Public Defense

The sword: fall on it

By Gideon

Pride is a troublesome thing. It makes us lie, it makes us obfuscate and it makes us, ultimately, injure others. Lawyers’ pride is even worse, if that’s possible. We often forget that that our only goal should be to help the client, in whatever way possible, within the ethical boundaries of our profession. Yet the best of trial lawyers often become the worst witnesses in post-conviction proceedings, where the love of the client and the law and the desire to set wrongs right turn into sharply focused self-preservation.

The most irksome and often repeated testimony during post-conviction proceedings starts “I don’t recall the specifics of this case, but my general practice is…” followed by a lengthy statement of how the lawyer never does what it is alleged that he did.

And most post-conviction proceedings are nothing more than credibility battles between the trial attorney and the defendant. We all know who loses in that scenario. No longer protected by the cloak of innocence, every allegation made by a sentenced prisoner – a convict, a felon – is viewed with the most extreme skepticism and that distrust of his claims is further deepened when a seasoned trial attorney takes the stand with only goal in mind: saving his own pride hide.

Which is why it is heartwarming (in addition to being a great learning experience) to read opinions like this recent one from the 6th Circuit, where the court finds ineffective assistance of counsel for affirmative misadvice given to the client during the plea negotiation process:

First, petitioner?s attorney provided deficient performance. Counsel advised petitioner that he could not be convicted of assault with intent to commit  murder because the bullets entered the victim?s body below the waist. ?The elements of assault with intent to commit murder are: (1) an assault, (2) with an  actual intent to kill, (3) which, if successful, would make the killing murder.? People v. Brown, 267 Mich. App. 141, 147, 703 N.W.2d 230, 236 (2005)  (quotations and footnote omitted). Thus, ?in order to find a defendant guilty of this crime, it is necessary to find that there was an actual intent to kill.?  People v. Taylor, 422 Mich. 554, 567, 375 N.W.2d 1, 7 (1985) (citations omitted). Petitioner?s counsel advised him that because the victim was injured below  the waist, the prosecution could not establish the element of intent. Counsel was wrong. The nature of the victim?s wounds are not a dispositive  consideration in determining whether the accused possessed an intent to kill.

The court recounts this advice from counsel to the petitioner as if it were accepted. The Michigan Court of Appeals decision does not describe the testimony presented, but whether it was by way of an affidavit signed by trial counsel or live testimony from him, it is clear that no court would simply have accepted petitioner’s word that this is what his lawyer advised him. The 6th circuit goes on to find that this was deficient performance and then, relying on Padilla v. Kentucky, finds that this did indeed prejudice the petitioner because it caused him to reject a great offer from the State:

The Strickland framework for evaluating counsel ineffectiveness applies to advice regarding whether to plead guilty. Padilla v. Kentucky, — S. Ct. —-, 2010  WL 1222274 (2010); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The deficiency portion of the test remains unchanged. Instead of focusing on the fairness of  the trial, the prejudice component ?focuses on whether counsel?s constitutionally ineffective performance affected the outcome of the plea process.? Id. at  59. If petitioner pleaded guilty, then petitioner ?must show that there is a reasonable probability that, but for counsel?s errors, he would not have pleaded  guilty and would have insisted on going to trial.? Id. If petitioner chooses to reject a plea offer, on the other hand, he must show a ?reasonable probability  that, but for his counsel?s erroneous advice . . . he would have accepted the state?s plea offer.? Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001).

Clearly, a defendant who is erroneously advised by his lawyer that he should reject the offer because the State cannot prove the elements of the crime against him is prejudiced when in fact they can and do. The petitioner’s conviction is vacated and the matter remanded to the trial court with directions that he be given the opportunity to accept the offer anew – basic contract principles and Santobello v. New York reasoning.

But the lesson here is that this Constitutional violation would not have been remedied were it not for trial counsel stepping up to the plate and admitting his mistake (yes, technically I’m assuming this occurred, but realistically I see no other way for it to have happened). In the end, that should always be our goal: to assist our clients in any way possible and to remedy any constitutional violation that occurs due to our mishandling of a case.

After all, we don’t spend the decades in prison. Our clients do. They deserve our honesty.

Full post as published by A Public Defender on October 05, 2010 (boomark / email).