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When faced with an allegation that you ineffectively represented your client, do you (a) vehemently deny it or (b) begrudgingly accept it?
How about (c): Dress up as Thomas Jefferson and appear before the state Supreme Court to talk about how the First Amendment protects your terrible judgment?
That's the answer Ira Dennis Hawver chose. Hawver represented Phillip D. Cheatham Jr. in a capital murder case in 2005. Cheatham was convicted and sentenced to death, but the Kansas Supreme Court overturned the conviction in 2013, finding ineffective assistance of counsel.
Wow, That's Ineffective
How ineffective? Glad you asked. According to the Kansas Supreme Court's 2013 opinion -- and relevant to his cosplay in court -- Hawver couldn't devote all his time to Cheatham's case because he spent much of his time attending political events dressed as Thomas Jefferson in addition to running a full-time law firm. Hawver admitted to spending just 40 to 60 hours preparing the case during the 126 days between accepting the case and the first day of trial (that's one full work week out of four and a half months, for those of you playing along at home).
But wait, there's more! Hawver had never tried a capital case before, declined offers by the indigent defense services to assist on the case, and failed to timely file a written notice of alibi evidence, meaning Cheatham wouldn't able to present any alibi evidence other than his own testimony. Hawver acknowledged in an affidavit that he shouldn't have accepted the case because of his inexperience with capital cases.
He also didn't know how to use cellphone tracking to establish that Cheatham wasn't in the vicinity of the murders when they occurred, according to Alexander Walczak, the state's deputy disciplinary administrator.
Time for Your Defense
Hawver mounted a First Amendment defense, according to the Topeka Capital-Journal. What? The paper even quotes him:
"Am I going to get you to protect my rights to defend my client" as I see fit? Hawver said. The First Amendment protects his actions with his clients, and the Sixth Amendment protects the rights of his client, he said.
Hawver apparently believed that, of all the amendments, it's the First Amendment that not only protects a lawyer's professional judgment but also, somehow, insulates the lawyer's judgment from sanction, even if it's just super-terrible.
Even the normally unforgiving standard of Strickland v. Washington would have to back down from this one. Hawver decided to discuss Cheatham's prior manslaughter conviction both during jury selection and at trial -- even though both parties had already stipulated that it wouldn't be mentioned.
Hawver's theory of the case? Cheatham was "a drug-dealing killer who wouldn't have needed to fire so many shots to kill the women and who wouldn't have left the third woman alive to identify him," said the Capital-Journal. You read that right: The theory was that Cheatham couldn't have done it because -- as a seasoned killer who's killed before -- he would have been more efficient in his, you know, killing.
This strategy wasn't a tactical decision: Hawver just didn't understand the differences between the guilt and sentencing phases of a capital murder trial. He thought -- erroneously -- that the state could introduce it during the guilt phase. Hawver claimed that Cheatham agreed to that strategy, but Cheatham said he was misled; Hawver told him he didn't have the money to procure witnesses from out of state or hire an investigator, but didn't tell Cheatham he had declined funds provided by the state.
Given all of these facts, it wouldn't matter if Hawver dressed up as George Washington. He's looking down the musket barrel of some Kansas bar discipline. Even so, he's suing the Kansas Superme Court in federal court.
UPDATE: On November 14, 2014, as you might have expected, the Kansas Supreme Court unanimously determined that Hawver violated several rules of professional conduct, including failing to provide competent representation, charging a flat fee in a capital case, and failing to provide timely answers to formal complaints. The court ultimately disbarred Hawver for his "inexplicable incompetence."