Tuesday, December 13, 2011

Going Commando - Criminal Defense Without Underwear

So there won't be a preliminary hearing.
Maybe a wise call, maybe not.
A prelim would provide discovery.  It would trap in transcript today's version of the stories told by the witnesses.  It would provide material for cross-examination.  That's no small thing.
On the other hand, those salivating reporters would splash every detail of those stories over the tabloids, over tabloid television, and even over the mostly-staid media like the Times.  And of course there would be the twitterers and the texters and the e-mailers and (yes) the bloggers. All of which taint the judgment of those 6 potential jurors who haven't already concluded that Sandusky is at best an incredible sleazeball.  So avoiding that hearing might be wise.
On the third hand, maybe this helps down the road in obtaining a plea deal (though everyone denies that's in the works) or arguing for a lesser sentence.  And maybe it helps hold bond in check or keeps out more allegations or . . . . Hell, there are possibilities every which way.
But really, that's not what interests me.  What interests me is what his lawyer, Joseph Amendola, said.  Not the part about how a prelim would serve no real purpose because he wouldn't be allowed to challenge the credibility of the witnesses or about how this is a fight to the death.  I'm interested in this statement Amendola made to the press.
Today's decision was a tactical measure.
Well, sure.  I mean, we all know that.  But, and here's the thing, it was inexcusable to say it.
I don't want to be bashing Amendola over his tactical choices.  Lots of folks have been doing that, talking about how they'd never let their clients sit down with Bob Costas or the NY Times or whoever.  How if the client insisted, they'd withdraw.
I expect that Amendola knows far more about his case and his client than those folks do.  I sure hope he knows more about it than I do.  And he sure as hell can't know less about the local judge or the available jury pool that I do.  Or local procedural quirks.  So I cut him a break on all the tactical decisions.
Maybe he's really smart.  Maybe he's outfoxing all the pundit lawyers and all those who wish they had their names on the front page as often as he does.  Maybe he knows just what he's doing.
Or maybe not, of course.  But I don't know, and I'm not wading into that morass.
After all, Casey Anthony's lawyer was savaged, and look how her case turned out.
But there's that single statement.
Today's decision was a tactical measure.
Almost certainly true.  Probably meaningless.  Likely without consequence.  And it makes me apoplectic.
To understand, you need to imagine that Sandusky might just be convicted of something at trial and might be ordered to spend a fair amount of time in prison (say, enough to pretty much ensure that he'll never again see the outside world). If that happens, you can assume that he's going to challenge his conviction.  There'll be an appeal.  There'll be whatever mechanism Pennsylvania offers that serves the function of habeas corpus relief.  There'll be federal habeas.  Stones will be overturned.  Acts will be scrutinized.
And someone will make the claim that Sandusky's Sixth Amendment right to effective assistance of counsel was violated.  That's just kind of a given.  But what happens then?
In order to show a violation of the right to effective assistance of counsel, the Supreme Court said, in Strickland v. Washington that it's necessary to demonstrate both that the lawyer's performance fell below an objective standard of reasonableness (later decisions from the Supreme Court and other courts make clear that almost anything is objectively reasonable) and that the deficient performance was reasonably likely to have changed the outcome of the case.  Add that up and it means that the lawyer has to have been really really incompetent and that with even a marginallly competent lawyer, the result would probably have been different.
Which is a pretty tough standard to meet.  Especially because, and here we get to the point, the Court said in Reed v. Ross,
[D]efense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, to object at trial or to raise an issue on appeal — and then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court.
Which is a fancy way of making the point that a tactical decision can pretty much never be deemed ineffective assistance.  In fact, the first response from the government to nearly any claim of ineffective assistance is that the complained of act or omission was tactical. What that means is that Amendola just denied Sandusky any chance to argue that waiving the preliminary hearing was ineffective.
So what?  What are the odds that Sandusky would make that claim someday?  What are the odds they would prevail?  And why can't Amendola protect his reputation by making clear that he didn't waive the hearing because he's a fool?
Let's take them in order.
Odds that Sandusky would make the claim if he's convicted?  Not bad.  Might happen.  Good things can come from preliminary hearings.  Deprived of the benefit and then convicted it's a plausible bitch.  Which means it's an argument that might be made.
Winner?  Probably not.  Most things aren't, and it'd be damned hard to prove how the prelim minght have made a difference in this case.  But if Sandusky's piling on, arguing that Amendola screwed the pooch over and over, it's another instance and those can add up even if none individually has much heft.
And now the biggie.  
What's wrong with a little CYA?
We gave up the right to metaphorical underwear when we decided to represent people charged with crimes.  
Because it's always about the client.  Never about us. Every word, every gesture, every typographical error, everything during the course of representation is to be for the client's benefit.  Some things are necessary; some things are neutral.  But if it can somehow hurt the client, we don't get to do it.  Period.
Oh, we'll all fuck up from time to time.  None of us is perfect.  And we don't need to go out of our way to advertise the mistakes.  But that's not what happened here.
Amendola wasn't fixing a mistake (if the waiver was a mistake, at least an open question).  He was protecting himself against a charge of incompetence.  Maybe the charge was deserved, maybe not.  Will what he said matter?  Probably not.
But the test isn't whether it's more than likely that what he did will hurt the client.  The test is whether it could possibly have helped the client?  Since it cannot have helped, then the rest of the test is whether it could possibly have hurt the client?  And since there's a chance, a slim chance but a chance, it was wrong.
As it's always wrong when we try to explain our actions.
Someday Amendola may be deposed or may show up on a witness stand.  A judge may order him to explain this or that action he took or didn't take.  At that point, he may have to account for his decisions, and the accounting may or may not hurt his client.  But this isn't the time.  The explanation was gratuitous.
And it was wrong.
Look, we're in an outcome determinative business, and it's unforgiving.
If Sandusky is acquitted or convicted of just a little or takes a plea bargain that's advantageous, then Amendola will have done a great job, maybe even a brilliant one, no matter what other criminal defense lawyers may think about the wisdom of his decisions and his approach.  If Sandusky gets convicted of whole bunches of things and draws the rest of his life in prison getting raped in the shower?  Then Amendola goes down in the books as a gross incompetent no matter what.
But this isn't about whether Amendola's doing a good job.  It's not about whether he's showing himself to be a genius or an incompetent.  It's not even about him, though it's his sentence that serves as example.  
No, it's about what we do.  What we do is represent clients.  Which means it's always about them, never about us.
When we practice self-protective law, we're looking in the wrong direction.


  1. I want to thank you. I was interning at the PD's office in district court and I saw several seemingly futile prelims. Since then I've considered them useless; I even wrote a blog post mentioning that.
    Then I read this post and it was like a splash of cold water in my face.

  2. Cases can get dismissed at a prelim, but in the ordinary course of things, I think it's probably pretty rare. Still local experience is everything, and there are probably places where dismissal isn't terribly uncommon.

    In other ways too, though, local practice controls. If the actual witnesses testify (which seems to be what was going to happen in Sandusky's case if I understand the press reports properly and if they're accurate), you can gain much fodder for cross and get some free discovery. Even if it's just a cop testifying, you can get something.

    How valuable is that? The value of the discovery depends a lot on local practice and rules and maybe the identity of the particular prosecutor who'll do the case. The locking in? Again it depends.

    On the other hand, there can be a price to pay for a prelim, and it will often not be worth the price.

    Beyond that, there are places where they almost never occur, where prosecutors can and do avoid them simply by indicting. Local rules and practice again.

  3. Most sex offenses here are direct indictment in order to avoid this kind of situation unless they need to act quickly or get someone out of a house. We routinely waive in exchange for an unsecured bond because most of our clients can't even come up with a couple hundred bucks. I have yet to have a client say "f--- it, let's have the hearing." We can fight the bonds but it's a long, tough process. I've also waived when a guy will be in anyway in order to keep details from getting out. One case in which the local media covered every single fart this person let comes to mind. He was sick of his friends and family having to see his picture in the paper so when he caught a new case we just waived it up.

    I agree with your sentiment; doing anything to CYA at the detriment of the client is obscene (once did an appeal where defense counsel was notified of sleeping jurors and said it was trial strategy not to have them removed as alternates). If you do this job long enough you're going to screw it up. Best not to make some trusting client pay for it.

  4. So is it part of the lawyer's job (especially in death penalty cases) to mess things up a little so the client will have a better ineffective assistance claim later on? Or at least to make it look like he messed things up?

  5. No, no, no. Absolutely not.

    But it's also not part of the lawyer's job to explain why he's making the choices, the decisions he is.

    You don't screw things up intentionally. Ever. But you don't try to defend your actions to the media or the public either. The lawyer is accountable to the courts and to the client. The lawyer who thinks himself accountable to the press or the public is a lawyer who's not doing her job. And the lawyer who's busy covering his own ass (or glorifying himself, for that matter) is a lawyer who's representing himself rather than his client.