A message came in shortly before lunch from a reporter at the New York Law Journal. The Second Circuit rejected the habeas by Robert Bierenbaum to overturn his murder conviction. Did I have any comment?
When Marcia Silver and Mark Seiden took up the cause after the conviction was affirmed, I met with them. I tried the case with David Lewis, and we lost. It was a bizarre case, with no body, no evidence and a judge bent on conviction. We tried it to win, and we lost.
The only approach now was to seek habeas relief, and that required a different approach. They asked me how I felt about the job we did at trial. I could have explained why everything we did made complete sense at the time, though some of the decisions were simply calls that had to be made on the fly, and were no better or worse than the opposite call based on what we knew. But I didn’t.
The defendant’s conviction depended on finding a new way to get into court, a new error to blame. I offered myself to the effort. In a case like this, a thousand different decisions are made which, in retrospect, could have gone either way. My position is that my representation must, by definition, have been ineffective given the outcome. My client was convicted; my job was to win an acquittal. I did not do my job well enough.
Much time and thought went into detailing and cataloguing things that could have changed the trial. It’s easy to play Monday morning quarterback, but it’s also necessary and proper to do so when it comes to a trial. We’re lawyers. We’re not perfect. If we’ve made a mistake, our clients should not have to suffer for it. More to the point, our clients should not have to suffer for our egos, and desire to pretend that our decision-making was perfect, beyond reproach.
Reproach me. If that can save my client, then call me any name in the book.
Many times, I’ve urged lawyers to shove their egos down their throats and take it like a man when a client claims ineffective assistance of counsel. They can’t do it. It’s partially because they can’t admit that they might ever be wrong, and it’s partially because they can’t stand the thought that their name might appear next to a question of their abilities. Suck it up, children. It’s not about you, but the guy who’s sitting in a prison cell.
I help write up the list of things I did wrong. They settled on nine claims of ineffective assistance. I probably came up with 20 errors that came out of the trial. I was happy to have it all placed on my back. Everything that happened was my responsibility, no matter who actually did it, because that’s what it means to be the lawyer. Whether it was really error, or error only in hindsight, is irrelevant. It failed to achieve an aquittal, so error it was. It’s a bit weird when the article attributes conduct to me that was performed by my co-counsel, but it’s not really important. The only “harm” is that my name is associated with the challenged decisions rather than his, and I can take the punch.
The one thing that annoys me, as news reporters tend to do, is the misquote.
Mr. Bierenbaum “got a horrible shake out of Leslie Snyder. In my opinion, if my being ineffective would get him a new trial, he can call me ineffective all day long,” Mr. Greenfield said. “The medical examiner’s testimony was entirely speculative. It was an absurd trial. We were fighting a myth, fighting a story, and the fact that they were able to put in evidence of things that are conceptually possible is absurd. Usually, trials are about evidence.”
I never said “in my opinion,” but that “if it will save an innocent defendant.” If he couldn’t get the names or facts right, why would he get the quote right? No big deal, though. It’s not about the story or the quote. It’s not about ego or blame. It’s about the guy sitting in a prison cell. If it will save an innocent defendant, he can call me ineffective all day long.