The criminal defense lawyer: three jobs in one

The defense lawyer often has to do three jobs at once: the prosecutor’s job, the judge’s job, and his own job.  That is, when the prosecutor does something illegal at trial—whether intentionally or “accidentally”—the defense lawyer had better jump on it, bring it to the judge’s attention immediately and in exactly the preferred manner, and then ask for the proper remedy at precisely the right time.  If the overwhelmed defense lawyer missteps in any respect, and if the defendant loses at trial and appeals, the appellate court will blame the defense lawyer for not freezing time and correcting the prosecutor’s cheating (or ineptitude) at the time of trial.  But the law doesn’t just require that the defense lawyer keep one eye on the prosecutor while also doing his own job; the law requires that the defense lawyer do the judge’s job as well.

In Harris v. Thomspon (summary available here), the defense lawyer found out the hard way that the trial judge is not expected to know anything about the law, or to do anything right, during the course of a criminal case.  In this case, the defense lawyer wanted to call a six-year-old witness at trial.  (In my own experience, prosecutors often have kids as young as three testify at trial.)  The kid was on the prosecutor’s witness list as well, but when the prosecutor learned that the kid would testify adversely to the government, he did what prosecutors often do: abandon the so-called “search for the truth,” and try to suppress evidence of innocence so that nothing contradicts the government’s theory of guilt.  The prosecutor moved to exclude the witness for being too young—or more accurately, “incompetent”—to testify. 

Unfortunately, the trial judge erroneously ruled for the prosecutor and refused to let the defendant put on her defense and call her witness.  The defendant was convicted.  After several years and several appeals, however, a federal court finally reversed the conviction and ordered a new trial.  That’s the good news—the kind news that defendants rarely get to hear, as nearly all convictions are later rubber-stamped by the appellate courts.  But, despite the good news, the reasons for appellate court’s reversal are alarming: the court blamed the defense lawyer for everything. 

First, the appellate court stated: “In this case, the trial court explicitly placed the burden of proof on [the defendant] to establish that [the kid] was competent to testify. Even the trial judge himself agreed later that this was an error.”  So how is this the defense lawyer’s fault?  It’s simple: he wasn’t doing the trial judge’s job for him.  Instead of requiring that the trial judge know something about the law or how to run a courtroom, the appellate court stated: “defense counsel was deficient in not correcting the trial court when it misallocated the burden of proof during the competency hearing.”  (Strike one, defense lawyer.)

Second, the appellate court stated that the defense lawyer failed to call as a witness a government “child advocate” investigator.  This person previously interviewed the kid and would have testified that the kid’s version of events remained consistent over time.  Sounds like the defense lawyer screwed up, right?  Well, in reality, the defense lawyer actually subpoenaed the government “child advocate” investigator, but he failed to show up for court.  And the trial judge, instead of being furious that a witness apparently disregarded his subpoena, made clear that he wouldn’t have heard from the witness anyway: “All right, [the kid] may have been interviewed by next-door neighbors or relatives or you. What I’m wondering is, what relevance is it to my determination at this point in time as to  the  witness’s competency that other people have talked to him at other points in time?”  Despite the trial judge’s obvious disinterest in hearing from the witness, this too was the defense lawyer’s fault.  How?  He didn’t persuade the judge—a judge who already demonstrated his ignorance of the law, and who also made clear that, in his opinion, the witness was irrelevant—of the witness’s importance.  (Strike two, defense lawyer.)

Third and finally, the appellate court said that the defense lawyer didn’t properly prep the kid for his testimony at the so-called competency hearing.  Of course, any prep seems unnecessary as the issue was whether the kid can competently testify, e.g., is able tell the difference between the truth and a lie, promises to tell the truth, etc.  (Either he can, or he can’t—and the testimony clearly showed that he can.)  Additionally, prep could be worse than unnecessary; it could be harmful.  A prosecutor who is hell-bent on preventing the kid from testifying at trial could have discovered the defense lawyer’s “prep” when cross-examining the kid at the competency hearing.  Then, the prosecutor could have easily convinced the already predisposed trial judge that the defense lawyer’s “prep” was instead improper “influence.”  In fact, the appellate court stated:

We recognize that, in preparing for the testimony of child witnesses, attorneys should be especially careful to avoid suggesting answers or otherwise coaching the witness.  This does not mean, however, that lawyers must give up pretrial interviews altogether to avoid being accused of coaching child witnesses. A variety of procedural safeguards are available to ensure the integrity of children’s testimony, such as having a child-witness examiner conduct or observe the interview[.]

Ah, yes, the defense lawyer should have relied on a child-witness examiner.  Oh, wait.  He did that, and even subpoenaed him to court.  But, he didn’t show up, and the trial judge didn’t care and said that he wouldn’t have heard from him anyway.  (Nonetheless, strike three, defense lawyer.)

So in summary, while I hate griping about a case where the defendant actually got a new trial—even though she first had to serve a huge portion of a long prison sentence before finally being allowed to put on a defense—these appellate courts need to start holding trial judges to at least a minimal level of competence.  We defense lawyers are already doing our own jobs, while at the same time trying to keep close watch of the prosecutor.  We simply can’t do the trial judge’s job on top of it all.