Walking the Walk

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.

11 thoughts on “Walking the Walk

  1. Dissent

    Phenomenal post, Scott. It sounds like many attorneys may have a conflict of interest: their rep, their ego, and perhaps their not wanting to be potentially sued for negligence or malpractice if the conviction is overturned and the client subsequently acquitted vs. the client’s best interests.

    Is this covered at all in the ethics courses lawyers take in their training or CE?

  2. mirriam

    I am working on exactly such a case right now. In our case, trial counsel doesn’t remember anything about the case, but the client sure as shit does.

  3. Thomas R. Griffith

    Sir, if you were able to visit with him, he would thank you for fighting vs. taking the easy way out. Not that you need to hear the words as so much as it would lift up both of your spirits.

    In his heart, he will always remember you fighting to the very end, as will we. FWIW – It’s far better to be known decades afterwards as a fighter that admits to his & others mistakes, than a wussie that can’t remember why he always pled out at the drop of the hat.
    Thanks for setting the bar higher and for being the better man and that aint smoke.

  4. SHG

    I doubt it.  When he’s in a prison cell, he’s not thinking kind thoughts about his lawyer.

  5. Jdog

    Orthoyouknowwhat . . . have you ever read a news story where you have direct knowledge of the events where there wasn’t something nontrivial wrong? (I’ve been around fewer than you, I’d bet, but only have once.)

  6. SHG

    Never.  Though the significance of the error always seems far greater when it’s your name in the story. 

  7. Maurice Ross

    Scott: I worked on many habeas capital punishment cases as lead counsel and your post is so true to life. Unfortunately, so many criminal trial lawyers are unwilling to fall on their sword and admit that mistakes were made. The sad truth is that the resources available to criminal defense lawyers in capital cases are generally too limited to allow for presentation of an effective defense. It has been a while since I last took one of these cases, in part because I wonder whether in doing so, I legitimize a system that at its core is unfair and inequitable for minorities who are accused of capital crimes. I wondered for many years if my defense of death row inmaates merely provided the prosecution and the state ammunition for asserting that the system really is fair and equitable–look at the talented lawyers who volunarily take on these cases. In the end, I have concluded that it was worth the battles. Trial counsel limited to about three months and $10,00 to defend a capital case are placed in an absurd position. There is simply no way to put on a competent defense with the resources that are made available to trial counsel. And so when those of us in the big firms come into the scene to seek Habeas relief, we dump all over the trial lawyers. But the really well-meaning and competent trial lawyers end up acknowledging that the resources that they were given were grossly inadequate. It is resources (money), and not the competence of the lawyers, that generally leads to ineffective assistance. This is why lawyers should not be ashamed to fall on their sword. They failed to provide effective assistance because they were deprived the resources, both time and money, necessary to provide a reasonably effective defense.

  8. Lurking Reader 4008

    Reputation, ego, and not wanting to be sued over past actions aren’t “interests” capable of creating an ethical conflict.

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