Blawg Bites Back Before SCOTUS

Stanford law student Jon Abel was kind enough to send me an email to let me know that a post of mine was cited, and quoted to the extent that it infringed upon my copyright, in a brief before the Supreme Court in Premo v. Moore, argued October 12, 2010.  Sadly, it wasn’t cited by respondent, Randy Joseph Moore, but in the brief of amicus curiae, the Criminal Justice Legal Foundation.

The CJLF seeks to bring the constitutional protection of the accused into balance with the rights of the victim and of society to rapid, efficient and reliable determination of guilt and swift execution of punishment.

Great.  And written by my good buddy, Kent Scheidegger, who also happens to have a blawg called Crime and Consequences.  Kent and I don’t always see eye to eye, if you catch my drift.

In Premo, the plain English issue via SCOTUSBlog is:

When a defendant has pleaded guilty, but later challenges his conviction on the ground that his lawyer should have moved to suppress his confession, is he entitled to habeas relief upon showing that his confession was coerced?

Moore’s trial lawyer acknowledged that his failure to move to suppress the confession was a glaring mistake.  The CJLF cites to my post, Walking the Walk, concerning our responsibility to own up to any potential mistakes at trial rather than reflexively deny that we could have possibly been wrong.  It speaks to putting our obligations to our clients ahead of our ego and self-interest.  It gave the CJLF an opportunity to attack.

Kent calls my post “remarkable,” and not in a good way.

This post is remarkable in several ways. One is the view that an adverse result plus less than perfect representation are sufficient to establish ineffective assistance. Strickland is clearly to the contrary.

Well, that’s not quite what was said.  In fact, that’s not at all what was said.  The post addressed the factual underpinnings of ineffective assistance, and didn’t address whether the errors sufficed to meet the Strickland v. Washington test at all.  First things first: Until the defendant can establish that mistakes happened, there can be no application of the law to those mistakes.  Knowing that Kent realizes this, it’s a disingenuous argument.

More specific to the present issue, this post reflects a view that it is the duty of trial counsel to assist the attack on the adequacy of his own representation, even to the point of ridiculing those attorneys who defend the quality of their own work, calling them “children.”  While the author’s attitude is not universal, it is also not rare, particularly in capital cases.

While not nearly as disingenuous as his initial point, Kent has omitted the one critical factor that distinguishes the point: the truth.  Where trial counsel made mistakes, his duty to his client compels him to tell the truth.  Conversely, it precludes him from defending the quality of his work then it’s not the truth.  Of course, Kent is quite correct when he states that this attitude is not universal.  Sadly, the predominant reaction to a challenge to trial counsel’s representation is knee-jerk self-defense.  Apparently, the CJLF stands in favor of knee-jerk.  It would make for a good motto, “Defending knee-jerks since 1982.”

What makes this use of my post notable is that Scheidegger has taken a post that was clearly intended to implore criminal defense lawyers to be honest and accurate about their potential mistakes and used it to attack the concession by Moore’s trial counsel as to his error in failing to move to suppress Moore’s confession.  The gist was:

For this reason, courts have long known to take trial counsel’s with a pinch of salt.  “Self-proclaimed inadequacies on the part of trial counsel in aid of a client on appeal are not  persuasive . . . to hold otherwise would render complaints of inadequate representation ‘a “boudoir defense,” unchallengeable by the prosecution . . .’ “

Utter nonsense aside, given that no court will blindly adopt defense counsel’s admission of error as a per se basis to reverse for ineffective assistance, Scheidegger uses my argument for honesty to impeach Moore’s trial lawyer.  Pretty darn crafty, Kent.

For a while now, I’ve tried to impress upon social media users that the things they write online can be used against their clients in ways they might never imagine.  I preach caution and circumspection.  Many have reacted by telling me I’m no fun at all.

But I want to.  But I like it.  But it’s good for me.  Whether the egocentric trench menu twit or the self-promotional post about your latest big case, you are giving away information that belongs to someone else, someone who trusted you with their life.  I’ve heard all the argument to the contrary, both logic based and purely self-indulgent emotional, and it leads me to respond with one word: Bullshit.  It doesn’t matter how much you want to give information away.  It’s not yours to give.  It’s not yours to even potentially give.  It’s not yours to assess the risk of harm to give, as there is no risk of harm to your client that can justify your having a good ol’ time at your client’s expense.  None.

This social media is risky business, far more so than most realize.  Some think me paranoid, overly protective of the privacy of my clients as if there’s a federal agent under every rock.  They miss the point.  There doesn’t have to be a federal agent under every rock; just under one rock.  Just once.  And it doesn’t even have to be a federal agent, as it could be a Kent Scheidegger.

When I wrote the post that gave Kent fodder to shoot at Moore’s lawyer, I certainly didn’t think about the potential that it would be used in a brief before the Supreme Court of the United States.  Then again, there’s no reason why I would have,  And yet it was, and it was used in a way that was directly contrary to my point.  Please remember that this can, and will, happen. 

There’s nothing to be done to prevent the manipulation of content when it serves an adversary, but let’s not make it as easy as possible for the other side to use it against your clients.  I realize how hard it is to ignore the self-promoters and marketers, but real lawyers put their clients first.  And Kent, putting clients first doesn’t require sacrificing one’s integrity. 

8 comments on “Blawg Bites Back Before SCOTUS

  1. Carolyn Elefant

    Scott,
    The only way that one can avoid manipulation is with endless disclaimers and non-committal qualifying phrases like “well, it could also be argued…” I actually remember your post Walking the Walk because it was so clean and to the point. If you had stuck a big disclaimer on it telling lawyers “Now, if you overuse the ineffective assistance of counsel argument, and claim that you were ineffective when you weren’t, you’ll ruin that defense for others…” I don’t think people would have gotten the message as clearly. Your advice to lawyers not to cover up mistakes will help far more defendants than Kent’s out of context quoting might hurt. Being careful is one thing, but please don’t start caveat-ing now

  2. SHG

    I hope I didn’t give the impression that it was my intention (or suggestion) to begin “caveating” (is that a word?), equivoating or qualifying my statements.  My point was to show the unintended uses to which writings can be put so that all those who are now shamelessly self-promoting while knowingly courting disaster for their clients will change their evil ways. 

  3. Justin T.

    Most of the stuff I write on my blog is just inane ranting about whatever happens to be sticking in my craw at the time. But when I start taking clients it’s gonna have to go, because I’d hate for my clients to be harmed because of some unimportant thing I happened to be angry enough to blog about.

  4. SHG

    You can always write, but never forget about the line between self-interest and protection of clients.  There’s no reason to go close to the line, no less over it.  Even so, there are plenty of things to write about and always will be.

  5. Gritsforbreakfast

    The other way you can avoid manipulation, of course, is to respond to it forthrightly as SHG did here.

    When we were trying to get rid of drug task forces in Texas after the Tulia debacle, some lawyers for one of the task forces being sued by the ACLU used out of context Grits posts in their pleadings in federal court, similarly misstating out of context what I’d actually said. I responded, those responses ended up in the countering briefs, and at the end of the day the DTF lost and the Governor cut off funding for not just that one but all DTFs in the state. Misrepresenting others’ blog arguments can backfire, big time. Perhaps it will for Kent.

  6. SHG

    Thanks, Scott, though I doubt Kent’s “use” of my post will prove nearly as significant as the task force abuse of your Tulia posts.

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