But for one factor, Louisiana criminal defense lawyer Claiborne Brown’s handling of his realization that he could not defend his client would be a textbook example of doing it right.  The defendant, Joshua Cumberland, was accused of raping two girls, ages six and nine.  Brown found that he just couldn’t do it.

…the defense attorney stood and confessed to the judge that he’d done an inadequate job representing his client, a 25-year-old Slidell man accused of raping two young girls. Attorney Claiborne Brown refused to proceed, despite the judge’s threats to hold him in contempt of court.

And Judge William Burris did exactly what he threatened to do, holding Brown in contempt of court for refusing to “perform his duties.”

Note the specifics of Brown’s position.  He blamed himself, not his client.  He did not throw his client under the bus, justifying his decision by disclosing client confidences.  Rather, he laid his decision solely on his own shoulders, that he could not satisfy the defendant’s right to competent counsel. 

Even when faced with the threat of contempt, Brown put his duty ahead of self-interest.  No doubt he realized that Judge Burris wasn’t joking, making empty threats to see if he could scare Brown into line.  Yet, Claiborne Brown didn’t waiver in his position. He did not blink.

But Brown did not concede. “I cannot further participate,” he insisted.

“We’re not going to play these games,” Burris said incredulously. “That’s all I see this as — game playing.”

Brown apologized but held his ground. “Is there any reason I shouldn’t hold you in contempt?” Burris asked.

“No, your honor,” Brown replied. He then was led out of the courtroom by the bailiffs.

The irony appears to be that Brown shouldn’t have been the lead counsel at all.

Cumberland hired an attorney from out of state, who hired Brown as his local co-counsel. The out-of-state lawyer did not show up for the trial or any prior hearings.

Brown has been practicing law in the state since October 1998, according to the Louisiana State Bar Association.

By Tuesday, Brown filed a motion describing himself as unqualified to provide adequate counsel. The defendant’s family hired a consultant to watch over Brown’s shoulder, the judge said from the bench. That consultant found him to be incompetent, and Brown agreed.  But Burris denied the motion.

The article neither names nor explains what became of the out-of-state lawyer who should have been the primary defender,  As Brown came into the case as the carpet-bagger’s local counsel, it was never his intention to serve as lead. Nor does the article explain the role of the consultant, though all of this suggests that the defendant had the wherewithal to retain a lawyer well-suited to the case.

So what gives rise to the reservation about Brown’s handling of himself, and his inability to proceed as lawyer for the defendant?  Claiborne Brown’s motion to be relieved came two days into trial, a jury selected and seated, and following opening statements and two witnesses.

A jury was seated, and the state had called two witnesses, totaling at least $2,000 in expenditures, Burris noted. The two little girls traveled hundreds of miles to testify.

It would set a “horrible precedent” to call off the trial with no obvious signs that the lawyer was incompetent; Brown had given a fine opening statement and adequately questioned witnesses, Burris noted.

Whether fears of a “horrible precedent” are real can be subject to debate, but it’s hard to conceive of why Brown’s epiphany came two days into trial rather than, say, the day he was retained or any time in between.  There reaches a point of no return, and clearly that point comes before the jury is sworn.

That Judge Burris, noting that a defendant on trial isn’t entitled to a good lawyer but merely one who isn’t overtly incompetent and doesn’t sleep through the truly critical portions of testimony, disputes Brown’s (and the defense consultant’s) assessment of his work.  Brown says he is inadequate. While a judge may blow some smoke for the purpose of moving the case forward, a declaration of incompetence is tough to overcome.  After all, no one knows better than Brown what he should be doing for his client.

It’s understandable that Brown may find himself incapable of providing the degree of zeal his oath demands. Not every lawyer can stomach sex offenses, particularly when they involve something as horrific as the rape of children. Indeed, I’m one of them, and I don’t take such cases because of it.

But then, this isn’t something that you figure out in the middle of trial.  If the nature of the case precludes a lawyer from providing a zealous defense, then don’t take the case in the first place.  If you thought you could do it but, after learning more about the case, find it impossible, then get out at a stage when no prejudice will accrue to the defendant.  Give the defendant an opportunity to retain a lawyer who will provide him with the defense he deserves. Mid-trial is not the time to figure out there’s a problem.

While there is much to say about Brown’s handling of this flagrantly awkward and prejudicial situation, particularly that he didn’t suggest in any way that his client’s conduct, his client’s guilt, was so repulsive that he had to run away.  But the failure to realize this in a timely fashion is inexcusable. 

The situation before Judge Burris was untenable, as he was right to question Brown’s midnight confession of inadequacy, and likely had no choice but to hold him in contempt.  While his conclusion that Brown was competent because he was able to say “howdy” without tripping over himself doesn’t prove competence, he was similarly confronted with a box full of happy jurors and a defendant who was entitled to have them decide his fate.  It’s hard to blame the judge for the defense lawyer’s egregious error.

It’s okay to decide that a case, a defendant, a crime, isn’t for you. Do it up front.  Once you’ve assumed the obligation, and once your change of mind inures to the defendant’s prejudice, the time to change your mind is over. Fulfill your duty.

H/T ABA Journal