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The problem with competent lawyers

Sometimes the best way of representing your client is incompetently.

Someone we'll call Lissa warned me about the appeal I'd been assigned to handle for someone we'll call Mike.  The State's version was that Mike walked up to a woman we'll call Angel, who was sitting on top of his mother and punching her, and kicked Angel in the face.  The jury bought it, but Mike wasn't around to hear the verdict.  There'd been a fire alarm at about two in the afternoon, and everybody had to leave the building.  Mike didn't come back.

When The Man caught up to him six months later, Mike had found out about the result, and had fixed the blame for it:  on Lissa.  He told the judge that he'd spent the intervening half year trying to "hire another attorney because my attorney was not defending me appropriately."  He found time during his sojourn to pen a letter to Disciplinary Counsel chronicling Lissa's failures.  Disciplinary Counsel examined Mike's litany of woe, and was unimpressed:  it dismissed the complaint without even requiring a response from Lissa.

"But you'll want to look at ineffective assistance, I guess," she concluded.

"I always do," I said.  There are four ways to win a reversal on appeal:  you can show the judge screwed up, the jury screwed up, the prosecutor screwed up, or the defense lawyer screwed up.  (Some combination of the above is best.)  You have to go into every appeal looking at those four possibilities. 

Not that I like to argue that the trial lawyer was ineffective.  I think there's a tendency in the appellate bar to make claims of that which border on the frivolous:  that the voir dire could have been done better, a witness cross-examined more effectively.  I try cases, too, and anybody who tries cases knows that the best arguments you make in closing, your most withering cross-examinations, are the ones you think up on the way from court back to your office. That's just Monday morning quarterbacking.

On the other hand, lawyers do screw up, and cases get reversed because of it.

I wasn't expecting to find anything regarding Lissa's competency, and I didn't.  Lissa's almost as good a lawyer as she is a person.

But I did find something.  I hate listening to jury instructions in a trial, and I hate reading them in an appeal.  They're boring.  No, that's not true; they'd have to climb several levels to get to Boring.  Mind-numbing might be closer.  But remember what I said about the four ways?  Ninety percent of the time that a case gets reversed, it's because the judge screwed up.  And one of the ways that a judge can screw up is in her instructions to the jury.

That's what happened here.  Mike's argument was defense of others:  his mother.  That's an affirmative defense, like self-defense.  To claim it, Mike stood in his mother's shoes:  if she had to the right to act in self-defense, then Mike did.  The judge told the jury all that.

But as I'm reading those mind-numbing instructions, I realize what the judge didn't tell them.

Anything else. 

The government-approved jury instructions say that a judge has to tell the jury about how it is to determine whether Mike acted reasonably in deciding to intervene, and tells them to consider the acts of the assaulted person, too.  The judge tells them that the defense isn't available if the defendant "used more force than reasonably necessary and if the force used is greatly disproportionate to the apparent danger."  (That's my emphasis, and it's a critical one.)  And it has to tell them what the elements of self-defense are, a key one being that the defendant's actions are viewed subjectively; even if the jury decides that Mike was mistaken, as long as he had an honest belief that his actions were necessary, he's got a defense.  The judge didn't do any of that.

Here's the problem.  Neither Lissa nor anybody else caught the omission, and that means it has to be reviewed for plain error.  That's about as tough a standard of review as you're going to have, but here's a trick:  if you're going to argue that the judge screwed up, you can also argue that the lawyer was ineffective for not objecting to it.  That gives you a much lower hurdle to overcome:  under plain error, you have to show the error clearly affected the outcome, but for ineffective assistance, you only have to show that the error "undermines confidence in the outcome." 

So I was all set to throw in an assignment of error for ineffective assistance for failure to object to the omissions, when it dawned on me.  If Lissa had been competent, I wouldn't have an issue.  The judge's omission was unintentional, and if Lissa had objected -- like I would be telling the court, any competent lawyer would do -- the judge would have easily corrected the error and given the jury the complete instructions, and I'd have bupkis.

Good thing Lissa was incompetent, huh?

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