Friday, December 23, 2011

The Soft Bigotry of Low Expectations

Gerry Spence says he's never lost a case, which may or may not be the same as having won every case.  Much depends on how you define wins and losses.
I want to talk about wins.  Which means I have to talk about what it means to win a case.
The easy answer is hearing the prosecutor say
We're not going to prosecute.
We're dismissing the charges.
or having the judge announce
Case dismissed.
or listening to the bailiff (or judge or foreperson or whoever in your jurisdiction) reading the magic words on the verdict form
Not Guilty.
or some variation on that theme.
But sometimes, along with those golden words, there's also a
More than one count, more than one charge.  You win some you lose some.
But what if it's only guilty?  And what if it's not at trial.
I've talked about this in the context of death penalty cases: A win is anytime the government doesn't get to kill the client.
But what about other cases? And what about when there's no trial?  Or when the trial is over and you're up on appeal?  Lots of situations.
Here are some things that can happen that aren't exactly losses but also aren't the coveted words that send your client home with no criminal record (or no additional one).
  • Suppression granted
  • Plea bargain so the client is convicted of a lesser offense.
  • Plea bargain so the client is convicted of fewer offenses than she might have been.
  • Plea bargain so the client gets less time or better sentencing circumstances than he might have gotten.
  • Guilty of some but not all.
  • Probation.
  • Less time.
  • Lower fine.
  • No court costs.
  • Not guilty of some charges.
And that's just at trial.  But you know, cases continue.
So there are appeals.
  • Reversed, conviction vacated, case dismissed.
  • Reversed, conviction on some counts vacated and dismissed but the rest is affirmed.
  • Reversed for new trial.
  • Reversed for new trial on some counts.
  • Reversed for new sentencing.
Although a new trial or new sentencing doesn't necessarily mean things will get a lot better.  Clients do get convicted again.  New sentences are not always better than the old ones. 
That can happen before trial, too.
  • Get the confession suppressed.  Convicted anyhow.
  • Get the breath test suppressed.  Convicted of impaired driving anyhow.
  • Get some of the drugs suppressed.  Not enough of them.
  • Get the objection sustained. Get the bad juror struck for cause. Get the jury instruction you want. Get the motion granted.  You can still watch your client taken away in shackles.
Every silver lining has a cloud around it.  Sometimes we're reminded that lemonade is really just lemons. Life sucks.  Shit happens.
And yet, after a fashion, those are all wins.
Which brings me to a case out of Ohio.  It's in the Sixth Circuit Court of Appeals and the issue is whether the guy's appellate lawyer was constitutionally ineffective.  Not so, says the state.  
Obviously he was effective; he won the appeal.  What more can you ask for?  What more could the client ask?
It's not a nonsensical argument.  I won a new trial once for a guy on death row.  The state was going to take the case to a higher court.  Who knew what they'd do.  So, to be protective, papers were filed arguing that I'd been ineffective.  There were these issues, it was said, that I should have raised but didn't.
Maybe I should have.  It's getting on toward 20 years now. While I remember the issue on which I won the case and know that I raised a whole bunch of other issues., I don't have any recollection of what there might have been out there.  Call it a senior moment from back when I was a junior.  In any event, the court of appeals' response was simple and to the point:
He won the case.  By definition that means he wasn't ineffective.
As I say, that's not a nonsensical position. But, and this is sort of where I started, there are wins and there are wins.  And while winning may not be everything (or may be the only thing), it's also sometimes just as good as a loss.
I'm not talking pyrrhic victories here, the kind that leave the client worse off than before.  (And yes, there are such in the law. But as I said, I'm not talking about that sort of thing.) I'm talking about the merely worthless.
I'm talking about that case in the 6th Circuit.  The one where the state argues that the guy's appellate lawyer did brilliant work, as you can tell because he won.
OK, already, cut the suspense.  What did he win?  Case dismissed? New trial?  Nah.
He got the sentence reduced.
Hey, that's pretty good, right.  Means the guy gets out sooner.  Can't sneeze at that.
Or maybe you can.
The guy does get out sooner.  If he lasts that long.
The old sentence required him to stay in prison for the rest of his natural life, die, then have his corpse remain in prison for another 61 years.  Death + six decades + a year.  And then, of course, he'd be on post-release control for 5 years.  Because you have to keep an eye on zombies.
Really, that's an awful sentence.  And kind of a stupid one.
So what happened?  What did the brilliant lawyer achieve? The guy's got an out date now, right?  Pretty good.
Well, not exactly.
The new sentence? Death in Prison followed by 53 years more in prison.
Sure, it's less time.  Shaved 8 years off the sentence.  Which would be a lot if the sentence were, say, 10 years.  Or even 20.  Maybe 30.
But an 8 year break? For a corpse?
I don't know the case.  I don't know if there's a compelling argument that appellate counsel was ineffective.  I have no idea.  I do know that a win like that doesn't do the client much good.  And it doesn't say a damn thing about the skill in general (or the constitutional competence in this case) of appellate counsel.
The lawyer who represents the guy now, the one who's arguing that appellate counsel was ineffective, the one who's got to respond to the claim that appellate counsel was surely effective since he won, that guy.  He knows how hard it is to convince a court that counsel was ineffective.  He knows how absurdly low the standards of competence are.
And this is perhaps a new one.  On a par with the argument, in another case, that a guy couldn't have mental retardation because he once scored 14 points in inmate basketball.  Steve Hardwick, the lawyer, calls the state's argument 
the soft bigotry of low expectations.
Which it is.  And which I stole for the title of this post.
LWOP plus 53.  Another of those absurd sentences that can't be served. Still it's a win.  Better than LWOP plus 61.  On paper only, of course.  But a win. Though the sort of win only an appellate lawyer could savor.
And then, really, not when the client is watching.


  1. Another example of our screwed up legal system. Why spend any time at all on this?

  2. conviction vacated, case dismissed