Fault Lines
20 January 2019

An Appellate Lawyer’s Screed

Dec. 16, 2015 (Mimesis Law) — I was sitting at the dining room table reading a transcript when I started to growl. A deep, guttural sound, not something my wife, who was sitting across from me and doing some work herself, was used to hearing except perhaps when I snore.  She looked up, her expression somewhere between concern and alarm.

* * *

The tag here at Fault Lines is “Monitoring the cracks in America’s criminal justice system.” And so we write about cops and prosecutors and judges.  We right about bad laws and worse judicial decisions.  We right about systemic failure, about the racial divide in criminal justice, about particular crimes and about overcriminalization.  And about punishment, whether meted out by the courts or the cops.

From time to time we even write about when things go well. About cops who don’t kill even when they could get away with it, about judges who get it right, about honest prosecutors.

We shine a light and try to say things that will inform, educate, and just maybe change a mind or two in one direction or another.[1]

And so we write, too, about the failures of the criminal defense bar. See, especially, Ken Womble’s posts on Nassau County Legal Aid. And throughout the criminal defense blogosphere we do it.  See, for instance, the entire collection of posts on Rakofsky v. The Internet (Google it yourself.)

But let me return to the other night at the dining room table. Because there’s a broader question there.  Not about any one lawyer’s failure (though of course it was a particular lawyer and a particular transcript).  Not about anything systemic, really (though I’ll get to a systemic problem in a bit, hang on).  But because . . . .

OK, let me try it this way.

I’m basically an appellate, post-conviction, and habeas lawyer. Oh, I’ve tried cases, and I’ve written and argued pre-trial motions by the bushel basketful.  But mostly I stay out of the trial courts.  My work is typically after-the-fact, once the client is convicted.  I spend my time picking up the pieces.

It’s hindsight. Here, I argue, is where things went wrong.

  • The cops violated my client’s rights and the judge damn well should have done something about it.
  • That witness should never have been allowed to testify.
  • The prosecutor had no right to ask that question or make that argument.
  • The judge had no legal basis to run those sentences consecutively.
  • The evidence just doesn’t add up and the jury should have found my client not guilty because, by god, he didn’t fucking do it.

And often, my client’s lawyer screwed up. My client, this man here, he had a right, a constitutional right, a right protected by the Sixth Amendment to the U.S. Goddam Constitution, not just to a lawyer but to an effective lawyer.  But his lawyer wasn’t effective.

  • He didn’t file the motion.
  • He didn’t make the argument.
  • There was evidence he should have presented and didn’t.

And most often

  • He didn’t object. Which means that he waived the damn argument. Which means the client is fucked. Royally.

Which is, if you think about it for a minute, why trial lawyers hate appellate lawyers. Because we don’t try cases, but we’re perfectly willing to tell them how they should. And don’t we understand that they’re trying to win the damn case?  And we’re bitching that they should be doing a better job setting it up for us when they lose.

Well, yeah.

Because the law is unforgiving. Because once the defendant’s been found guilty, she no longer has that protective mantle of being presumed innocent.  The burdens shift, and now I have to prove stuff on my client’s behalf.  Shit.

And yet, the trial lawyers are right. They are there to win.  What they’re not there to do, what they’re not allowed to do, is protect themselves against their client’s future unhappiness.  It’s not about you.  It’s about them.  Always.

The law is clear. The Supreme Court set it out in Strickland v. Washington back in 1984 (Hmm.)  If there’s some plausible tactic behind trial counsel’s action (or inaction), then there’s no problem.  Reviewing courts won’t second guess.

So no, you don’t explain why you didn’t move to suppress the drugs. It doesn’t matter if you had what seemed to you a good reason.  Keep it to yourself.  And don’t write a memo explaining your reasoning for not moving to suppress the gun found during a questionable search in a capital case and then file that letter under seal so that the court of appeals will understand.  Because when your client ends up on death row (this one did), the court will have no trouble saying you were just fine because there was a tactical reason for the decision.

If the prosecutor wants to fix a mistake in the indictment, an oops that you know the judge will let her repair, even if you think the judge would be right, object.  Why the hell not?  You don’t have time right then, in the middle of the pre-trial hearing, to do the research on the surprise motion.  Object anyway.  What the hell? Where’s the harm?  So the judge will overrule it.  So what?

Here’s what. Don’t apologize.  Don’t withdraw the objection.  Let it ride.  Because you see, one of the things that might just happen (I don’t care how good you are) is that the insane jurors will convict your client.  Who’ll need you to have saved the record below.  And who’ll lead you not to start hurting now.

A couple of decades ago, I had trial counsel on the witness stand. You missed this, didn’t you?  You should have done that, shouldn’t you?

Yes.  Yes.

How could you do that? Aren’t you one of the best?  Surely you wouldn’t have just messed up.

I did.

He did. Even the best get it wrong sometimes.  Just as the best appellate lawyers miss an issue, one that should win, now and again (and yes, I’ve missed ’em, and owned up to it).  Because, well, it happens.

At which point, there’s only one proper response. The one that lawyer made.  You own up to it.  You think it will destroy your reputation?  Maybe it’ll leave some judge with a question about you?  Maybe it’ll piss off a prosecutor?

Read the memo: They’re not on your side.

You know who’ll respect you for it? The rest of the bar.  And the clients, by the way.  Who know you’ll stand up for them and try to fix what happened.  Even if you think it wasn’t a mistake and wasn’t your fault.  Because that’s what we do.  Because it’s about them, not us.

Which is why, sitting at the dining room table reading a transcript, I started to growl. A deep, guttural sound, not something my wife, who was sitting across from me and doing some work herself, was used to hearing except perhaps when I snore.  She looked up, her expression somewhere between concern and alarm.

I explained.

Son-of-a-bitch bastard lawyer’s selling out his client.

She nodded and went back to her work.

[1] As in “Gee, I always thought that, but if Gamso thinks so too, I’d better reconsider.”

10 Comments on this post.

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  • Eva
    16 December 2015 at 12:36 pm - Reply

    This is what I love about this site “Fault Lines” as just a regular citizen.

    I get to see what people in the legal community go through on a gut-level personal basis. Maybe this sounds corny but from I can tell so many people among your ranks are heroes despite all the lawyer jokes my uncle used to tell me.

    • Jeff Gamso
      16 December 2015 at 1:10 pm - Reply

      Nothing wrong with a good lawyer joke. Hell, some lawyers are jokes all by themselves.

      • Andrew Fleischman
        16 December 2015 at 4:58 pm - Reply

        I can’t tell you how many times I’ve gotten through a transcript where the defense attorney barely showed up, they claim to have no memory of the case when I talk to them, and then suddenly, after a two hour meeting with the prosecutor on the morning of the hearing, they’re a wizard of strategic silence.

        • Jeff Gamso
          16 December 2015 at 5:04 pm - Reply

          The stories I could tell. But chose not to.

  • Former Trial Counsel
    16 December 2015 at 2:07 pm - Reply

    My mentor told me that you have to be willing to go to jail for your client. If you aren’t, then you’re in the wrong line of work and need to get the hell out. I have spent more than a few hours and evenings in jail for refusing to abide by decisions of the Court that I thought were plainly wrong and infringed on my client’s rights. The same thing is true for falling on your sword. Are we paid enough to do it? Is it worth it? These are questions that you have to answer before you get into this line of work, and not after. It’s your responsibility.

    • Jeff Gamso
      16 December 2015 at 5:04 pm - Reply


    • Scott Jacobs
      17 December 2015 at 11:30 am - Reply

      “The same thing is true for falling on your sword. Are we paid enough to do it? Is it worth it?”

      Maybe I’m an idealist in this one, tiny regard, but if a lawyer (certainly not you fine folks) has to ask “am I being paid enough to fall on my sword here when I’ve screwed up” then that lawyer shouldn’t take an oath to abide by a code that kinda suggests that you do, in fact, have to do just that…

      • Jeff Gamso
        17 December 2015 at 12:27 pm - Reply

        That’s what I took Former Trial Lawyer to be saying.

        We’re paid (often meagerly) to represent our clients and to defend them. One part of doing that is, sometimes, falling on one’s metaphorical sword. Once the lawyer accepts the employment, the lawyer’s getting paid (or agreeing pro bono) to do that if necessary.

        Is the pay enough? Maybe it’s not adequate, but it’s sufficient, because the possibility was part of the employment.

        Unless, of course, the lawyer puts in writing to the client something like, “I agree to represent you and defend you fully in this matter unless I decide to throw you under the bus. In which case, tough noogies.”

  • Jay
    16 December 2015 at 5:32 pm - Reply

    You know part of the reason is that poor defendants have this two tier lawyer system. The idea that a trench lawyer didn’t need to know the law because the law guy lawyer handles the appeal is baffling. Unless the client has filed for pcr, trial lawyers need to do their own appeals. You learn a lot about how to make a record that way.

    • Eva
      20 December 2015 at 1:06 pm - Reply

      hmmm….that sounds like lawyer speak for “Post Conviction Relief” law to me who represents the uninitiated masses (unofficially of course). How in the world would a non-lawyer be able to nativagate the legal maze of a “Post Conviction Relief” in the first place? Wouldn’t they do themselves a disservice considering apparently a non-lawyer may miss important poiints or make errors which may impead their appeal process?