No one likes to think of themselves as incapable of doing that for which they went to school, were trained, dedicated their career. This is especially true of lawyers, who sometimes view their ticket to practice law as a bullet-proof shield that allows them to take on the responsibility of another person’s life with impunity. Modesto, California lawyer Steven O’Connor saw it differently.
From the Modesto Bee:
Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.
“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”
O’Conner was defending Nicholas Harris in a murder case, and lost in the guilt phase. It would have been far better had he realized that he wasn’t up to the task before trial, but he didn’t. Better late then never.
O’Connor asked to be removed from the case because he said he provided incompetent legal representation during the trial’s guilt phase. O’Connor argued that his client needs to appeal the verdict, so the attorney claimed he couldn’t continue with the sanity phase.
The implications for O’Connor weren’t good. Stanislaus Superior Court Judge Linda McFadden informed him that he would be held in contempt and reported to the bar. She gave O’Conner an opportunity to reconsider, given the problems he was creating for himself with his pronouncement.
The judge repeatedly warned O’Connor to return to the courtroom at 1:30 p.m. and be ready to resume the trial with the sanity phase. The judge advised the attorney to consult legal counsel before doing something that could have repercussions.
“You are an officer of the court, and you’ve taken an oath to represent your client’s interests,” McFadden told O’Connor. “I’m warning you. You will be here at 1:30 p.m.”
O’Connor returned as directed.
The judge ordered O’Connor to continue representing Harris in the trial’s sanity phase. The defense attorney responded, “I cannot and will not do that.”
No matter what choice O’Connor made, there would be repercussions. The only question was whether the repercussions would be for him or his client. O’Connor took the bullet.
Judge McFadden not only found O’Connor’s choice incomprehensible, but unjustifiable.
She also told O’Connor that he had 11 days to prepare himself for the sanity phase, and that his argument does not provide the court with a legal reason to appoint a new attorney to represent Harris.
Some will find this impossible to grasp, as if incompetent representation doesn’t deprive a defendant of his 6th Amendment right to counsel. But criminal defense lawyers will just smile sadly, knowing that the bar for ineffective assistance of counsel is so pathetically low that most lawyers who breathe and can stay awake for the majority of testimony will meet the test. Competence doesn’t mean what you think it does in a criminal courtroom.
It’s unclear why O’Connor believed that he was not up to the task of defending Harris. That he lost in the guilt phase doesn’t necessarily reflect incompetence, as losing happens regardless of competence. The best a lawyer can do is provide zealous and competent representation. He cannot guarantee a win.
But if that’s what he believed, and he stood ready to take the personal hit for his belief, then it cannot be reasonably doubted that his position was sincere. How ironic that baby lawyers believe themselves capable of anything, their short reach bearing no nexus to their actual grasp, while experienced lawyers like O’Connor understand both their own limitations and that their duty is to the client, not their own welfare.
No, Modesto lawyer Steven O’Connor doesn’t win a prize for taking on a case that he wasn’t sure he could handle. But he did realize when he was over his head. And he stood firm when the options were to save himself or save his client. Despite the pressure from the Court, the threats of repercussions of contempt to discipline, not to mention the public humiliation that goes along with the public excoriation for incompetence. That takes guts. That takes integrity.
Even though he won’t be given any awards for his representation of Nicholas Harris, if I was out in Modesto, I would buy Steven O’Connor a drink. And I bet he could use one. There aren’t many attorneys with the integrity to do what he did, but there should be. Every single one of us.
Update: Our hinterlands correspondent, Kathleen Casey, did some background on Judge McFadden, and found that she’s not exactly popular with the defense bar:
Several attorneys from the Stanislaus County public defender’s office moved to disqualify a local judge from more than two dozen cases last month, saying she would not give their clients a fair trial.
Court records show some deputy public defenders have steered their cases away from Judge Linda McFadden, who moved to Criminal Court from Juvenile Court in January.
Using a process called “papering,” the one-shot affidavit to remove a case from a particular judge, the PDs have pulled cases from Judge McFadden because of her pro-prosecution attitude. Perhaps that’s where O’Connor went wrong, when he neglected to paper Judge McFadden.