Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases. This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice. After all, for a capital defendant, effective assistance of counsel can be a matter of life and death. Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.
One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel. On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all. But what of shoddy or negligent legal work? Should that be sanctionable too?
Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.
The key facts are these. Johnson was initially convicted in 1983 and sentenced to death. A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his trial. Specifically, Johnson’s initial attorney had failed to investigate Johnson’s background for potential mitigation evidence that could be presented to the jury. The Ohio Supreme Court agreed, vacated Johnson’s sentence and ordered a new trial.
Johnson’s new attorney — the one who had successfully argued that Johnson’s initial representation was constitutionally inadequate — represented Johnson in the new trial. Johnson was convicted and, once again, was sentenced to death. Here is where it gets ugly. For Johnson’s new attorney made the precise same error as his initial attorney: He made no effort whatsoever to find potential mitigation evidence for the penalty phase of the trial. Thus, Johnson once again received ineffective assistance of counsel. Indeed, according to the Sixth Circuit, Johnson’s representation the second time around was “more egregiously deficient” than in most prior cases.
The same attorney who secured that favorable decision from the Ohio Supreme Court, James Willis, also represented Johnson at the retrial. But, after arguing successfully that Johnson’s original attorney had been constitutionally ineffective in failing to present available mitigating evidence at the penalty phase of the proceedings, Willis himself committed the same grievous error. He introduced no mitigating evidence at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn statement to the jury, a statement in which the petitioner chastised the finders-of-fact at length for failing to find a reasonable doubt as to his guilt despite what he alleged were numerous weaknesses in the prosecution’s case.
In a series of affidavits submitted to the Ohio state courts in post-conviction proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted in convictions for aggravated murder and aggravated robbery, as well as a sentence of death – and speaking with Johnson himself. . . .
The petitioner’s counsel at his second trial reviewed the transcript of the first trial, noted the ineffective assistance provided by Johnson’s original attorney, and convinced the Ohio state courts that it violated constitutional standards of representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis admittedly interviewed no new or old witnesses, did not request or hire an investigator for the second trial, “felt there was no need for any new investigation into Gary Johnson’s case,” did not seek any discovery prior to the second trial, and presented no evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the disastrous initial trial a second time. Not surprisingly, the same result followed, and Johnson was once again sentenced to die at the hands of the state for his crimes.
What is particularly striking about this case is that Johnson’s attorney knew that the failure to investigate Johnson’s background constituted ineffective assistance of counsel, and could be grounds for a new trial. So the only question was whether the attorney’s deficient representation was a product of incompetence or design. Either way, Johnson should not suffer for his attorney’s malfeasance. The attorney, on the other hand, should be subject to sanction.
Dave N says:
I agree completely, particularly since Willis had to meet the Strickland prejudice prong in order to get relief for Johnson in the first place.
If ever there was evidence of an obvious “tanking” of a penalty phase at trial short of confession by defense counsel, this is it.
But that also leads to the question: What can we do during the trial itself to ensure that the defense is not deliberately tanking the penalty phase, when at times it has every incentive to do so?
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November 5, 2009, 9:59 amKenvee says:
I don’t know, it sounds like the attorney did a pretty good job. He guaranteed his client yet another new trial, dragging the process out for several more years. Sometimes the goal is more time instead of an outright win. And the more times the State has to retry a case, the better chance the defense has. Witnesses forget things, you have multiple past transcripts for impeachment, etc. The State can win ten times, but the defense only has to win once.
I’ve seen attorneys do this and brag about it. Why should they be sanctioned when they’re helping their client? The only way to solve the issue is to hold that conscious ineffectiveness IS a trial strategy and can’t support a reversal on appeal.
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November 5, 2009, 10:09 amSteve says:
It seems to be black-letter law in most places that you need to successfully get your conviction overturned before you can sue your defense lawyer for malpractice.
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November 5, 2009, 10:11 amED Maven says:
Is it possible that the defendant had no substantial evidence of mitigation, and his lawyers thus were well advised to leave well enough alone? I don’t know that this is true, but it seems like a question that should be answered before making any hasty judgments about those lawyers’ competence.
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November 5, 2009, 10:20 amOren says:
Stupid question about Ohio law, why didn’t they just kick it back for another sentencing phase?
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November 5, 2009, 10:22 amSoronel Haetir says:
Perhaps the state itself should be able to go after this attorney for court costs plus the cost of yet another trial. By the time you commit the exact misconduct you got remedied against prior counsel you should be on notice that you have to do better.
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November 5, 2009, 10:22 amPatHMV says:
Ed Maven, according to the article, the second defense attorney admitted that his sole preparation for trial was reading the transcripts from the first trial; he did not conduct any additional discovery or interview any new potential witnesses. Even if there in fact was not any substantial evidence of mitigation to be found, it’s still incompetent to fail to even look for it.
I say the courts should enact an automatic $10,000 fine on any lawyer whose client’s conviction or sentencing is overturned on the basis of ineffective assistance of counsel. No further investigation, no nothing. If your advocacy was SO bad that it was constitutionally “ineffective” (being constitutionally effective is not a really high hurdle to cross), then that should, in and of itself, justify sanctions.
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November 5, 2009, 10:25 amJeff Hall says:
“So the only question was whether the attorney’s deficient representation was a product of incompetence or design. Either way, Johnson should not suffer for his attorney’s malfeasance.”
Why shouldn’t Mr. Johnson suffer for his attorney’s actions? He knew (in fact, he was informed in the most spectacular way) that he had a right to find and present mitigating evidence. If none was presented at his second trial, wasn’t it surely with his informed consent? He and his attorneys have been gaming the system for 19 years; if 19 years of process aren’t enough, what is? 29 years? 50?
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November 5, 2009, 10:28 amHouston Lawyer says:
My vote is for automatic and permanent disbarment for anyone found to have rendered ineffective counsel in a death penalty case. In the case at hand, it appears to have been an intentional tactic.
However, I also believe the whole idea that we must investigate whether an accused was breast fed or not is ridiculous. Very few people accused of capital murder have had anything near a wonderful life.
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November 5, 2009, 10:39 amCornellian says:
That looks suspiciously like a deliberate decision by the second lawyer, either because he knows (or believes) there’s nothing that can be said by way of mitigation, or because he’s trying to generate another ineffective assistance of counsel habeas petition.
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November 5, 2009, 10:40 amTamerlane says:
IANAL but it does seem to me the attorney was gaming the system to get his miserable client a few more years of life via another one of these endless death row habeas corpus pleas. It’s really the fault of the judges who use these h.c. pleas as a dubious excuse for staying executions when there’s really no legitimate legal justification. If the judges behaved as they should there would be no problem.
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November 5, 2009, 10:40 amDavid Nieporent says:
Yes, but if there isn’t any, then you can’t satisfy the second prong of Strickland; the defendant isn’t prejudiced.
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November 5, 2009, 10:41 amwm13 says:
Let us stipulate, with some of the more cynical commentators, that Johnson’s second lawyer is following a conscious strategy, one which has succeeded for 26 years, of not presenting mitigating evidence–because there is none–and then arguing ineffective assistance of counsel.
My question is, what if there were an automatic $10,000 penalty for this conduct? Would a lawyer still have an affirmative ethical duty to behave in this way? After all, it works. It is in the client’s interest. Indeed it is saving the client’s life. Isn’t that worth $10,000?
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November 5, 2009, 10:42 amDavid Nieporent says:
Isn’t that one of those questions that answers itself?
Uh, no?
(I mean, I guess anything is possible.)
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November 5, 2009, 10:43 amAnderson says:
Would a lawyer still have an affirmative ethical duty to behave in this way?
No. There is no duty to represent your client incompetently, even if you can get good results by doing so.
The $10K penalty is intriguing, but unlikely unless mandated by the state legislature. Lawyers are in charge of disciplining their own profession, and they are careful to do a damn poor job of it.
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November 5, 2009, 10:49 amAnderson says:
... What would be more appropriate would be banning that attorney from ever representing another capital client in the 6th Circuit.
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November 5, 2009, 11:12 amDavid Nieporent says:
Except when protecting the guild; then they’re quite efficient. If they can keep lawyers from advertising, they’re happy to do it.
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November 5, 2009, 11:20 amDjDiverDan says:
I would not go so far as to require automatic and permanent disbarment, but where the only reasonable inference is, as in this case, that the lawyer tanked the case on purpose to create grounds for an appeal, the attorney should be suspended from practice for at least a year, AND required to compensate the State for the ENTIRE costs of the blown trial — Judge’s salary and benefits, DA’s office expense, Court Reporter costs, Bailiffs, Jury Fees, everything, including forfeiture of all State funded defense costs. As a taxpayer, I should not have to shoulder the inordinate burden of paying for multiple trials solely because a court-appointed defense attorney makes a willful decision to sabotage the trial.
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November 5, 2009, 11:20 amJay says:
Guys, read the opinion. If there was no mitigating evidence, there would have been no prejudice, and thus no relief under Strickland. The court quotes a single-spaced page and a half summarizing what the mitigating evidence would have been. It doesn’t sound all that strong to me, but there wasn’t nothing to put on.
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November 5, 2009, 11:25 amJay says:
Are you a member of a bar? If so, you’ve surely fulfilled your duty to report these attorneys who have bragged about intentionally providing ineffective assistance. I’m not saying this never happens, but it seems far fetched to me–at an initial state trial, the idea of federal habeas relief is pretty far down a winding road. The idea that the average underpaid, appointed lawyer is so incredibly committed to his client’s case that he’s undertaking an elaborate scheme to get him a possibility of relief years later, at grave risk to his own reputation, is not plausible.
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November 5, 2009, 11:35 amAllan says:
Where were the trial court judge and the prosecutor? Surely they knew of the previous decision. If they had an inkling that the defense was inadequate, should they not have spoken up?
The job of the prosecutor is exact justice. The job of the to insure a fair trial. That may include calling attention to the weaknesses of the defense counsel.
Some might say that we are in an adversarial system and there is no place for the judge or the prosecutor to interfere with the defense. But when a trial costs hundreds of thousands of dollars, perhaps there is some incentive to take steps to prevent a reversal on appeal.
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November 5, 2009, 11:38 amBob from Ohio says:
Maybe in general but here Willis knew that lack of mitigation evidence would get the death penalty kicked.
The mitigation evidence that the 6th Circuit said might have worked (his relatives loved him, he was abused, he used drugs) is pretty much SOP in all death cases. It is highly, highly unlikely to have spared this guy.
So, 26 years after conviction, he gets a new trial/penalty phase.
No doubt in my mind that Willis knew exactly what he was doing.
Though I do agree that the trial judge should have seen this coming and either leaned on Willis to do his job or removed him.
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November 5, 2009, 12:01 pmTom Huff says:
This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.
I guess I worry that this might put the judge in a pretty uncomfortable position. Suppose a pro bono capital defense attorney does a great job overall but nevertheless makes a serious miscalculation? At least some judges (most of whom used to practice) would probably be sympathetic, and would be uncomfortable issuing a IAC finding if they knew it would necessitate serious attorney sanctions. And so I wonder if they might become less likely on the margin to grant an otherwise meritorious IAC habeas claim.
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November 5, 2009, 12:02 pmMark Field says:
Abolish the death penalty. It’s that penalty which raises the stakes so high. From a moral perspective, any defense counsel who values the life of his client will happily tank the case to save it. And $10,000 fine? That’s laughable in terms of what’s at stake.
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November 5, 2009, 12:04 pmJay says:
Bob–Yeah, I agree this case seems pretty fishy. I was responding to the other commenter’s assertion that this is some kind of standard practice. I also agree that the mitigating evidence is pretty lame–I wonder if a more conservative 6th Circuit judge would have dissented on that basis. This was a pretty liberal panel across the board.
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November 5, 2009, 12:06 pmAnderson says:
attorney should be suspended from practice for at least a year, AND required to compensate the State for the ENTIRE costs of the blown trial
The problem here is that the penalty is so draconian, it won’t be imposed. The guy is probably solo; hence the penalty (1) givesn him zero income for one year (try that, y’all) and (2) imposes a debt that will likely propel him into bankruptcy.
Better to bar the guy from further DP cases. That is at least something the court could actually do.
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November 5, 2009, 12:10 pmmischief says:
My, anti death penalty advocates will use anything, won’t they?
Probably lawyers for capital cases should have the same requirements as jurors: they can handle the death penalty. Lawyers opposed to the death penalty should be disbarred if they lie in order to defend in a capital case.
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November 5, 2009, 12:24 pmSarcastro says:
[I’ve heard a number of posters (though not on this thread) insinuate not simply that this attorney intentionally represented his client ineffectively, but that such a practice is routine. I’ve seen a great deal of anecdotal evidence of this fact, and no one has contradicted it.
Doesn’t look good.]
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November 5, 2009, 12:28 pmPintler says:
For defense attorneys who think that sabotaging a trial is OK on an ends-justify-the-means basis, how do you feel about police officers who lie on the stand or in affidavits to convict someone they think is guilty? Isn’t that an analogous situation — breaking the rules because you don’t think the system will produce the outcome you want?
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November 5, 2009, 12:32 pmBaueresque says:
Why should a defense lawyer be sanctioned for incompetence (planned or not) when a prosecutor’s intentional fabrication of evidence to secure a conviction is, in some quarters, immune from liability. [SCOTUS will be deciding this question later in the year.]
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November 5, 2009, 12:49 pmmbsch13 says:
Not intending to comment on this particular case, about which I don’t know enough, but one problem with sanctioning attorneys who are found to have provided ineffective assistance in a capital case is because, even if not explicitly, courts are applying a ‘death is different’ jurisprudence. It is quite frequent to see a lawyer’s performance deemed ineffective in a capital case while the exact same type of performance is deemed not ineffective in a non-capital case. The same holds true for prosecutorial misconduct claims. Precisely because there are no bright-line rules on ineffective assistance and prosecutorial misconduct claims, these types of claims serve as the vehicles for overturning death sentences by judges who either (a) want to be especially careful in death penalty cases or (more cynically) (b) don’t like the death penalty and will try to find any means to overturn a death sentence. Thus, you may be sanctioning an attorney for something that was not truly “ineffective” under a faithful application of Strickland v. Washington.
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November 5, 2009, 12:51 pmSteve says:
I’ve seen a great deal of anecdotal evidence of this fact, and no one has contradicted it.
It’s a ridiculous claim in my book, but it’s very difficult to prove a negative. I’m not saying it never happens, but the idea that defense attorneys are purposely throwing trials right and left so their client might get habeas relief 20 years down the road is absurd.
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November 5, 2009, 12:53 pmSarcastro says:
[Glad to hear that. I know when I when I took wrongful convictions, I never got a whiff of such tactics. Like to see some statistics though.]
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November 5, 2009, 1:03 pmAnderson says:
Agree w/ Steve, but this particular case might be the exception that proves the rule.
[Insert digression on origin and misquotation of this cliche.]
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November 5, 2009, 1:04 pmThe Watcher says:
The two defense lawyers, between the two of them, bought their client an extra 10 years of life.
Sounds like good lawyering to me.
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November 5, 2009, 1:13 pmSarcastro says:
The Watcher makes a point. Also, Mussolini made those trains run on time! Sounds like good leadership to me!
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November 5, 2009, 1:16 pmAJK says:
So what if they’d helped break him out of custody and get him to Mexico? Would that be good lawyering too?
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November 5, 2009, 1:31 pmMark Field says:
The two situations aren’t symmetrical. Police who commit perjury violate a rule. Attorneys who fail to put on adequate representation don’t.*
Moreover, police, at least formally, are supposed to have an interest in catching the right person. If their perjury results in the conviction of someone who’s not actually guilty, then the real criminal remains on the street. This is directly contrary to the interests of their “clients” (us). In contrast, an attorney who tanks a trial may very well have done just what his client wants.
In saying all this, I’m not justifying the conduct of the attorneys (nor was I with my point earlier). I’m just pointing out how the incentives and rules work together to create an environment in which this happens.
*They may commit “malpractice”, though this is questionable under the circumstances.
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November 5, 2009, 1:32 pmdrunkdriver says:
As for the question, “whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice”- I think a court finding that a lawyer rendered ineffective assistance should be presumptive grounds for bar discipline, just like a court finding and sanction of a lawyer for contempt and other forms of misconduct.
On the question of whether it should serve as presumptive evidence in a civil malpractice suit– I think it should form a rebuttable presumption of liability on the lawyer’s part.
After all, by the time a court finds a lawyer committed ineffective assistance, we’ve usually had a trial and at least one appellate proceeding, witnesses have been examined, transcripts scrutinized in fine detail, etc. It’s a serious matter to throw out a conviction on such basis and it doesn’t happen often.
To then tell the freed inmate, “well, cool, now good luck re-proving all that from the ground up at your own expense in a civil case against your lawyer” makes no sense. There’s already been a court determination on this critical issue; making it a rebuttable presumption means the lawyer can still defend himself in the civil case, but he will now bear the burden of demonstrating why he shouldn’t be held liable. After all the previous litigation, which constituted a huge drain on public resources, I think shifting the burden to the lawyer already found to be wrong, is the best place to put the costs of litigating the merits of the civil case.
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November 5, 2009, 1:33 pmPintler says:
Alternatively: The two detectives (who fabricated PC for warrants and lied on the stand about statements made by the defendant), between the two of them, put the dirty sleazeball behind bars where he couldn’t victimize anyone again for 10 years.
Does that sound like good police work to you? I’m genuinely asking, because some people think it is, and I’m curious whether people who think it’s OK to put a thumb on the scales to get the outcome they think is just think it’s OK just for their side, or think everyone involved in the process should ‘vigorously advocate’ for their preferred outcome.
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November 5, 2009, 1:39 pmPoliGazette » Ethical Malpractice? says:
[...] the growing list of problems with the death penalty, add this one from Jonathan Adler at the Volokh Conspiracy: It puts attorneys in a position of arguably having to commit malpractice in the best interests of [...]
Anderson says:
All this is such a red herring.
In a civil case, the best interests of my client might be furthered by my advising him to destroy incriminating documents rather than produce them pursuant to a proper discovery request.
But there’s no question whether that’s “good lawyering.” It’s not.
A lawyer is an officer of the court and his *first* obligation is to the court.
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November 5, 2009, 2:21 pmDavid Schwartz says:
So, is drowning someone and saving someone from drowning morally analogous? After all, in each case you flip the “drowned or not drowned” outcome from what it would otherwise have been, right?
By the way, there’s a huge problem with the “IEC claim means malpractice” argument. The client will certainly not help defend the attorney’s conduct in an IEC case. But he may help defend the attorney’s conduct, and such defenses may exist (though cannot be used against the defendant due to privilege), if the attorney is charged with malpractice.
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November 5, 2009, 2:26 pmPintler says:
What if the attorney did exactly the same thing, but in a case where the penalty was a life sentence? I guess I don’t see a difference between capital and non capital trials. Our society has collectively agreed on certain penalties. An attorney may feel that some penalties are too severe, whether that’s the death penalty or mandatory 10 years for .01 grams of crack or being branded a sex offender for streaking with a pumpkin on your head, but isn’t her duty to make the best case for a light sentence within the rules (assuming there are any, which seems to be in dispute)?
Do you think there are any ethical limits to what a defense attorney can do to avoid his client being executed? If I see someone drowning, I can steal a boat to save them and plead necessity. Can an attorney do the same (for example, pay a witness in the penalty phase to falsely state that the defendant was molested as a child, or whatever) and justify it as necessary to avoid what the attorney feels is an overly severe sentence?
If so, how about to avoid some other draconian sentence, like life without parole for a minor third strike?
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November 5, 2009, 2:51 pmGaryC says:
Ask Angela Davis. It is apparently not career-limiting, at least.
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November 5, 2009, 3:03 pmArthurKirkland says:
When prosecutors are no longer permitted to evade accountability behind the coward’s skirt of immunity, and police officers are assigned by law a requirement to match any sentence served by a defendant improperly convicted consequent to the officer’s fault, I would consider sanctions for a defense lawyer’s provision of ineffective assistance.
The ideal solution, with respect to capital cases, would be to stop pretending that humans are capable of devising or implementing a system that effects the death penalty in a reliably just manner.
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November 5, 2009, 3:05 pmKenvee says:
I’m definitely not saying that this is a standard practice, but this is not a single isolated act of misconduct either.
There’s a Texas case, Cannon v. State, where the defense attorney refused to do anything in the case after the judge denied a motion for continuance. It was reversed for ineffective assistance, and the Court of Criminal Appeals even referred the attorney to the disciplinary board in the opinion. (252 S.W.3d 342, for the curious.) Not only was there never any (public, at least) action taken by the disciplinary board, the attorney actually bragged in the Texas Lawyer magazine how he would voluntarily be thrown under the bus if that’s what it would take to help his client. And this wasn’t even a death penalty case — it was a misdemeanor DWI!
It happens. Those of us in regular criminal practice have all seen it, even if it (thankfully) isn’t S.O.P.
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November 5, 2009, 3:26 pmLoopFiasco says:
I think automatic disbarment or major fine’s are not the path to go. A lot of clients convicted of murder are represented by public defenders. Some get appointed capital litigation private attorneys paid by the State. (and a smaller fraction hire private counsel)
Fining the appointed capital litigation attorneys just returns the money the state paid. Sure, the lawyer loses time and effort — but isn’t out his own pocket.
Firing public defenders for ineffective assistance? Ya, good luck with that.
I think to avoid the whole issue and keep the system functioning would take something drastic. Take away the incentive to tank the sentencing phase in death cases by abolishing the death penalty and making it mandatory life w/out parole for capital level crimes. I know i know... not bloody likely. But it would solve the problem addressed in this case. And likely save the criminal justice system a lot of time, effort & money in the long run. Just my .02 cents.
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November 5, 2009, 3:28 pmFub says:
Terrible idea I think.
A personal anecdote is all I’ve got to illustrate the point, but it is clear at least.
Back in the 1990s a recently convicted defendant called me for possible representation. In another county he had been charged with, and pled guilty at his PD’s suggestion, to possession of politically incorrect vegetable matter. He was broke, and looking at jailtime at sentencing. Based on what he told me, his PD had apparently overlooked a very viable defense.
I contacted the PD. She agreed she had missed the defense. She was eyebrow deep in caseload at the time, and had no more than 10 minutes to interview the guy. She immediately said she’d swear an affidavit that she had rendered IAC. She did, and got his plea vacated.
Prosecutor, upon seeing the defense the PD noted in the affidavit, declined to prosecute further.
Defendant should never have been charged in the first place.
My hat is off to that PD. She entirely nobly fell on her own sword to bring about a just result. An “automatic $10,000 fine” with “no further investigation, no nothing” in such a situation would result in even more widespread injustice to factually innocent victims of odious laws, and turn courts into worse railroads for the poor than they already are.
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November 5, 2009, 3:40 pmBeldar says:
With due respect, Prof. Adler, your use in the title of this post of the term “malpractice” — which normally implies a civil claim for money damages based on allegations of damages proximately caused by professional negligence — is only clouding the issue I think you want to discuss here.
Regarding this earlier comment:
I think Steve’s right, and a specific example of such a holding is Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), which also quotes and discusses other states’ positions on this same subject.
Strickland v. Washington supposedly doesn’t convert tactical judgments that are merely mistaken in hindsight — like David Washington’s original trial counsel’s decision to throw Washington on the mercy of the sentencing trial judge after only a very abbreviated evidentiary case to show his non-violent and law-abiding past — into ineffective assistance. Thus, if the state obtained a fact finding that, for example, a defense counsel’s failure to investigate or present evidence was due to a tactical choice (specifically, to lay a foundation for a further ineffective assistance claim), courts would be fully authorized to “honor” that choice and find that it was indeed effective assistance, while then immediately thereafter rejecting the hoped-for outcome from that tactical choice.
Presumably most such fact-findings would be based on inference rather than a boastful admission by misbehaving defense counsel; but there may indeed be times when there’s so much circumstantial evidence as to make such an inference very compelling indeed.
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November 5, 2009, 3:51 pmPatHMV says:
So the PD’s malpractice led to the guy being convicted improperly, she suffers no personal consequences for her malpractice, and she’s considered “noble”? I don’t see the nobility in swearing out an affidavit to benefit a client when there’s no penalty attached for admitting your initial mistake.
I sympathize with the overworked PDs. But if the caseload means that you cannot adequately represent your clients, you’ve got some obligation to do something about that, not just continue to inadequately represent your clients and then help spring them based in part on your inadequacy.
And of course I was being mildly hyperbolic with the “no further investigation, no nothing” part. My main point was simply that it’s far too easy to decide that counsel was “ineffective” in the abstract. I think there should be some consequences on somebody, or at least an automatic investigation, if some defense lawyer has done such crappy lawyering as to not make it over the very low bar of “constitutionally effective” assistance of counsel. If a defense counsel’s mistakes erroneously lead to a defendant spending, say, 5 years in jail (before habeas frees him), don’t you think that the defense counsel should pay some consequence for that?
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November 5, 2009, 3:52 pmDavid Nieporent says:
I don’t understand how it could. What are the damages?
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November 5, 2009, 3:59 pmAnderson says:
I don’t see the nobility in swearing out an affidavit to benefit a client when there’s no penalty attached for admitting your initial mistake.
Declaring under oath that you screwed up is rather more than many people are typically willing to do.
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November 5, 2009, 4:21 pmMark Field says:
What could the PD do? She’s just another overworked, underpaid state employee. She has no control over her workload but to do the best she can under the circumstances.
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November 5, 2009, 4:27 pmMark Field says:
CA has a code section (CCP 473) which allows the setting aside of a judgment due to “mistake, inadvertence, or excusable neglect” of counsel. It basically requires a declaration by the attorney that s/he messed up and why. There are lawyers who, despite the fact that it works to vacate a default judgment (say), won’t take one.
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November 5, 2009, 4:31 pmegd says:
Exactly.
This attorney should be disbarred*, that would at least stop others from following in his footsteps. There’s a vast difference between good lawyering and abusing the system. Criminal defendants (even those acting pro se) are expected to do whatever they can to avoid incarceration. Attorneys need to maintain some degree of integrity in the court.
*and I mean “disbarred” in the bar association context, you can’t practice for five years and have to take the bar and ethics exams again.
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November 5, 2009, 5:08 pmFub says:
This is a considerably different scenario from the one I related, responding to your “mildly hyperbolic” suggestion for a rule. In this hypo I think that the nature, character and circumstances, of the counsel’s mistakes should have considerable bearing on what outcome would be just.
Others above have addressed disparagement of the overworked PD for immediately speaking truth for the benefit of justice, and I concur with them.
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November 5, 2009, 5:08 pmPatHMV says:
Fub, in your scenario, the woman did not “immediately speak[] truth.” She recommended that an innocent man plead guilty based on a 10 minute interview. I don’t know how your jurisdiction works, but in my prosecutor days, the plea colloquy included asking the defendant if he had ample opportunity to consult with his attorney and if he was satisfied with his representation. The defendants were normally coached by the defense counsel to say “yes, your honor” to such questions. Simply making an appearance on his behalf, she was stating that she was representing him competently, and had the capability to do so. How many innocent men are in jail because her clients weren’t able to find another lawyer so quickly to document that she overlooked something in her 10-minute interview?
I’m not saying it’s an easy situation to be in, far from it. But participating in the system knowing that you can’t, in fact, adequately represent the defendant because of time or resource constraints makes you complicit in the subsequent bad outcomes. The lion’s share of the blame for such, of course, goes to those who refuse to allocate adequate resources, but the line attorney who pretends to be giving competent counsel is also culpable.
Perhaps a sanction, or at least the real possibility of being investigated, might give such an attorney the backbone to say in court “your honor, I have only been allowed 10 minutes with this defendant, and because of that it is not possible for me to competently represent him at this time.”
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November 5, 2009, 5:48 pmPliggett Darcy says:
Check out Disciplinary Council v. Willis, 96 Ohio St.3d 142 (2002). Figure it’s the same guy?
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Fub says:
At the time, shortly after Prop 215 passed, the law was in rapid flux. I just happened to be narrowly focused and read up on the latest rulings and many pending lower court cases on that law, and she wasn’t.
It’s not a matter of how much time a PD is “allowed” by police or courts, it’s a matter of caseload and budgets: how many hours and how many clients there are in a day, and how many bucks don’t exist in their investigator and paralegal budgets.
If one PD says that once, they might get a continuance, or permission to withdraw. If one PD says it more than once, they’re likely to be viewed as just a troublemaker, and their clients would be at risk. So they labor on, doing the best they can with what they’ve got.
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November 5, 2009, 7:28 pmSandy MacHoots says:
Currently trial counsel are often willing to admit explain the things they did wrong (everyone makes mistakes) if it will help on a habeas petition. If they are going to be punished for ineffective assistance, they will be less willing to be candid and may well try to cover up their own mistakes.
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November 5, 2009, 9:03 pmstash says:
Hmmm. I have some due process and practical concerns. In a habeas petition or direct appeal, the ineffective counsel is not a party to the suit and has no opportunity or the same incentive to defend himself. The state has a different interest and arguably less at stake. Prosecutors are supposed to pursue fairness, and have no duty to zealously defend the subject attorney or the conduct of the trial. More prosaically, it is not unknown for new trials after an ineffectiveness claim to result in a worse sentence. In any event, the worst thing to happen to the state is another shot to convict. It is not being accused of misconduct.
I realize we are talking about a presumption, rather than collateral estoppel, so at the least it is rebuttable, as, I think, due process would require. In that case, there is nothing to stop the attorney from claiming that it was the prosecutors who were incompetent or ineffective in defending against the ineffectiveness claim. So this raises the possibility of prosecutors being deposed about their legal strategy and how hard they worked on their briefs, and whether they knew about certain citations.
Other practical issues involve the fact that there are 50 state jurisdictions, all of which would need to change the law. I suppose this “malpractice reform” could be made Federal law, but I am not sure I like the implications for Federalism on that one.
If I were to look for a remedy, I would look for it in contract. That is, while usually contract theories of malpractice are folded into tort and fiduciary theories, I think the poor performance here can be separated from garden variety malpractice. The damages are quite simple: the fee paid, either for the whole trial, or, as in this case, the sentencing. I recall some support for the notion that if you pay attorneys to do something, say– file an appeal, and they do not file it in time, they cannot defend on the basis that you would have lost on appeal in any event. They still owe the fees back. This approach is problematic for PD’s, not great for appointed attorneys (whose acceptance of the case may be mandatory and are paid by the government) and really only works for client-pay attorneys.
Currently there is no reason why an ineffectiveness of counsel finding should not result in a referral to the state disciplinary authority. Courts, and any member of the public, including the defendant and commenters here, can freely do so.
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November 5, 2009, 9:42 pmjccamp says:
Mark Field @ 12:04
“From a moral perspective, any defense counsel who values the life of his client will happily tank the case to save it. And $10,000 fine? That’s laughable in terms of what’s at stake.”
A couple of questions, really, I’m curious: Presupposing a capital case in all...Suppose a cop commits perjury to make a questionable — no, a clearly out of bounds — 4th A seizure admissible. The evidence really does go to the facts at issue, and it demonstrates the defendant’s guilt, but it was seized unlawfully — whether good faith or not. Now the cop lies and testifies in a way to get the evidence in front of a jury. Do you see any moral basis for the cop’s actions, who rationalizes that he is just giving the jury all the facts? Is there any equivalency to the lawyer who deliberately creates a record of IAC for the appellate courts in order to thwart the verdict of a legal and lawful jury?
Do the ethics of the legal profession allow the attorney to do the above, that is, deliberately create a record of IAC so that an otherwise lawful jury verdict will be invalidated through no fault of government or judge? Do the ethics of the legal profession allow the individual lawyer to substitute his/her own personal moral beliefs for existing law and statute, such as doing such a thing because of an opposition to capital punishment? If so, would an attorney be likewise moral if he/she believed his/her client to be beyond salvation and a menace, and deliberately tanked the defense, allowing a conviction without a total effort?
Just wondering if this reliance on personal morality works both ways, or only one?
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November 5, 2009, 10:03 pmNickM says:
jccamp — I believe every state’s ethical rules require zealous representation, and for an attorney to not undertake a case he cannot competently represent his client in.
IMO a finding of IAC should result in an automatic disciplinary referral to the state’s attorney disciplinary authorities, as well as disqualification from further capital case, with the disqualification being automatic and permanent, subject only to its automatic vacation if the IAC finding is overturned.
A wilful “tanking” of the case could also be punished as contempt under most, if not all, states’ current laws and federal law — and payment of court expenditures incurred due to contempt can be an element of contempt punishment.
Nick
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November 5, 2009, 10:50 pmMark Field says:
Every moral system I know of works only one way. If you believe something is moral, then you necessarily believe its opposite is not. Someone who opposes abortion on the basis of personal morality isn’t obligated to recognize that someone who has an abortion has engaged in “moral” behavior. Similarly, someone who opposes the death penalty isn’t obligated to think that death penalty supporters are moral.
That said, I’ll do my best to answer your questions:
No, I don’t see any such basis. First, you didn’t specify if I’m to assume the defendant is actually guilty. In the absence of that assumption, then the cop’s behavior is unjustifiable on any theory of morality. If, in fact, the defendant is not guilty, then the cop committed perjury with the intent that someone be sentenced to death. Pretty hard to justify that.
Second, if I do assume the defendant is actually guilty, that still doesn’t justify the cop’s behavior. S/he has moral obligations (a) to society to abide by the rules we set for determining guilt or innocence, because those apply equally to the guilty and the innocent; and (b) to not commit perjury.
No, because the lawyer in such a case is not committing perjury and is not violating the constitutional rights of anyone (at least not anyone who will complain about it).
I don’t think they do, though it’s not altogether clear. In CA, for example, Rule 3–110 of the Code of Professional Responsibility provides that “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.”
I don’t know how this Rule gets interpreted in cases of IAC, but as a practical matter it’s generally hard to prove someone “intentionally” failed to do something.
This is a little too abstract to answer as it stands. Certainly they can’t advise the violation of a law (Rule 3–210) or suppress evidence (Rule 5–220). In trial,
“a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.”
No, and for the same reason as the cop above: that’s not the attorney’s call to make, and it violates the rights of even defendants who actually are guilty.
Having said all this, I want to repeat what I said above. I’m not justifying the conduct in the cited case. I’m just pointing out that the incentives create an environment in which this conduct is a natural outcome. If people want to change that outcome, they need to change the environment.
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November 5, 2009, 11:01 pmDavid Schwartz says:
The only case where I can see something like this as being arguably morally justifiable is if the lawyer knows his client is innocent but has no other way to make use of that information (say, for example, it would violate another client’s privilege).
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November 6, 2009, 4:08 ammarkm says:
Does anyone know how to find out the budget allotted to the defense in these cases? It’s pretty common to hear that the judge disallowed funds for private investigators or expert witnesses for the defense, and kept the court-appointed attorney on a budget that wouldn’t even pay a decent hourly rate for showing up at the trial.
So rather than doing something about the judge disallowing time for the defense to prepare, the appeals court censured the attorney for not pretending to properly represent his client?
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November 6, 2009, 7:02 amKenvee says:
Not every denial of a motion for continuance means a defense attorney can’t properly represent his client. Judges have discretion to deny motions for a reason. Do you know if this was the first setting or the twentieth, if the attorney said he needed more time to prepare or he needed the day off to go watch Wrestlemania, or if the attorney wanted time to investigate a legitimate defense or to investigate a potential alien abduction? Perhaps the court actually had that information and didn’t believe that the continuance was warranted. There’s also the fact that the denial of a continuance can be raised on appeal without deliberately tanking the trial first, so the attorney’s actions were wholly unnecessary even if the judge should have granted the continuance.
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November 6, 2009, 9:44 amDavid Schwartz says:
Kenvee: There’s any number of ways irreparable harm can be done by a court proceeding without proper representation even if the outcome of that proceeding is later vacated.
Consider, as an obvious example, the defendant on the stand being cross-examined. The Prosecutor asks a question that the defense attorney has a meritorious objection to, but (due to insufficient preparation) he thinks the answer will likely help his client rather than hurt him. The client answers, and the cat is out of the bag. Next trial, the Prosecutor will know just what to ask, who to interview, what questions to ask them, and the outcome will be much worse.
I don’t know the specifics of this case, but it’s possible the attorney knew that pretending to represent his client would create this kind of risk.
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November 6, 2009, 11:09 amKenvee says:
David: Since I gave the cite for the case, you might try reading it instead of just making suppositions about what it could have been. The continuance was “based on appellant’s alleged need for an expert to assist in the preparation of his defense”, and the expert was supposed to testify about the breath test machine. And to prevent your problem from happening, the defense attorney would simply not call the defendant, as was the case here. (He didn’t call ANY witneses or make ANY arguments, which was kind of the point of the IAC appeal.) There’s nothing in any of the three opinions on this case that suggests there was any merit to the supposed need for a continuance or the defense attorney’s actions, yet you automatically criticized the court’s opinion without bothering to look at the facts.
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November 6, 2009, 11:26 amjccamp says:
Mark —
Thanks. That’s about as fair an answer as I could ask for. FWIW, I don’t think the cops should be perjuring themselves under any circumstances either, but the analogy seemed apt, considering what the lawyer in the OP probably did — that is, subvert the system which worked as it was supposed to, by gaming the rules and causing a remand or maybe even a new trial.
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November 6, 2009, 2:41 pmreadery says:
If I were defending a capital client with no defense and a lot of aggravating factors, I would seriously consider providing ineffective assistance. A lawyer might well be ethically obligated to do so and a lawyer who didn’t might well be committing malpractice.
Ineffective assistance, skillfully and zealously implemented, affords the client years of additional life, sometimes decades, and may be the only strategy able to do so. A defense attorney should ideally strive for the sweet spot of marginally ineffective assistance — assistance which is ultimately held to be ineffective, but is not immediately obviously so, and is found to be so only after years of argument and delay.
Isn’t an attorney obligated to pursue every available legal strategy that would benefit the client? Ineffective assistance provides the client with a basis for throwing out a trial and starting over after years of delaying appeals. This may well be the best possible strategy one can pursue.
There is always the possibility that the state’s evidence may deteriorate after years of delay. Or the death penalty may go out of fashion. Or the client may die a natural death. Or the client may simply get extra years of life that wouldn’t otherwise be available. Ineffective assistance offers the client a realistic chance when effective assistance may offer no realistic chance. Failing to pursue it may be failing to pursue the client’s interest and best legal option. It may be a violation of the ethical duty not to let the client down.
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November 9, 2009, 4:07 amreadery says:
In this particular case, the client’s lawyer managed to enable his client to evade execution for no less than 26 years — not just to evade execution, but to be afforded a new trial after all that time. It’s a truly astonishing defense achievement and a huge defense win. He deserves a medal for zealous representation and going the extra mile o pursue his client’s interests.
Can anyone seriously suggest that in this case, a different legal strategy would have even approached this good an outcome for the client? Can there be any serious dispute that this was the most effective assistance possible?
When the only winning move is not to play, if there is a duty to win that means there is a duty not to play. A strange game indeed.
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November 9, 2009, 4:13 amDavid Nieporent says:
No.
And since your premise is wrong, your conclusions are wrong.
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November 9, 2009, 5:15 amPintler says:
So ... a lawyer who provides ineffective assistance is in fact providing effective assistance, so an ineffective assistance claim must fail, so there are no possible ineffective defenses? Or the converse, all effective defenses are ineffective, so the set of all effective defenses is the null set?
Singularities apparently exist in legal ethics as well as physics.
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November 9, 2009, 12:25 pm