Missing The Point – Again

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.

Greenfield’s all over it, here and here.

Bennett has the tao of it.  Ethics commentator Carolyn Elefant weighs in.

Military lawyer Eric Mayer puts in his bayonet.

Apparently it all started with a blog post by Jamison Kohler, after he read a story in the Washington Post about it.

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.



Filed under Judicial lying/cheating, wrongful convictions

5 responses to “Missing The Point – Again

  1. I’ll be honest. This Rakofsky story cuts a little close to home for me. My first jury trial was an attempted murder case. (However, my first trial — a 3-day bench trial — occurred about 5 years earlier. It involved scientific experts and got some national attention. I lost, but not because I should have lost or anything I did wrong. I felt like a boxer who has pummeled his opponent for 10 rounds only to see the ref raise the other guys hand at the end and only to see his “loss” reported in the media the next day.) Like Rakofsky, I retained supposedly more experienced co-counsel, but the division of labor didn’t work out as I had envisioned it. I was ineffective at my client’s trial. My client was innocent and never should have been convicted, but he was. However, prior to trial, I was not ineffective. I filed a motion to dismiss that my client’s far more experienced previous attorneys never thought of and that the court of appeals ruled the trial court should have granted. Unfortunately, the supreme court granted transfer and the case is now pending there. The grounds for dismissal are solid, and I retain high hopes that the supreme court took up the case not because they necessarily think the court of appeals got it wrong but because it presents a novel legal issue.

    I still obviously feel terrible, because my client never should have been convicted and it’s possible my client wouldn’t have been convicted but for my ineffectiveness. An acquittal obviously would have been the optimal result. But for my own sanity I’ve almost been forced to look at the silver lining, similar to the considerations you outline in this post. Given the apparently racist jurors and the unethical prosecutors and the . . . judge, it’s possible I could have done everything right and he still could have been convicted. Because of my ineffectiveness, even if the supreme court overturns the court of appeals my client should stand a very good chance of getting another trial — at which, given the facts, he should win. Although I didn’t tell the jury in my opening statement that this was my first jury trial, I’ll certainly loudly and clearly proclaim that fact at any post-conviction hearing.


    • John: far be it from me to weigh in on the details of your “effectiveness” or lack thereof. What I can say is that it’s a mark of high character that you’re willing to concede the issue for whatever good it will do your client.

      On the personal level, though, I think you have to keep it in perspective. The criminal defense job is the toughest job in the courthouse, and in a very real sense the only one that matters. The prosecutor is just presenting what the police give him. He may do it well or poorly but the overwhelming majority of the time that will make no difference: the defendant will still be convicted. The judge is mostly a political hack who feels his job is to grease the skids for the prosecutor and the police, to whom he owes his position.

      The dynamic is such that evidence of “guilt” can even be self-contradictory or incoherent and a guilty verdict is still likely. It is ironic that in doing a good job and pointing this out at trial a defense attorney often succeeds only in making a conviction more unassailable than it otherwise would be. Marginally, that is. There are few things in life more unassailable than a criminal conviction in the United States.

      I often use the example of jail house snitch testimony in the nature of “The defendant told me he did it.” It has got to be the lowest form of “evidence” I can imagine, yet a prosecutor can use it and no one will think anything of it. If the defense attorney used, or tried to use, evidence of the same character he would damage himself and sink his client. The double standard is hard to take, but it illustrates the difficulty. As the defense attorney, your evidence has to be far better, your performance has to be far better, a hundred times better than the prosecution’s.

      Now, you want to say that judged against that greatly elevated standard you came up short? Maybe you did. And maybe that was the difference between conviction and acquittal. It might well be, since your effort and your performance is the only one that matters. But don’t forget that you’re the only one with the balls to stand up against the institutional freight train that is a criminal prosecution; everyone else involved is just riding in the train.

      If you take on those kind of odds things are bound to go south from time to time. More often than that, usually. We live in a fallen world. In terms of overall fault, and even if you are right and your performance was wide the mark, the train riders bear as much or more responsibility for the bad outcome, even though they never feel that way because they usually lack your moral depth; that’s why they’re train riders in the first place. I know that’s not much comfort and seems like an empty truism, but it’s still true.


      • Thank you for your words of consolation. I’m not only willing to “concede” the issue, I firmly believe I was ineffective at trial and will positively “advocate” my ineffectiveness at any postconviction hearing. If it comes to it, I will also “advocate” the ineffectiveness of my co-counsel, because the freedom of a man who should not be in prison is at stake. Without going into details, one mistake in particular was particularly egregious and directly attributable to my inexperience. It’s quite possible it wouldn’t have made a difference, but it’s also quite possible it would have made a difference, and that should be enough for a new trial.

        I’m still able to live with myself, because I realize a lot of factors, including but not limited to my inexperience and ineffectiveness, converged to make the conviction of this innocent man possible. I blame myself, but not only myself. I’ve won the two subsequent felony jury trials I’ve tried. I spent a ton of time preparing for that first jury trial (but in retrospect, not enough time on issues I didn’t foresee to be issues, and that a more experienced attorney could have effectively dealt with). It’s incredibly important to me that the client, even though he agrees that I was ineffective (and he didn’t need me to tell him I was ineffective to know I was ineffective), still sends me Christmas cards from prison. I’ve acknowledged to his family that I was ineffective, and his uncle still voluntarily without any request from me occasionally sends me payments on a remaining fee balance. (Incidentally, I informed the client of my inexperience prior to his retaining me, while also honestly telling him I believed that with the co-counsel I lined up — who later backed out — we could together effectively represent him.)

        At this point in time, I’m praying that the supreme court does the right thing, as the court of appeals did. It would vindicate what I did right in his case — the motion to dismiss I filed on his behalf — and would mean that that fiasco of a trial never should have happened. But far more important than my own vindication is what the decision of the supreme court means for my former client. The justice or injustice or injustice that will be done to my former client is what will either crush or salvage what little faith I have in humanity and in particular the humanity that populates the criminal justice system.


  2. Rob

    Nicely done Atticus. Seeing the forest through the trees, for some of us, comes naturally. Or is at least second nature. But then you read piece after piece focusing on the minutiae and you remember that most people are myopic.


    • Hello Rob. Long time.

      I don’t like to think that people like Greenfield and Bennett are myopic. But there are times when their competitive zeal – no doubt a laudable quality for a CDL, but still a double edged sword at times – takes over and they are compelled to take an easy opportunity to differentiate themselves from some other lawyer they regard as inferior. Which has its place sometimes, but they’re too quick to pull that trigger. Even if they are 100% accurate in their appraisal of the young lawyer in this case, it remains true that incompetent representation by defense lawyers is the least of they system’s problems, and by and large that issue should wait until the more serious issues – lazy, corrupt and feckless judges; lying police; unethical or criminal prosecutors – are at least acknowledged and addressed, if not gotten under control. And right now those problems are out of control.


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