Article 25

Archive for November, 2011|Monthly archive page

Ask the Unemployed Lawyer

In Uncategorized on 11/26/2011 at 7:18 pm

For the prosecution, Shoeless Joe Jackson.

It’s Not as Though it Cost the World Series

By. U.L.


Dear U.L.:


Just how ineffective does counsel have to be to meet “ineffective assistance of counsel”?


Employed Colleague


Dear EC:


A deeply profound question, EC. In other words, when does “Shit Happens” – our unofficial national motto – rise to the level of “We Have To Do Something About This”? The answer says much about our legal system, the social construction of reality, our human propensity for self-deception and why I often drink too much.

Seems to me – being an unemployed lawyer, I’m biased – as one matures, one tends to see “mistakes” as more defining of one’s life than “successes.” This is reinforced in our cultural mythology – Americans love people who overcome adversity, as long as they don’t ask for money or shit on our manicured lawns.

The latest pedagogy, based on positive psychology, argues that we need to allow students to make mistakes if we want them to flourish. Turns out that building up kids’ self-esteem and spoon-feeding them answers to standardized tests probably hinders their ability to think critically and function competently. Who knew?

It’s reflected in our religion, too. For example, Richard Rohr, perhaps the most famous ex-Cincinnati priest who got his fame by writing books instead of raping babies, writes in his latest book about the necessity of coming to God as a broken and defeated person. And what better system than reincarnation to ensure you keep making mistakes until you get it right?

One could place all of our political debates on a “Shit Happens” continuum. Where pro-choice people see an unwanted pregnancy as Shit Happens, the anti-abortion fascists see the moment an egg is fertilized as the point shit ceases to happen and Something Must Be Done. Where libertarians see the aggregation of wealth in a few hands as Shit Happens, liberals see the relative economic fallout of the lower and middle classes and urge that Something Must Be Done.

So our legal system is best not viewed as a place that guarantees Justice for All – that’s just institutional marketing. It is, rather, our secular system for determining when “Shit Happens” turns into “Something Must Be Done.”

So it’s instructional to note that, in our legal system, designed to resolve such issues, not all legal mistakes are created, nor treated, equally. What constitutes a “mistake” is not defined so much by the action itself, but by the status and role of the players involved and the potential ill effects rectifying the mistake could have on the institution. Just like real life!

When a judge makes a mistake, it is called an “error.”

My favorite (and the most common mistakes you read about on appeal) are “harmless errors,” which essentially means an error has to rise to the level of Bill Buckner, who let a puny ground ball roll through his legs in the 1986 World Series and cost his team the game. Any judicial mistake short of that is a “harmless error.” Shit happens.

In fact, the law is so hesitant to assign a judge as making any mistakes that many lawyers would argue that “mistake” and “error” are not synonymous. A judge could commit an Error of Law or Fact (another term of art) and yet it could be found as “harmless error.”

When a prosecutor makes a mistake, it is analyzed through the rubric of “misconduct.”

Think of Shoeless Joe Jackson throwing the 1919 World Series to the Reds. A “mistake” here is viewed like an intentional tort: Did the prosecutor knowingly and willfully do something wrong that egregiously prejudiced the defendant? Anything short of that standard is, well, “Shit Happens.”

It’s interesting to note that prosecutors are protected from civil liability even if they break the law to secure a conviction. “It’s a results-oriented process today, fairness be damned,” said a former U.S. Attorney from Florida. And, yes, even when prosecutorial “mistakes” are found on appeal, they often are covered through the “harmless error” doctrine.

Probably the most infamous recent case of prosecutorial misconduct involved the Duke lacrosse players in 2006, when a stripper invited to a frat party claimed she was raped. In an ugly case involving a poor black woman and Blueblood white boys having a little fun, the prosecutor eventually was disbarred for his misconduct.

So it took months of investigation, lots of money, sympathetic media reports and some political sway to get anyone to determine a mistake had been made (if indeed a mistake had been made – reality has no bearing on legal analysis).

And finally, when defense counsel makes a mistake, it is “ineffective assistance of counsel.”

It sounds much more personal, doesn’t it? “Ineffective assistance of counsel” doesn’t imply that you got lost in the moment, like Bill Buckner, or that greed got the best of you, like Shoeless Joe, but that you just suck at your job, period.

Two cases before the U.S. Supreme Court deal with whether rejected plea bargains violated the Sixth Amendment right to effective assistance of counsel.

In one case, a man shot a woman in Detroit in 2003 and rejected a plea offer of four-to-seven years in prison based on bad advice from his lawyer, who told him he could not be convicted of assault with intent to murder because all four bullets hit the woman below the waist. The defendant, found guilty, is now serving a 15-30 year sentence.

The second case involves a man who drove without a license and received an offer to plead to a misdemeanor and serve 90 days in jail. His lawyer never told him about the plea offer, prosecutors withdrew the offer, and when the defendant did plead guilty later, he got three years.

And because 94 percent of state convictions and 97 percent of federal convictions are obtained through a plea bargain, bringing the Sixth Amendment to bear on the process is an issue that has been long overlooked, perhaps because we’re afraid of what we’ll find there.

Given the paradox of our advocacy system, the states/prosecutors in these cases are against the court interfering with Sixth Amendment issues, arguing that no one is guaranteed a plea bargain and the Sixth Amendment is only to ensure a fair trial, not a favorable plea bargain.

On the other side, one professor succinctly opined, “It is astonishing that a $100 credit card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment.”

The reason I think the Supreme Court will agree with prosecutors in this case (besides the fact that the court always agrees with the state in criminal and eminent-domain cases), is the institutional harm that might result from adopting a Sixth Amendment analysis of plea bargains.

Take another case recently reported in the New York Times: A 26-year-old man in Florida with no previous criminal record was sentenced to life in prison without parole for possessing child pornography on his computer. Possession of child porn is a third-degree felony in Florida, with a penalty of up to five years in prison. The state charged the defendant with 454 counts (one for each image).

The defendant’s attorney thought the sentence was outrageous: “Life in prison for looking at images, even child images, is beyond comprehension.”

But here’s the kicker: Prosecutors had offered a plea bargain of 20 years in prison. Given that his client still insists he wasn’t even aware the images were on his computer, that plea deal was turned down. The state then increased the charges – a common practice when plea deals are turned down – until they ended up with the outcome of life imprisonment without parole.

So did the attorney commit ineffective assistance of counsel for not pressing his client to accept the plea deal? It seems axiomatic to me that he did not; but certainly the case could be made that the attorney should have been aware of the possible life-in-prison outcome. We lock up people every day for chatting with cops online posing as children or selling drugs to cops or propositioning cops for sex. We’re long past the idea of only punishing people based on an actual crime against another person.

However, should you agree that viewing a photo should not result in a harsher punishment than had you killed or molested the child, you have a mistake. But how does one assess the source of the mistake? Did the judge boot a Bill Buckner? Nope. Did the prosecutors pull a Shoeless Joe? Seems like they played by the rules. So that leaves the incompetent defense attorney to blame.

Because, you know, shit happens.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to