the Tenth Circuit reached this conclusion despite acknowledging that it should permit a retrospective competency determination in only limited circumstances. My response would be that one of those circumstances should not be when the defendant is represented by a fake attorney and was already found incompetent to stand trial before later being declared competent to stand trial. I have every expectation that Bergman will be granted a new trial, but, if she is not, I hope that the Tenth Circuit reconsiders the issue on appeal.



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i would like input from an attorney to tell me my next steps from this unconstitutional governments actions.

Posted by: gwen bergman | Jun 11, 2012 4:14:01 PM

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