The hope, or maybe what is better characterized as the warning, that 25-year-old Maverick Ray wouldn’t resist the admonitions of so many other lawyers because he’s a young man of his generation who will not be bullied, died. What is it about pushing back?
Ray, retained to handle a death case in Texas because his six months of experience as a lawyer made him every bit as capable as any other incompetent lawyer to do so, was hired because it struck his new client (beginning with Sharon Lynch, the defendant’s fiancé) as a really good idea.
“I didn’t want anyone from Walker County,”
She said she used the Internet to look for a criminal defense attorney in Houston. Lynch said she talked to “less than five lawyers” before speaking with Ray, who said he would take the case.
Lynch said she knew Ray had not been practicing long, but hired him because he was “fresh and not part of the old boy network.” She also said at the time she was under the assumption he was qualified to handle a death penalty case.
Ah, the internet. There will be a party at the Starbucks nearest some marketeer’s hovel to celebrate on the night they flip the switch. Cash bar, of course. I wonder if she read one of those “guest posts” explaining how to hire a lawyer on the interwebz by an aspiring writer in Bangalore?
It’s not that Maverick wasn’t offered options, including the very gracious offer from Jack Stoffregen, chief defender for the Texas Regional Public Defender for Capital Cases, who would have let Ray sit at counsel table with the grown-ups. A lot of young lawyers would give their left arm to get this chance, but not the Mav. He didn’t even bother to reply.
So the prosecutor’s motion, seeking to avoid the inevitable retrial, to recuse Ray had to be decided by Judge Don Kraemer. The judge did what the Constitution demanded, as of that discrete moment in time.
The bottom line though is that Maverick won’t voluntarily get off the case. And Lewis doesn’t want him to get off. Which leaves the judge with no real choice.
It is his Sixth Amendment right to representation of counsel of his choice and if that, Mr. Lewis, is what you choose to do, then Mr. Ray will be your attorney,” Kraemer said.
Because one of the hallmarks of freedom is that people get to make bad choices.
Defendants are presumed innocent. They are not presumed intelligent. While Maverick Ray may not present with the experience and competence needed to risk another human being’s life, the Constitution protects a defendant’s right to be foolish, to make bad choices. As the trial hasn’t begun, there are no countervailing factors that would preclude the defendant’s choice. Not yet.
Judge Kraemer essentially told the defendant, Howard Wayne Lewis, that he’s got a problem. He’s about to roll a loaded pair of dice, and he’s being told so up front. He’s being offered a chance to play with legit dice. No guarantee he’ll win. No guarantee he won’t crash and burn regardless, but at least they aren’t loaded. Or any more loaded than they are under the best of circumstances. But he’s being told.
Still want to play? Because when you crap out, remember that you were told.
Lewis still wants to play with those loaded dice. Bad choice, but his choice. And the Constitution says he gets to make the call.
Yet, this doesn’t really solve the problem. What will Judge Kraemer do should Maverick Ray get up for his opening and start uttering gibberish? What will Judge Kraemer do should Maverick Ray stand for cross and be incapable of asking an unobjectionable question? What will Judge Kraemer do should Howard Wayne Lewis hear a one-word verdict, knowing that he played with loaded dice?
To say that it’s a violation of a lawyer’s ethical duty to take on a case which he is not yet capable of handling is too obvious for words. But the proof of the violation, no matter how obvious it may be up front, doesn’t come until the damage is done. It’s always possible that Maverick Ray will be the prodigy of all prodigies, will shock all us dinosaurs who don’t appreciate how awesome he is. Maybe. And if so, I will concede my error and offer my apologies for having doubted him.
But until then, I will ponder whether Judge Kraemer, having demonstrated the respect for the defendant’s constitutional right to counsel of choice as the law demands, will admonish the defendant upon a verdict of guilty, and then a sentence of death, that he made his choice and now he has to live with it.
Or, to be more accurate, Howard Wayne Lewis made his choice and now he has to die for it. What will the judge do then, because we don’t execute defendants for being stupid or lacking the good judgment to be defended by competent counsel?
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SHG,
Appoint competent “stand-by” counsel to bird-dog the young lawyer’s every move both in and outside the courtroom.
Good lord what a disaster!
All the best.
RGK
I have an image of a capital defender and the kid shouting at each other in the well, “no, I’m doing the cross,” “over my dead body,” “it’s gonna be somebody’s dead body and it might as well be yours…”
Texas.
“Or, to be more accurate, Howard Wayne Lewis made his choice and now he has to die for it. What will the judge do then, because we don’t execute defendants for being stupid or lacking the good judgment to be defended by competent counsel?”
As he said about the accuracy of the amount of torque applied to the dripping faucet, “are you sure? How can you be so sure?”
I would hate to get my name in the books as the lawyer on the case where SCOTUS finally announces it’s “bright line rule” where pre-trial admonishments cure IAC regarding qualification.
Brad Frye
Houston
Who doesn’t want to be as well known as, say, Ernesto Miranda or Clarence Earl Gideon?
My point, yes. “Winners”?
On the original point of the reply, though, it is not at all difficult to imagine such a “bright line rule,” is it? If “actual innocence” can’t save you, then I am sure procedural purity can certainly kill you.
Such a rule would serve well the announced goal of “finality. “
I wasn’t kidding. I can see it happening quite easily. They never liked IAC as an escape hatch anyway.
As a current baby lawyer i freak out all time cause its all so new., even simple motions i worry over because there are always curve balls that can pop up and i hate sounding stupid and really hate fucking up shit that shouldnt be fucked up. But i luckily have 4 veterans who hold my hand and guide me. Realizing how incompetent i am and how competent i appear in my suit is scary .
Fear is a wonderful thing. It keeps us on edge, forces us to think harder rather than risk making a fool of ourselves. It prevents us from doing foolish things. Too much fear paralyzes, but too little disinhibits. Fear is our friend. It’s how the species continues to exist.
that’s what I keep hearing, that fear is good. Virginia has attempted to weed out incompetent attorneys from death penalty cases by requiring special classes for those taking on these cases. I doubt this solves the competence issue, but it certainly doesn’t hurt.
SHG-
I agree entirely with your criticism of the attorney. As a “baby lawyer,” I would call a real adult.
But this situation seems to be the prototypical “freedom must include freedom to make bad choices” scenario and I don’t think you really refute that point other than with some (always enjoyable) snark.
In what sense is this different from someone playing Russian Roulette (as illustrated by your multiple references to rolling the dice)? In both cases it is the “stupid decision” we criticize. That the state flips a switch instead of the idiot pulling a trigger does not seem to be a difference that makes a difference.
We don’t need to “presume intelligence” because absent an extreme mental disability, stupid people have 6th Amendment rights like everyone else. And in what world do we want a Texas trial judge (or any judge) deciding when someone’s counsel is sufficiently incompetent to order his replacement/that he needs to “call an adult”?
Should judges exercise similar discretion where it’s” life without parole” on the line?
Good questions all (except that Russian Roulette is played with a gun, not a die [get it now]). There are countervailing constitutional demands; one is the right to counsel, with its subsidiary right to counsel of choice. The other is the burden on the judge, as gatekeeper of last resort, to assure that a defendant is provided due process and equal protection without regard to his poor choices and ineffective counsel. These are rights in conflict, but rights nonetheless. The defendant is entitled to all of them, even when they don’t mesh well.
The problem of how to achieve this seemingly contradictory goal isn’t an easy one to solve, and is largely sui generis. You do what you’ve got to do to address the problem before you at any given moment. It’s an unsatisfying answer, but that’s the nature of conflicting constitutional rights.
As for “life without parole,” my view is the problem is just as real with a speeding ticket. There is no prosecution that’s so trivial that rights don’t count. But that said, you can’t reverse an execution, which is a distinguishing factor that defies any judicial order, no matter how high the court.
There will be no need to apologize if he turns out to be a prodigy. People are really bad at judging their own abilities. I don’t believe that he can know at this point whether he has the skill to do this well, so it’s a stupid decision regardless of the outcome. Plus, no matter how skilled he turns out to be, there is no reason to reject help from more experienced attorneys.
This story sounds a bit like the backstory to He-who-sued-the-Internet, Esq.
You noticed? Nothing gets past you.