There has been some chatter in the blogger world lately about ineffective assistance of counsel. Jamison Koehler, Scott Greenfield, Gamso, Mark Bennett and Gideon have written about ineffective assistance of counsel and broken it down into its bits and pieces.

I’m not one to quickly jump into the fray in these kinds of conversations. I think those who write about it have covered it well. They’ve dotted the t’s and crossed their i’s, or whatever. But, while we are all very good at shouting “BAD LAWYER” we don’t know how to fix the system, the situation, or to even make other lawyers see why it’s bad.  Allow me to illustrate:

A few weeks ago, I picked up a matter from another lawyer. I’m doing a writ of error coram nobis alleging ineffective assistance of counsel. So, while perusing the plea transcript, I come across this gem, put on the record by the defense attorney during the plea colloquy:

Now with respect to Ms. X, now I understand I want this to be known to the Court, that you and I pursuant to a series of miscommunications have missed one another. You were dealing with a separate attorney up until today and that it was not until today that you found out that I was representing you, that I had been handed this case. Notwithstanding the fact that today is the only day that we have had an opportunity to talk about this and that we have not spoken fully about the extent of your involvement in this matter. Are you satisfied with the services that I have been capable of rendering to you today with respect to this case?

The response to his question is not on the record and is listed as “inaudible”. I am sure it was “oh yes, you were great.” But, I digress (as usual). The maximum sentence for the offense to which this person plead guilty was ten years. TEN. Ten years. In ten years I will be fifty. My kids will be teenagers. The world might end. No, she wasn’t offered such a great deal (probation, deferred, whatever) that she couldn’t turn it down. The government was going to ask for five years at sentencing. Five. Not ten, but still, no walk in any park I’d willingly go to. And the defense attorney hadn’t fully discussed the extent of her involvement in this case. Did everyone get that part? Ok, good. 

I posted this quote on a listserv to ask if they thought this was ineffective. Oh, and I incorrectly attributed this on the record exchange to a public defender. Holy Hell. You’d think I’d insulted Mohammad, or the Virgin Mary, or said that Tom Cruise hadn’t rid himself of all of the Thetans. The PD’s and former PD’s came out of the woodwork accusing me of PD bashing. Here’s a great response from one fella:

In a perfect world, that wouldn’t be the case, but as a former public defender with over 400 felonies on my docket at once – thats a pretty familiar story. Remember that before you start condemning PDs. They have jobs that are basically impossible. Its also not accurate that he “had her take the plea” – a public defender is not omnipotent – they need the D’s co-operation first. And if its a plea bargain (i.e. a reduction of the charge or an agreement that it will be less than the maximum sentence), then it is almost never ineffective as a matter of law.

That being said, nothing you posted seems like ineffective assistance. Remember the standard, and read Strickland v. Washington – we need many more facts before we conclude that that is ineffective assistance. Especially in the context of plea bargains, ineffective assistance is incredibly difficult to establish.

Until you are a PD, don’t bash them. Its an impossible job. Ms. Y’s previous post is very wise – we don’t have nearly enough facts to comment on ineffective assistance.

OK, fine. A PD’s job is really, really, really hard. My initial reaction to the email was to sarcastically thank him for his suggestion that I read Strickland (can you give me the cite to that? What does it stand for?) But, I didn’t. Instead, I asked “would you think differently about this quote if it came from a paid lawyer?” The answer had to be no, of course not, it’s still not ineffective assistance. I mean, what else could you say? “Why yes, it is ineffective assistance if you are paid, PD’s have really hard jobs and are allowed to not talk to their clients until the morning of trial but since you get money you have to go to the jail and talk to the client in advance.”

As an aside, and because I’m nice like that, I’ll say that some of my best friends are public defenders.  I have great respect and admiration for them.  That’s not the point, though, is it?

I cannot imagine taking someone’s money and putting something like that on the record. If I did it, I cannot imagine that it would be okay. Who would have my back and tell me I was overworked, underappreciated, disrespected? There there, now now. There would be grievances filed, money to repay, a law license to defend.

I guess I hadn’t made myself clear on the listserv. Maybe I should have asked, does anyone else feel like this girl got the shaft? Does anyone else feel like this should just not ever happen and we should expect more from each other as criminal defense attorneys who promise to zealously defend our clients within the boundaries of the law – anyone? anyone? Bueller? Bueller?

We’ve all made mistakes. We’ve been naive or caught off guard, gotten that deer in headlights look while we quickly reach for our evidence books to find out why something we desperately need our witness to say isn’t hearsay. But we’ve come to expect so little from our brothers and sisters on this side of the aisle that we look the other way and make excuses in the face of clearly deficient representation.

The girl in my case might not get a new trial, it’s not the most egregious case of bad lawyering most of us have seen, and the judge took the plea as knowing and voluntary despite that statement. I don’t mean disrespect when I put, in writing to the court, that this shouldn’t have happened.  Public defender, court appointed, private counsel – we are all in this fight together, but we’re not the thin blue line.  Let the light shine in.