Norm Pattis  posts about the aggravation surrounding a habeas corpus proceeding that has gone on for days, rather than hours, because of the court’s delay,  over-booking and general unpleasantness.  But as with all good things, the hearing finally got underway.

The question is usually whether defense counsel, whose efforts according to the defendant caused his unfortunate current circumstances (because it certainly couldn’t have had anything to do with the fact that he committed a crime), blew it.  Of course, regardless of whether the defendant was guilty or innocent, effective assistance of counsel remains his due.  For those of you outraged by this concept, chill out.  The level of competence is so low that it is generally satisfied if the lawyer is breathing.  Being awake is not required.

In Norm’s case, the issue was why defense counsel neglected to interview family members who would have provided a complete alibi.  The lawyer took the stand, and here’s what happened:

Q. “Sir, as a result of what your client said to you did you reach any conclusions about whether you needed to interview the alibi witnesses?”

A: “Yes. I concluded I did not need to do so.”

Q. “Why?”

A. “Because it wasn’t true.”

Well that hurts.  Few things take the wind out of your sails like a former attorney testifying that the defendant is both guilty and a liar, all in one breath.  Before you say, “Hah! Serves him right!” consider the following.

First, the old attorney, now the subject of the challenge of the habeas, feels defensive.  More often than not, they aren’t feeling all  warm and fuzzy toward their former client.  They may feel a tad angry, hostile even.  And that may color their testimony.  It could happen.

One of the offending issues is how an attorney, who has enjoyed a confidential relationship with a defendant, chooses to expose that because his representation has been called into question.  Mind you, he’s not defending himself in a malpractice action, but rather a witness to a habeas proceeding.  That a lawyer’s representation may be less than stellar is a fact of life; a good lawyer has no fear of habeas, and if it serves his client’s interest, will aid the defense in any way he can.  After all, to err is human.  Only very small people find criticism so unbearable that they must lash out to defend themselves.

But the most troubling aspect of this testimony is not the lawyer’s duplicity, but its dubious relevance.  Did the client tell his attorney that his family planned to lie under oath to provide a false alibi?  If so, then the attorney’s answer would have been different in two respects.

First, there was no point in interviewing when you know, in advance, what the answer will be.  Indeed, his answer would have indicated this, not to mention that there was no point in speaking with them because he could not lawfully call them as witnesses in any event.  That would cover the situation.

But second, if his response was that the defendant was a liar, why did he not reach out to Norm and let him know where this was going?  Professional jealousy?  Grow up.  No one is, or would, suggest that counsel be anything other than truthful in his testimony, but that doesn’t prevent him from fulfilling his ongoing duty to his client, even a former client, of not doing anything to deliberately harm him.

If nothing else, a phone call could have saved Norm a wasted couple of days.