A Penal Colony for Bad Lawyers
| Citation | Vol. 69 No. 3 |
| Publication year | 2018 |
A Penal Colony for Bad Lawyers
Bennett L. Gershman
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Consider the following cases:
Larry Heath's court-appointed lawyer's appellate brief contained only a single page of argument, raised only a single issue, and cited only a single legal precedent. Heath was executed in 1992.1
Herbert Lee Richardson's appellate brief failed to mention that the prosecutor argued at Richardson's sentencing hearing (without any basis in the record but with no objection by defense counsel) that Richardson should be sentenced to death because he belonged to a black Muslim organization in New York, had killed a woman in New Jersey, and had been dishonorably discharged from the military. Richardson's lawyer was later disbarred for other reasons. Richardson was executed in 1989.2
Arthur Jones was represented at trial by a court-appointed lawyer who made no opening or closing statement and offered no evidence at the penalty phase. During the post-conviction phase, he was represented by a sole practitioner just two years out of law school who had never handled a capital case. Jones was executed in 1986.3
Horace Dunkins, an intellectually disabled black man, "was represented by a lawyer so incompetent that the jury was never told that Dunkins was mentally retarded. Dunkins had an IQ of 65 and the mental age of a 10 to 12 year old child." Dunkins was executed in 1989.4
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"The capital trial of a battered woman was interrupted for a day when her defense counsel appeared in court so intoxicated that he was held in contempt and sent to jail for the day and night."5
A defense lawyer requested an adjournment between the guilt phase and penalty phase of a murder trial so that he could read the state's death penalty statute.6
"A lawyer's brief was sent back to him by the appellate court . . . because it did not cite a single case."7
A capital defendant was visited only once by his lawyer in eight years. In another case, the lawyer never visited his client in eight years.8
What should happen to these lawyers? Should they be disbarred, suspended, or retrained? I thought about these cases after I learned that "disruptive innovations" in criminal defense was going to be the topic of a panel discussion last August at the annual conference of the Southeastern Association of Law Schools (SEALS). For anyone interested in criminal procedure, it is certainly a provocative topic. It invites reflection on the quality of criminal defense lawyers, and as the examples above suggest, the consequences of seriously deficient lawyering. The examples above plainly are not run-of-the-mill mistakes or even negligent departures from conventional norms of defense lawyering. The examples—and there are numerous other similar examples—describe professional representation so egregious that imposing the most draconian sanctions on these lawyers would seem appropriate, even desirable.
The concept of "disruptive innovation" is vague. Imagining the idea of lawyer "disruption" might conjure a scene from Al Pacino's aggressive role in the 1979 film And Justice for All9 or embody the tradition of lawyers courageously representing unpopular clients, sometimes placing their lives at risk in courtrooms and on streets. But the panel, I discovered, was more interested in the concept of disruption as descriptive of radical departures from conventional lawyering and conventional discipline.
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Disruption presumably can happen in numerous ways. Bruce Green, the distinguished ethicist, proposes disruption by having two lawyers defend a client instead of one.10 But, as any mathematician knows, two times zero equals zero. My proposal, I confess, is not nearly as informed as the Green proposal and indeed, may be so farfetched as to invite ridicule.
Still, I will persevere and set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation.11 The Sixth Amendment12 right to counsel—the so-called "sacred" right—seeks to ensure at least a reasonable degree of lawyering skill.13 Also, professional codes seek to ensure zealous and meaningful representation. Nevertheless, these standards are very broad, and bad lawyering often escapes sanctions or even notice.
Ironically, although bad defense lawyering, in my opinion, happens at least as often as bad prosecuting, the latter appears to have elicited more criticism by the media and the academic community. Why this disparate treatment of prosecutors and defense lawyers? It is a curious dichotomy, especially since bad lawyering by defense attorneys, as documented in many studies, accounts for at least as many miscarriages of justice as misconduct by prosecutors.14 To be sure, just as most prosecutors behave fairly and professionally, so do most defense lawyers represent their clients with skill and dedication. But, just as some prosecutors behave dishonorably, some defense lawyers behave incompetently. However, bad prosecutors are excoriated; bad defense lawyers are marginalized or ignored.
Recently, as I walked along the narrow cobblestoned streets of Prague—the same streets that Franz Kafka traversed while he was consumed by thoughts of law, courts, trials, and punishment—I
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wondered how he might approach the subject of disruptive innovations in defense lawyering. Kafka's most prominent take on defense lawyering appears in his classic novel The Trial,15 in which Joseph K. is charged by an unspecified agency with an unspecified crime.16 The courtroom is a shabby, airless attic of a tenement.17 K.'s lawyer, obtained through his uncle, describes the so-called system of justice: guilt is assumed, the bureaucracy is vast and secretive, the rules are secret, and so are the identities of the judges.18 The lawyer advises K. of his dire situation, brags about the lawyer's connections, and explains his futile efforts to help many of his other hopeless clients.19 K. is scared about his upcoming trial, but after learning how his lawyer oppressed a former client, he decides to dismiss him and take matters into his own hands.20
Kafka didn't like the lawyer.21 I imagine, most presumptuously for sure, that if Kafka had participated in the SEALS conference in Boca Raton, Florida, and had thought about disruptive innovations to punish bad lawyers, he might have imagined the idea of sending them to his notorious detention facility featured in his famous short story, In the Penal Colony22 —also the subject of a fine law review article23 by my colleague, Michael Mushlin. Given Kafka's dark, depressing view of the justice system, and his revulsion for the defense lawyer who represents Joseph K., it is entirely possible Kafka might have employed his "torture machine" as a disruptive innovative device to deal with the miserable performance of bad lawyers generally. Indeed, the quasi-religious epiphany that condemned persons experienced in Kafka's penal colony struck me as exactly the kind of mystical renewal that Kafka might have envisaged for bad lawyers.
Thus was born the idea—borrowed loosely from Kafka—of a "Penal Colony" as a disruptive innovation to improve the quality of American lawyers and punish the bad ones.
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Prosecutorial misconduct has been discussed and diagnosed with increasing passion and prescription. Indeed, one judge has characterized the incidence of prosecutorial misconduct, at least respecting the suppression of exculpatory evidence, as an "epidemic."24 But critics have not assailed with equal vigor the quality of defense lawyering. To be sure, the quality of defense lawyering varies widely. Institutional defenders, in my opinion, generally provide highly competent representation. Any diminution of the quality of their representation is attributable mostly to lack of funds, high volume of cases, and sometimes limited training and supervision.25 By contrast, representation by the private bar, whether by retention or assignment, is often so substandard as to constitute one of the most serious malfunctions in the criminal justice system.
The data is damning. Judicial decisions are replete with instances of inexplicably bad lawyering.26 What makes the deficient conduct of these lawyers even more troublesome is the extent to which courts go out of their way to minimize or marginalize lawyer incompetence so as to render claims of ineffectiveness much more difficult to sustain. Courts have been instructed to assess the reasonableness of counsel's performance in a highly deferential manner.27 We are told, given the imponderables and uncertainties of jury trial advocacy in general, courts...
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