Daily Archives: May 22, 2014

CLE Report

CLE – as in, Continuing Legal Education.

You know, it’s a good thing to periodically listen to what others in the same profession, doing something like the same kinds of things, have to say about this or that issue.

Yesterday the United States Court of Appeals for the Second Circuit held what looked to be a fairly well attended lecture on the impact of a couple of fairly recent Supreme Court cases – Missouri v. Frye and Lafler v. Cooper – upon the process of “plea bargaining”.*

There was a panel of at least a half a dozen – a federal judge, prosecutors, legal aid lawyers, federal and state public defenders, and one lone independent practitioner, who noted the first time he spoke that he was the only “non-institutional” player on the panel.  Which was correct, and an important fact about which a lot could have been said.  But wasn’t.

As with many interactions of this nature there are explicit revelations and implicit ones.  Explicitly, the Supreme Court in the cited cases has finally woken up to the fact that our criminal justice system is a system of “pleas, not trials”.  So now that we’ve gotten that out of the way, the question shifts to how this streamlined process provides fair outcomes, or doesn’t, and what role the lawyers and judges play, keeping “ethics” firmly in mind.

Implicitly, one thing the lecture revealed is how marginalized and incoherent the criminal defense bar has become.  At one point the judges and prosecutors were discussing how much easier it was to dispose of a claim of ineffective assistance of counsel where the defense lawyer had thoroughly documented his discussions with his client showing that the client was fully informed before entering his guilty plea.  It seemed not to occur to them, although it did occur to some of the defense bar present, that from a defense lawyer’s point of view this was an argument to not document such discussions with the client.  Remarkably, even after this point was made the federal judge insisted that documenting such discussions was good practice and helped everyone.  Which is obviously not the case, and her maintaining this position even in the face of the dissent by the defense bar was a stark illustration of how hopelessly out of touch a judge can be when it comes to seeing things from a defense lawyer’s point of view.

We need more defense lawyers on the federal bench, obviously.

Another rather amusing point was made by a state District Attorney who kept opining that in the wake of Lafler and Frye prosecutors were now in the awkward position of trying to oversee defense lawyers’ dealings with their clients in order to make sure that any plea offers have been properly communicated to the client, so that convictions thereby obtained won’t be disturbed later.  Which was a good point, but not for the reasons she probably thought:  the really revealing thing there was the perspective that the prosecutor stands over the defense lawyer.  Nobody mentioned the axiomatic principle that the prosecutor has an obligation of fairness to the criminal defendant, recognition of which might ameliorate the “awkwardness” the prosecutor was complaining about.

Which leads to another very important and inadvertently revealing theme coming from all the prosecutors:  the very firm intention at the higher administrative levels of prosecutors’ offices to protect convictions already obtained.  This is where prosecutors are not just mistaken, but hideously mistaken.  If a conviction is wrongful it must be undone.  There is absolutely no value in preserving it, either societally or (of course) individually.  Or maybe I should say there is absolutely no important value.  Revisiting convictions already obtained is a bureaucratic headache, of course.  And it can cause embarrassment for lots of people when a conviction is shown to have been wrongful. 

But so what?  The value of such concerns approach zero when weighed against the vast destruction caused by wrongful convictions.  And the damage isn’t just to the defendant and his family and – occasionally – his lawyer.  Wrongful convictions greatly damage the public and the justice system, for example.  Indeed you could say the damage if a wrongful conviction is not undone extends to infinity. 

I would say that, anyway.

One last thing that kind of interested me.  One of the public defenders was really up on his high horse about the joke on effective criminal defense lawyering that is the Strickland standard (sure, defense counsel slept at his client’s trial but not during any of the important parts!) and how important “zealous” and “competent” representation were. 

And of course that’s true as far as it goes, but on the other hand the client doesn’t really care, most of the time, about how zealous and competent your representation has been; the client is interested in the result.  And in the end so should his lawyer be:  it’s really no comfort to say to oneself after a client has been wrongfully convicted that, gee, your representation was zealous and competent. 

Then again, what if the conviction is not wrongful?  We’ll take that up later, maybe.





* Each of these cases involved plea bargaining and convictions by guilty plea that were alleged to have been wrongful because of errors in the process.  The main problem appears to have been ineffective assistance of counsel (IAC for short) in either not informing a client of a plea offer or not counseling them properly.

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