The Four Most Powerful Words in the Criminal Courthouse

 Posted on January 22, 2010 in Uncategorized

Try this:

Stand up. Raise one foot off the ground. Now shift your weight forward. Don't set your raised foot down. What happens?

You fall down.

But if you do the same thing and set the raised foot down to stop your fall, you take a step. Raise the other foot off the ground, shift your weight forward, and set your raised foot down to catch you. String a series of these events together, and you're moving across the ground. Walking.

The walking metaphor is so common that it is easy to stop noticing it (when you choose your path in life, know that you can't walk on water, but you can walk the walk and march to the beat of a different drummer-Soundtrack: I Walk the Line). Walking is a model for much of human existence, including the practice of law (which begins, after all, when we pass the bar): a series of controlled falls.

Show me a lawyer who claims not to make mistakes, and I'll show you a lawyer who's either a liar or pathologically unselfaware. We make mistakes (missteps, faux pas). Usually we are able to recover (get back on track), but sometimes our mistakes harm our clients, endangering their futures, their freedom, and their lives.

Sometimes we don't realize our mistakes. I helped a lawyer recently who was subpoenaed to testify by his client's new lawyer about his performance in the client's case. The new lawyer alleged that the first lawyer had missed a Fourth-Amendment issue, a search justified only by search warrant that had already been executed once. I thought the new lawyer probably had a point. The first lawyer had, in terms of the walking metaphor, fallen down on the job.

Some lawyers, having fallen down, will claim to have done so intentionally: "oh, yeah, I meant to do that." In terms of ineffective assistance of counsel (IAC) they are claiming that the allegedly deficient conduct was a strategic decision, which a court will seldom second-guess. This is a way for the lawyer to effectively insulate his ego from a finding of ineffective assistance, and (if the misstep was truly not intentional) is corrupt.

How a lawyer should ethically respond to a client's allegation of ineffective assistance of counsel is not debatable: he must set aside his ego and do everything possible, within the bounds of the law and the truth, to help the client get the relief he seeks. It's not the trial lawyer's job to opine on whether his errors prejudiced the client (the second prong of the Strickland ineffective-assistance test). His job in an IAC proceeding is to tell the truth about what he did and why he did it.

Between those missteps that are immediately corrected (oops I shouldn't have asked that question that way maybe this way will work better) and those that become the subject of righteous IAC claims (wow I really screwed that up) are mistakes that can be fixed with prompt judicial attention (oops I didn't get my motions filed on time). If a lawyer makes a mistake that might render his conduct deficient, and then brings it to the attention of the judge, the judge will try to find a way to correct the mistake before it prejudices the defendant: Even the most pro-State judges don't want defense lawyers providing ineffective assistance to the accused.

Which brings us to the title of this post. The following are the four most powerful words in the criminal courthouse:

Judge, I screwed up.

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