The Buck Stops Here

OK, we're all (that's Bennett, Greenfield, Gideon, me, and Seddiq in comments to me and Gideon) in agreement.  Criminal defense lawyers owe a continuing obligation to their clients - one that outlasts the specific purpose of the representation.  (Actually, legal ethics rules mandate that, too.  See, for instance, Rule 1.9 of the ABA's Model Rules of Professional Conduct, "Duties to Former Clients."*)

And we all recognize that the duty/obligation entails admitting any failures on our part and working to fix (or aiding efforts to fix) any harm we cause.

But that's really not enough.  Mirriam gets to the heart of the hard part with a comment she posted on my post.  Here's the key part.

I ask you and all the others - how do we reform a system when people won't open their eyes? I'd like to know how to do it. Do we just call people out?

You know, it's easy to espouse noble sentiments.  Sometimes, for those of us who have at least a few of those sentiments hard-wired into our psyches, it can even be easy to follow them.  But the larger issues, there's a real problem.

It's in two parts.

First, getting other lawyers, the ones who don't understand, the ones who think it's about them, the ones who take claims of ineffective assistance as personal affronts, and the ones who just don't give a shit, getting them to do their part.  They need to recognize mistakes, to own up to them, to sign affidavits, to tell the truth in depositions.  They need to not go the prosecutors (as a couple of lawyers I know have done) and say, "How can I help you?  Want an affidavit from me?"  So the first question is how we make progress on that.

Second, we need to change the system.  Prosecutors and judges are rewarded for favoring finality over fairness/honor/honesty/justice.  And the law backs them.  The statutes do (anyone read AEDPA lately?) and the case law does.  So the second question is how we make progress on that.

I want to say, "Damned if I know."  But that's not quite right.

We make some progress when yes, we do what Mirriam suggests and "just call people out."  Shame the alleged defense lawyers and would-be honorable prosecutors and judges (and justices).  We should be filing those greivances.  We should be arguing IAC claims in whatever fora we have available.

In Ohio criminal defense circles, I'm known as one of the Anti-Anders-brief Nazis.  Under considerable pressure from other members of the bar, I was convinced not to try publicly humiliating the lawyers who file them.  Sort of like maintaining good relations with repressive regimes because we can reach them better if we're nice, I have standing offers out to help lawyers find issues when they're stuck.  Occasionally I'm taken up on the offers.  I've had some success at convincing people they shouldn't be filing them.  And I speak about this sort of thing a fair amount at CLEs.  It's not enough, but it's what I can do.

The second point is harder still, because we don't generally have the clout for law reform.  The wrongly convicted and sentenced are a remarkably small lobby with very little to give in campaign contributions.  And at least in my neck of the woods, criminal defense lawyers don't get elected to much of anything.

But as we should be calling out the alleged-defense-lawyer malefactors, so we should be calling out the prosecutors and judges.  Sure, I know that grievances against prosecutors don't work.  I also know we don't file enough of them.  And I know that taking on this prosecutor for what she does today may mean asses and elbows in the case we have tomorrow.  So be it.  The job is always about this client.  Never about that one.

And we need to lobby, which means we need to organize.  A friend says that criminal defense lawyers are basically all lone wolves.  There's something to that, but we need, for our clients if not for ourselves, to work together.  That means with criminal defense organizations - if yours sucks, stage a coup and fix it.  It means with other groups.  It means running for office.  It means public speaking and writing op-eds and being a presence.

Let's talk Maricopa County for a minute.

I don't know that we accomplished anything much, by all that we did here in the blawgosphere to point out the constitutional crisis there.  But the feds are investigating Joe and Andy.  Andy's prosecutions of the County Supervisors and the Superior Court Judges have been dismissed.  The local defense lawyers did stage a rally.  And maybe the low-wattage flashlight we shined on it all made a difference.  Here's what I know.  With the system this fucked up, anything we do, however small, is something.

Shine the candle while you curse the darkness.

Give 'em hell.

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*Here's the Rule.  Various court decisions suggest (rightly) that it should be understood far more broadly than it reads.

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.