Advocates versus Lawyers

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delving into the forensic and legal details of Mr. Hughes’s case.

The  New York Times tells the story of Texas death row inmate, Preston Hughes III.  Hughes, convicted of murdering two young people in 1989, claims he’s innocent.  Blogger John Allen has taken up his cause and believes the same. 

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatally stabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Hughes has a lawyer, Patrick McCann. He wants to get rid of McCann and get a new lawyer because McCann won’t raise Hughes’ claim of actual innocence.  McCann demurs.

 


Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

The assumption tends to be that the lawyer must be some incompetent buffoon, mailing it in for the skimpy state paycheck, which he will spend on booze, after which he’ll sleep it off in court. But what if McCann is a top notch lawyer, doing everything he can within the bounds of the law to save his client’s life?

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.



“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

Hughes isn’t as fond of his lawyer.

 


From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”

A loss of confidence often follows a lawyer’s inability to achieve his client’s goal, followed by fighting, arguing and accusations, which gives rise to personal animosity.  For defendants and advocates, this seems critically important.  For lawyers, not so much.

In the simplistic good/evil dichotomy that most outsiders see the criminal justice system, defendants and advocates tend to wish away the problems and see only their point of view.  Passionate lawyers tend to do something similar, conflating an excess of zeal with effectiveness.  We see a lot of this in the blawgosphere and on non-lawyer blogs and websites, where the police and prosecutors are always nefarious liars, judges always hateful morons and defense lawyers incompetent, greedy scum.  It explains everything.

But for a lawyer like McCann, his duty doesn’t require him to love his client.  It requires him to represent him, and to do everything within his power, and within the bounds of the law, to save him from death. 

Lawyers work under constraints that advocates may not, such as the rules of evidence and the legal tests for setting forth and prevailing on a claim.  Advocates can argue, and often do, that these rules that fly in the face of what they believe to be justice are stupid and damaging. They are sometimes right, even though they lack the background in how these rules and tests came to be, or how they can be used as shield as well as sword.  But yes, when they stand in the way of perceived justice, they always look stupid.

Still, they are the boundaries within which the lawyer works if he hopes to achieve success.  As many beefs as we may have with the functioning of the system, it remains the system. Ignoring it helps no one. Sometimes, we can fight it and hope to have that one in a million case that forces a major shift in the system. Other times, we can scream as loud as we can, or as long as we can, and will accomplish nothing.

Patrick McCann is doing what lawyers do, fighting the pending execution of Preston Hughes. Advocates don’t think he’s doing enough. Hughes wants a new lawyer who will fight the fight he wants to make.  And McCann, getting little love from anyone, just does what lawyers do.

If McCann fails to stop Hughes’ execution, someone will blame him for being complicit in the death of his client because of his refusal to argue and win what advocates believe to be true, that Hughes is innocent.  And if he did argue it, despite his having no chance of success and doing everything in his power to challenge the execution on grounds that have at least the potential to succeed, advocates would speak better of McCann as they stand around Hughes’ grave. 

This is not to condemn advocates, or defendants, for feeling as they do. This division doesn’t always exist, and they can’t be faulted for believing as they do.  But McCann is a lawyer, and he has a duty that isn’t controlled by pandering to those who would have him argue what makes them feel good.  And he has persisted in fighting for Hughes, as his lawyer, despite the fact that neither his clients nor those advocates supporting his client have any kind words for his efforts.





8 thoughts on “Advocates versus Lawyers

  1. Kentucky Packrat

    From what I understand, defense attorneys are barred from making a claim of innocence if they have been told that their client actually did the act. If Mr. McCann knows that Mr. Hughes did it, then he would be barred by ethics from claiming innocence. Of course, he can’t declare that openly either, so he would stuck in no man’s land.

    One item I’m confused here: is there no lawyer who will take over Mr. Hughes’ case from Mr. McCann? If Mr. McCann is showing a lack of competence, there are surely many other lawyers out there willing to pick up the ball and run with it. A lack of white knights willing to pick up the ball makes me believe that Mr. McCann really is doing all he can.

  2. SHG

    I’m not sure either of your points is quite right. Lawyers are ethically prohibited from introducing evidence or eliciting testimony they know to be false, but not to assert an argument provable by truthful and accurate evidence, even if they may know the conclusion (such as innocence) to be false. It’s a nuanced distinction, but a distinction nonetheless.

    As for other “white knights,” McCann has been assigned to represent Hughes. Unless a judge relieves him and assigns another lawyer, any “white knights” will be on their own dime. While there are lawyer (including groups like the Innocence Project) who stand up for the wrongfully convicted without regard to payment, there are too many injustices in the world to expect a white knight to show up every time one is claimed.  It doesn’t necessarily mean anything that no other lawyer has stepped forward to take on the cause.

    What does mean something, however, is that the Jeff Blackburn of the Texas Innocence Project speaks so well of McCann.

  3. Alberto G. Salceda

    I may be biased but Pat McCann has been a mentor and friend of mine for a little over three years. I owe him a great deal in terms of my perspective towards my practice and my clients. Having said that, it is easy to sit in the back seat and tell the driver how to drive. I would never want to second guess a lawyers decisions unless they were blatantly contrary to what is ethically required of that lawyer. My observation here is that Pat is doing a great job of protecting his client’s confidentiality, interests and ultimately his life. He is not one to go along just to get along and as much as his client does not like him, Pat will do all he can to get him another chance.
    I also appreciate that there are people out there who have taken an interest (lay as it may be) in Mr. Hughes case. It is desperately lonely where Mr. Hughes stands and I’m just glad to see someone taking an interest. I just wish they would write, not about Pat perceived shortcomings but about how the death penalty is nothing more than blood sport.

  4. hmm

    all very fine but tell me why he should not be assigned another lawyer, or why the public defender’s office should not consult with him about that possibility. Why? Why force this lawyer on him? Good or not?

    Hughes doesn’t seem to believe he is even being defended, at all – since he is not getting a defense that remotely resembles what he thinks his defense is. Remotely.

    This lawyer hasn’t gotten through to his client. Maybe another one would know how to. Why doesn’t that matter?

    Nevermind that he doesn’t have his choice of lawyers, being apparently indigent. Given the limits, the breach between them being so deep, does he not even get the freedom to haggle with the Public defender’s office about another assignment? He’s on death row, right? Does everyone just assume he will conclude the same thing no matter who is representing his interests? Isn’t that a little smug and self-serving?

    It’s not the lawyer’s case, it’s Hughes case.

  5. hmm

    I decided to read some of the linked court documents at the Skeptical Juror website and I dunno. It was so typical.

    Hughes’s lawyer said he never even investigated Hughes’s innocence.

    So, claims that the bar is very high on actual innocence would inspire a lot more confidence in a client if they were uttered by a lawyer who actually investigated the evidence of his innocence.

    Which brings me to the number-one weakness of lawyers — they are terrible investigators.

    And the lousiest, laziest, do-nothing private investigators earn what the very best investigative journalists do — e.g. Seymour Hersh — and are often less competent than very competent investigative laymen.

  6. Hmm

    NYT article says this:

    Mr. McCann agreed that Ms. Charles would have “been unconscious in a matter of seconds based on the blood loss,” and so she could not have said Mr. Hughes’s name to the police. Despite being troubled by this evidence, he is not filing a claim of innocence.

    “I find myself in an odd position,” he said, “because I’m ethically bound not to advance a claim I think is false.”

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