Is it admirable for a criminal defense lawyer to fall on his/her sword to save a client?

In response to a previous post about a Florida constitutional amendment that revokes the licenses of doctors found liable for malpractice three times, Fed. No. 84 (unmasked as Mike) comments:

But a the lawyer might say, "General public, we know there are innocent people who are convicted, we've seen them leave death row. But we know that there aren't very many.

"Unfortunately, I represented an innocent man, and I failed.  Because of me, someone who is not guilty will go to prison. 

"Should I just let that happen? Should I do nothing while Johnny here is raped in prison? Or should I take the blame? I think I should take the blame, because as you know, innocent clients are so rare. And when one is convicted, it has to be someone's fault. Sadly, I am the one responsible. It was my fault."

(It seems like a non-sequitur, but it's not.  I had posited the reaction on the part of lawyers -- who had pushed for the amendment -- to a law that automatically disbarred any lawyer who loses three legal malpractice cases or who is found to be constitutionally ineffective in defending a criminal defendant three times.  No. 84 wondered when I had last seen a successful IAC claim, and I responded that I hadn't, but I had seen defense lawyers provide affidavits in which they cheerfully claimed to have been incompetent, thus "falling on the sword."  No. 84 then posted the response that I've quoted above.)

Although the sentiment here is admirable, I can't help but think it's still a bad idea to encourage lawyers to claim that they were constitutionally ineffective, even if the motivation for doing so is to get a new trial for a wrongly convicted person.  As a caveat, however, I should note that my objection applies in instances where the lawyers does not actually believe that he/she was constitutionally ineffective but is merely claiming to have been to help the client.  If a lawyer, upon reflection, really does believe that he or she was constitutionally ineffective, then it *is* admirable to admit such.

Why do I think it's a bad idea?

First, it smacks of an "end justifies the means" mentality that is inconsistent with much of how the law works.  Obviously, the lawyer is not entitled to use any means possible to free an innocent client; the lawyer cannot arrange to break the client out of prison, the lawyer cannot bribe the prison warden to release the client, and so on.  So the question is whether the tactic of falsely claiming to have been constitutionally ineffective is akin to those crimes, or is something that falls on the other side of the line.

Second, No. 84's argument proceeds as follows: (1) an innocent person was wrongly convicted, (2) thus, the system made a mistake, (3) I (the defense lawyer) am the one responsible for the mistake, and (4) therefore, I should confess error.  But it isn't at clear to me that premise (3) is correct.  Why isn't it possible that the jury is the party responsible for the mistake?  I can imagine that during the Jim Crow era, there were plenty of innocent African-Americans who were wrongly convicted for reasons having nothing to do with the incompetence of their lawyers.  Or perhaps the judge is responsible, having made an erroneous ruling (that might be corrected on appeal).

Of course, even if the "fault" lies with parties other than the defense attorney, it's possible that such errors won't otherwise be corrected, and the only hope is for the defense attorney to confess error.  (Given the way the rules work about successive petitions, it's actually not clear to me that one could have such certainty; it's more likely that you'd raise the other claims and throw the IAC claim in as well, which makes it hard to know that the other claims won't succeed.)  Even so, why stop with false declarations of incompetence?  Why not forge some document that might help establish innocence in the eyes of the court?

Third, an even bigger problem that I have with the position is its reliance upon the "innocence" of the defendant.  How exactly can the defense attorney be certain of the defendant's innocence?  It's not unheard of for defendants to lie to their attorneys.  More importantly, I don't see how defense attorneys can limit themselves to falling on the sword only for their innocent clients.  Think of the signal that this would send to judges reviewing habeas petitions: if a defense attorney submits an affidavit claiming to have been constitutionally ineffective, he or she is signalling a belief that the client is innocent.  Hence, if the defense attorney does not submit such an affidavit, he or she is not signalling a belief that the client is innocent.  Do you want to be the client whose attorney does not submit such an affidavit?  Obviously not.  It's problematic for the attorney to represent clients in such a fashion.

Of course, the solution to this ethical dilemma is for the defense attorney to claim ineffectiveness in every case in which a client is convicted.  But that hardly comports with the notion that it's so rare for innocent clients to be convicted that I must do something extraordinary about it. . . .

Now, to be fair, I am writing from the perspective of being in the ivory tower, not representing clients who face prison and worse ("Should I do nothing while Johnny here is raped in prison?").  But I don't see that the system is improved by having defense attorneys falsely claim incompetence in an effort to help clients, merely because the end result (freeing a wrongly convicted person) is desirable and admirable.  Just as the exclusionary rule works in the long run at the cost of short term injustice (a guilty person goes free, but our belief in the system improves because we see that the police will be punished for violating the Constitution), it's in the long term interest of the system to have defense attorneys not fall on their sword unless warranted.

Comments

[FN84]

I should note that my objection applies in instances where the lawyers does not actually believe that he/she was constitutionally ineffective but is merely claiming to have been to help the client.

In my argument I adopted the common perception as my premises, namely, that everyone charged with a crime is guilty; that the prosecutors and police are the good guys; and that juries do not send innocent people to jail (or if they do, it's very rare). Although I strongly disagree with these premises, I adopted them to establish, then, that the only reason an innocent person was convicted would be due to IAC.

Thus, all the players except the defense lawyers are the good guys. Our system does not convict innocent people. An innocent man is convicted. Will, something went wrong, but all the other players are good people. Thus, the blame lies on the defense lawyer.

Thus, by definition, an innocent person is convicted only due to incompetent defense counsel (since, after all, everyone else in the system are the "good guys.")

Thus, in every case where a lawyer knows (and I assumed God's eye knowledge) his client is innocent, that lawyer is reasonable to say that he was incompetent.

First, it smacks of an "end justifies the means" mentality that is inconsistent with much of how the law works.

The entire criminal process has an end justifies the means approach, except that the end sought is the conviction of every defendant. How many suppression motions did you or Kevin win?

How many police officers "testily" on the stand? The advent and increase of "dropsy" testimony increased significantly after the exclusionary rule and was well documented in an NYU law review article.

So, while I am not adopting an ends/means justification, and I would never lie in a court of law, I do see that a defense lawyer could think: "I'm just using the same tactics as the other side."

Of course, the right answer is to prevent cops from lying on the witness stand, and to punish prosecutors who hid evidence. But has this happened?

Despite numerous examples of prosecutorial misconduct, no prosecutor responsible for the conviction of an innocent man has been disciplined.

Even so, why stop with false declarations of incompetence? Why not forge some document that might help establish innocence in the eyes of the court?

Incompetence is subjective. Forging documents is objective. I contend that a lawyer whose innocent client is convicted always has a reasonable, good faith belief that the lawyer was incompetent. (See reasoning, above). It's for the court to decide whether Strickland applies. In other words, the judge still works as a safety valve. With forged evidence, the judge no longer acts as a safety valve, since he can't weigh and sift the facts (including the testimony of the defense attorney) in the same way with objective evidence.

But that hardly comports with the notion that it's so rare for innocent clients to be convicted that I must do something extraordinary about it.

The public thinks that innocent people are rarely convicted, though I strongly disagree. But, again, I used an old debating tactic. I said, "Okay guys, I'll accept all of your presuppositions. But accepting them leads to my conclusion."

Again, they are: (1) The police and prosecutors are the good guys. (2) They do not knowingly prosecute innocent people. (3) Because of our constitutional protections, including a judge and jury, innocent people are not convicted. Or, if they are, it's so infrequent that it does not deserve any attention.

Then we have Johnny (who we know is innocent) who is convicted. Whose fault it is?

Well, it can't be the "system's" fault. Thus, it's the defense lawyers' fault.

[Tung Yin]

To answer your question, I never won a suppression motion, but neither did I bring any. My criminal defense practice was on behalf of corporations and corporate officers, where the entire game was the pre-indictment investigation and negotiation.

More generally, I don't think I advanced presuppositions (1) and (3). To be specific, I don't view criminal defense attorneys, even street ones, to be "bad guys." While I personally might not want to represent many of them (I worked on a state habeas matter pro bono that left me quite disturbed at the client at one point), I agree with the view that it's important that criminal defendants have zealous defenders. Additionally, while I think the system must allow for some (hopefully very miniscule) possibility of the conviction of the innocent (the old Type I vs. Type II error problem), I think the problem of a wrongful conviction, even if rare, is still an important matter, even when the death penalty is not involved. The only thing I am disputed is the approach that we take to address that problem.

[FN84]

Two points of clarification. One. I wasn't suggesting that you adopt the views I assign to most people. (If you had those views I probably would not like you as much as I do.) But when I made the initial comment that became the subject of your post, I was speaking to the general public. I think the issue were were discussing then was whether the public would find noble a lawyer's falling on his sword. Thus, I suggested an explanation to the public.

Two. I want to distinguish between subjective and objective testimony. I don't think a lawyer is per se wrong is he says, "I can't cross-examine worth a damn. Or, "I really get confused when reading the rules of evidence." Or, "I should have won this case. And the only explanation for my losing it is pure incompetence. I was out of my league." However, if a lawyer who worked 80-hours a week on the case said, "I only worked 5 hours a week on this case," I would be outraged since that would be a lie.

The lawyer who characterizes himself or herself as incompetent is not lying because he or she is stating opinions and subjective self-assessments. (And let's face it: Most of the wrongfully accussed had lawyers that you or I would never allow our friends to retain.) Anyhow, offering self-critical but subjective sentiments are what I consider falling on one's sword. After all, the person saying those things is insulting himself.

Moreover, to the extent anything I said could be interpreted as supporting perjury, I repudiate it.

[Tung Yin]

The distinction between objective and subjective is interesting, but I'm not persuaded that it carries the weight you need it to. There is a difference between a defense lawyer's thinking, "Gee, I could have done a better job in defending my client," versus, "I was constitutionally ineffective." As you obviously know, Strickland v. Washington sets a remarkably high standard for showing ineffective assistance of counsel. Thus, a lawyer who avers in an affidavit that he/she was constitutionally ineffective is saying something far more than "I could have done a better job." He/she is saying, among other things, "my performance was so bad that it fell beneath objectively established standards."

Put another way, when I was in practice, I took or defended around 50 depositions. Enough to have a sense of what I was doing, but also enough to know that I was a far cry from people who are really good at it, like the NITA instructor who did depo training at the law firm. So, in any given case, I could honestly say, "Gee, I could have done a better job." Even that is perhaps misleading, since I did my best, so in a way, I could not have done a better job; that is, given the skill set and experience I had, I could not have done a better job. But had I had better skills and/or more experience, I could have done a better job.

But that's a far cry from my saying, "I was so bad that I essentially committed legal malpractice." (I realize that legal malpractice is not the same as IAC.) Yet, that's the statement that you're allowing defense attorneys to make.

While I don't have difficulty believing that defense attorneys honestly believe that they could have done a better job (in cases in which a client is convicted), I really had a hard time believing that (with rare exceptions) defense attorneys really believe that they satisfied Strickland's test.

Given your concession to the extent anything I said could be interpreted as supporting perjury, I repudiate it, however, I suppose we really aren't disagreeing.

[Flora]

My family and I are writing this letter on behalf of my uncle Mr. Hector Rivas who is currently serving a 25 year to life sentence in Sing Sing Correctional facility for the murder of Ms. Valerie Hill, a crime he did not commit. The crime took place on March 27, 1987. Six years after being cleared and never a suspect due to their investigation, a new prosecutor, District Attorney William Fitzpatrick presented the case to the grand jury. The District Attorney managed to build this case with absolutely no new evidence, no finger prints, nothing new. Just a case to build his name and glory. All of this led to my uncle Hector’s indictment and later his incarceration. Hector was found guilty in 1993 and has been incarcerated since.
Hector Rivas has fought for his freedom with appeals. His last appeal, a Writ of Habeas Corpus has been denied. The denial of this appeal has brought so much pain to my uncle and my family. We have put all of our faith and hope in the justice system. My family and I will not give up on this justice system even though it is the same system that has placed and innocent man in jail and persists in keeping him incarcerated. Hector Rivas has overwhelming evidence that proves his innocence of this crime.
My goal is to get someone to interview my uncle Hector Rivas, bring publicity to this case. One of the pieces of evidence we have is the medical examiner changing the time of death six years later. We believe that this change was done 6 years later to throw out my uncle Hector Rivas’s alibi, and put the prosecution at an advantage. The medical examiner, Mr. Erik Mitchell which years before the crime took place and during the trial had himself been under investigation by the county for bizarre and criminal behavior such as the misfiling of records and illegally disposing of bodies and their parts. Mitchell could have been charged with 144 misdemeanors and 7 felonies. He was also a suspect and questioned for the murder of his co-worker and prior to being suspected he could not conclude the cause of death during his autopsy. Certainly one could come to the conclusion that some type of agreement was worked out between the medical examiner and the prosecution.
A well known pathologist, Dr. Cyril H. Wecht (I am sure you have heard of him from HBO’s autopsy program), has honored us by working with the case. Dr. Wecht cannot fathom how the former medical examiner could have changed the time of death in our case at the trial in 1993 from his previous statement in 1987. Dr. Wecht had also been one out of five or six pathologists from across the country who reviewed evidence against the medical examiner, Erik Mitchell back and around 1994, a year after my uncle’s incarceration for this 6 year old case. Dr. Wecht agreed not only was the medicals examiner’s conduct unsatisfactory but it did not comply with the public health law.
One of the other issues is a fingerprint comparison report done by the Syracuse police crime unit. The report states the names of certain people who had been in Valerie Hill’s apartment. It includes the name of an individual who the police never questioned or knew about until 5 ½ weeks after the report was done. We feel this was done to mislead the grand jury in their investigative process. My uncle, Hector Rivas’s chances of a fair trial were never given to him.
One of the other issues is a signed affidavit that states a person who admits to someone else confessing to the crime. A man who was stopped by police driving by Valerie Hill’s home a few days after the March 1987 crime admitted to killing a women in that vicinity, according to the affidavit from an acquaintance. Please ask yourself why an affidavit that was taken back in 1988 was not presented earlier during this trial or during the indictment. We feel this was a vital piece of information which would have brought grounds for a mistrial due to late discovery of the exculpatory material. It wasn’t until my uncle, Hector Rivas obtained a full copy of the court record that He discovered the judge, J. Kevin Mulroy and prosecutor, William FitzPatrick were caught on record in an ex-parte discussion, discussing the same exculpatory material that they both alleged was discovered late. The court reporter was able to record the dates of the memo’s that were discussed. The discussions took place before our lawyer made his opening statement to the jury before they entered the courtroom. How could the District Attorney say that this vital piece of information was inadvertently not placed in my uncle Hector Rivas’s file. Hector has more evidence that ties together and proves the court was bias and prejudicial during the trial. On March of 1987 the police made Hector Rivas give body fluid and other samples, till this day the District Attorney’s Office will not comply with us in obtaining all the documents that prove this. Ask yourself, why all the secrets, why all the denials of paperwork, are there hidden agenda’s? The answers to these questions are evident, you have the wrong man, but do not want to admit faults within the District Attorney and town of Onondaga County’s Office. There was never and ever will be proof of physical evidence. Ex-Judge, J. Kevin Mulroy has been brought up on serious misconducts and is now practicing law because he has been dismissed. One of many allegations made against him was that while presiding over a rape trail in Utica in 1996, he tried to persuade an assistant district attorney to offer the defendant the chance to plead to a misdemeanor to end the trial more quickly. “It’s Thursday night, and its men’s night out,” he said in court. Six to nine commission members found sufficient evidence that the remarks had been made, and that they were inappropriate. In addition to all the evidence Hector Rivas has to prove his innocence his lawyer, Richard Calle was very incompetent. Hector has all the proof in regards to that issue.
I am not the one who can really tell this story, but I can tell you that my uncle has lost 13 years of his life for a crime he did not commit. Someone must hear the truth and bring all the false evidence of District Attorney William FitzPatrick out in the open. My uncle Hector Rivas is not the only person he has done this to. This case was reopened with not an ounce of new evidence and unfortunately for us we are a poor family and everything happened so fast we could not obtain a proper lawyer.
My uncle Hector Rivas’s only son, Jason Rivas is in Korea training for the Army. After his training he will be sent home for a month break to see his wife and daughter. A granddaughter my uncle has yet to meet. My cousin lives in Kentucky, he has not been able to see his father in 13 years but they correspond. Jason Rivas felt that by joining the army he can provide for his wife and child and help his father and family in the fight for his fathers freedom. We are not sure if he will be sent to Iraq, with this in mind, Jason could be sent to begin the battle of serving his country whether at war or here in the home front for truth and justice, but he fights and suffers the battle of the injustice his father is going through at the hands of The District Attorneys misconduct with the law. Why would Mr. FitzPatrick or anyone care about the facts, the truth, the proof. He would never want to admit error.
Please help us! My uncle needs is an interview. Please give My Uncle Hector Rivas and my family the consideration of helping us cure this grave injustice. We have all the documents and more that prove the issues which are stated in this letter and many other issues that are not stated in this letter. We can show them at anyone’s request, should they decide to help us in this matter.
Please Help us, send us in some direction. Help us get the publicity we need to make my family whole again. To bring a mother her only son, a son his only father and a family back together.
We have tried to use the law and its chains of truth to help us, but the chains of strength the District Attorney William FitzPatrick has seem to be much stronger.I and my family will never give up!! The truth shall set us free.
Please help us! The truth needs to be brought out, if someone will listen. We need help from the public we count on. The law that has brought us all the lies keeping Hector Rivas innocently in jail is the same law and public who need to bring him home, set him and us free.
The thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of crime, then he is not a suspect
(Quote from Barry Scheck, Innocence Project web site)
Sincerely,

Flora Rivas
FREEHECTORRIVAS@aol.com
347.992.1990

[crystal burns]

public deffender wont use advence brother was arressted for an f3 no monney to hire a lawer. HELP cristen powel sayes he is going to prison. will not annser questons and she says she is not playing games. How do we help him if public deffender will not?