There has been a big dust-up in the blawgosphere over the last few days among self described criminal defense lawyers (CDL’s) about an attorney, one Joseph Rakofsky.
Gamso’s on it.
Military lawyer Eric Mayer puts in his bayonet.
Now, what’s all the fuss about? This young lawyer, Rakofsky, appeared in DC Superior Court as the defense attorney in a murder trial. He got up and gave a one hour long opening statement in which he rambled on and told the jury he had never tried a case before.
Apparently after some evidence was put on, the judge declared a mistrial, saying that Rakofsky’s performance was “…below what any reasonable person would expect in a murder trial”, and that “There was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of [the defendant].” According to the Post article, the judge was “obviously angry and frustrated”.
I’m sure the judge was real concerned about the defendant. As in, making sure the defendant was convicted, and that any conviction obtained wouldn’t be upset on appeal or in post conviction proceedings. Such outcomes anger important people, like police and their unions and prosecuting attorneys and governors and whatnot.
So the judge declared a mistrial, because that’s what he was worried about. Ordinarily, he wouldn’t be worried, because guilty verdicts are almost never disturbed on appeal or in post-conviction proceedings. But there’s one exception to this: when the defendant hasn’t received “effective” assistance of counsel. The reason for that is that it’s an acceptable narrative for the system. People aren’t wrongfully convicted because of prosecutor misconduct or because they were denied confrontation or because the police lied and threatened witnesses or because the judge was biased. That narrative bothers all the powers that be.
But the narrative that the defense attorney was incompetent is acceptable, and will actually on occasion result in a reversal.
It isn’t too tough to figure out, therefore, that the best chance of a mistrial – which after all avoids a conviction – is for defense counsel to make a record that demonstrates he is incompetent. Telling the jury in your opening statement of a murder trial that you have never tried a case before is a good start.
Now, I do not approve of this tactic. But one thing I have never understood about certain elements of the CDL community is that they regard a mistrial as something akin to a “win”. Granted, this is often the result of a jury being unable to reach a unanimous verdict, which also means a mistrial, and it’s not completely off the wall to look at that as a quasi-win. But a mistrial is a mistrial. The government has to go again. Or maybe they’ll decide not to, or to make some better plea offer rather than get everything and everyone ready for trial again.
If harassing the government and costing them time and money to prosecute your client is a worthy goal – and I’m not maintaining that but luminaries of the CDL world such as Greenfield and Bennett say it is – then Rakofsky’s conduct might be perfectly justifiable and even clever. What were the defendant’s chances at trial with even the most experienced and skilled CDL? I don’t know. Neither does Greenfield or Bennett or any of the other holier than thou commentators. I know that statistically they weren’t good.
Let me flesh that out a bit. What if you’re the most skilled CDL around and that same defendant comes to you and he won’t take any plea offers and in your judgment he’s a dead duck at trial? If you do what Rakofsky did there are two ways it can go: either you try the case and make a record with your own incompetence all over the place, he’s convicted but has a decent shot on appeal or in post conviction proceedings, the best shot he could possibly have; or, there’s a mistrial as there was here, and you’ve put the system through its paces once and they have to do it again to get the same conviction they wanted the first time.
It’s all about the client, right? Why is the client better served by “effective” or “excellent” representation that just makes his conviction more solid?
I’ll say it again, so that (I hope) this post doesn’t get misconstrued as badly as the case in DC Superior Court did: I do not approve of this tactic and I would not engage in it myself. And just for the record, I don’t like the liberties with online advertising Rakofsky apparently takes, and I think overall the episode is bad for the profession and bad for the system.
But I think a lot of things are bad for the profession and bad for the system, including some of the things that Greenfield and Bennett, et al., advocate. This Rakofsky episode is a footnote. The Washington Post covers it because it likes the “incompetent defense lawyer” narrative, because the establishment in general likes that narrative. There are far more serious and routine problems that are well known to lawyers and that are not covered.
Rakofsky, in other words, is an easy target. We can all dump on him and feel good about ourselves and our professional skills. For once.
To Greenfield and Bennett, et al.: don’t get taken in. When you find yourself agreeing with a judge, you know there’s something wrong.