Thursday, July 14, 2016

The Wrong Question? The Wrong Answer? It Depends

The correct answer to every legal question, I regularly say, is "It depends."  
  • I have a lawsuit, don't I?  It depends.
  • The drugs will be suppressed, won't they?  It depends.
  • That means there's reasonable doubt, doesn't it?  It depends.
  • My lawyer fucked up, so I get a new trial, right?  It depends.
Clients hate it.  Reporters looking for quotes hate it.  You're uncle who's been arguing with his neighbor about the tree that drops sap on his car when it's in the driveway hates it.  But dammit, it does depend.

It depends on all the facts and circumstances.  It depends on whether the burrito the judge had for lunch gave him gas.  It depends on whether the lawyer or the judge won the last round of golf and whether the jury thinks your lawyer's tie is ugly or her skirt's too short.

So yeah, the correct answer to every legal question is, "It depends."

Except, of course, when it isn't.

Over at Fault Lines, Andrew Fleischman examined the oral argument before the Georgia Supreme Court in West v. The State to draw lessons from When Oral Argument Goes Wrong.  It's a useful tutorial and the lessons are general sound.

  • Know the law.
  • Policy arguments are nice but focus on the law.
  • Take the other side seriously and respond to what they're arguing.
  • Sometimes it's better to shut up and let the other side screw themselves.
  • Courts really try to focus on the law, not the lawyer, even when they fail.*

Sure.  Good advice and good things to know.  

But sometimes --

The Supreme Court of Ohio as it's properly called.  Oral argument in State v. Cepec, a capital appeal.  Nathan Ray, representing Mr. Cepec, was just getting rolling.  Cepec's trial counsel, Ray was arguing, screwed the pooch provided ineffective assistance in violation of his client's rights under the Sixth Amendment.  

It's standard stuff.  There's a two part test, first set out in 1984 by the Supreme Court (the big one, in DC) in Strickland v. Washington.  

First part:  Was the lawyer's representation was objectively deficient? If you held a mirror up to the lawyer's nose what would have happened?  If it would have gotten foggy, the lawyer was good enough.  If not, it's on to the second part of the test.

Roll the tape:  Justice Judy Lanzinger's asking questions.  She's just gotten Ray to assure her that he is, indeed, making a Strickland argument.  Minute 5:50:
What about the outcome determinative part of that test, though?  Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?
To which Nathan Ray gave exactly the wrong answer.  
He said.  And then he began to explain why.  

All of which seems reasonable and satisfied Lanzinger.  Not on the merits, I suspect, but on the substance.  She got her answer simply and directly.
Which is one of the things they teach in law school - answer the judge's question (a lesson Andrew didn't draw from West v. The State, but he was writing a post, not a book addressing every issue).  

So, cool.  Except, as I said, it was exactly the wrong answer.  Because the second part of the Strickland test is not whether the lawyer's incompetence was outcome determinative.  It's not whether if the lawyers didn't make those mistakes "the outcome would have been different."  Hell, it's not even whether the outcome would probably have been different.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Strickland at page 693.

That's worth repeating, this time adding some boldface.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Oh, there's some bar.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.
(citation omitted).

There's even an actual standard.
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
And no, I don't really know what that means, either.  Except that it's more than a mere theoretical possibility ("some conceivable effect").  And it's less than probably.  One more time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Which means, to return to Judy Lanzinger's question and Nathan Ray's answer, that she asked the wrong question and he gave the wrong answer.

Because the right answer wasn't 
Yes, the errors were outcome determinative.
The right answer was
That's the wrong question, your Honor.  Strickland  specifically says that the second part of the test isn't even whether competent lawyering would probably have made a difference. 
Of course, it's not just Judy Lanzinger.  Our judges and justices routinely demand showings of harm far greater than the law requires.

And we let them get away with it.  Unchallenged.  

They're supposed to know the law.  We can't make them learn it, and we sure as hell can't make them follow it if they don't want to.  But we can damn well insist on telling them that they're fucking our clients because they insist that we have to prove more than we do.

No, it doesn't depend.  And it's damn well not outcome determinative.

One last time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Judy? Nathan?


*These are my summaries of Andrew's captions.

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