Bad Lawyering

by Don Rehkopf. First published 31 July, 2014

“The Elephant in the Room” Scenario. Much space has been spent on this thread (and related ones) about the injustices caused by prosecutorial misconduct – something that I have been fighting for years. But, there is also, albeit largely unmentioned or discussed, the flip-side of the “prosecutorial misconduct” coin, i.e., the ineffective assistance of counsel issue. Many (but certainly not a majority) of wrongful convictions have their origins in – for lack of a better term – bad lawyering.

“Bad lawyering” takes many forms – failing to investigate properly; failing to factually, legally and scientifically challenge the prosecution’s evidence; and what I call “The Elephant in the Room” scenario, i.e., the simple failure to sit down with the known evidence as well as the LACK of evidence and to just think about it. Yes, the old “thinking cap” approach or in more modern linguistics, cerebration.

This lack of cerebration may have multiple causes, e.g., lack of time to do so (which may or may not be attributable to the defense); the failure to realize that intense cerebration is necessary to “think through” certain issues, especially where there are complex factual scenarios and permutations; or quite frankly, the lawyer simply is not smart enough to cerebrate properly in a given case.

In all honesty – having observed and studied this issue for 25+ years of my career – much of the blame falls upon the American Law School model, i.e., use of the “Socratic Method” of teaching. One can debate ad nauseam whether or not in the law school context that is effective, but assuming for purposes of argument it is, it is missing critical components necessary for being a TRIAL lawyer. Specifically knowing the differences between deductive and inductive reasoning and how to use them in cerebrating about a case is not something most lawyers are ever taught, especially in law school. Those who have been educationally exposed to the “hard sciences” and the scientific method [ ] will generally be far better in their approach to defending someone than those who haven’t, simply because a cerebral approach to problem solving must be a multi-faceted endeavor. This is especially true in defending cases where forensic science disciplines are at the heart of proving or establishing the evidence.

But, what is also missing from the quiver of many defense lawyers is skill in the art of critical thinking: And as the stakes go up, i.e., the charges become more serious in criminal cases, the need for critical thinking by the defense must exponentially expand as well.

Why am I writing this little essay you rightfully ask? There are two reasons – one general, one specific. In general, I’m trying to get people to think about things before they post here and on related threads. To think about the evidence OR LACK OF SPECIFIC EVIDENCE in a case as opposed to emotions, or anecdotes, or even worse, media “commentary” — none of which is particularly helpful in addressing the topic of wrongful convictions.

The other, more specific reason, is a criticism about my “attack” on the performance of defense counsel in an on-going case on these threads – an attack that some, if not many feel unjustified. I accept the criticism as an invitation to review, re-analyze and re-think my position – but for the reasons that I posit below, retain my original opinion that the defense was weak and by-and-large ineffective because of the aforementioned lack of critical cerebration, which in the end, prejudiced the defendant.

September will be the 40th anniversary of my first jury trial as a defense lawyer, so I’ve been banged around and about in many courtrooms. I’ve also done two stints as a prosecutor, so I’ve been on that side of the aisle as well. I have a background in physics and to a lesser degree, regular chemistry (as opposed to organic), and thus familiar with the scientific method.

Before calculators and personal computers, I carried a “slide rule” for those of you old enough to remember what they are. But, I am not a scientist – I am a criminal defense lawyer who can understand and use science, especially forensic science to my clients’ advantage or to expose “bad” or “junk” science used by the prosecution.

Now, let me get to my point. There is a recognized approach to defending a case generally known as the “reasonable doubt” approach. That consists of attempting to discredit the prosecution’s case via cross-examination and tying up the “loose ends” in summation. But, of all possible defenses, most experienced cerebral-thinking and experienced lawyers and social scientists who study jury dynamics, will tell you, that, by itself, is a very WEAK defense. Sometimes it’s all you’ve got and thus, necessary. But, in this day and age of advanced forensic technology, it rarely is – rather, it is the product of sloppy (or non-existent) thinking.

EXAMPLE: The prosecution calls a scientist who by education, training and experience is a qualified forensic scientist. But, that does not mean that her testimony is either scientific or valid. Cross-examination should be the beginning of exposing her “fuzzy” (but pro-prosecution biased) testimony. But, that needs to be preceded by investigation, research and much cerebration to be effective. Merely bringing out that she didn’t do this, didn’t do that, or didn’t follow-up on why – as most experienced practitioners will tell you – does little to the average juror. The reason being is that if that is the defense’s tactic, the defense MUST be prepared to demonstrate that had the prosecution’s scientist done X, done Y, applied the “scientific method” etc., would have (versus MIGHT have) produced a differing verdict. Jury consultants and psychologists will tell you what experienced defense counsel already know – raising those issues on cross-examination, i.e., she didn’t do this, she didn’t do that approach, almost always backfires because the average juror thinks: “OK dumb-ass, if it was so important for this case, why didn’t you – after finding out about the prosecution’s theory – go out and do it for your client?” By-and-large, jurors ignore the “presumption of innocence.”

“Why didn’t you, Mr. Defense Counsel, insist that they do this? And if they refused, and if it’s so damn important to your case, why didn’t you do it yourself, then we’ve got something to ‘hang our hat’ on?”

Rather than that approach accompanied by trashing her during closing arguments, would not a better approach to “impeaching” her be thus:

Q: Ms. X, you hold yourself out to being a scientist, correct?

A: Yes

Q: As a scientist, you are of course familiar with the ‘scientific method’ correct?

A: Yes

Q: The ‘scientific method’ requires you to rule out alternative hypotheses before you reach a conclusion, does it not?

A: Yes, it does.

Q: And to “rule out” something, means applying science to it just like you applied it to the samples given to you by the prosecution, correct?

A; Yes.

Q: But, in this case, you did not rule out soil samples taken from other areas than where the DA wanted, potentially relevant to your conclusions, did you?

A: No.

Q: And without testing those soil samples from those other areas, you have no way of scientifically knowing whether or not those untested areas, COULD be relevant to your conclusions here, do you?

A: Not really.

Q: In other words, you did not apply the scientific method in this case, did you?

A: Not exactly.

Q: In other words, your ‘scientific conclusions’ you gave to the jury a few minutes ago, was based upon pure speculation that those other areas contained no relevant evidence, correct?

A: If you say so.

Thus, from the field of jury dynamics, the first example [i.e., what was actually done at the trial] was merely the defense blowing smoke, meaning simply getting the scientific witness to admit not having done things and then later arguing that such failure created reasonable doubt, almost never works – something that experienced defense counsel know and appreciate. But, in the hypothetical second example, you “turn” the witness; you take her scientific credentials and experience to show that she didn’t use “good” or accepted scientific procedure; she did what any shill would do, what the prosecutor asked her to do; demonstrated beyond all doubt that the proper application of science BEFORE reaching any conclusions was to rule out alternative hypotheses or theories, and then argue that she has proven herself both scientifically unreliable by her own admissions and a biased, prosecution “smoke-blower.”

Alternatively, this particular witness should never have been allowed to testify as an “expert” witness. Some 20 years ago, the US Supreme Court decided a case by the name of Daubert.

That case stands for the proposition that trial judges should exclude “junk science” from trials, and goes on to show that to be admissible, the testimony must be based upon sound scientific principles, been subject to peer review and done in a manner that others in the field can duplicate. To do this, the defense must object in advance of the trial, the judge is supposed to hold a Daubert hearing and make a ruling and if the defense loses, they need to again object to the testimony at trial to ensure that it framed / preserved for appellate review.

In the case at issue, that did not happen as far as I could ascertain – certainly there was no objections at trial, and the questioning by the defense was imo, demonstrative that no Daubert analysis / objections had been made. Why is this important? Because, in the case at issue, the ultimate testimony before the jury was misleading speculation, speculation that the defendant was “most likely” at the scene of the crime, when in fact, the evidence did not and could not show that. Furthermore, the so-called “scientific analysis” was not subjected to peer-review [i.e., review by other qualified scientists in the relevant field] until much later and SURPRISE, resulted in a significant change in the ultimate conclusion – one quite different than the impression given to the jury. But, there was no objection . . . .

WHY am I arguing about this? Social Science research has validated what good defense lawyers have long-known: “Providing a (single) very weak defense can raise confidence in the prosecution’s case because jurors might think, ‘‘if this is the best the defense can do, he must be guilty’’ But, add to this a SODDI [or TODDI] defense, i.e., “Some [This] Other Dude Did It” and point to the suspect, and the odds of a “not guilty” verdict increase dramatically. The BEST example of all of this in many, many years was Rick Kammen and Stacy Uliana’s brilliant defense of David Camm, e.g., exposing the charlatan prosecution “experts,” and establishing the SODDI defense that Bonehead was the perpetrator. Or, “the Plan B defense tactic of introducing an alternative suspect, even without changing evidence against the defendant, can make convictions held ‘‘to a moral certitude’’ crumble.”