Ineffective Lawyers And Double Standards

You would think  the issue of bad lawyering is dressed up in partisan, ego-flexing bickering.  Sometimes it is.  But there’s a bigger thing going on I thought I’d point out.

Mark Bennett has had ineffective assistance on his mind.  As in, ineffective assistance of counsel, which is a ground for “relief” in post-conviction proceedings.  Meaning in colloquial terms that your lawyer screwed up and that’s why you were found guilty and you deserve another chance with a better lawyer, or at least a lawyer who won’t screw up the next time even if he’s not better.

There’s a dogma about post conviction proceedings, where you often get one shot to bring up every single thing you can think of that might provide a basis for relief, upon pain of having anything you didn’t bring up forever barred:  always include a claim for ineffective assistance of counsel.

Why is that?

Very easy.  None of the powers that be get terribly upset if a wrongful conviction is blamed on the defense lawyer, who is the powers that be’s antagonist.

It’s all about the powers that be.

Convictions are sometimes overturned because for some reason a judge who is hearing an appeal or post conviction proceeding has a semblance of a conscience on this or that case.  It doesn’t happen often.  It’s occurrence is completely random and unpredictable, a little like trying to guess why the Casey Anthony case garnered all of that attention, or why of all the racially charged incidents that occur on a daily basis the George Zimmerman/Trayvon Martin matter somehow captures everyone’s imagination.

So, lightening strikes in this case or that, and some judge has decided that he wants to overturn what he sees as being a wrongful conviction.  Well, he can say the judge screwed up or the prosecutor screwed up or the police screwed up; or he can say that the defense lawyer screwed up.  In the first three cases he will step on politically significant toes.  In the last case no one important will complain, and probably not even the unimportant defense lawyer himself, either, for reasons that Mark Bennett makes perfectly clear.

Meanwhile, the defense bar knows this game and plays it:  the consensus is that the defense lawyer should candidly admit failure for the client’s sake. It’s the client’s best chance.

At one time this was probably a good thing, but still dangerous.  Because it is contrary to the truth of the matter.  The defense lawyer typically has little responsibility for a wrongful conviction.

It’s a rigged system, and the double standard is extreme.  And at this point it is the double standard, and not the conduct of the defense lawyers involved, that is at the heart of basis for the vast majority of wrongful convictions.  Furthermore, this approach taken since long ago by the defense bar – falling on your sword for the client – while admirable in its way, has over time exacerbated the double standard by normalizing it and contributing to the system’s false narrative:  that wrongful convictions are exceedingly rare and are usually the result of bad defense lawyering.  None of that is true.

But true or not, one of the consequences of this approach is the systemic deterioration of the defense bar’s position.  The false narrative takes hold, and judges more frequently regard defense lawyers with disdain.  The double standard having been ratified and reinforced by the very people it operates against, it is all the more acceptable for judges to practice it.  Indeed, even expand it to greater and greater magnitude.

Let’s talk about lawyer mistakes on a scale of 1 to 10, with 1 being a relatively minor error and 10 being a catastrophic blunder that makes losing all but a certainty.  And let’s consider in an anecdotal way – the unspoken anecdotal evidence (unspoken because otherwise this post would be too long) being my own experience as a trial attorney – a comparison between how it is for a prosecutor versus a defense lawyer in a criminal case.

Here’s the reality.  A prosecutor can make multiple level 5 errors and still win.  A defense lawyer that makes even one level 5 error will almost certainly lose.  It is not out of the question that a prosecutor could make even a level 10 error and still win.  It is completely out of the question that a defense lawyer could make such an error and still win.

All prosecutor errors at the 1 or 2 level are immaterial; that is, a prosecutor’s minor errors will not be held against him or his case and will not affect the outcome.  But all of the defense lawyer’s errors are potentially material, even the most minor kind at the 1 or 2 level.

The price of providing fertile territory for post conviction arguments based upon trial counsel’s error is that the double standard that is applied at trial is exacerbated and solidified.  Judges make trials more and more unfair by enforcing the double standard unapologetically.  Winning at trial in the face of this entrenched and systemic bias becomes harder and harder in exchange for….what?  A chance that the now much more likely wrongful conviction will bother some other judge down the line enough so that he does something about it?

This effect is much more attenuated from its cause than the overriding concern for this or that particular client, thus much more difficult to perceive.

But it’s there.