One Size Does Not Fit All

In a story about the legal quagmire facing Rob Will, a death row inmate in Harris County, Texas, who may well be innocent, the  New York Times included this tidbit:

In Mr. Will’s first appeal, his first state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Mr. Will’s case. Mr. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers.

The issue now is that the utter failure of his first level appeal to raise the issues now at stake has precluded their subsequent review.  The reason is waiver, and the problem is that our federal courts do not recognize a free-standing claim of actual innocence.  Since Ribnik didn’t argue it, it legally ceased to exist.  No mulligans when it comes to waiver, even if death is the price.

But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

There’s a chance this may change with the Supreme Court’s consideration of an Arizona case, Martinez v. Ryan. Then again, Justice Scalia has already made clear that the Constitution protects process, not outcome. And process includes waiver. Rob Will had his appeal, and Ribnik blew it. Bummer.  Nor does the Constitution provide a right to effective counsel on appeal, though some states see it differently.

Trying to figure out just how badly Ribnik dropped the ball, or if the ball was really dropped (since oftentimes information comes to light years later, and the lawyer is held to a retrospective standard that couldn’t possibly be met at the time), it seemed prudent to do a bit of digging.  As it turned out, this was his problem :

(Feb. 26, 2006)–The court-appointed attorney who handled the death penalty appeal of condemned serial killer Angel Maturino Resendiz is being criticized for filing a nearly identical appeal for another death row inmate.

The Austin American-Statesman reported Sunday that Houston lawyer Leslie Ribnik wrote the virtually identical appeals for Maturino Resendiz and another condemned prisoner, Robert Gene Will.

Except for different names, the first 20 pages of both appeals are identical, including the same capitalization error on page 17.

The briefs, which center mostly on a single technical challenge to instructions given to Texas death-penalty juries, also give incorrect conviction dates for both men.

Ribnik has apologized for the mistakes but says the appeal argument is valid.

So he just changed the name in the caption. Mind you, this was a death penalty appeal, meaning that a man was going to be put to death if the appeal failed, and the best effort Ribnik could give it was to change the name in the caption. 

Before you spit out epithets about Ribnik, however, consider this: Is everything you’ve ever written on behalf of a defendant sui generis?  Do you start from scratch, deal with the specifics of the case, the issues, the nuances, the subtleties? Or do you just change the name on the motion and mail it in?

Let’s be frank.  The most common request on the local criminal defense lawyer listserv is “does anybody have a motion…”  Some will say that it’s just a template, a foundation from which they will draft brilliant, wonderful papers that address with great specificity the issues arising in their own case. Many will just change the name. You won’t admit it, but it’s true.

As criminal defense lawyers, one of our most important tasks is to present written work on behalf of our clients. Whether pre-trial motions, memoranda of law or appellate briefs, these are the foundations upon which all the flashy stuff is based. It’s hard work.  It can be drudgery.  No one, especially the client, watches as you parse words and admires you for sitting in front of a computer for hours, days, researching, writing, re-writing.  The client who thinks that the full extent of your effort on his behalf is comprised of the 30 seconds before the judge has no idea that you gave blood to prepare his papers. “You ain’t done nothin’ for all that money,” you’re told.

You know better. You know that you labored for hours to find the caselaw that supports your argument. You sat there, thinking, about how to take something that smells awful and turn it into a legally viable argument. Or not.  Thinking can make your head hurt.  Why make your head hurt when no one appreciates you for doing it. Clients are often impressed with the weight of papers, the bunch of black marks on white sheets, and really have no clue whether the papers are any good. Bad papers get just as much love as good ones, right? No one will know.

We even have some really cool phrases to justify being lousy lawyers. Why “reinvent the wheel?” After all, there’s nothing new to be said, and we have form books that give quick and dirty papers that somebody, somewhere, decided were good enough to suffice. Don’t judges plagiarize all the time? If it’s good enough for them, why not us? It takes time to create new papers from scratch, and who is so arrogant as to think our work will be better than anyone else’s.  And who will know?

You will know. The judge will know. And sometimes, the New York Times will know and put it into an article about an innocent man whose life may be lost because you couldn’t be bothered to do more than change the name. But most importantly, you will know.

So before you go all “hater” on Leslie Ribnik, take a hard look in the mirror and ask whether the person you’re staring at is Ribnik lite.  It may not be a death case.  It may not be an innocent defendant. So what? Your job is to defend that person, whether he’s paid you well or not at all. This is the life you chose, and you have no excuse for doing it poorly.

Maybe an innocent man will be put to death because of a Harris County lawyer who couldn’t be bothered to do more than change the name.  Are you any better than he?

7 comments on “One Size Does Not Fit All

  1. Gloria Grening Wolk

    There also is the case of Thomas Arthur (for details see . Twenty-five years in prison, sentenced to die at the end of this month–but another person confessed and is in prison. His innocence can be established with DNA but the governor refuses, even though defense attorneys will pay for it.

    This is why I love your blog. I get so angry at these injustices, but your anger, so well expressed, serves at a substitute to blood pressure medication.

  2. Marilou Auer

    I routinely grab and save motions from lawyers at other firms. But before I ever share them with my attorney/employer, I check them thoroughly for facts that need changing, and the caption, of course, and the common grammatical errors that have to be corrected, even in documents produced by the Court. Borrowing another guy’s motion should simply give you a framework on which to hang your own facts and desires. To copy verbatim is careless and perpetuates errors made before you came along. I’ve collected one motion that had a paragraph which, if we had used it, would likely have resulted in a bar complaint, so egregious it was. Obviously we didn’t include that paragraph, but I shudder to think of the inexperienced or rushed lawyer with a careless secretary who might have submitted that one. We are responsible for what we submit. It’s your secretary’s job to try to get it right, but it’s your ultimate responsibility as the attorney to make sure it’s done right. Borrow freely, edit judiciously.

  3. SHG

    Don’t let the lawyer off so easy. It’s not the secretary’s job, it’s the lawyers. There’s far, far more to being a lawyer than taking someone else’s work and plugging in a few of your own details. That’s not lawyering. Borrowing is often a lazy, dangerous way to practice law.

  4. Thomas R. Griffith

    Sir, this Harris County, Texas ‘F-Story’ has inspired me to ask what can we do in regards to getting Mr. Rob Will (a human-being) the help we’d want if we were in his shoes?

    Also, if spare time permits, re: Texas ,Pre-Trial Motions & Felony Jury Trials.

    Despite the horrible fact that Divorce Estate/Will specialists are allowed to act like real Criminal Defense attorneys / lawyers (without any prior trial exp.) in felony jury trials. – *Is it common and just business as usual (or is it just a Texas thang) when each & every pre-trial motion is ignored via the ‘Court Orders’ being neither ‘Approved’ or ‘Denied’? Thanks.

  5. SHG

    It has never been my experience that pre-trial motions are just ignored. Routinely denied, yes, but not just ignored.  Then again, there are so many Texas “thangs” with which I’m unfamiliar that I defer to a local.

  6. Thomas R. Griffith

    Thank you for taking time to clear that up and for allowing locals to consider chiming in. Now, you know why I refer to it as the great state of confusion.

    Maybe Mr. B. (Bennett) or Mr. Bunin will catch this Post and share their views on this Motion-less Texas travesty & consider enlightening us about Motions (discovery included) being filed 30 days prior to trial only to be ignored. Not even so much as a trademarked Smiley Face, just blank forms. Thanks again.

    *I’m being told there’s an online Petition to help Mr. Will, haven’t found it yet.

  7. Dawn Bremer

    Thank you for your insightful article and these comments. Mr. Will’s attorney filed “Robert Will’s Brief Concerning Impact of Martinez v. Ryan, 132 S.Ct. 1309 (2012) on His Case on 10/01/12. It more fully fleshes out the IAC claims of his post-conviction attorneys.

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