I can't help but think it's still a bad idea to encourage lawyers to claim that they were constitutionally ineffective, even if the motivation for doing so is to get a new trial for a wrongly convicted person. As a caveat, however, I should note that my objection applies in instances where the lawyers does not actually believe that he/she was constitutionally ineffective but is merely claiming to have been to help the client. If a lawyer, upon reflection, really does believe that he or she was constitutionally ineffective, then it *is* admirable to admit such. . . .
First, it smacks of an "end justifies the means" mentality that is inconsistent with much of how the law works. . . .
Second, No. 84's argument proceeds as follows: (1) an innocent person was wrongly convicted, (2) thus, the system made a mistake, (3) I (the defense lawyer) am the one responsible for the mistake, and (4) therefore, I should confess error. But it isn't at clear to me that premise (3) is correct. Why isn't it possible that the jury is the party responsible for the mistake? I can imagine that during the Jim Crow era, there were plenty of innocent African-Americans who were wrongly convicted for reasons having nothing to do with the incompetence of their lawyers. Or perhaps the judge is responsible, having made an erroneous ruling (that might be corrected on appeal). . . .
Third, an even bigger problem that I have with the position is its reliance upon the "innocence" of the defendant. How exactly can the defense attorney be certain of the defendant's innocence?
My own two cent's worth of an observation: I agree that it is undesirable to have defense counsel take an undeserved "hit" to try to get a client off, for basically the same reasons. But it's done all the time. Sometimes the appeals are meritorious. There's this case where defense counsel basically slept through a criminal trial, causing his client to be found guilty and face the death penalty. But more often, it's a matter of routine: the next logical step after a conviction to file an appeal. If there are no other grounds, the old ineffective assistance claim is trotted out. It's considered part of the zealous advocacy for your client, this figurative 'falling on the sword.' Claim you didn't have time to prepare, you're overworked. There's always one more thing you could have done, always one more hour you could've put in. So you claim ineffectiveness and wish your client the best of luck on his or her appeal.
A three strikes law would seriously dampen this practice. As a practical matter, I think that would be a mistake. On the one hand, defendants sentenced to prison - even if guilty - want to know that they've exhausted every legal avenue before resigning themselves to their fate. But they often forget that even court-appointed counsel have to be paid by the defendant if the conviction stands - it's $50/hour in Iowa - so they enter these last-ditch long-shot appeals without fully realizing how much it will cost them unless they hit the jackpot. Minimizing this reflexive filing of non-meritorious appeals would not only unclog the system somewhat, but reduce the number of parole violations and re-incarcerations based on the defendant's inability to pay the fines and court costs. On the other hand, a three-strikes rule creates an adversarial stance between trial counsel and the defendant. Attorneys would have an incentive to shade the truth the other way, claiming effectiveness even when arguably ineffective in order to protect their license. I'm not so certain that would be in the best interests of justice, in the long run. As I see it, the choice boils down to one of two difficult scenarios: 1) pressuring attorneys to support even long-shot non-meritorious ineffective assistance appeals, or 2) forcing attorneys to fight against even meritorious ineffective assistance appeals in order to preserve their licenses. So on the principle of "I'd rather let ten guilty people go than imprison an innocent man," I'd come down against a hard-and-fast three strikes rule.
This problem with the practice of using trial counsel affidavits in ineffective assistance pleas illustrates the particular tension faced by criminal defense counsel when tiptoeing around the ethical rules. NOTE: they're different for every state, and though Iowa has historically used the Code of Professional Responsibility which is where I've gotten the cites below, we're switching to a system based on the Model Rules.
Technically, they aren't supposed to lie to the court(DR7-102 in the Code), and they aren't supposed to take on any case for which they're incompetent(EC2-32, EC6-1, DR6-101). On the other hand, they aren't supposed to refuse any court appointments absent a showing of a "compelling reason" why they can't take it (EC2-31), and they are supposed to zealously advocate for their clients within the boundaries of the law(EC7-1, EC7-3.) Oh, and they're not supposed to take cases in which their personal interests put them in a position adversarial to their client's interests (DR5-101).
So if you've got a tremendous caseload when the client is appointed, you still have to take the case unless it's bad enough to show a "compelling reason." Then if the client loses, despite your best efforts, there's pressure to assist in the ineffective assistance appeal. And there's no distinction between the "innocent" client or the "guilty" one. If you do it for one client, you have to do it for all of them. Otherwise, how do you argue you were too busy for the one but not for the other? You could refuse to assist, but then you've arguably failed to do everything you can to help your client. But if you say you're incompetent when you know that you really weren't that bad, you're violating the spirit if not the letter of the rule against lying to the court. And when you do write an affidavit, you also have to be quite careful to state that you thought you were competent at the time you took the case - or at least competent enough that to refuse the case would violate the rules because there was no compelling reason. Yikes. It's a nasty line to walk. Three strikes would only make it worse: when exactly do your personal interests in saving your license diverge from those of your client in saving his/her behind?
On a side note: while in my third year, I did a paper on the tension of these rules in the following hypothetical: a defense attorney who knows the client is innocent, yet also knows the client doesn't have a chance in h*ll of winning at trial, and so stands by and lets the client plead guilty in order to avoid a harsher sentence, like the death penalty. On the one hand, the attorney is allowing the client to tell a flat out lie to the court in clear violation of the ethical rules. On the other hand, it's saving the client's behind - quite literally in death penalty cases. I argued that universal acceptance of an Alford plea was the only way out of that dilemma. (Basically, an Alford is a nolo contendere "I'm not admitting that I did it, but I'm admitting there's enough evidence to find me guilty." plea. At the time, it was disfavored in a number of states.)
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