Wednesday, April 28, 2010

A Long Ramble Down the Lane of Effective Assistance of Counsel

It started with Rick Casey explaining in the Houston Chronicle that we criminal defense lawyers are coddled because we can't be sued unless the client's conviction is overturned.  (That's not quite true in Ohio, but the exceptions are limited.)
That got Mark Bennett's talking about malpractice insurance for criminal defense lawyers and how even though they basically can't be sued, they ought to be insured anyway.  And he's been discussing the importance of a continuing commitment to the client, even after the lawyer's formal involvement in the case is over.   If you make it easier to sue the lawyer, he says, the lawyer will be less willing to admit fault and help the client who got screwed.
As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.
Then Scott Greenfield chimed in to admonish us all to fess up to our mistakes.
The answer isn’t disclosing whether we possess malpractice insurance.  The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang.  Do the hard work that minimizes the potential for mistakes.  But when a screw-up happens, as it invariably will, make it right.
Surely that's right, but as Gideon points out, it isn't just the lawyers who aren't willing to admit they screwed up, it's the whole system that places nearly insurmountable hurdles in the path of the victims of lawyer error.
Ask anyone who’s tried an ineffective assistance of counsel  case. The coddling begins at the beginning. First, the community of habeas corpus lawyers are treated as lepers; outsiders on the lunatic fringes of the criminal defense bar. Trial lawyers are dismissive and uncooperative. Clients seeking redress via The Great Writ are viewed as whiners, their lawyers are traitors. Files aren’t turned over, communication is non-existent and the defenses are raised to maximum alert.
Habeas petitioners then have to jump through unmanageable hoops to actually get the merits of their claims heard by courts. Procedural default, deliberate bypass, cause and prejudice are institutional tools designed to protect the “finality” of convictions and to punish the defendant for failing to do that which a lawyer should have done and didn’t: provide effective assistance and own up to mistakes. The jurisprudence places the onus on the pro-se defendant to recognize that a) his lawyer has messed up and b) that he has an avenue for redress.
And if this defendant is somehow able to surmount the gargantuan task of getting a court to consider the merits, he is faced with the three-headed monster: an uncooperative trial lawyer, a skeptical, cynical and weary judge and a veritable landfill of caselaw that is designed to thwart his every effort to ensure that “justice” is done in his case.
He's right.
I do a lot of post-trial work, direct appeal and habeas.  One consequence is that I see and deal with a whole lot of bad lawyering.  
Some of it is ordinary, journeyman bad, the sort of thing you'd expect from lawyers who are doing work they don't have the time or experience or skill to do right. Or they're distracted or sloppy or whatever.  The truth is that half the lawyers who do criminal cases are in the bottom half of all lawyers who do criminal cases.  Even when they try really hard, care a lot, do their best, it just isn't enough.
There's also, I regret to say, the startlingly, inexcusably, horrifically bad.  The lawyers who haven't a clue what they're doing.  Far too many of them.  Some care desperately but are simply hopeless.   Others truly have no interest in their clients or the job.
But then, there are the good lawyers, the really good ones.  They screw up, too.  We all do.  Every one of us.
The system is unforgiving.  Finality trumps fair trial, trumps justice.  The rule doesn't say it, but the reality is that it's more important that someone pay than that it be the right person or that the payment be exacted according to the rules.  In civil cases, if the lawyer screws up, the client sues the lawyer.  I do a lot of capital work.  In death penalty cases, if the lawyer screws up, the client is executed.
Alas, there's a lot of screwing up.  And there are a lot of dead clients.
But when even the best lawyers will make mistakes, and they will, when we guess wrong or fail to timely object or don't federalize the motion or do or fail to do one of the thousands of little things that judges use to screw our clients . . . . When we work on the high wire without a net but it's the client who falls instead of the lawyer . . . . When we're in a skid and for once stomp on the brakes instead of turning into the skid . . . . When the proffer isn't enough or the continuance isn't granted or the witness or our client turns on us at the last minute . . . . When the copier jams and the internet goes down and the court says tough shit and when you didn't bother trying to investigate how the fingerprint could have been planted because really, give me a break, a planted figerprint? and when you just forgot to ask the question or god help you you did ask the question you knew you shouldn't have . . . .
Because we all do it.
Gideon says we need to become our clients.
If the conviction of the client is a conviction of the lawyer; if the days spent in jail by the client are days that the lawyer will have to also suffer, then and only then will the interests align.
That's not wrong, but I'm not sure it's necessary.  What we need to do, I think, is to accept the basic rule: It's about the clients.  Always.  Ever.
The real criminal defense lawyers - the good ones, the bad ones, the mediocre ones - they all know that not just intellectually but viscerally.  The faux criminal defense lawyers, the general practitioners, the estate planners who take the odd case, the guys who are looking for appointments because they got laid off by BigLaw and really, any idiot can do this stuff, they'll never get it.
At CLE presentations, I often tell two stories.  
There was the time that, two days before oral argument in a death penalty appeal, while I was preparing for a moot court in the case, I discovered an issue we hadn't raised or briefed but which should have resulted in a new sentencing proceeding.  It was particularly embarrassing, because my co-counsel and I were both regular speakers at death penalty CLEs on, among other things, appellate practice and recognizing issues.  So I told the folks doing the moot, the people who would be our client's next round of lawyers, that I had their first appellate IAC issue.*
And there was the time I won a death penalty appeal in the intermediate appellate court.  The state was asking the high court to review that decision.  And the next round of lawyers (in a death penalty case, there's always a next round of lawyers in the wings) asked if I would be offended if they filed a motion complaining about all the issues I hadn't raised and arguing that I'd provided ineffective assistance of counsel in the case I won.**
Because we really all do screw up.  Not all the time, but all of us.
And sometimes we can fix it and sometimes we can't.  But every time we need to do whatever's possible to make it right.  Which means that we need to be tearing down the barriers.  Which means that it's not just when we're doing the cases, or dealing with their after-effects.
One reason I do this blawg is to have a pulpit.  I suspect my audience (the seven of you know who you are) is pretty much in agreement with me about things.  That's really too bad because as much as the lawyers need to own up to their mistakes and to help successor counsel, we need, desperately, to reform the system so that it will be accountable not just to finality but to fairness.
Because much as I love you all, you're not the ones we need to convince. 
*We won the case on appeal, got the client off death row, and never had to deal with the missed issue.
**The court of appeals dismissed the claim that I was ineffective explaining that it's impossible to provide ineffective assistance of counsel when you win the case.  I don't actually think I was ineffective in that case, but I also think the court was wrong.  You can be ineffective and still win.  Criminal litigation, all litigation, has an element of the random to it that makes such things possible - even likely.


  1. Please, 7 readers? That's my line.

    There is much I wish I could do over. I can't change what I've done, but I can use it to make me bigger, badder and better than before.

    But,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?

  2. I thought your declared number was 9.

    First time I used the line, I said 3, but I figure my audience has grown.

    Never mind, I hereby cede you all future rights. But with all the well-deserved plugs you've been getting lately, I think you seriously underestimate your readership.

    The more substantive point gets its own post. Coming soon.

  3. Thought you might want to hear about a case recently reported in our local paper. Illegal immigrant is charged with raping his 12yr.old daughter (this is in Valley County, Idaho- pop.9,000). Should be pretty easy, but it's a hung jury. Why? ineffective counsel. According to the prosecutor (The Long Valley Advocate, Volume 25, N0.23)"three jurors didn't want to find (Abacara) guilty because they didn't think he got a fair trial". The PD had been pulled over following court and could not remember what had happened that day...Bravo to the jurors- but what about the judge and the prosecutor? The prosecutor states that when you listen to the recordings "it's apparent that Mr.Wilcox (the PD)was not fully aware of what was going on" and goes on to say that jurors corrected the defense aloud in court when he misstated. My understanding was that all officers of the court have an obligation to insure a fair trial...but, it reminds us of the power of an awake jury!