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.http://www.socraticmethod.net/ 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 [http://www.bio.miami.edu/dana/dox/scientific_method.html ] 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: http://www.criticalthinking.org/pages/critical-thinking-where-to-begin/796 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.”

See: http://faculty.haas.berkeley.edu/tenney/Tenney09BASP.pdf

and

http://faculty.haas.berkeley.edu/tenney/Tenney09ThisOtherDude.pdf

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3 thoughts on “Bad Lawyering”

  1. When I read this article, I understood perfectly the concept of bad lawyering. The worst thing about bad lawyering is that you do not realize that you have a bad lawyer until it is too late. There is always talking about public defenders being bad lawyers because of the excessive amount of cases that they have. They do not have enough time to dedicate to one case for too long. A public defender’s best strategy is for the accused to a plea, whether the person is guilty or not; whether there is no substantial evidence against the accused. Why? Because the public defender does not have the time or resources to properly investigate the case.

    However, what excuse can be used for private attorney? These are attorneys that are paid $10,000, $15,000, $18000 or more? What reason can they possibly have for bad lawyering?

    What happens when one sells all of their possessions for a private attorney(s) to represent the accused, only to find that they are not doing their job?

    By the time it is realized that the attorney doesn’t care, there isn’t any money left to attain another attorney. It is too late.

    Don speaks of a recognized approach to defending a case, generally known as the “reasonable doubt” approach. In my opinion, the article is saying that bad lawyering comes from lack of proper training. This may be true in some cases but definitely not all. There appears to be a new trend (or maybe not so new) among attorneys that put efforts in the cases they desire to put an effort into. I do not know if they are trading on cases with the prosecutors or if they are just buddying up to the prosecutor for their own agenda.

    Some attorneys talk of a payment plan. They take your deposit and promise to represent the accused. However, what they do not mention is that they will continue and continue hearings, etc. until they have been paid in full. Then in the 13th hour, they will begin to work on your case. In most cases, they have not done even minimal preparation.

    I agree that we always talk of prosecutor misconduct. However, I also feel that prosecutors cannot engage with misconduct if the defense attorney is on top of the case.

    It is hard to believe that the private defense attorneys are in cahoots with the prosecutor? I think not.

    Is it hard to believe that criminal defense attorney work against their client? I think not

    Is it hard to believe that defense attorneys work with bail bondsmen? I think not.

    What does an attorney have to lose by not properly investigating a case? Nothing.

    They take the money and run. They do just enough to say that they did their job.

    I could go on and on.

    How did I become such an expert?

    Experience is my teacher.

    In June 2011, my son was accused of attempted robbery. I retained an attorney that was referred to me by a bail bondsman. I did not know that this was against the law in Florida. The reason for this law is because the attorney and bail bondsman tend to work together for monetary gain. They are only concerned with concluding the case as soon as possible.

    This same attorney did absolutely no investigations at all. She only talked of pleas. She even went to the extent of having me talk directly with the prosecutor. I did not know that this is not a practice. All talks are to go through the attorney. This talk caused prosecutor vindictiveness.

    The attorney had many continuances that we did not know about. The attorney never gave me receipts for the money that I paid. I gave her $5000 down and was paying $200 bi-weekly. I also paid for all depositions in advance, which amounted to several hundred dollars. In fact, she had me make deposits directly into her bank account. A practice that I recently learned is not ethical. The attorney was trying to break me financially. There was always money due for depositions, fees, etc. Then when the trial was scheduled, I had to pay an additional amount of $4000 for the trial. So far, she had been paid $20000. The trial never took place. The one thing the attorney did do for me, of which I am highly grateful was to email me everything that the prosecutor sent them. This included documents in which I was not to be in possession of. I still have these documents, 3 years later. I have documents that could have gotten an acquittal for my son. I even have a crime line for the same incident describing a person with dreadlocks. My son does not have dreadlocks. It also named the individual in the crime line. Is this not enough for reasonable doubt?

    The attorney was late for a pre-trial conference. She did not try to get evidence suppressed. Rather, she sent me an email of why she could not ask for the suppression of evidence. She also did not go for a youthful offender until one week before my son’s 21st birthday. The list of things that she did not do goes on and on. I had enough.

    Well, with the help of the Catholic Church, I was able to procure another attorney. He charged $18000. Well, due to a conflict in interest, he requested to be removed as my son’s attorney and returned $17000+ of the $18000 fee. Very generous. Yes indeed. However, one wonders of the true reason why he no longer wanted to be my son’s attorney.

    Is it possible that he did not want to go against the first attorney? Or is it possible that the he was friends with the prosecutor and did not want to be party to her misconduct? We will never know.

    This brings me to the “The Elephant in the Room” Scenario. Dan says the following, “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 is what I have to say about “The Elephant in the Room” Scenario. I retained our 3rd attorney via the internet “AVVO”. I then went to the firm’s website which claims the following
    “Everyone Deserves a Second Chance”. It went on to say, “We don’t believe that your life should be defined by one mistake. Contact us today and learn how we can help you move on with your life. Well, there were no second chances for my son. Maybe they mean the attorneys deserve a second chance. My son did not even get a first chance

    Our new attorney only charged $10000. (I guess you pay for what you get) As I had all documents, he did not have to do anything whatsoever. I had everything laid out for him. After two years, I had become my son’s attorney. I only needed someone to present the case.
    I had court documents showing that the police detective lied during her depositions. I had the original police report where the officer on the scene said that the victim could not identify the suspect. She said that she would only be able to identify the assailant if they were looked. She said that the person was wearing a mask and she could only see the eyes. There were 2 photo lineups with my son as the only common denominator in the photos. For the 1st lineup, she said she could not identify the suspect. By the 2nd lineup, she said that the nose looked familiar and that she was 60% it was my son. By trial, almost 3 years later, she said the cheeks and nose looked familiar and that my son’s did not skin like a baby. Whatever that means.

    I also had emails confirming the prosecutor inappropriately called and talked directly to me. The new attorney chose to tell the prosecutor of my complaint and the prosecutor removed herself from the case.
    In addition, I had everything highlighted and in bold letters. What did I learn? I later learned that the attorney shared this information with the prosecutor. How do I know you ask?

    I know because in the official transcript, the one that the appeal attorney received; my handwritten notes are on one of the depositions. This means that my notes and intake on the case was being shared. Let’s talk about a conspiracy theory.

    In Don’s article, he says, “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”.

    Our attorney did nothing at trial. He did not even play the 911 tape. He did not question the officer at the scene. The list goes on. He objected to nothing.

    After the conviction, he told me that he was sorry and that we could throw him under a bus in an appeal. He then left his firm a few days after my son’s conviction. I was unable to contact. Later he called and recommended an appeal firm for me to use. What he did not tell me was that he went to work for that firm. Imagine that. He wanted me to hire a firm that he was going to work for without my knowledge. Thank God I was smart enough not to follow his recommendation. He knew that a member from our church had a deposit of $9000 toward an appeal attorney. He was after the money.

    What do I think of Florida Criminal defense attorneys? Not much. We would have been better off using a public defender.

    Liked by 1 person

  2. Want to see a case of pure corruption, then read my blog that I set up. I had 3 lawyers and all of them stabbed me in the back. Even my appeals attorney made up a line that was not used anywhere at the prelim or trial, and the superior court rejected my appeal, partly because of it. I was arrested 3 times by a corrupt cop, only because he was jealous of my life and also to get a free $1600 gun(mine), which he knew I had before becoming a cop. I learned that the whole system is corrupt and all the lawyers and judges were hell bent on making sure I got a guilty from 3 arrests made by this scumbag cop in a 4 month period. He even tried a 4th after I did 479 days in prison. Angelfire likes to mix their ads with your pages, so wait until the page loads, then close out the ADs. There are 4 pages with pictures, also I have “Lycoming County Corrupt Justice” on facebook: http://www.angelfire.com/electronic2/packrat50/index.htm

    Like

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