July 26, 2004

Post conviction, no relief

The office got a copy of the judge's opinion denying relief to the one murder client who's ever been through a murder trial with me (Udell was co-counsel). After trial, after sentencing, and after appeal, our clients get another sliver of a chance through the filing of a petition for post-conviction relief, in which they can raise a number of issues that may not be considered on appeal, such as ineffective assistance of counsel. In this instance, counsel meaning Udell and me.

The murder trial was almost four years ago. Since then, a new attorney helped the client with the PCR, a lawyer duty-bound to raise every questionable call I made, and the same prosecutor who put my client away defended my handling of the case. It's considered due process. In general, I think that most P.D.'s come down on the "do no harm" approach to responding to a PCR. You'd like your client to get another trial, or a lighter sentence, or some kind of a break. Some trial attorneys posture like they're infallible, but most are willing to concede (under penalty of perjury!) where they came up short or made a mistake.

So I'm not all happy and pleased about being exonerated, or having my trial work labeled "reasonable." Where I let my client down was before the trial. Shortly before trial, we were offered manslaughter, fifteen years max. Many of our cases come down to a moment of clarity like that. I share the blame for us leaving the offer on the table and her to her own choices. So it unfolded: the forensic pathologist who didn't stick to the report, the children who didn't recant, the client who couldn't testify, the defense that couldn't be made (if anyone knows how to run a battered woman's defense at trial where the client neither takes the stand nor acknowledges the act, I would truly like to learn). And she's serving life.

We talk a lot about respecting our clients' autonomy, and their ultimate choices, but things get muddled when the client is risking life in the pen. This was a plea bargain that deserved to be backed up with some paternalism, or some bullying. She needed to take it. We went around and around with her, but in the end we honored her choice to go to trial, and she'll never be free to make any choices again. I've been more forceful and much heavier with the two murder clients I've had since, but I still can't take to heart the notion that trading the DP for life without parole for a woman with no priors, or bargaining for 50 years for a 23-year-old man, or getting an attaboy from the system for the way I handled the trial that bought my client life in prison almost four years ago, is any kind of honor or victory.

2006 Update: Ultimately the Idaho Court of Appeals ruled that I was ineffective in failing to request a continuance during the trial to hire my own forensic pathologist, once the state's expert changed his testimony. See Murphy v. State, 2006 Idaho 31154, __ P.3d __ (App. 2006).

An Idaho small-world note: the opinion was written by Judge Gutierrez, who knows me from my first job at Legal Aid - I worked with him, and house-sat for him for part of the summer I studied for the bar. Honestly, the IAC finding stung, but I appreciated his praise for the 'candor' with which I fell on my sword.


Ken Lammers said...

You know, I get really nasty form letters from clients telling me that they are going to habeus me and demanding I send them all the paperwork in the file, whether or not I had previously sent them copies while the trial was ongoing (I think the prisons must have them sitting around the law library). I send the papers but I have yet to get that call from the AG's office telling me one's been filed. I think my clients get bored and just want their paperwork to look over.

Charles Thomas said...

Ineffective assistance claims are part of the job, and my attitude is that if I screwed something up, the client should not bear the brunt of that error.

Still, hindsight is 20/20. We can look back and say that we should have pushed for that deal harder, and it is extra hard knowing that no matter what the outcome for the client, we get to sleep in a comfy bed at night. Nevertheless, it's the client's call- even when you look them in the eye and say "I don't know if you win this," they still get to make that decision.

"Winning" a PCR is always kinda bittersweet.