Fault Lines
20 October 2017

America’s Bad Lawyer Problem

Nov. 9, 2015 (Mimesis Law) — Bad lawyers produce bad convictions. In the criminal justice system, we glimpse the consequences of inadequate lawyering through the lens of wrongful convictions. Because of that, the system is largely dependent upon the post-conviction process to identify and remedy bad convictions. The unfortunate reality is that the post-conviction process has no upshot other than to superficially treat the effect rather than the cause.

A couple of recent articles emphasize my point. In one, a New York Times op-ed piece highlighted the rampant problems in the New Orleans District Attorney’s Office spanning decades. “In dozens of cases over the years, the office, largely under the command of former District Attorney Harry Connick, Sr., failed to turn over material to defense lawyers that would have helped their clients.”

Yes, that’s the father of the famed jazz artist, Harry Connick, Jr. Not to worry, however, there’s no real tarnish on the name. In 2011, the Supreme Court determined that it wasn’t a systemic pattern of misconduct in New Orleans—just an isolated one. The Court overturned a $14 million jury award given to John Thompson.

It did not matter that Mr. Thompson spent 14 years on death row for a crime he did not commit. It did not matter that Connick’s office spent years hiding a crime lab report that would lead to Thompson’s exoneration. It only mattered that Thompson had not met the ridiculous threshold of showing of a wide and pervasive problem in the New Orleans District Attorney’s Office.

It appears that not turning over exculpatory evidence is business a usual in New Orleans. In September 2015, prosecutors released a 19-year-old memo that cuts the legs off of their case against Robert Jones. Jones received a life sentence without parole for a 1992 rape, robbery, and kidnapping. Robert Jones has maintained his innocence throughout.

In order to win a conviction, the prosecution needed to connect Robert Jones to Lester Jones. Lester Jones had already been convicted of various crimes and prosecutors argued that the two men were accomplices. That argument was sold to and bought by the jury. What the jury didn’t see was an internal memo written in 1996 that acknowledges that the prosecutors lacked any evidence of a link between the two men.

That lack of evidence did not matter. The D.A.’s office sat on the memo even when Robert Jones proceeded with his appeals and even after Lester Jones admitted in court that he did not know Robert Jones. Only in 2015 did a new prosecutor decide to turn the memo over—but only after the conviction had been overturned on other grounds (including other evidence withheld by the prosecutors). Shockingly, prosecutors intend to try Robert Jones again.

Of course, the above failures are not limited to prosecutors. Over at Slate, Robert J. Smith details the disastrous defense attorneys who hang their clients out to dry. In the revolving door of bad lawyers, the same ones seem to be very adept at landing their clients on death row.

The article examines a handful of jurisdictions, but the pattern is obvious: “prisoners sentenced to death in these counties often suffer a double whammy—they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers.”

In one particularly egregious example, Matt Shirk, the public defender for Duval County, Florida ran on a campaign of being “less confrontational when dealing with police in court, ensuring his employees would never call a cop a liar.” In a shocking display of insanity, he would go on to fire ten lawyers from his office, including senior capital litigators.

Shirk then brought Refik Eler in as his deputy chief and head of homicide prosecutions. At least eight of Eler’s clients received death sentences—surpassing all lawyers in Florida. Bad luck? Probably not: Eler’s inadequate representation has thus far led to reversals in three of those cases and a fourth one could come soon.

Bad lawyers are accessories to the crime of a wrongful conviction. As a legal profession, however, we seem to ignore (or turn a blind eye) to how bad it can be. Bad lawyering by both the prosecution and defense breeds guilty pleas when there should be none. It chips away at the fundamental concept of “innocent until proven guilty.”

When a defendant receives ineffective assistance of counsel, the government is relieved of meeting its burden of proof beyond a reasonable doubt, and the legitimacy of the criminal justice system suffers as a whole. Similarly, prosecutors can fall into a pattern of tolerance, acceptance, and expectation that a defendant isn’t entitled to exculpatory evidence because he “must be guilty of something.” Yet these attitudes and behaviors persist in a system that is supposed to focus on fairness.

For lots of men and women around the country, they will spend the rest of their lives in prison because “three strikes” laws dictate that the third offense is essentially the last. What would happen if we held lawyers to the same standard?

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