The High Cost of a Bad Defense

Posted by Lawrence Taylor on April 20th, 2006

The pevious two posts from the San Jose Mercury News‘ 5-part series on the failures of the Santa Clara, California, criminal justice system (failures which are certainly not limited to that county or state) addressed unethical judges and prosecutors.  But these abuses would be far less endemic if the “circuit breaker” worked — if the defense attorney fullfilled his role as the protector of the accused, as the following article in that series shows: 


THIRD OF FIVE PARTS

The High Cost of a Bad Defense

SHODDY, INEPT REPRESENTATION ROUTINELY INFECTS CASES, A REVIEW FINDS — AND THE DAMAGE TO A DEFENDANT OFTEN LINGERS FAR BEYOND THE TRIAL

At first, after he was wrongfully accused of assault, Bobby Herrera believed he would find a lawyer who could prove his innocence. But in the last emotional minutes before he walked into court, attorney John Pyle was pressuring him to plead guilty.

Pyle already had collected more than $10,000 from Herrera’s family. But he hadn’t bothered to interview witnesses who could testify that Herrera didn’t shoot a guest at his girlfriend’s high school graduation party. Nor did Pyle pursue information that Herrera’s primary accuser had gone back on her story to friends.

Instead, in the courthouse hallway that day in April 1998, Pyle offered this assessment: Herrera would get no more than a year in jail if he pleaded guilty. If he went to trial, he risked 25 years in prison. And a trial would mean thousands more in legal fees.

Herrera, 19, couldn’t bear the thought of costing his parents — his father was a forklift operator, his mother a home health care provider — more money they did not have. “I had no choice but to plead,'’ he recalled recently.

But Pyle had misled him horribly. Herrera received a five-year prison sentence. And the family ultimately would pay tens of thousands more in an agonizing legal journey to free Herrera, a journey hindered by more ineffective lawyering and an unsympathetic appellate court.

Herrera’s saga — which was detailed in court records and interviews with participants — is one of more than 100 uncovered by the Mercury News in which the quest for justice was undermined by poor representation. The paper’s analysis, based on a review of 727 criminal appeals, hundreds of interviews and scores of additional cases, provides an unprecedented look at the scope of this problem.

The review showed how attorneys’ failures contribute to a system that repeatedly favors the prosecution. Often, the errors were so appalling that they would seem unthinkable even to first-year law students: failing to interview witnesses, gather crucial evidence or know basic criminal law. Experts who reviewed the Mercury News’ findings emphasized that another set of problems was just as critical: Attorneys repeatedly failed to respond aggressively to prosecutorial misconduct, a breakdown of the adversarial process that invites violations of defendants’ rights.

In the worst cases, as in Herrera’s, the attorneys’ failures were so fundamental that they left doubts about the guilt of convicted defendants.

Compounding the problem, the review found that the errors plagued defendants far beyond trial. Appellate justices routinely declined to consider allegations of misconduct by prosecutors or errors by judges when attorneys had failed to challenge the behavior at trial.

The newspaper review found the problems began at the earliest stages of a case, and continued all the way through trial and appeal:

� In nearly 20 cases, defense attorneys failed to take simple steps to investigate and prepare their cases for trial. Some attorneys went to trial without ever meeting their clients outside the courtroom. Some neglected to interview obvious alibi witnesses. Some accepted without question reports from prosecutors’ medical and forensic experts that were ripe for challenge.

� Once in the courtroom, defense attorneys failed their clients in dozens of additional ways. Some did not introduce key evidence — including evidence promised to jurors during opening statements. Others did not ask judges for rulings or jury instructions that were crucial to helping their clients. One defense lawyer so misunderstood the rules of evidence that he permitted his client to testify at a preliminary hearing without realizing the prosecutor could then introduce that testimony at trial.

� In 60 cases, defense attorneys failed to object when prosecutors introduced inadmissible evidence, asked improper questions or made prejudicial arguments to juries. Such failures have a lasting impact. Under court rules, appellate panels need not consider errors left unchallenged at trial; instead they can deem them “waived,'’ and outside the bounds of the appeal.

� Attorney errors are not easily corrected. In more than 100 cases, the 6th District Court of Appeal rejected challenges to the attorney’s performance by issuing single-sentence orders that lacked explanation. Other cases saw the appellate justices repeatedly rationalize poor conduct. In one instance, they suggested that an alcoholic lawyer’s repeated absences and tardiness during trial may have been a knowing tactic to permit him time to sober up before the jury saw him. Twice, justices found no problem with lawyers who could not legally represent their clients because they had been suspended by the State Bar of California….

“The level of practice is extremely low overall,'’ said appellate lawyer Michael Kresser, director of the Sixth District Appellate Program, which reviews hundreds of Santa Clara County cases each year. Attorneys are trying cases who “don’t know the basic tools of trial lawyers,'’ he said, from “making proper objections and motions to doing adequate investigation to developing a coherent defense strategy at trial.'’

Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn’t attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records — information that comes only through seeking court approval — because she was too busy.

But the newspaper review found a telling distinction, in that private attorneys’ failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial…

Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles’ Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes “one of my biggest concerns. Unfortunately, it happens all the time,'’ she added, because guilty pleas “take a lot less work.'’…

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