By Dick Blanchard, Executive Director, Advocates 4 Wrongfully Convicted
What do bad lawyering and wrongful convictions have in common? They are both responsible for sending many an innocent man or woman to prison or even worse to the death chamber.
Often a client is told to plead no contest or guilty to a crime because the plea deal according to the defense lawyer is too good to pass up and the chances of running a trial and being convicted are too high. If this is indeed the case, then this is bad lawyering. A criminal defense lawyer should stand between his/her client and the prosecuting authorities and shield him/her from prosecuting authorities eager to secure a conviction and move on.
Much has been written about the reasons for wrongful convictions, including witness identification mistakes, false confessions, junk science, prosecutorial misconduct and a host of other reasons; often overlooked is bad lawyering. In our experience every single one of our clients had lawyers that were ineffective, didn’t listen to their clients or the client’s family members, didn’t investigate the evidence or do the necessary research, didn’t properly prepare for trial and often were just plain incompetent. As result our clients were sentenced to some very stiff sentences including Life Without of Parole (LWOP). In other cases bad lawyering got innocent men/women sentenced to death.
Most people assume that most, if not every person wrongfully convicted had a public defender as his/her trial lawyer. Most did but not all. There are three types of lawyers that can represent a person on trial for a criminal offense. They are public defenders, court appointed contract lawyers and private lawyers. In our experience we have had at least one of each with the result being the same; a wrongful conviction. In our first case, Michael O’Laughlin, that eventually was overturned by the United States Supreme Court on January 19, 2010, Michael’s lawyer was a public defender that was beyond incompetent. A law suit was brought against this attorney, by Michael for ineffective assistance of counsel but to this day, and it is years later no decision by the court has ever been released, and we expect none will. Bringing up ineffective assistance of counsel, based on the Strickland Standard is almost impossible to win. Even though the court may agree that the lawyer was ineffective, lawyers protect one another and rarely rule that the lawyer was ineffective. We’ve known of lawyers who were drunk, on drugs and even slept during a trial and they still weren’t ruled infective by the court. We had another client, Henry Houghton who met with his lawyer for the first time forty-five minutes before trial; how much of a defense do you think Hank received? The result was a forty-year sentence in which Hank has served over thirty years to date. Another client, Alfred Trenkler had a private lawyer for which he paid $350K and got sentenced to a double life sentence without the possibility of parole; so even an expensive private lawyer is no guarantee that you are going to be found not guilty, although your chances are better. And yet another client, Jason Payne had a contract lawyer who paid little if any attention to what his client and family were telling him that quite possibly could have resulted in a not guilty verdict; instead Jason was convicted of capital murder and sentenced to LWOP. There are thousands more of these stories about bad lawyering which have resulted in wrongful convictions sending innocent people to prison and death row.
What is so harmful about these mistakes and bad lawyering by defense trial lawyers is that it makes it extremely difficult to overturn wrongful convictions at state appellate courts during a wrongfully convicted petition for his/her direct appeal.
Once the appeals process begins the appellate courts reviews procedural mistakes and any violation of the law made by prosecutors at trial that could have had an effect on the jury’s verdict. This does NOT include mistakes made by the defense trial lawyer, such as not selecting the right jurors, not bringing forth key witnesses, not cross-examining and/or doing a poor job of cross-examining prosecution witnesses, not producing expert witnesses, not bringing in key defense witnesses, not introducing key evidence, etc. These mistakes made by the trial defense lawyer are not appealable and are not allowed during direct appeal at the appellate courts. Fortunately some of these mistakes, by the defense trial lawyer can be rectified at post-conviction relief which is the subject of another blog.
The appeals process is based solely on procedural issues and not on the merits of the case. The appeals courts do not rule on guilt or innocence but only if a violation of the law was committed that could have impacted the decision of the jury. Many appellate courts don’t care about innocence and in many cases assume the person is guilty, and in most cases they are. But when a wrongful conviction case comes before them they typically have the same mentality as if a guilty person was there and rile accordingly,
In this blog we have only referred to bad lawyering where it concerns the defense trial attorney. There are many other issues concerning bad lawyering and the appellate lawyer which is the subject of another blog.
Because trial lawyers spend the vast majority of their time representing guilty clients they are often confused and not prepared when their client just happens to be innocent. In some instances when representing the innocent, trial lawyers just assume their client is guilty just like all their other clients and defend them as such. In other cases they are just not prepared and/or not willing to do all the work required to represent an innocent person. This lack of preparedness and willingness means mistakes and bad lawyering resulting in their innocent client being wrongfully convicted and sent to prison or death row for a crime they did not commit. I’ve often heard trial lawyers say their worst client is an innocent client.