Inside the Law

         

         “I made a mistake,” the attorney said.  “And because of my mistake, an innocent man has spent 10 years in prison.”

         Dammit.  She would have to say that.  Now what?

         “But you don’t know exactly what that mistake was, do you?”

         “Well,” she said, “I told Joseph K that any claims we didn’t raise on direct appeal could be raised through the post-conviction process.  And that was wrong.”

         I should point out: This wasn’t a private conversation.  The attorney was on the witness stand, in a public hearing, under oath and admitting to all the world that she had screwed up royally.  She’s claiming that if she had done her job, Joseph K would be back on the street doing what he does best—molesting children.

         Yes, I’m biased.  I am a prosecutor and it’s my job to keep Joseph K behind bars. But it’s not just a matter of professional responsibility.  I believe K did molest his daughter and got what he deserved.  He needs to stay locked up.

         But here’s the problem: K doesn’t like being in prison.  He wants out.  To that end, he has sued the State, claiming that he’s in prison only because his previous attorneys made fundamental mistakes—errors so egregious that K's conviction violated his constitutional rights.

         This is a common tactic.  When defendants get convicted, their new attorneys immediately turn on the former attorneys.  What’s more, many defense attorneys see it as part of an ongoing duty to their clients to roll over and admit, to varying degrees, that they made a mistake or at least that there’s something more they could have done.

         “What claim do you think you should have raised?” I asked.  “Before you can be deemed ineffective, you need to have missed a claim that was obvious from the trial court record.  What was the claim you believe was obvious?”

         She hesitated.  “I haven’t reviewed the claims he has raised on post-conviction carefully enough to know whether or not they have merit.  I only know that I didn’t look outside the record to investigate the kind of claims he is attempting to raise on post-conviction.  And that was a mistake.”

         Bzzzzz! Wrong answer.  Partly because it’s not the answer I wanted, but also because it’s not true. As the attorney who represented K on appeal, she was charged with pointing out mistakes made during K’s trial—mistakes so serious that the appellate court would conclude that the jury’s guilty verdict is unreliable.  In my view, K’s lawyer did her job.  She was, in legal terms, “effective.”

         What makes an attorney "effective"?  The law requires defense attorneys to conduct a “reasonable” investigation.  The reasonableness of an investigation is determined on a case-by-case basis.  But because what’s reasonable is an objective standard, it doesn’t matter whether the attorney in question thinks she was ineffective.
         What's gained if K's appellate attorney is found ineffective is that his new attorneys bypass a procedural hurdle that would otherwise bar claims they are attempting to raise in post-conviction.  If there are claims the appellate attorney could have and should have raised, then K gets to raise those claims in this post-conviction proceeding.
         Which is to say: I get it.  It's all just strategy.  Still. It’s highly annoying because it puts me in the somewhat paradoxical position of having to argue that K’s attorney did a bang-up job even though she says otherwise.

         “You’re aware, are you not, that members of the bar are required to report attorneys who perform incompetently?”

         Her eyes narrowed.

         “Yes,” she said.

         “So, have you reported yourself?”

         Now she was pissed.  “I don’t need to report myself.”

         “Why not?”

         “Because I know you’ll do it for me.”

         Well, maybe.  To provide some disincentive for defense attorneys to admit to ineffectiveness, my office has considered notifying the Utah State Bar’s Office of Professional Conduct whenever an attorney is found to be ineffective.  

         Such a policy is very unpopular with the defense bar.  A friend who was a defense attorney once said to me: “Don’t take this personally.  But you guys are a buncha fuckin’ assholes!”

         In fact, I have never notified the bar when an attorney has acknowledged ineffectiveness.  And I doubt I’ll tell on K’s attorney.  This is partly because I like her, but also because the idea of ratting someone out just doesn’t sit well with my west-side sensibilities, especially when the attorney in question is perfectly competent and is only doing what she believes duty requires.

         What is my duty?  At the moment, I wasn’t sure what to do.  My cross-examination of the attorney had been fairly unsuccessful.  If anything, my clumsy questions had simply reinforced the point made on direct examination, i.e., that she believes she hadn’t done what she should have done in representing K on appeal.

         I decided to cut my losses.  “No further questions,” I said.

         I went back to my seat and was shuffling through papers to prepare for the next witness when I sensed someone standing next to me.  

         “Good to see you,” K’s attorney said, extending her hand.

         “Good to see you, too,” I said.

         We shook hands briskly before she strode out of the courtroom.  

         In the end, we are professionals.   It doesn’t have to be personal. 

         Then again: The nerve of those assholes!