The Psychology of Wrongful Convictions – The Role of the Trial Lawyer

By Dick Blanchard, Executive Director, Advocates 4 Wrongfully Convicted

What do bad lawyering and wrongful convictions have in common? Bad lawyering is quite often responsible for wrongful convictions resulting in many innocent men and women sent to prison or even worse death row for crimes they did not commit.

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 and many cases we were aware of had trial 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 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 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 be. 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 courts 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 ineffective 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 court appointed lawyer who paid little if any attention to what his client and family were telling him about critical evidence that quite possibly would 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 trial lawyers is that it makes it extremely difficult to overturn wrongful convictions at state appellate courts during a wrongfully convicted petition for his 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 lawyer are not appealable and are not allowed during direct appeal at the appellate courts. Fortunately some of these mistakes, by the 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 look at 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 rule accordingly,

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 are made resulting in the 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.

When innocent people are charged with a crime, arrested and meets with their lawyer for the first time they are confused because they know they are innocent and wonder why they have been charged with a crime; they know this has to be a mistake that will soon be rectified. Most often these innocent people are scared, nervous, and know next to nothing about the charges and the criminal justice system. As a result they are forced to place their faith and trust in the hands of their lawyer; and their lawyers know all this. Quite often these clients place their lawyer in a God like status because they know their lawyer is the only person separating them from years in prison and freedom. Sadly many of these trial lawyers are arrogant, condescending, egotistical and just plain don’t listen to anything the client says. It’s like the old TV show “Father knows best” with the lawyer being the father and the client being the child. Often the trial lawyer will tell the client to just keep quiet because he doesn’t understand the system and the lawyer does. It’s like the lawyer telling the client trust me because I know what’s best and you don’t. Sadly this is not the type of relationship an innocent client should have with his lawyer and in many case is the reason the client is wrongfully convicted.

Often an innocent 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 client and the prosecuting authorities and shield him from prosecuting authorities eager to secure a conviction and move on. The lawyers that try to force a plea on their innocent clients often do so because they do not want to put in the time and do the work necessary to get an innocent client an acquittal.

Often we get asked how can an innocent person obtain a competent trial lawyer that will represent his best interest? Sadly this is not an easy question to answer. For in many cases the lawyer the innocent person gets is an attorney appointed by the court. Many of these court appointed lawyers are not Tier 1 lawyers, have a heavy case load and don’t have the time or energy to spend representing the innocent client in the manner they should be represented. Our advice to the innocent client would be that once arrested and indicted for a crime they did not commit to learn as much about the law and the crime you have been arrested for. Spend time writing as many questions about your case that you can come up with, get help from your family members and friends, and try to get your lawyer to meet with you and  go over each and every question you have. One mistake the innocent client does not want to make is just because he is innocent that everyone else will assume their innocence; sadly that is not the case for when the innocent client is brought to trial he is assumed to be guilty in spite of what the law may state.