[This is my latest at the CT Law Tribune]
A few weeks ago, I attended an oral argument before a panel of the Appellate Court, which was hearing a direct appeal from a conviction after trial. There were interesting issues before the panel and the defendant had been represented by a colleague, so I made it a point to attend and show support.
While the interesting issues were, indeed, discussed, an all too familiar refrain resonated throughout the argument: a discussion by the judges about the clarity of the facts in the record and what could – and could not – have been before the jury. There were assumptions made about the facts as presented to the jury and they were, of course, viewed in the light most favorable to sustaining the conviction.
As I left the courtroom, I was struck by several things: first, the absolute necessity of watching oral arguments; second, the unfairness of appointing judges who have no criminal law experience to the appellate court who then rule on issues stemming from criminal trials; and, most importantly, how the practice of law for the criminal defense attorney must be a comprehensive endeavor that encompasses not only pre-trial and trial ability, but also a recognition of the long-view.
I’ve written before about the willingness of appellate courts to avoid deciding issues of fact and law and turning their backs on Constitutional violations by requiring impossibly high standards of performance by defense attorneys. The precision required of defense attorneys in raising and preserving claims for them to be even considered on appeal leaves the precision required before finding someone guilty beyond a reasonable doubt obscured in its dust.
But today I turn to the faults of my fellow defense attorneys and a prevalent attitude that there are two types of defense lawyers: trial lawyers and appellate lawyers.
To those that may be a bit surprised at this fairly simple statement of fact, let me elaborate that the implication of the dichotomy is that trial lawyers are only trial lawyers and appellate lawyers are only appellate lawyers. In other words, trial lawyers see their job as trying – and hopefully winning – trials without regard to what happens on appeal. If you’re relying on an appellate reversal, goes the philosophy, you’ve already lost.
While there is a certain superficial appeal to this thinking, it is fundamentally flawed and dangerous. How, exactly, is one to “practice law” if one does not know or understand the law. Knowing and understanding the law is – or must be – a broader concept than knowing the elements of, say, murder. Practicing law must mean knowing what the law is and what the law isn’t. It must mean knowing how the law has changed, or where it is bending and whether those are issues to raise in the representation of the current client. Practicing law must also mean knowing that is required of oneself as a criminal defense attorney in order to protect a client’s rights.
The “I’m a trial attorney” attitude shows a complete disregard for a client’s Constitutional rights. A client is owed due process: which means not only that the State has to prove its allegations beyond a reasonable doubt, but also that the manner in which it does so cannot offend the Constitution.
This may take many forms: the obvious like a lack of probable cause for a search, or a clearly inflammatory argument by the prosecutor during closing, to the more nuanced: a failure to file a defense request to charge the jury or to object to specific instructions, or to ensure that the reasons for objecting to certain testimony are clearly and succinctly stated on the record.
When the lawyer doesn’t explicitly state an objection on the record or make a clear and precise request, appellate courts are left to interpret the resultant vagueness in any way they choose and that usually doesn’t benefit the individual defendant. Further, a lawyer who doesn’t follow the strict rules set up by appellate courts to preserve claims of error simply provides those courts an easy way to dodge tackling difficult issues in unsympathetic cases.
The causes for these failures by defense attorneys are the subject of some debate. To be certain, it is unrealistic to expect attorneys to remember to do everything perfectly in the frenetic heat of the battle. A trial is a rush of days, with little sleep and tremendous stress. Even the most prepared often miss things and even the most prolific often overlook the obvious.
Unfortunately those who populate our courts of review don’t have that same experience and thus cannot relate to the pressures of being in a contested trial that lasts weeks. The luxury of hindsight, years on, combined with the obliviousness of the demands of that job allow courts to lament the missed punctuations in the preservation of issues and to hedge facts because it may be somewhat ambiguous upon a reading of the transcript what was abundantly clear to everyone present in the courtroom.
But that is a ship that the defense attorney cannot steer. No matter how many times I wish to invite appellate judges to second chair my trials to see what it’s really like in a courtroom, I know that they will not come.
So it falls upon us, the trial lawyers, to ensure that we do everything we can to make the record as clear as it can be. As lawyers who prepare for trial, we become intimately familiar with the facts of the case, the testimony of witnesses, their prior statements, our theories and strategies. As trials progress, the presiding judge and prosecutor also share that familiarity and a sort of shorthand descends upon it all.
I’ve read appellate decisions which held that I had not properly preserved an issue, been shocked because that conclusion conflicted directly with my recollection of the event and been miffed when I had to grudgingly admit that the appellate court’s reading of the statement in question was a plausible one.
We must put aside our ego and our hubris and realize that the system is engineered to defeat our clients. Most trial lawyers recognize the obstacles in the pre-trial and trial arena, but become surprisingly unconcerned by the existence of the very same obstacles in post-conviction review. This makes no sense.
Back in the old days, trial lawyers would handle their own appeals. Perhaps it is time for a return to that era, at least once, so trial lawyers can realize that everything that they do – and don’t do – impacts the ability of their clients to get vindication.
Otherwise, they might as well sleep through the trial.