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It’s Not Enough To Just Show Up–Duties of a Litigator

The Sixth Amendment to the Constitution guarantees the right to counsel in criminal proceedings. Courts have interpreted it as requiring the effective assistance of counsel. It’s not enough to just show up in a pretty suit and look the part. Criminal trial lawyers have responsibilities that go far beyond. I am reminded of the scene in My Cousin Vinny after Vincent Gambini (Joe Pesci) sits mute during the preliminary hearing:
“Stan: Why didn’t you ask them any questions?
Vinny Gambini: Huh? Ask who questions?
Bill: The witnesses! You know you could have asked questions, didn’t you, Vin?
Stan: Damn it, Vinnie! Maybe if you’d put up some kind of a fight, you could have gotten the case thrown out!
Vinny Gambini: Hey, Stan, you’re in Alabama. You come from New York. You killed a good ol’ boy. There is no way this is not going to trial!”

Sadly there are reported cases of a lawyer falling asleep at counsel table and even showning up intoxicated. Amazingly, those were capital cases. Courts have examined the conduct of a trial lawyer when the convicted defendant pursues a Habeas Corpus action challenging whether he received the effective assistance of counsel. The U.S. Supreme Court has defined, specifically, what is required of a trial lawyer in the seminal case of Strickland v. Washington: “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” In other words, was trial counsel’s conduct reasonable when measured against the standard of the average, reasonable criminal attorney. Defendants are not entitled to the most effective assistance.

It is not enough that the lawyer failed to rise to that level of reasonableness. In addition, the convicted defendant must prove prejudice: “the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To illustrate how difficult a burden it is to set aside a criminal conviction on effective assistance of counsel grounds consider this circular statement from the Supreme Court in another landmark habeas case: “The question is not whether the defendant would more likely than not have received a different verdict . . . but whether . . . he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Huh?! So when the Court first said the standard required proof that the result would have been different if the lawyer fell below the standard, they really didn’t mean “different” they meant “worthy of confidence.”

So what makes a lawyer effective? The ability to exercise the other 6th Amendment right to confront prosecution witnesses is paramount; that is, to effectively cross-examine the adverse witnesses and produce testimony that casts doubt on their claims. As a kid I watched Raymond Burr as he portrayed Earle Stanley Gardner’s character, Perry Mason, the iconic trial lawyer. In every episode Mason was able to reduce the main witness to tears with a biting cross. Those “gotcha” moments occur sometimes, but rarely. In the usual case a lawyer has to build a trial strategy that allows jurors to pull together diverse facts from the total evidence to find reasonable doubt.

One important requirement that is often overlooked by defense lawyers is the need to thoroughly investigate all aspects of a case. It is not enough to merely read the reports that the police have assembled. An effective lawyer has to run down every possible lead and interview all possible witnesses. The failure to conduct an adequate pre-trial investigation will undo a guilty verdict, even under the difficult standards quoted above. In the end Joe Pesci beat the State of Alabama because he actually went out and spoke to all the prospective witnesses–art not only imitating life, but actually defining it!

Rich Meehan