Whose Side Is A Lawyer On?

Don Zeko

Don Zeko is the paper-thin pseudonym of a public defender living in North Carolina. Professional interests include criminal law, trial advocacy, and evidence, while unprofessional interests include overthinking pop culture, eagerly awaiting new fantasy novels, holding strong opinions about board games, and trying to convince the two sides of the barbeque wars to bury the hatchet. I also tweet at @Don_Zeko

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50 Responses

  1. Saul Degraw says:

    The way I learned it in law school is that the client controls the end goal and the lawyer controls the tactics. This applied doubly so in criminal cases. If you are at serious loggerheads with your client, you need to make a motion to be relieved as Counsel.

    Breyer’s concerns are real but in the Criminal context, I think if the Defendant wants to plead not guilty, the lawyer needs to go with it. The plea belongs to the Defendant, not the lawyer. A lawyer openly going against this is being an ineffective counselor.

    I admit though that the Professional Rules of Conduct often act as if they are in a vacuum of unlimited time and resources as opposed to the very real world of underfunded public defenders or the needs of private practice lawyers to run a profitable business. There are certainly clients who don’t have realistic values on their damages and this can be one of the toughest things to deal with in lawyer-client interactions.Report

    • Burt Likko in reply to Saul Degraw says:

      I go further than this. A lawyer who pleads his client guilty after being instructed to plead not guilty exceeds his authority as an agent of his client, and ought to be subject to professional discipline for that. If my client says, “I’ll settle with the plaintiff for $50,000,” I then agree to a settlement of $50,015.22, I have exceeded my authority (by the prince’s ransom of $15.22) and I am subject to discipline. I can say “I’m sure my guy will agree to the extra fifteen bucks and change,” but I can’t say, “You’ve got a deal.” Period, full stop. That’s basic legal ethics.

      A guilty plea must be knowing and intentional. A proper receipt of a guilty plea requires a series of direct, affirmative waivers of legal rights, and the Court should ensure, without interaction from counsel, make sure that the defendant, personally, waives those rights and voluntarily enters a guilty plea. See F.R.Crim.P. 11(b).

      If the defendant, presumably with the benefit of new counsel, proves that this is what actually happened, the guilty plea must be stricken, the defendant re-arraigned, and re-tried if need be. If evanescent evidence has disappeared in the interim, too bad. A guilty plea without the assurances described in F.R.Crim.P.11(b) is not one that we know was made knowingly and voluntarily, and therefore should be invalid.

      “But Louisiana doesn’t have an equivalent of F.R.Crim.P. 11(b), Burt!” I can hear you saying now. Yes it does. The question here is whether the manner in which the state court accepted the guilty plea English offered on McCoy’s behalf violated La. CCRP Art. 556.1(E), and it seems to me that the case ought to turn entirely on that question of Louisana state law.

      I do not question whether or not English committed malpractice. It may well be that the facts of McCoy’s case were so egregious the only right thing to do was plead guilty and avoid the death penalty and in fact I presume McCoy made a good call within the standard of care for an attorney in his position. In which case, if English could not in good conscience do other than seek avoidance of the death penalty by way of a guilty plea, and he could not get authority for making that arrangement from his client, he ought to have sought leave of court to withdraw from representation, or failing that, he ought to write his client a letter telling his client what a bad decision he was making and urging him to act in harmony with counsel’s advice, and then after that, done what his client had instructed him to do.

      I’ve done that myself, with sky-high blood pressure, and been vindicated in my advice by subsequent events. But I still did what my clients instructed me to do because an attorney’s honor requires him to do so.Report

      • Nevermoor in reply to Burt Likko says:


      • Don Zeko in reply to Burt Likko says:

        This is basically how I approach the issue, but it becomes more complex because there wasn’t a plea. The attorney adopted a trial strategy in which he admitted guilt.Report

      • PD Shaw in reply to Burt Likko says:

        The attorney didn’t plea guilty on behalf of his client; he admitted that his client killed the three people, but denied that it was done intentionally, i.e. he denied the requisite mens rea element. What the SCOTUS is being asked to do is rule that a lawyer cannot concede any element of a criminal offense over the objection of the client. One of the oral argument questions was whether that means the lawyer cannot concede the events took place over state-lines?Report

        • Burt Likko in reply to PD Shaw says:

          In response to both this and @don-zeko ‘s similar comment.

          Yes, that’s more complicated and nuanced. Given that, the issue to me would be whether or not the concessions are material and substantive, which is to say not jurisdictional or procedural. McCoy can and should be able to instruct English “Don’t concede that I killed anyone,” even if there’s video of him doing it. And English ought to interpret a generalized instruction like “You tell them I’m not guilty” in that light. (Again, I realize English attempted to do that with what sounds like the best available strategy.)

          That’s because the burden is on the state to prove each element of the case beyond a reasonable doubt. McCoy can sit silent and, if he wants, instruct English to sit silent, and say nothing at all, and the jury ought to await the prosecution offering compelling evidence of each and every element.

          I know that if I were in that position, with a client giving me that instruction in the face of what I imagine the evidence must have been, I’d feel like a sitting duck at a shooting range. It would not make me happy to do that. But I’d also feel myself bound to do it anyway.Report

  2. Damon says:

    ” If the client assesses his interests in a different way than we do, then arguing the contrary isn’t giving him effective assistance at all. ”

    That sounds like malpractice to me.Report

    • Oscar Gordon in reply to Damon says:

      Malpractice implies that the lawyer tanked the case on purpose, or was otherwise incompetent (my lawyer was drunk every time I saw him!).

      This just sounds like ineffective counsel.Report

  3. LeeEsq says:

    Immigration law is filled with similar conflicts. The INA states that asylum applicants must file for asylum within a year of entry unless extraordinary circumstances prevents them from doing so or there are changed circumstances making them eligible for asylum.

    Many aliens apply late with no good legal reason for doing so. There is still a lesser form of relief they can get called withholding of removal but aliens want asylum because that leads directly to LPR status and eventually citizenship. Withholding does not.Report

  4. Saul Degraw says:

    I read a profile of Mr. English in the Times that gave a more sympathetic view of his plight. McCoy sounds like a problem client to say the least.Report

    • Don Zeko in reply to Saul Degraw says:

      I don’t doubt it! My point here isn’t to slam English, as I see no reason to think he didn’t work diligently to do his duty as he understood it. My take is that, if you can’t convince a client like McCoy that what he’s doing is a bad idea, you have to do your best to win on those terms.Report

      • Nevermoor in reply to Don Zeko says:

        I think the stunning thing is that the motion for new counsel was denied.

        It’s hard to imagine a more fundamental disagreement than “whether to plead guilty to a capital crime” and if the lawyer and client can’t get on the same page…Report

        • Saul Degraw in reply to Nevermoor says:


          The Defendant fired his first two Public Defenders. Mr. England was lawyer number three. I don’t have any experience in criminal court but I wonder how much courts just deny these things with problem defendants because it would keep the court tied up for years for someone burning through counsel.Report

          • Nevermoor in reply to Saul Degraw says:

            I get the instinct, but it sure seems to me like a death penalty defendant, at minimum, should get a lawyer who will argue his innocence if that’s what he wants after being advised of the risk (assuming, of course, the lawyer can do so ethically).Report

            • Burt Likko in reply to Nevermoor says:

              Sure. And as I wrote above, if the court denied English’s motion for relief from his duties (or McCoy’s pro se motion for a fourth lawyer, or both) for whatever reason, good or bad, then the right thing for McCoy English to do is document his reservation and follow his client’s instructions.Report

          • George Turner in reply to Saul Degraw says:

            Sometimes PD’s won’t assert all your rights. They tend to be buried under the caseload.

            If I was the judge, my question would be whether the PD’s were fired for the same dispute the client had with England, that none would assert his innocence, as opposed to him randomly jacking around anyone who tried to represent him. If he’s taking a principled stand, well supported in law (“I’m innocent” is a defense that goes back to 1950’s, if not earlier), then it doesn’t matter how many PD’s he fires until he can find one willing to assert his quite simple defense.

            It shouldn’t be that hard to throw up some defense a client under any random constraints. So let’s go.

            “Let me sum up. My client wasn’t there. He didn’t do it. All the state’s evidence is crap flung at a wall to see what sticks. He’s being railroaded because there was no other obvious suspect. Investigators will see what they want to see. They have been known to fudge results based on what they believe to be true. A horrible thing happens and they would sleep better if they thought they knew who did it. They get rewarded for convictions, and this looks like an easy one.

            But look at that face. Is that the face of a heinous killer? Is that the face of a guilty man? The prosecutor has produced a host of experts who are themselves convinced of his guilt. Don’t be bamboozled by their mistaken and biased opinions.

            I have never met a man more convinced, against all the odds, that he did not do a thing. I have never met a man so willing to go to the gallows and die rather than let a prosecutor’s mistaken assertions hold sway. I have had hundreds of clients anxious to cop a plea and escape the full punishment for what they were accused of. Not his man. He would rather be put to death than be stained with the accusation that he murdered his loved ones. That is not the mark of a guilty man.

            Now I may be wrong about him. My long time on this Earth dealing with every sort of person, from angels to devils, may have compromised my judgement without my awareness. There may be some chance, though I rate it small, that my client did in fact knowingly commit this crime, and that he has fooled me as he may be fooling you.

            There may be a chance that some splinter in his brain, some Jekyll and Hyde thing, keeps him from knowing that he has some dark side that committed this crime. But those are chances, and though remote, they do say there’s a chance that my client committed the heinous acts of which he is accused. But you must not convict on a chance. You must convict on the absence of reasonable doubt that he did it, the absense of a chance that he didn’t, not the existence of a chance that he did.

            I myself think that maybe he did it. The evidence certainly points to that conclusion. But I am part of the same system, with the same biases, the same schooling, the same training, that may be carrying out a grave injustice. All I ask is that you entertain the possibility that all the experts are wrong in their testimony, and they’ve just reached an all too convenient conclusion, a conclusion that will be revealed as wrong in the fullness of time, and that this man may go about his grieving for those he loved so much, as you would.

            The defense rests.”

            That’s at least $40 worth of defense that he could get off a street corner.

            The adversarial system requires actual adversaires, not psyche nurses arguing over proper dosages.

            You have to listen to the client, for hours or days if need be, as they explain the facts and you explain the law. You’re can spend all the time you want explaining to them why their facts are wrong and aren’t going to fly, but I don’t think you can change their facts for them, without their consent, or you’re no different from a prosecutor considering a lesser charge.Report

  5. Aaron David says:

    Excellent piece Don.Report

  6. PD Shaw says:

    I worked (and later volunteered) at a federal death penalty appellate defenders office back in the early 1990s, mainly summarizing transcripts. I am not aware of anybody utilizing a strategy that put all of the chips on mitigation, but if the chief lawyer was asked what one thing could be done to avoid a death sentence, he would say a full work-up on mitigation, taking days if not weeks. If he was asked what is the one thing defense lawyers fail to do, it would be put on enough mitigation.

    For those unfamiliar, death penalty cases are unique in requiring the jury not only find that the accused committed first-degree murder, but after they reach a verdict, they are required to decide in the penalty phase whether the sentence should be life in prison or death. They hear evidence in aggravation presented by the prosecutor and in mitigation presented by the defendant. The chief lawyer said there can be no restrictions on mitigation and he would use the process to present a story about the convict through the lives of family, teachers, girlfriends, employers, etc. that show him to be a real person. He was convinced that jurors will choose life if the convict is seen in three dimensions; he may have even had studies he referenced.

    All that is to say, the legal strategy taken here may have been the best approach, not just a colorable one. The convict may have screwed it up. Maybe the Justices will give him a re-trial with a lawyer that will docilely profess his innocence to the next jury.Report

  7. Nevermoor says:

    I guess, with the caveat that I have no experience in criminal law, I have a hard time being sympathetic to the lawyer.

    I simply refuse to believe that, with no jury selected, the lawyer would have been willing to swear under oath that there was a 0.0% chance of an acquittal. Absent that, you’re giving away your client’s last chance at liberty for a prospective future sentencing advantage (that, of course, didn’t pan out here). That seems pretty far outside the boundaries, assuming the client is mentally competent.

    As to Breyer’s point, this is why the attorney should FULLY EXPLAIN the consequences (i.e. “I’ll argue that you’re innocent, but there’s a 95%+ chance you’re convicted anyway, and making that argument doubles the chances you get the death penalty”). If you feel strongly enough, write a freaking memo to make clear that you did. Then you do what the client says, as long as they aren’t asking you to do anything unethical.Report

  8. InMD says:

    But at a less cynical level, the justice system relies upon the adversarial process to arrive at truth.

    Just a quibble but this isn’t really accurate. The idea behind the adversarial system is to protect rights and interests. ‘Truth’ only comes into play to the extent it implicates those things. My understanding is that the inquisitorial model they have in much of Europe is more interested in uncovering ‘truth’ but thats not the basis of our system. This misunderstanding I think contributes to a lot of laypersons inability to comprehend the legal system.Report

    • Saul Degraw in reply to InMD says:

      My general understanding is the same as yours. The issue in the inquisitional system is the truth and the judge often plays an investigator’s role as well. The presumption is often that evidence comes in no matter what. They don’t have our concepts of excluding evidence.

      I’ll caveat that all I know are some remarks made during Criminal Procedure and maybe my Evidence class.

      I think people don’t comprehend the adversarial system, they get confused by too much Law and Order, and a lot of people deep down just don’t think the guilty should have people trying to defend them.Report

      • InMD in reply to Saul Degraw says:

        That’s what I recall as well. My civ pro I prof did a class where we kind of looked at it. He was a veteran litigator and painted the inquisitorial system in a very negative light. The idea of judge as investigator is really foreign to me but I try try to keep an open mind.

        But yea I also think you’re right about the Law and Order crap. People assume there’s always a level of moral and evidentiary clarity that rarely exists in practice, and thats if they think about it at all. There’s a guy I’m friends with who comments ‘why can’t we just hang them’ (or something similar) on every news report about crime that makes its way around facebook. I suspect his philosophy is the norm.Report

        • Saul Degraw in reply to InMD says:


          I’ve been pondering this. I think there are a lot of aspects of American culture that reward grandstanding and pompousness and complaining. I remember a few months ago reading about a banker-investor guy complaining that “Workers get all the gains and investors get nothing.” This was done to the media. To me this is something patently absurd and can easily be disproved on its face. But the guy who said this complaint was able to do so with a straight-face and get away with it. He probably got rewarded for it!

          There is a lot of grandstanding that the adversarial process produces and I think a lot of lawyers thrive on it. I can be firm and confrontational but even I roll my eyes at the bullshit produced by the discovery process and the fact that producing meaningful discovery responses is often worse than pulling dragon teeth even though the discovery statutes are broad in California! So the people who survive in litigation either thrive on being subjected to motions to compel or they get used to having to bring/defend them. Nothing the courts and legislature seems to do can prevent the grandstanding from happening.Report

          • InMD in reply to Saul Degraw says:

            An entrepreneurial society such as ours will always have more than its fair share of bullshit artists, charlatans, and confident idiots. Now they have the internet at their disposal.

            I’m in house so don’t deal with discovery much. To the extent I’ve struggled with it I tend to blame technology. More records mean more junk to sift through and more flashpoints for someone to create an issue where there isn’t one. I hated it when I was in private practice.Report

          • LeeEsq in reply to Saul Degraw says:

            The deliberate obtuseness that goes on during trial gets to me for than the grandstanding. There are times when a witness isn’t using the clearest language on the stand but everybody knows what they mean because of context but the adversarial process encourages one side or another not to get it.Report

            • Stillwater in reply to LeeEsq says:

              Seems to me that’s because the lead actor in our system is establishing or overcoming reasonable doubt while The Truth plays bit part. Even The Truth is on trial in a trial.Report

              • LeeEsq in reply to Stillwater says:

                Plaintiffs and defendants use this tactic. I get it why lawyers use this tactic but it offends my common sense and belief in English. It generally wastes times for than do anything useful for one side either.Report

              • aaron david in reply to Stillwater says:

                That is due to the reasonableness of What is Truth as a concept. In other words, how is one person’s memory accurate, is an object truly meaningful to the case, and who cares about motive. Everything may seem to be important as we initially look into something, but as the layers of import get stripped away, meaning and utility change.Report

      • LeeEsq in reply to Saul Degraw says:

        Administrative courts in the United States often act like civil law courts. The judge is both finder of fact and finder of law and can directly ask questions to witnesses. Nearly every piece of evidence comes in and is only discounted for weight.Report

        • InMD in reply to LeeEsq says:

          And IMHO there are some very serious constitutional issues with how we let administrative judges and magistrates function. Sadly mine isn’t one that matters.Report

          • LeeEsq in reply to InMD says:

            Its a double edge sword. The freer, more civic like law procedural environment of the Immigration Courts has helped some of my clients, hurt other clients, and been neutral to others. Liberal critics of the Immigration Courts often call them “traffic courts with the death penalty” because of their loose rules. I think that a certain procedural flexibility is necessary for the Immigration Courts to function at all and applying the FRCP and the FRE would grind everything to a halt.Report

          • Richard Hershberger in reply to InMD says:

            Just spitballing, but my guess is that the constitutional basis for how ALJs operate is that everything they do is subject to review by a real court. For what it is worth, my experience is that these appeals are legit, in that the real court’s judge does not just automatically rubber stamp the ALJ’s decision.Report

            • InMD in reply to Richard Hershberger says:

              This is technically true but Chevron and its progeny and the fuzzy distinction between administrative penalties and sanctions makes relief from an Article III judge a pretty tall order. Yea there’s a safety valve for extreme cases but in practice we’ve removed a hell of a lot of government action from constitutional processes.

              Its an issue at the state level too. Ask the guy whose license was suspended unfairly by the MVA if he thinks he was punished now that he can’t get to work to feed his kids. And good luck trying to appeal something like that through the state courts.Report

      • George Turner in reply to Saul Degraw says:

        You don’t understand the benefits of the inquisitional system. Under our system innocent people are often accused of a crime. Under the other system that just doesn’t happen.

        Sadly, quite a few South American countries are now switching to our system and the idea that not everyone the government accuses of a crime is guilty is causing social issues because they haven’t had defendants walk free before. How can you govern people if you can’t just stick them in jail if they bitch about corruption?

        I blame US television and our crazy ideas.Report

  9. CJColucci says:

    I haven’t seen any lately, but there used to be “sleeping lawyer” cases in which the defendant claimed that his lawyer was incompetent because he slept through significant portions of the trial. The appeals courts tended to say that the occasional nod was OK, but that sleeping through significant parts of the trial was potentially problematic. But they usually tied themselves up in knots to find harmless error. I’ve always thought they were afraid to say candidly that if the lawyer had been awake during the same parts of the trial and done exactly as little as the sleeping lawyer did, they would not have found ineffective assistance, so whether he was awake or asleep was immaterial. That would have been an embarrassing thing to admit.Report

    • PD Shaw in reply to CJColucci says:

      We had a sleeper at death hut, as well tortured confession, racist voir dire and other hits. Basically what I learned was that there were two categories of issues on appeal. Most require the lawyer to demonstrate the error was consequential and not harmless error. Few involve some principle at the core of a Constitutional value that the judgment must be set aside regardless. I’ve only read about this case in this thread, but I assume that the argument here is intended to place it in the latter category.Report

    • Saul Degraw in reply to CJColucci says:

      Gideon v. Wainwright was a wonderful, humane, and Constitutionally correct decision. The problem is that it is also one of the hardest decisions to enforce politically because it seems counter-intuitive. There are too many incentives in American law (especially in right-leaning states) to underpay and underfund the Public Defenders and meet your Gideon v. Wainwright requirements. Florida has an elected Public Defender and as I understand it, this can often go to a guy willing to sabotage from within by running on budget cuts and demoralization. In some states, they are just farmed out to private practice lawyers at volume rates. These guys are often not given the time and resources they need to do a good job on Death Penalty cases.

      It is generally uber-liberal places like California that are good with these things but even then we have difficulty.Report

      • PD Shaw in reply to Saul Degraw says:

        To a certain extent, this case poses a challenge to what is the purpose of Gideon and progeny. (My thoughts have somewhat gelled after reading the SCOTUS Blog argument analysis)

        The convict is arguing that the lawyer is his tool, which he is free to use as he wishes.
        Sotomayor said: “People can walk themselves into jail,” she said. “They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” Granted this is a statement perhaps taken out of context or may not reflect her ultimate opinion, but I disagree with it to the extent that the function of legal counsel is to tell their story. To borrow on the imagery, what if the accused wants to use his trial as an opportunity to publish the Jewish menace that justified his heinous act?

        A more paternalistic view of right to counsel is that most accused, particularly in death penalty cases, lack the capability of exercising, let alone knowing, their rights and navigating the procedures. Justice Breyer expressed that concern that many criminal defendants “are just not really capable of managing their own defense.” They may be poorly-educated, deluded, mentally-challenged, severely depressed. The lawyer bridges the gap to make sure nobody is sentenced or punished beyond what the law provides.

        A re-trial here doesn’t bother me at all, but I’m more sympathetic to the paternalistic view here.Report

        • LeeEsq in reply to PD Shaw says:

          I’m sympathetic to the more paternalistic view as an immigration lawyer.Report

          • InMD in reply to LeeEsq says:

            There are exceptions but generally and in the aggregate criminal defendants are some combination of poor, stupid, and unlucky. This is even more pronounced in indigent defense. I don’t know of its like this everywhere but here tend to treat socio-economic problems with the criminal justice system. It doesn’t work.Report

        • Burt Likko in reply to PD Shaw says:

          I’m 100% with Justice Sotomayor here. Remember that “attorney” is a synonym for “agent” much more than it is a synonym for “lawyer.” The attorney’s job is to:

          1) Comply with the law, including presenting only true evidence and arguments within the scope of the law (or good-faith arguments to extend the law) to a tribunal.

          2) Educate and inform her client’s decisions about navigating the legal system to the extent possible. This is sometimes called “giving advice.”

          3) Zealously represent her client before all tribunals, excepting only if the client gives an order to violate the law or good legal ethics.

          Because attorneys are agents of their clients, zealous representation is inconsistent with exceeding your authority, even if your advice is wise and your client is unreasonable in rejecting it.Report

        • Nevermoor in reply to PD Shaw says:

          I’m not convinced by your parade of horribles.

          If the defense is “I only did it because he was part of a Jewish cabal” or “I’m being framed by a Jewish cabal” you look for evidence, find none, and assert that you cannot ethically present that argument at trial. There is, as I understand McCoy, no ethical reason the lawyer could not assert innocence (the only possibly-relevant one would be the duty not to suborn perjury).

          I, like every lawyer, am better at litigation tactics than the vast majority of my clients. Sometimes, however, they make choices I think are bad. Sometimes, I’m even proven wrong in the final telling. Often, the consequences I predict then happen, but they’re the client’s consequences. As long as I have informed my client, acted ethically, and followed their instructions, I’m doing my job.

          The issue here is this: what if McCoy really is innocent, as he says.Report

          • PD Shaw in reply to Nevermoor says:

            A reasonable conclusion here is that the attorney was asked to lie. His client had admitted to the killing and the client’s friends and brothers placed him in the vicinity of the killing on the night of the accident, buying bullets. The client couldn’t produce a witness. The “story” the client wants to tell was of a vast police conspiracy arrayed against him that encircled family and friends and his beloved former in-laws.

            I’m strongly objecting to the notion that the lawyer, who couldn’t get removed from the case, has an obligation to tell the client’s story. It would make more sense to simply say that the defense attorney must waive argument.Report

            • Nevermoor in reply to PD Shaw says:


              You can’t “waive argument” in a trial, so that is not an out.

              Also, when we say suborn perjury, we mean the lawyer has to KNOW his client is lying (i.e. he was there as a witness, the client has admitted to the contrary fact and not explained why he is changing position, etc.) We do not mean the lawyer has somehow concluded his client’s story is implausible. If that were what is happening, I’m quite confident the lawyer would be saying so.Report

      • InMD in reply to Saul Degraw says:

        Maryland’s office of the public defender is treated as an executive agency. I’ve found them to be pretty good when it counts but also overburdened in the big counties and Baltimore. They outsource cases at volume rates. I did several of them for the small firm I worked at. The incentives in those situations can be pretty bad and the firms that end up taking a lot of the cases aren’t very reputable. The one I worked at was a total mess.Report

  10. Jerome Baker says:

    Admitting the guilt of a client without client consent is the unpardonable sin.Arguing for conviction of your client without client consent is treason.Report