a public defender

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“Falling on the sword”. This is a phrase you will hear often if you are a criminal defense lawyer. What it generally refers to is owning up to your mistakes during your representation of a client, at a later habeas corpus proceeding. In other words, take responsibility for any errors you made during trial - big or small.

Unfortunately, the only ones you ever hear use this phrase are the good ones; the ones that hardly make mistakes and if they do, they’re minor and don’t really affect the outcome of a trial. The hacks - the ones that routinely plead clients out without investigating, or give bad advice or are just plain clueless never use this phrase. Perhaps their guilty conscience pricks them.

Skelly seems to be one of the good guys. He writes here at length about the inner turmoil he experienced when called to testify at a former client’s federal habeas.

He wanted to help; he really did. The problem was he didn’t do what the client said he did and like any ethical lawyer, he couldn’t lie.

My former client’s federal petition claimed that back in 2002, prior to his guilty plea, I told him that he did have a particular plea bargain, and that I lied when I told the trial judge that he did not. I testified that I did not tell him that he had a plea bargain. I testified that once he and I rejected the state’s first offer, there was no other plea bargain. Offer, counter-offer, and second counter-offer, sure, but no acceptance from the state, no meeting of the minds, no deal. I testified today just I said in open court that day in 2002, at the moment when my old client’s words turned from “not guilty” to “guilty,” there was no plea bargain. His current counsel referred to that statement as my “perception.” I replied that the state appellate courts also had reached the same perception. And I had tried so to stay pleasant! When the insinuation was that I lied either to my client, to the state trial judge, or to both, well, maybe I bristled just a bit more than I intended to.

Scott points out an obvious mistake here - calling him a “liar”. That certainly is not the way to get a former attorney to help.  Scott also asks: why don’t habeas attorneys try to contact the trial attorney in advance? Talk to them?

It’s a darn good question. In all the habeas cases I’ve handled, I’ve made it a point to try and contact the trial attorney before filing the Amended Petition for Writ of Habeas Corpus, so as to weed out any frivolous claims (or claims that there is just no support for). Unfortunately, not all attorneys do that and on the flip side, not all trial counsel are willing to co-operate. There are some that just won’t return phone calls. Why they don’t get that if they do return the phone calls, there’s a good chance the habeas will go away, I don’t understand.

Anyway, habeas is an extremely uphill battle and in only the right circumstances - in the rarest of rare cases - does a petition get granted. It isn’t the State that the defendant is battling, it is the standard. Strickland sets the standard so high, that in most ineffective cases, it is almost impossible to meet, unless the error is so blatant and glaring that even a judge cannot ignore.

But in those cases, don’t count on help from counsel. They don’t know what “falling on the sword” means.