There are better criminal defense lawyers and worse criminal defense lawyers. There are lawyers who care and lawyers who don’t. There are lawyers who have the time and lawyers who are too busy to be able to do what needs to be done. There are incompetent lawyers. Most don’t know, or won’t admit, they suck at law. Many will fight to their last breath to argue they don’t. If only they would put that level of energy into fighting for their clients.
You can’t discuss this problem without inviting outrage from whatever interest group gets poked. And to be fair, there are incompetent lawyers across the board, from retained counsel to indigent defense to public defenders. Sometimes it’s due to circumstances, lack of time or money, carrying too high a caseload or getting too little compensation to pay for the time and resources needed.
Other times, the lawyer just isn’t good enough at the job, whether because they don’t have the skills, the smarts, the focus on the client rather than their own feelings, problems, issues or needs or confusion as to their responsibility. They believe passionately in a cause and forget that the job is to defend the person standing next to them, not whatever god they pray to.
This isn’t a new problem. Indeed, there have always been better and worse lawyers. And there have been good lawyers who failed to do the job well enough, and bad lawyers who managed to pull it off. Sometimes, lawyers make up stories of how they win to sell their laundry detergent when they don’t win. A lot of lawyers pretend they’re the next coming of Clarence Darrow. They’re not.
Christina Swarns, the executive director of the Innocence Project, writes about the cost of losing the lawyer lottery and how the Antiterrorism and Effective Death Penalty Act of 1996, the AEDPA. can be used to foreclose review of ineffective assistance of counsel.
On Dec. 8, the Supreme Court will consider arguments from two men sentenced to death in Arizona. They argue that they should be allowed to present evidence in federal court that their trial lawyers badly mishandled their cases, landing them on death row.
It is undisputed that the two men may raise claims of ineffective counsel in federal court. A 2012 Supreme Court case, Martinez v. Ryan, established just that. But Arizona now argues that a federal law, the Antiterrorism and Effective Death Penalty Act of 1996, bars federal courts from considering evidence supporting those claims unless it was first presented in state court. How the justices rule — how they reconcile the A.E.D.P.A. and Martinez — will have important consequences for how far federal courts can go in remedying inadequate lawyering at the state level.
This is a big issue, and the AEDPA is one of the worst laws ever conceived and enacted to preclude review of wrongful convictions. Its purpose was to bring finality to criminal convictions. Its result was to make it impossible for the innocent, or at least defendants whose guilt was never sufficiently proven, to seek redress. But capital cases are, themselves, outliers. So too are state court cases that eventually find their way into federal court.
The Innocence Project does yeoman’s work trying to exonerate the innocent who are lucky enough to have an objective evidentiary argument that sufficiently favors their claim to catch its interest. It can’t take on every case, and most cases stand no chance of success. But the fact that some do, and by doing so, demonstrates that our legal system sometimes fails, and fails horribly, to get the right result.
Since 1989, almost 3,000 people have been wrongfully convicted of crimes in the United States. And since 1973, 186 people condemned to death have been exonerated. Bad lawyering — including poor preparation, inadequate investigation and intrinsic bias — was a leading cause. This sobering number, surely an undercount, should compel careful and thorough judicial scrutiny of the cases in which a lawyer clearly failed to properly represent a client, especially where there is substantial evidence of innocence.
Calling “bad lawyering” a leading cause isn’t wrong, but isn’t quite right either. The more direct causes, junk forensic science, false or perjured testimony, false or coerced confessions, mistaken identifications, concealment of Brady material, provide the hooks upon which wrongful convictions are hung. “Bad lawyering” is a problem that pervades all of these other problems and more. To be clear, even the best lawyering doesn’t mean you’ll win, but bad lawyering goes a long way to assuring a defendant goes down.
As Swarns argues, nobody should be put to death because they lost the lawyer lottery. I would take this farther. Nobody should be imprisoned for losing the lawyer lottery either. In fact, nobody should be convicted, even if they don’t end up incarcerated or worse, just for losing the lawyer lottery.
At this point in the post, most lawyers will agree. What comes next will bring the backlash of outrage and hurt feelings. Toughen up or get out.* There is a very serious concern among some more experienced lawyers that the next generation of criminal defense lawyers won’t be up to the task of providing their clients with a zealous defense.
They have myriad rationalizations about their empathy and concern, the depth of their passionate feelings, their suffering from anxiety and depression, that make them unable to fight when the going gets tough. They cry in the bathroom after the judge “abuses” them by wrongly denying their motion. They are “traumatized” by the state of the nation and the law. They can’t get over their loss yesterday to show up for the fight tomorrow. They may utter the right words about the defendant, but their focus is about themselves.
No matter how bad you feel, the defendant feels a lot worse. No matter how hard you have it, it’s nothing compared to how the defendant has it. If your feelings impair your ability to put the defendant first, to suffer the harsh reality of life in the trenches, then you have no business standing next to another human being whose life is your responsibility. It doesn’t make you a bad person, but it does make you the wrong person to be a criminal defense lawyer. Not everyone is cut out for this job.
And if this isn’t you, and you are bold, brave and brilliant, tough enough to do whatever it takes while sensitive enough to care passionately and feel your own pain, great for you. Then you’re not the person described here and have no reason to be defensive about it. But then, are you sure or are you lying to yourself?
*There was a time when this would have been entirely uncontroversial. Today, this is a declaration of war against the unduly passionate. But if you want to talk in terms of empathy, who cares more about the defendant, someone who obsesses about their own needs and feelings or someone who recognizes that their foremost duty is to defend their client, even when you don’t feel like it?