The Integrity To Walk Away (and the guts to do so) (Update)

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.”

Read more here: http://www.modbee.com/2014/07/08/3429539/defense-attorney-threatens-to.html?sp=/99/1571/&ihp=1#storylink=cpy

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.

Read more here: http://www.mercedsunstar.com/2010/02/07/1302105/judge-at-high-mark-in-lawyers.html#storylink=cpy

 

29 comments on “The Integrity To Walk Away (and the guts to do so) (Update)

  1. RAFIV

    The perverse part is that counsel will be severely punished for acknowledging his shortcomings and refusing to proceed. In fact, he would have likely avoided censure all together if he led his client to the slaughter without a word and waited for the appellate attorney to make the argument of IAC. But what burns me most is the DA throwing kerosine on the fire with his own “independent duty to report abandoning of clients”. Glad to see the lack of empathy extends to the brothers and sisters at the bar.

  2. william doriss

    May more CDLs should stand their ground in face of intimidating judgeships who think they’re gods. Kudos to O’Connor, a standup guy. May he have a long and successful career in the law busyness.

    When my First Chair got ill in mid-trial, the Second Chair took over. He informed the Court that the Defense had just gotten the case two days previously. Say what? Two two-year old cases had been conjoined for one trial. What had they been doing for two years? Inquiring Minds demand answers!
    However, there are no “answers” in the face of unbridled judicial hegemony and arrogance.
    He informed the Court that he was not prepared to proceed and asked to be relieved. This was a sincere and accurate assertion, and appropriate request of the Court. (I never saw the guy before trial.) The judge informed him in no uncertain terms, “Your second chair is now your first chair. You may now proceed.”

    Proceed he did. In spite of his sophomoric attempts at examination and cross-examination, we managed to proceed and beat all of the serious charges. I picked my own jury with his help.
    When the First Chair returned to court a few days later, and gave the summation, she was brilliant to the extent that money could not buy. This was twelve years ago. It was a nitemare for me, and still is.

    1. SHG Post author

      Yes, it’s all about you. You are fascinating, and SJ exists so you can relate every post to your experiences. Glad I can be here for you.

      1. william doriss

        Take up a real hobby, or just go to the beach. Self-centered, of course, but somewhat, tangentially relevant, I thought. This stuff cannot be discussed too much! So thank you v. much for suffering me one more time. (You don’t do this to anyone else on the forum!?!)
        Yesterday, RHDefense posted an essay with a link to “Misreading DNA Evidence”. Since I know a little bit about that–exposed, shall we say?–I submitted a comment, my first. It’s an important issue. CDLs standing up to courts of law is likewise an important issue. I can relate; therefore, I comment.

        Now to the beach. The football does not care who wins the game. All he knows is that he’s going to get kicked and thrown about till he cannot hold air anymore.

  3. Richard G. Kopf

    SHG,
    Three comments regarding your protagonist.
    First, he put his client in a horrible position by not refusing to take the case on the front end. No reasonable defendant is going to have any faith in the system after this debacle, not to forfeiting all the errors the trial judge may have made during the guilt phase.
    Second, without a much better explanation than simply losing the guilt phase, a cynic like me might think the defense lawyer is playing games with the system. Surely, there is a better explanation for his sudden realization that he is not competent.
    Third, if there is discipline to be imposed, I hope it is minimal (unless he was playing games) but articulated in a way that lawyers can take the opinion as a roadmap about the lawyer’s ethial duties in situations like this one. This could be a teaching moment for the disciplinarians. I hope they use it as such.
    All the best.
    RGK

    1. SHG Post author

      Judge,

      You bring a very different perspective to this post. As to your first point, I bet O’Connor regrets having taken the case as well. Yes, he’s put his client in a horrible position, and he’s put himself in a horrible position. I very much doubt he thinks it’s worth it at the moment.

      But times are tough for lawyers. Many find it hard to let a case walk out the door, and take work they shouldn’t. It’s nothing to be proud of, but it’s happening because a lot of lawyers are starving. They may delude themselves to justify taking a case they shouldn’t, or perhaps they just don’t care as long as they can buy dinner for another night. But this is the reality of solo/small firm private practice these days, and yet they keep cranking out more lawyers. It’s only going to get worse.

      As to your second point, it’s curious that, in the absence of a specific reason, you go to the possibility of his playing games with the court rather than being sincere in his ineffectiveness claim. Criminal defense lawyers are often in a difficult position when explaining things to the court. We have answers, but they violate privilege. Answers help us, but hurt the client. It’s our conundrum.

      That said, it strikes me as extremely unlikely that he’s taking the fall to play a game to benefit the defendant. It’s a game one can only play once, and few lawyers are prepared to destroy their careers for the sake of one client gaming the system. Once a lawyer falls on his sword, he has a sword through him. We are too vested to ruin a career over such a sham.

      Edit: It occurs to me that in the absence of evidence to the contrary, I presume good faith, whether it be a criminal defense lawyer or not.

      And finally, what is the lesson when a lawyer mistakenly takes a case, finds himself in the midst of trial and over his head to the defendant’s detriment? Is it save himself or save the defendant? In fashioning discipline, that’s the message at stake. What message should be sent?

      1. PaulaMarie Susi

        How is it that no one noticed during the trial? If he was ineffective, someone surely would have noticed, no? So sad. And the trial judge sounds like a real asshat. Would it have not been easier to appoint co-counsel and proceed at the later date if she felt that necessary. Contempt? Really?!? We should buy the guy a bottle.

        1. william doriss

          Oh puhleeeze, PaulaMarie! I can tell from your short comment that you have no real-world experience in any courtroom of Amerika, … in any capacity. Get real, for godsake.
          See my comment(s) above, and elsewhere, here and there.
          This is a terrible situation we have in the criminal courts these days. The problem is: It’s not getting any better; it’s getting worse. The only thing left is the hearse,… if you catch my drift? Which I’m not sure you’re capable of!
          “No one surely would have noticed,…” Blah, blah, blah. Please do not tell me you’re a newbie lawyer. If so, we’re all doomed to miscarriages of justice ad infinitum and a day.
          As for the bottle, hold that pending successful appeal. Just kidding!
          In case you have not noticed, the press does not show up for any trial that is not “high profile”,…whatever that is? Not even the so-called alternative press. Something like O.J. Simpson, Michael Skakel, Leona Helmsley, Martha Stewart, Oscar Pistorius, etc. make the grade. “If it bleeds, it leads!” Do you read me?
          Lots of false pillings-on, over-charging, false-witnessing, official testilying, mishandled/planted evidence, misread DNA, etc. pass “under the wire” without the possibility of any proper review. The Appellate courts routinely “rubber-stamp” the trial courts. You must be a newbie, or else simpley stewpid.

          1. SHG Post author

            Of the many foolish and mistaken things you could have written, this surpasses my wildest expectations. You are wrong about PaulaMarie, Bill. Very wrong.

            1. william doriss

              If I’m wrong, I’m wrong. I hope I am wrong. Apologies. This is what I saw, simpley.

    2. Keith Lynch

      “No reasonable defendant is going to have any faith in the system
      after this debacle …”

      I think defendants, jurors, and future potential employers and
      landlords of past defendants not having faith in the system is a
      *good* thing. Knowledge is power.

  4. Wheeze The People™

    “Is it save himself or save the defendant?” That’s a rhetorical question, right?? . . .

    And your point regarding desperate/incompetent lawyers taking cases they shouldn’t, a trip I once took down the Amazon river taught me an important life lesson. It turns out that piranha are no danger at all when the river is high. But when it recedes, many piranha are trapped in small pools of water on the river banks, cut off forevermore from the main river and its abundance of food. Then the piranha get real hungry and start eating each other. As the pools themselves evaporate and become smaller and smaller, the trapped piranha become more and more vicious, to the point they will devour any and all animals that find their way into these now piranha-infested pools. Substitute attorneys for piranha and cash for food into the metaphor and it works, at least for me . . .

      1. Wheeze The People™

        Sharks are so overplayed facially and as-applied to lawyers. Hell, great white sharks are now on the endangered species list; shark-like attorneys, not so much . . .

        Piranha, on the other hand, provide a better platform for sorting the good from the bad. Though it may be true that all attorneys are piranha, one has nothing to fear from those in the mainstream, or in this comparison, the main river. In fact, these piranha are a necessary part of the food chain. Lawyers like you, for instance . . .

        No, it is only those pettifogging piranha trapped and wallowing in the pools of incompetence, greed, sloth, hubris, and wrath who worry me, for it is these cursed fish who are a menace to all who cross their path . . .

  5. Charlesmorrison

    As to the initial post – you hit the nail on the head – pretty damned admirable. I have a feeling what O’conner believes to be competent representation differs greatly from what the reviewing court will ultimately find.

    Who knows, maybe after reading decision after decision consistently holding that “we won’t second guess trial counsel… trial strategy… we are limited to the record and nothing in the record shows what the 85 alibi witnesses would have testified to if contacted and called by defense counsel….blah, blah,” O’conner said, wait, I’ll actually put this on the record myself. No doubt about trial strategy, then.

    As to the update- this papering technique is intriguing. Color me jealous that this procedure is even a possibility. It stinks when you know your guy’s sentence is significantly different simply because you are taking a left at the end of the hall as opposed to a right.

      1. Wheeze The People™

        Yeah, I too am in a county where this periodically occurs. IMO, a pretty effective control mechanism at some level. Once it becomes clear that a judge in criminal court is an outlier “hanging judge”, the PDs uniformly “paper” the judge into oblivion, necessitating a transfer of the judge to somewhere else where he theoretically will do less damage — like civil or family court, or even, in one case I’m very familiar with, made the presiding judge over the entire county court system . . .

        1. SHG Post author

          It cuts both ways, with the prosecutors papering judges who are too lenient. It’s a good mechanism for tempering the outliers.

          1. John Barleycorn

            Please tell me you meant “It is a tool for tempering…” or “one method to temper…”? Something like that.

            A good method, really? I don’t see “papering” with any long term future in it that gives me any comfort. Nor even on a good day would I go with “good”, even if “papering” can at time, even perhaps more often not, have the desired affect.

            I would like to think competence and sanity will one day find a more appropriate method with the diligent assistance of the BAR, to not only temper but perhaps give an early retirement to those whose sanity and competence demands it for the benefit of everyone else’s mental health.

            I am reasonably certain, that you can only “paper” the judge your case is assigned to one time in my back yard and that doesn’t necessarily mean that you will not seriously regret it when your case is reassigned to an equally or even more disturbing “outlier” whom is just not into tempering, not even as a passing fetish.

            Yes, the outlier may get the message in the bottle (a characteristic of outliers is not being capable of getting messages BTW) but the outlier will also get more than plenty of cases that land in his/her courtroom via other judges getting papered for various other reasons.

            I don’t know esteemed one… your blog in and of itself makes a very strong case for the “outliers” temperament and presence becoming, shall we say, more like the statistical middle.

            When will tempering the tempest with paper simply be a bet whose odds simply won’t pay?

            A bit off the reservation of my expertise but I can’t roll with “good”.

          2. Ken

            DAs offices are notorious in California for uniformly papering a criminal court judge who, say, suppresses evidence or gives a too-lenient sentence. They can effectively prevent a judge from hearing cases, when they act uniformly.

            Of course, under California law it’s one shot — you only get to paper one judge in the case, so make sure it can’t get worse.

      2. Fubar

        California law offers few tricks,
        But there’s one blessed motion that sticks.
        From one judge God will save you,
        And that’s why God gave you
        C. C. P. One Sev’nty point Six.

        But God’s nothing if he’s not perverse,
        So this blessing is also a curse.
        If this motion you use,
        And one judge you recuse,
        The next one might be even worse.

  6. Craig

    Way down in Southern California there was a cop told me that Modesto Court (Stanislaus County) was known as the railroad station.

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