Thursday, June 23, 2011

Who We Are and What We Do - Mere Adequacy

Kelly Fischer had a problem.  
Fischer had accepted an appointment to represent Dean Sacco on charges of sex trafficking in a child (one S.O.), buying S.O. in order to produce child pornography, coercing S.O. to engage in sexually explicit acts in order to produce child pornography, travelling interstate in order to engage in sex acts with S.O., and possession of child pornography.  No biggie that.
Fischer had been doing his job: conducting research, talking with investigators, pawing through "100 pounds" of discovery.  Then, just a few weeks before trial, the government turned over to him "the evidence as to Sacco's possession of the used condom bearing S.O.'s DNA."
Not the condom itself, you understand, just the evidence about it.  Still, I can understand how one might respond with a scrunched up face and "eeeewwww" or "yecch."  Fischer apparently did that.  And more.
[U]ntil that time, he had been confident that he could vigorously defend Sacco's position at trial; but that "single bit of evidence" caused an immediate, involuntary, and substantial shift in his "moral and technical perspective on the case."
I'm done, he said.
[W]hile I could probably go through the motions to defend Mr. Sacco, my conviction would not be behind that representation.
He asked to withdraw.  Co-defendant's counsel (the co-defendant, Linda O'Connor, was charged with selling S.O. to Sacco) supported the motion saying that if Fischer did a bad job, that would hurt O'Connor's defense.  She explained at a hearing on the motion.
[I]t's only fair for both defendants that they have attorneys that can be zealous advocates on their behalf and I think that's what the law requires, your Honor.
Whoa.  What's this about being "zealous advocates"?  Not so said the judge hearing Fischer's motion.
I don't think the law requires zealousness on [the] part of the attorney.  I think it requires adequacy on [the] part of the attorney.  I know Mr. Fischer is more than adequate.
Damned with faint praise, as they say.  Also not permitted to withdraw.
Live with it, said the judge.  Tough it out.
Without more, the information before the Court is insufficient to demonstrate an actual conflict warranting withdrawal.  The motion to withdraw is, therefore, DENIED.
O'Connor filed a motion renewing a request to sever her trial from Sacco's (a request earlier denied).  Based on things Sacco himself had said at the hearing on Fischer's motion, O'Connor said
  • "Fischer's assistance thus far [has] been objectively unreasonable."
  • Fischer "ha[d], by his own admission, stated that his assistance w[ould] continue to be inadequate."
  • "Fischer ha[d] expressed an unequivocal unwillingness and inability to conduct a cross-examination of the alleged victim."
  • Fischer was guilty of an "utter failure to prepare."
  • It was "highly unlikely" Fischer could be prepared for trial.
All of which, Fischer said, was bullshit.  I've got "issues," but I'll do my job.
As you might have guessed by now, Sacco is doing life.  (O'Connor got 30 years.)  In his appeal (no longer represented by Fischer), Sacco says the district court got it wrong.  Fischer should have been allowed to withdraw and Sacco was prejudiced because he wasn't.
And as you might also have guessed, the court of appeals for the Second Circuit didn't buy it.  (United States v. O'Connor; all the quotes above are from the opinion in that case.)
In fact, there's nothing much even interesting about how they found no merit in the issue.  Fischer did tell the judge he was prepared to do the job despite his qualms.  And Sacco apparently didn't point to anything that seriously indicated that Fischer's disgust for his client led to screwing up the case.  So he lost.  That happens.
But that's appeals.  The real questions aren't the post-trial legal ones.  the real questions are about Fischer and the trial judge.
For the judge, it's easy.
I have a docket.  I have a trial scheduled.  I have a tee time.  I don't really give a rat's ass whether you're gonna do a bang-up job here.  Barely good enough so that I have never have to see Sacco or O'Connor again.  That's what I want.  And I know the standards of review.  Merely adequate is good enough.  Hell, it's better than good enough.  Not grotesquely embarrassing may be good enough.  And you did say you'd do the job.  Cool.  You ain't goin' nowhere.
Not, perhaps, what you want in a judge.  Not what I want in one.  But we're talking a federal district judge with a lifetime appointment and no legally compelling reason to take Fischer off.  Which really does bring us to Fischer.
And to a couple of more serious observations.
We who represent the criminally accused often have clients who are alleged to have done really horrible things.  A significant percentage of the time, they've actually done those things.  Sometimes they've done more (and worse) than that for which they're charged.  We accept that.  We represent those people on those charges for all the reasons that the criminal defense blawgs have discussed so much and at such length over the years.  (Search and ye shall find.)
If there's some sort of crime so repellent that you can't bring yourself fully to defend someone accused of it - someone who just might have done it, whatever you believe - don't take that case.  Really, it's that simple.
But if you're there, stuck in the middle.  If you've now concluded that you can't go on and do the job properly, however you found yourself in that pit.  If the evidence of the condom is too repulsive, or if it convinces you [Gasp!] that your client isn't as pure as the driven snow.  If your client physically assaults you in the courtroom in front of the jury [yes, it happens], or in the jail or your office or wherever [those things happen, too, at least in the jail and the office - I'm less sure about the wherever].  If you called the cops on your client for some reason.  If you can't go on any longer.
Then suck it up.  No qualifiers.  No explanations about how you want to get off but can do a fine job.  No hemming and hawing.
I know I should be able to put my personal feelings/the peculiar fact/the conflict/the whatever [there it is again] aside and represent this guy properly.  But I cannot.  I will not be able to provide even minimally adequate representation.  I cannot do my duty ethically or within the bound of the 6th Amendment.
That's really hard to say.  No good defense lawyer wants to.  (Hell, no bad defense lawyer wants to.)  But if you can't do it, you can't.
And it takes us back, as we so often are taken back, to the underlying premise of what we do.
It's never about us.  It's always about the clients.
And whatever the judge in Dean Sacco's case may have thought, mere adequacy really isn't enough.
The courts don't get that.
Which makes it all the more important that we do.


  1. And this is why you don't sign on to a case if you can't be certain that you can handle it and finish it. Ineffective assistance may be the bar by which the court measures us, but it's not the bar by which we measure ourselves.